SPRING 2006 IN THIS ISSUE

Focus On: Constitutional Law Farewell: Dean Alex M. Johnson, Jr. Hollywood’s Brush With Fame: North Country

The Magazine for the University of Minnesota Law School DEAN EMERITUS Alex M. Johnson, Jr.

INTERIM DEANS Guy-Uriel E. Charles Fred L. Morrison

EDITOR Scotty G. Mann

ASSISTANT EDITORS Jennifer Derryberry Mann Elizabeth Washburn

CONTRIBUTING WRITERS Lotem Almog Dana Bartocci Dale Carpenter Jim Chen Brad Clary Anita Cole Amber Fox Alex Gese Ann Hagen Allison Haley Michael Hannon Jennifer Hanson Katherine Hedin Brita Johnson Sara Jones Erin Keyes Heidi Kitrosser Ben Kremenak Matthew Kreuger Kelly Laudon Martha Martin Todd Melby Dave Nardolillo Anna Pia Nicolas sue rich Scott Russell Michael Stokes Paulsen Mary Thacker Karla Vehrs Carl Warren Leslie Watson

PHOTOGRAPHERS William Cameron Jessica Johnson Dan Marshall The University of Minnesota is committed to the policy that all persons Tim Rummelhoff shall have equal access to its programs, facilities, and employment Stephen Simon without regard to race, color, creed, religion, national origin, sex, age, marital status, disability, public assistance status, veteran status, or sexual orientation. DESIGNER Jennifer Kaplan, Red Lime, LLC

This is a general interest magazine published throughout the academic year for the University of Minnesota Law School community of alumni, friends, and supporters. Letters to the editor or any other communication regarding content should be sent to Editor, University of Minnesota Law School, 229 19th Avenue South, Room N221, Minneapolis, MN 55455. ©2006 by University of Minnesota Law School. Dean’s Perspective uring the past four years, the Law School’s stature has grown, primarily due to strong faculty hiring and even greater selectivity in student recruitment.As you know, one of the most telling measures of a law school’s stature is the quality of its faculty. I believe that it is the achievementsD of our faculty that help influence top students to entrust their edu- cational futures to the University of Minnesota Law School. In the last four years, we have made the most significant number of promising lateral hires that the Law School has seen in decades, bringing several nationally known and rising stars to the faculty.We have made strategic hires in the areas of criminal law, envi- ronmental law, intellectual property, and international law, positioning the faculty among the very best in the country in those areas.We are ending a very success- ful year—indeed, an extraordinary year—for appointments, in which seven offers were accepted.We are also especially proud to have Dean Emeritus Bob Stein, ’61, returning to the faculty after more than a decade of distinguished service as executive director of the American Bar Association. Our faculty is now relatively one of the largest in the nation, with a 13/1 student/faculty ratio. In addition, the Law School has become increasingly selective in its admissions process.The median GPA of last year’s entering class was 3.54, and the median LSAT score was 164 (approximately 91st percentile); making this the statistically strongest entering class ever. Indeed, bucking the national trend, the Law School last year saw its largest number of applications in the school’s history, and this year’s application pool has broken the record yet again. I am also proud to note that our student body is becoming ethnically and geographically more diverse.

DEAN ALEX M. JOHNSON, JR. Further, as we reach the close of our fiscal year I am pleased to report that the gifts to the Law School this year will set a new record for a year in which we are not in a capital campaign.As a result, I am also happy to share the news that the Law School maintains its outstanding position in the top 20 in national rankings. Our accomplishments have been extraordinary, and everyone in our Law School community can take pride in knowing they played a part in these significant achievements. I hope you will enjoy this issue of Perspectives.Among the Law School’s many growing strengths is its constitutional law faculty, and we are pleased to highlight their work in this issue; you will notice that our constitutional law scholars are not uniform in their opinions regarding some of the most pressing constitutional issues. We also have a great deal of good news to share about the many successes of our faculty, students, and alumni, from the serious (the Law Review Symposium on the future of the Supreme Court) to the not-so-serious (another rollicking, sold- out TORT show). As you are aware, this is my last message to you as dean, as I have transitioned to emeritus status. I have thoroughly enjoyed serving as dean of this great Law School and I leave knowing that it is in excellent shape and that its future is boundless!

Dean and William S. Pattee Professor of Law CONTENTS SPRING 2006

FOCUS ON: COVER 26 Constitutional Law

Features

Building a More Perfect 27 Law School BY SCOTT RUSSELL

Revisiting Executive Privilege 31 BY HEIDI KITROSSER

A DISCOURSE: 35 Presidential Powers in Time of War Departments

FACULTY PERSPECTIVE 2 Faculty R&D Faculty Scholarship FIRST PERSON Work Continues on Darrow Papers BY MICHAEL HANNON FACULTY PROFILE Brett McDonnell

AT THE LAW SCHOOL 42 Legalizing Human Rights 90 Years of Law Review Lindquist & Vennum Symposium It’s Only Words Race for Justice Helping Legal Scholarship Keep Pace with Scientific Advances Moot Court Report Tribal Court Management Program FAREWELL: Dean Alex M. Johnson, Jr.

STUDENT PERSPECTIVE 62 TORT Show Sings and Dances to Sell-out STUDENT SCHOLARSHIP As the Waters Recede: Legal Lessons from Hurricane Katrina SCHOLARSHIP SPOTLIGHT The Briggs and Morgan Scholarship Student Profiles STUDENT ORGANIZATION SPOTLIGHT The Woman’s Law Student Association

ALUMNI PERSPECTIVE 72 Hollywood’s Brush the Law New Spring Alumni Weekend Distinguished Alumni Profiles Class Notes In Memoriam FACULTY PERSPECTIVE In keeping with the University of Minnesota’s overarching goal to strengthen its already impressive reputation as one of the nation’s premier public research institutions, the Law School faculty brings its considerable talent, insight, and work ethic to legal education and scholarship. In this section, catch up on faculty research and development projects, newly published works, and works in progress. Discover how the Law Library is creating a state-of-the-art digital archive of the papers of esteemed American attorney Clarence Darrow. Get to know Associate Professor Brett McDonnell, whose latest work supports greater employee involvement in corporate decision making, and get up to speed on the many lectures and events made possible throughout the year by the Law School’s highly productive and influential faculty.

2 Perspectives SPRING 2006 DAN L. BURK In October 2005 Professor Burk attended Faculty R&D the Sixth Annual Conference of the Asso- ciation of Internet Researchers (AoIR) The following is a partial list of the many accomplishments where he delivered two papers,“Legal Standards in Digital Rights Management and activities of the Law School’s faculty. Technology,” and “An Information Own- Oct. 1, 2005 through March 1, 2006 ership Approach to Spyware.” Professor Burk also attended the October confer- ence of the Society for Social Studies of Science (4S) in Pasadena, Calif., where he spoke on “Beyond Copyleft: Patenting Open Source Bioinformatics.” In Novem- ber Professor Burk was honored as the Katz-Kiley Fellow at the University of Houston Law Center, where he delivered Beverly Balos the 12th Annual Katz-Kiley Lecture on Stephen F. Befort “The Problem of Process in Biotechnol- Brian Bix ogy.” Later in the month he traveled to BEVERLY BALOS zine, and “Public Sector Update Genoa, Italy, where he delivered a series of Professor Balos participated in training 2004–05” in Public Sector Labor & Employ- three endowed Fresco Foundation lectures legal advocates for victims of domestic ment Law (Minnesota CLE). He also com- on the economics of patent law at the violence at the Annual Meeting of the pleted work on a law review article that University of Genoa Faculty of Law. In Minnesota Coalition for Battered Women will appear shortly in the Ohio State Law December, he traveled to Harvard Law School, where he participated in the Berk- in November 2005. She was part of the Journal,“When Quitting is Fitting:The man Center workshop on Patent Law and audit team working with professionals Need for a Reformulated Sexual Harass- Innovation in the Life Sciences. In Febru- from the State of Nevada in creating ment/Constructive Discharge Standard in ary 2006 Professor Burk met with other domestic violence prosecution best prac- the Wake of Pennsylvania State Police v. experts convened by the U.C. Berkeley tices guidelines.At the end of March Suders” (with Sarah A. Gorajski).A fre- Center for Technology and Law at a work- 2006, she presented a paper at the 23rd quent labor arbitrator, Professor Befort shop on the intellectual property implica- Annual Edward V.Sparer Symposium currently serves as coeditor of the 2005 tions of the Google “Book Print” database Annual Proceedings of the National Academy sponsored by the Greater Philadelphia project. In March he visited New Haven, of Arbitrators, which will be published in Law School Consortium and the Conn., where he spoke to the Yale Law book form by the Bureau of National Philadelphia Bar Association.The School Information Society Project on Affairs. symposium topic was Civil Gideon: “The Goldilocks Hypothesis: Balancing Making the Case; her article,“Lawyers Intellectual Property Rights at the Bound- Matter:Vindicating the Right to be Free BRIAN BIX ary of the Firm,” a paper coauthored by from Domestic Violence,” will be pub- Professor Bix’s forthcoming publications Law School Professor Brett McDonnell. lished in the Temple Political and Civil include two books: the fourth edition of Professor Burk also presented this paper to Rights Law Review. Jurisprudence:Theory and Context (Sweet & a faculty workshop at the University of Maxwell & Carolina Academic Press); and Utah, where he additionally delivered the STEPHEN F. BEFORT the second edition of Jurisprudence: Cases S.J. Quinney Lecture on “Method and Professor Befort has been active on a and Materials (LexisNexis), the latter writ- Madness in Copyright Law.” Besides his number of projects relating to labor and ten with Stephen Gottlieb,Timothy Lyt- collaboration with Professor McDonnell, employment law. During the current ton, and Robin West. Other recent or Professor Burk has worked together with school year, he has published the follow- forthcoming publications include “Philos- Professors Gove Allen of the Freeman ing articles and book chapters:“A Reprise ophy, Morality, and Parental Priority,” School of Business at Tulane University of a Classic: Gorman & Finkin’s Basic Text Family Law Quarterly;“Raz,Authority, and and Charles Ess of Drury University to on Labor Law: Unionization and Collec- Conceptual Analysis,” American Journal of write “Legal and Ethical Research Issues in tive Bargaining,” in the University of Jurisprudence;“Reductionism and Explana- Automated Internet Data Collection,” Pennsylvania Journal of Labor and Employ- tion in Legal Theory,” Properties of Law which is forthcoming in Ethics and Infor- ment Law, and “The Story of Sutton v. (Oxford University Press);“The ALI Prin- mation Technology. In addition, his Katz- United Air Lines, Inc.: Narrowing the ciples and Agreements: Seeking a Balance Kiley lecture on “The Problem of Process Reach of the Americans with Disabilities Between Status and Contract,” Reconceiv- in Biotechnology” is forthcoming in the Act,” published by Foundation Press in ing the Family (Cambridge University University of Houston Law Review. Employment Discrimination Stories. He also Press);“Everything I Know About Mar- authored a 2005 Supplement to his book riage I Learned from Law Professors,” San DALE CARPENTER Employment Law and Practice published by Diego Law Review; and “Legal Positivism Professor Carpenter is researching and West Group. In addition, Professor Befort and ‘Explaining’ Normativity and Auton- writing a book on the background facts has published the following professional omy,” American Philosophical Association and litigation in Lawrence v.Texas, the 2003 education articles:“The Labor and Newsletter. He was an invited speaker on Supreme Court decision that struck down Employment Law Decisions of the jurisprudential topics at conferences held he remaining state sodomy laws under the Supreme Court’s 2003–04 Term,” in the at Cornell University, Notre Dame Uni- 14th Amendment’s Due Process Clause. American Bar Association’s GP Solo maga- versity, and the University of Bristol, UK. The book is tentatively titled Sex, Lies, and

Perspectives SPRING 2006 3 Faculty R&D

Dan L. Burk Dale Carpenter Bradley G. Clary

the Law:The Story of Lawrence v.Texas and “Regulatory Perspectives and Initiatives,” is due to be published by W.W.Norton in Consumer Financial Services Litigation Insti- 2007.Also coming out soon from Profes- tute, Practising Law Institute, volume 2 THE CENTENNIAL PROFESSOR OF LAW sor Carpenter is an article,“Bad Argu- (April 2006), which was selected for an REAPPOINTMENT LECTURE ments Against Gay Marriage,” in the “All-Star Briefing Award.”Two of Profes- Florida Coastal Law Review; an update of sor Cox’s students were interviewed about On Nov. 8, 2005, Barry C. Feld commemorated Professor Carpenter’s white paper for the their case, Jackson v.Wells Fargo, for an his reappointment as the Centennial Professor Cato Institute on the Federal Marriage article in The Wall Street Journal. Professor of Law, delivering his lecture, “Police Interroga- Amendment; and book chapters on the Cox was quoted in Money magazine tion of Juveniles: An Empirical Study of Policy Lawrence decision. (which earned him a follow-up and Practice,”in the Law School’s Lockhart Hall. KARE-TV story on mortgage fees), the Professor Feld, one of the nation’s leading schol- BRADLEY G. CLARY Omaha World-Herald and St. Petersburg ars of juvenile justice, teaches criminal proce- Professor Clary, Sharon Reich Paulsen, Times (discussing the issue of foreclosure dure, juvenile law, torts, and education and law. and Michael Vanselow have published the equity stripping), and in a Minneapolis Star Tribune article on the Ameriquest settle- He was named the first Centennial Professor of second edition of their Successful First Depositions text (Thomson/West). ment (based on his work while at the Law in 1990 and has held that position since; in Professor Clary continues to serve on the Minnesota Attorney General’s Office). 1981–82 he was the Julius E. Davis Professor of Communication Skills Committee of the Professor Cox has given or will give Law. He received his B.A. from the University of American Bar Association Section of presentations at the following national or Pennsylvania and graduated, magna cum laude, Legal Education, and is a principal regional conferences: National Consumer from the Law School, where he was note and contributor to the second edition of the Law Center (Boston), the Financial comment editor of the Minnesota Law Review ABA Sourcebook on Legal Writing Services Marketing Conference of the and a member of the Order of the Coif. He Programs, which the ABA Press expects to American Conference Institute release this spring. He and coauthor (Washington, D.C.), for California Bay received his Ph.D. in sociology from Harvard Pamela Lysaght just published the second Area Legal Services (San Francisco) and at University, where he was a Russell Sage Foun- edition of their Successful Legal Analysis the Practicing Law Institute (Chicago). dation Fellow in Law and the Social Sciences. In and Writing:The Fundamentals text, for He has also given the several local CLE 1972 he joined the Law School faculty. In 1974 Thomson/West. He just finished a term training presentations for Minnesota and 1978, he served as assistant Hennepin on the governing council of the Min- CLE/MSBA, the Minnesota Legal County attorney in the Criminal and Juvenile nesota State Bar Association Appellate Services Coalition, and the volunteer Divisions. In 1987, Professor Feld was a visiting Practice Section. Lawyer’s Network on topics including scholar at the National Center for Juvenile Jus- predatory lending, foreclosure equity stripping, credit reporting, and civil law tice sponsored by the U. S. Department of Jus- LAURA J. COOPER enforcement actions. tice Office of Juvenile Justice and Delinquency In January, Professor Cooper presented a Prevention. He was a reporter for the American paper on labor arbitration at the Center for Labor and Employment Law at New Bar Association-Institute of Judicial Administra- ALLAN ERBSEN York University. Her tribute to the career Professor Erbsen’s article “From ‘Predomi- tion Juvenile Justice Standards Project, and was of University of Pennsylvania labor law nance’ to ‘Resolvability’:A New Approach a member of the Minnesota Department of Cor- professor Clyde Summers is being pub- to Regulating Class Actions” was recently rections Special Committee on Serious Juvenile lished in the Employment Rights & Employ- published in the Vanderbilt Law Review. Offenders. He also served on the Hennepin ment Policy Journal. In the latter part of the His manuscript “The Substance and County Juvenile Justice Task Force, the Min- spring semester, Professor Cooper is Illusion of Lex Sportiva” was published as nesota Supreme Court Advisory Committee on teaching a course,“Introduction to Ameri- a chapter in The Court of Arbitration for can Law,” at the Uppsala University Fac- Sport—1988–2004, edited by Rob Siek- Legal Representation of Juveniles, the Min- ulty of Law in Sweden. nesota Juvenile Justice Task Force, and as core- mann et al. (2005). In January, Professor Erbsen spoke on a panel discussing Class porter for the Minnesota Supreme Court’s Juve- PRENTISS COX action settlements at an American Bar nile Court Rules Advisory Committee. Professor Prentiss Cox completed the articles “Fore- Association conference in Utah. His Feld is a member of the American Law Institute closure Equity Stripping: Legal Theories current research focuses on interstate and was recently named a Fellow of the Ameri- and Strategies to Attack a Growing Prob- federalism, in particular on how the can Society of Criminology. lem,” published in the Clearinghouse Constitution constrains the power of Review Journal of Poverty Law and Policy, legislatures and courts in one state to (continued on next page) volume 37 (March-April 2006), and regulate actors or activities in other states.

4 Perspectives SPRING 20006 Laura J. Cooper Prentiss Cox Allan Erbsen

BARRY C. FELD Court Experience” in Juvenile Law Viola- In November 2005, the American Society tors, Human Rights, and the Development of of Criminology named Professor Feld a New Juvenile Justice Systems (Hart Publish- Professor Barry Feld is joined by his wife, Patricia fellow, one of the highest forms of profes- ing, 2006); and with Margaret A. Zahn, Feld, his aunt Clare Schwartz, his mother, Flora Feld, sional recognition that the organization Darrell Steffensmeier, Merry Morash, and his daughter, Julia Feld, at his Centennial can confer, at the annual meeting in Meda Chesney-Lind, Jody Miller,Allison Professor of Law Reappointment Lecture. Toronto.Two of Feld’s current research Ann Payne, Denise C. Gottfredson and projects involve girls in the juvenile justice Candace Kruttschnit,“Violence and system and police interrogation of juve- Teenage Girls”(Washington D.C., Office niles. He has given a number of presenta- of Juvenile Justice and Delinquency Pre- The Centennial Professorship in Law was tions this past year on those topics, includ- vention, 2006). He has also completed a established through the generosity of many ing:“Juveniles’ Competence to Exercise book chapter,“Girls in the Juvenile Justice Law School alumni during the 1986–1989 Miranda Rights:An Empirical Study of System,” and an article,“Juveniles’ Com- Endowment for Excellence Campaign. The fol- Policy and Practice,” School of Criminal petence to Exercise Miranda Rights:An lowing Law School graduates contributed Justice,April 3, 2006, Northeastern Uni- Empirical Study of Policy and Practice,” principal support for this important professor- which will be published in volume 91 of versity, Boston;“Girls in the Juvenile Jus- ship: Kenneth M. Anderson, Roger S. Barrett, tice System,” National Conference of the Minnesota Law Review. His current Coordinating Council on Juvenile Justice research projects include girls in the juve- Lee Bearmon, J. Steven Bergerson, E. and Delinquency Prevention, Jan. 11, nile justice system, police interrogation of Lawrence Brevik, Howard E. Buhse, Louise B. 2006,Washington, D.C.; and “Police Inter- juveniles, and a pre- and postlegal impact Christianson, A.W. Clausen, William E. Drake, rogation of Juveniles:An Empirical Study study to empirically assess the effects of Lucy W. Elmensdorf, Reginald B. Forster, of Policy and Practice,”American Society 1995 changes in the Minnesota juvenile Emanuel Gyler, Terrance and Ruth Hanold, of Criminology, Nov. 15, 2005,Toronto. code. Louis W. Hill, Jr., Paul O. Johnson, Robert M. Feld was recently reappointed as the Law Kommerstad, Daniel T. Lindsay, Walter F. Mon- School’s Centennial Professor of law and MARY LOUISE FELLOWS dale, John S. Pillsbury, Jr., Paula K. and S. Wal- gave his chair reappointment lecture, Professor Fellows graduated with her “Police Interrogation of Juveniles:An ter Richey, Irving J. Shapiro, Melvin C. Steen, Ph.D. in English in October 2005. She and R. Sheffield West. Empirical Study of Policy and Practice,” presented a chapter of her dissertation, on Nov. 8, 2005 at the Law School. Other “Æthelgifu’s Will and Christ’s ‘Will from recent presentations include:“Girls in the the Cross,’” at the Modern Language Juvenile Justice System,” Girls Study Association’s Annual Meeting in Decem- Group, June 13, 2005,Alexandria,Va., and ber, 2005. In January, she presented a keynote speaker,“In re Gault:A Critical paper,“Old and New Perspectives on Retrospective,” May 13, 2005, at the Min- Empirical Studies in Trusts and Estates,” at nesota Supreme Court’s centenary obser- the Association of American Law Schools’ vation of the creation of Minnesota’s juve- Annual Meeting. In celebration of her nile courts. Feld also maintains an active reappointment to the Everett Fraser Pro- writing agenda. In 2004,West Publishing fessor of Law Chair, she presented a lec- issued the Second Edition of his case- ture “From Beowulf to Æthelgifu: Lessons book, Cases and Materials on Juvenile Justice on Anglo-Saxon Will-Making.” In addi- Administration, and will publish the 2006 tion, she has a commentary,“Why the Supplement to Cases and Materials on Juve- Generation-Skipping Transfer Tax Sparked nile Justice Administration in spring, 2006. Perpetual Trusts,” forthcoming in the Car- He has published a number of book dozo Law Review. chapters and articles including:“Race and the Changing Jurisprudence of Juvenile Justice:A Tale in Two Parts, 1950–2000,” RICHARD S. FRASE in Our Children, Other People’s Children Professor Frase recently published three (University of Chicago Press, 2005); articles and an essay:“Punishment Pur- “Guest Editorial Introduction: Juvenile poses” was published in the Stanford Law Transfer,” Criminology & Public Policy Review;“Why Minnesota Will Weather (2004);“The Inherent Tension of Social Blakely’s Blast” (coauthored with Dale G. Welfare and Criminal Social Control: Pol- Parent), appeared in the Federal Sentencing icy Lessons From the American Juvenile Reporter; and “The Warren Court’s Missed

Perspectives SPRING 2006 5 Faculty R&D

Barry C. Feld Mary Louise Fellows Richard S. Frase

Opportunities in Substantive Criminal under a fellowship from the British Acad- THE HENRY J. FLETCHER Law” was published in The Ohio State emy.While at the TJI, Professor Gross PROFESSORSHIP IN LAW Journal of Criminal Law.The essay,“Propor- completed work on a book (coauthored tionality Principles in the American Sys- with Professor Fionnuala Ní Aoláin) enti- APPOINTMENT LECTURE tem of Criminal Justice,” appeared in the tled Law in Times of Crisis: Emergency Pow- On Nov. 29, 2005, Bradley C. Karkkainen pre- Fall 2005 issue of the Law School’s Per- ers in Theory and Practice (Cambridge Uni- sented his lecture, “Law’s Ecology,”on the occa- spectives magazine. In November 2005, versity Press, 2006).The book represents Professor Frase presented two papers at an the first systematic and comprehensive sion of his appointment to the Henry J. Fletcher international conference on the role of attempt by legal scholars to conceptualize Professorship in Law. Professor Karkkainen was criminal defense attorneys, held in the theory of emergency powers. It con- the 2004 Julius E. Davis Professor of Law and is Cologne, Germany. In December he siders post-September 11th developments a nationally recognized authority in the fields made a presentation to a MacArthur against more general theoretical, historical, of environmental and natural resources law. Foundation research workgroup on the and comparative backgrounds. Professor After visiting at the Law School in the fall of broader implications of the Supreme Gross also completed work on three other 2003, Professor Karkkainen joined the faculty Court’s 2005 decision in Roper v.Simmons publications that are scheduled to appear shortly:“Control Systems and the Migra- permanently in January 2004. Professor (forbidding capital punishment for crimes committed before age 18). tion of Anomalies” a book chapter in Karkkainen holds a B.A. in Philosophy (1974) Migration of Constitutional Ideas (Cam- from the University of Michigan and a J.D. bridge University Press, 2006);“What (1994) from Yale Law School, where he taught DANIEL J. GIFFORD Emergency Regime?” Constellations Professor Gifford has just completed an legal research and writing as a teaching assis- (2006); and “The Concept of ‘Crisis’: article,“Tensions in International Trade,” What Can We Learn from the Two Dicta- tant in 1993–94. He served as an editor of both which will soon be published in the Min- the Yale Law Journal and the Yale Journal of torships of L. Quinctius Cincinnatus?” a nesota Journal of International Trade. He and book chapter in Diritti Civili ed Economici International Law. He is a principal investigator Humphrey Institute Professor Robert in Tempi di Crisi (2006). In addition, he in the Project on Public Problem-Solving, an Kudrle are in the initial stages of a study contributed another book chapter,“Stabil- interdisciplinary collaborative research effort at of the role of price discrimination in the ity and Flexibility:A Dicey Business” to Columbia University, Harvard University, the antitrust laws of the United States and the Global Anti-Terrorism Law and Policy, University of California-Berkeley, and the Uni- European Union. Professor Gifford is also (Cambridge University Press, 2005) and writing a piece on the Supreme Court’s an article “Preventive Interrogational Tor- versity of Minnesota that is investigating inno- decision last summer in the Brand X liti- vative regulatory designs and mechanisms for ture” published in The Global War on Ter- gation. He is also completing a manu- rorism: Executive Branch Challenges in Form- public service delivery across a variety of policy script reviewing U.S. labor policy and ing Counterterrorism Policy (Institute for domains. In the summers of 2002 and 2004, proposing changes. In November, he was National Security and Counterterrorism Professor Karkkainen held an appointment as a faculty member at a Sedona Conference at Syracuse University 2006). In February guest investigator at the Woods Hole Oceano- session on Antitrust Law and Litigation. Professor Gross delivered his inaugural graphic Institution Marine Policy Center in He has also been participating in drafting lecture as the Irving Younger Professor of Woods Hole, Mass., a leading center for marine a report on the role of economics in Law.The lecture,“The Cusps of Law,” dis- antitrust law for that conference, a project science and policy studies. cussed the issue of humanitarian interven- that is nearing completion. During the tion. In addition Professor Gross has Henry J. Fletcher was a distinguished professor last several months, Professor Gifford has recently presented a talk on “Humanitar- at the Law School, where he taught from 1896 been developing a new Law School ian Intervention: Law and Morality in course on industrial policy which exam- until 1929 and founded the Minnesota Law Extremis” at the University of Miami ines, from a comparative perspective, the School of Law and the opening lecture, Review. The professorship was established by role of government in the economy in a “El Derecho de la Seguridad: entre la Miriam Fletcher Bennett, daughter of Professor variety of sectors ranging from labor pol- normalidad interior y la excepcionalidad Fletcher. Mrs. Bennett was a writer whose icy to trade policy to policies affecting exterior” at a conference held at the Uni- memoirs Lights and Shadows were published in technological advance. versidad de Santiago de Compostela, 1986. Spain. Professor Gross also presented two OREN GROSS papers to the TJI seminar. Professor Gross returned to Minneapolis in January after spending most of 2005 as RALPH F. HALL a visiting professor at the Transitional Jus- Professor Hall has been engaged in speak- tice Institute (TJI) at the University of ing and writing on a variety of subjects in Ulster, Northern Ireland, where he visited the Food and Drug Administration (FDA)

6 Perspectives SPRING 20006 Daniel J Gifford Oren Gross Ralph F. Hall area. He has been heavily involved in the She will return as a speaker at the 2006 current debate regarding medical device Sovereignty Symposium, sponsored by the recalls. In the fall he participated in a Supreme Court of Oklahoma, and present THE VANCE K. OPPERMAN RESEARCH major policy conference in Washington, a paper,“Expressing Our Values Through SCHOLARSHIP APPOINTMENT D.C., co-sponsored by the FDA on med- Our Actions.” Professor Howland will ical device recalls. He has also published serve as the chair of the American Bar This spring, Gregg Polsky was appointed the articles on this subject in the Minnesota Association sabbatical site evaluation team Vance K. Opperman Research Scholar. A Journal of Law, Science & Technology and in a visiting the Vermont Law School in spring reception was held in the Dean’s Conference publication of the Food and Drug Law 2006. She continues to serve as a member Room on March 9, 2006, to commemorate the Institute. He has provided assistance to the of the ABA Section on Legal Education appointment. Professor Polsky joined the Heart Rhythm Society on issues of and Admission to the Bar Accreditation faculty in 2001, and teaches and writes in the patient communication and risk. In addi- Committee. She also is a member of the areas of tax law and policy. Previously, he tion, he prepared an article for the Wash- American Association of Law Schools ington Legal Foundation on the intersec- Committee on Research and the Law taught at the University of Florida College of tion of the First Amendment and pharma- School Admissions Council Misconduct Law and practiced tax law with White & Case ceutical and medical device regulation. and Irregularities in the Admission Process LLP, headquartered in New York. In addition to During the past year he spoke at a num- Subcommittee. Professor Howland serves his teaching and scholarship, Professor Polsky ber of seminars, including programs spon- as treasurer for the Joint Conference of is of counsel to Dorsey & Whitney LLP, in sored by Medical Alley (recently renamed Librarians of Color to be held in October Minneapolis. Life Science Alley) and the Indiana Med- of 2006, as well as a member of the exec- ical Device Manufacturers Council. utive board and treasurer of the American The Vance K. Opperman Research Scholar Indian Library Association. Award enables the Law School to retain emerg- JILL ELAINE HASDAY ing faculty stars by providing support for their Professor Hasday published an article, HEIDI KITROSSER research and the development of their scholarly “Intimacy and Economic Exchange,” in Professor Kitrosser recently published interests. The award is made possible by an the Harvard Law Review (December 2005). “Containing Unprotected Speech” in the unrestricted gift from Vance K. Opperman, ’69, On October 12, she gave a lecture on Florida Law Review. She also coorganized a an outspoken business and civic leader with intimacy and economic exchange as an symposium at Brooklyn Law School in Edward W.Clyde Scholar at the Univer- interests in the legal, intellectual, political, the fall entitled Justice Blackmun and technological, and economic areas. sity of Utah College of Law. Last fall, Pro- Judicial Biography:A Conversation With fessor Hasday also created and organized Linda Greenhouse.At the symposium, the first Public Law Workshop series at Professor Kitrosser moderated a panel on the Law School.The workshop brought Supreme Court secrecy with speakers nationally recognized scholars to Min- Linda Greenhouse, Harold Koh, and Ed nesota to present their current research on Lazarus. She will write the introduction public law topics such as constitutional to the symposium issue of the Brooklyn law, administrative law, anti-discrimination Law Review. Professor Kitrosser currently law, criminal law, environmental law, and is working on a number of projects relat- family law. ing to presidential secrecy, including an article draft,“Secrecy and Separated Pow- JOAN S. HOWLAND ers: Executive Privilege Revisited.” She Professor Howland is completing an arti- presented the draft at a University of cle,“Bibliocide: Banned in Boston, Minnesota Law School workshop in Burned in Berkeley: Silenced Authors and October and will present the draft at Freedom of Expression,” based on the Washington University in St. Louis in paper she presented in October 2005 at June. She also has an op-ed piece forth- her reappointment lecture to the Roger F. coming in the online site JURIST Noreen Chair in Law. Professor Howland (http://jurist.law.pitt.edu/) on presidential will be the keynote speaker and will pres- secrecy and the NSA spying controversy. ent a paper entitled “Protection and Additionally, she has committed to con- Preservation of Indigenous Cultures in tribute several essays to the upcoming edi- the 21st Century” in Buenos Aires at a tion of the Encyclopedia of the First Amend- conference sponsored by the governments ment (Congressional Quarterly Press, of Argentina, Brazil, Uruguay, and Chile. 2007).

Perspectives SPRING 2006 7 Faculty R&D

Jill Elaine Hasday Joan S. Howland Heidi Kitrosser

JOHN H. MATHESON Law Review. His article “Land Use and Professor Matheson taught a course on Housing Policies to Reduce Concen- Comparative Corporate Governance to trated Poverty and Racial Segregation” 49 international students at Bucerius Law will appear in the Fordham Urban Law School, the first private law school in Journal in 2006.Additional forthcoming THE IRVING YOUNGER PROFESSOR OF Germany, this past fall.The students came publications include “Combining State LAW APPOINTMENT LECTURE from many different countries, including Equal Protection and School Choice to Argentina,Australia, Canada, China, Peru, Achieve Metropolitan School Integration: On Feb. 14, 2006, Oren Gross presented “The Spain,The Netherlands, Singapore, South The Hope of the Minneapolis Desegrega- Cusps of Law”in the Law School’s Lockhart Hall, Korea, Sweden,Turkey, and the United tion Settlement,” which will appear in the States.The course covered the corporate University of Minnesota’s Law and marking his appointment as the Irving Younger Inequality, and a piece in the Segregation Professor of Law. Professor Gross is an interna- governance systems primarily of the United States, Germany, and Japan, com- and Environmental Justice Issue of the tionally recognized expert in the areas of paring and contrasting governance styles Minnesota Journal of Law, Science and Tech- national security law, international law, inter- and systems, and addressing topics ranging nology. In his work at the Institute on national trade, the Middle East, and the Arab- from voting rights to codetermination to Race & Poverty (IRP), he has coauthored Israeli conflict. He holds an LL.B., magna cum insider trading, from Japanese Keiretsu to numerous reports, including “Access to laude, from Tel Aviv University in Israel, where German Konzernrecht. In addition, Pro- Growing Job Centers in the Twin Cities fessor Matheson published “Challenging Metropolitan Area,” with Thomas Luce he served on the editorial board of the Tel Aviv and Jill Mazullo, which will appear in the University Law Review, and obtained both his Delaware’s Desirability as a Haven for Incorporation,” William Mitchell Law CURA Reporter. He and IRP staff con- LL.M. and S.J.D. from Harvard Law School while Review (2006) with Philip S. Garon and tinue research on the Choice Is Yours a Fulbright Scholar. Professor Gross was a Michael A. Stanchfield, and the “Ameri- school desegregation program in Min- member of the faculty of the Tel Aviv University can Bar Association,”“Common Law,” neapolis and its western suburbs, and are Law School from 1996 to 2002; he has also “Directed Verdicts,”“Freedom of Con- completing an analysis of patterns of taught and held visiting positions at Princeton tract” and “Summary Judgment” entries in minority suburbanization in 15 major U.S. metropolitan regions for the Detroit University; the Benjamin N. Cardozo School of The Encyclopedia of Civil Liberties in America (M.E. Sharpe Inc., 2005). Branch of the NAACP and the Ford Law; the Max Planck Institute for International Foundation. Law and Comparative Public Law in Heidelberg, Germany; the Transitional Justice Institute in FRED MORRISON Professor Morrison was the coleader of a GREGG D. POLSKY Belfast (while a British Academy visiting pro- Professor Polsky recently published two fessor); Queen’s University in Belfast; and Bran- week-long workshop with the judges of the newly appointed Constitutional articles:“Taxing the Promise to Pay” in deis University. Between 1986 and 1991, he Court of Sudan and the Supreme Court the Minnesota Law Review (2005), with served as a senior legal advisory officer in the of Southern Sudan at Wad Madani, Professor Brant J. Hellwig, and “Regulat- international law branch of the Israeli Defense Sudan, in February.The two new courts ing Section 527 Organizations” in the Forces’Judge Advocate General’s Corps. In 1998, will be hearing cases involving constitu- George Washington University Law Review (2005), with Professor Guy-Uriel Charles. he served as the legal adviser to an Israeli dele- tional and human rights issues in that country.The advocate general (attorney He also recently completed work on gation that negotiated an agreement with the another article titled “Reforming the Tax- Palestinian Authority’s senior officials concern- general) of Sudan also attended the conference. Professor Morrison has also ation of Deferred Compensation,” with ing the economic written two chapters of the commentary Professor Ethan Yale, which he presented on the new Code of Criminal Procedure (along with Professor Yale) in January (continued on next page) 2006 at the Northwestern University for Kosovo. His current writing is on the School of Law, as part of Northwestern’s differences between European and tax colloquium speakers series.This article American approaches to questions of examines the current tax treatment of international law. nonqualified deferred compensation and suggests reforms that would create more MYRON ORFIELD efficient and equitable results without Professor Orfield’s article,“Racial Integra- adding undue complexity. tion and Community Revitalization: Applying the Fair Housing Act to the Low Income Housing Tax Credit,” was published in late 2005 in the Vanderbilt

8 Perspectives SPRING 20006 John H. Matheson Fred Morrison Myron Orfield

KEVIN R. REITZ April, July, and October 2005. In March Professor Reitz recently published two 2005 Professor Simon taught a day-long articles:“The Enforceability of Sentencing CLE on Ethics and the Practice of Crimi- Guidelines,” in volume 58 of the Stanford nal Law and Identification and Elimina- Law Review (2005), and “The New Sen- tion of Bias at the Law School’s annual Professor Oren Gross, Professor Judith Younger, and tencing Conundrum: Policy and Consti- Super CLE program. In February 2006, Dean Alex M. Johnson, Jr. tutional Law at Cross-Purposes,” in vol- along with Minnesota attorneys Heidi Drobnick and Tammy Swanson, he con- ume 105 of the Columbia Law Review component of a permanent status agreement (2005). In February 2006 he presented a ducted a simulation-based education pro- new paper,“Don’t Blame Determinacy: gram on courtroom and trial management between Israel and Palestine. Professor Gross U.S. Incarceration Growth Has Been Dri- for Tribal Court Judges at the annual joined the Law School in 2002 and was ven by Other Forces,” at the University of course,“Essential Skills for Tribal Court appointed as the Vance K. Opperman research Texas Law School.This paper will be Judges” at the National Judicial College. scholar in 2003 and the Julius E. Davis Professor forthcoming in the June 2006 issue of the Professor Simon gave two research presen- of Law in 2004. In 2004 he also was the recipi- Texas Law Review. Professor Reitz has tations at the National Science Founda- ent of the John K. & Elsie Lampert Fesler tion Transportation Research Board 2006 been working on an ongoing basis with a Research Grant. His book Law in Times of Crisis number of states that are trying to annual conference in Washington, D.C., in improve their laws concerning sentencing January 2006. One was on his ongoing was published in 2006 by Cambridge University and corrections. He is a founding member research into the relationship between the Press. Professor Gross practiced law at Sullivan of the Colorado Lawyers’ Committee Task type of implied consent DWI alcohol and Cromwell in New York from 1995 to 1996. Force on Sentencing Reform, he actively concentration test, the time to license rev- assists the Minnesota Sentencing Guide- ocation associated with the type of test, The Irving Younger Professorship in Law was line Commission with current projects, and DWI recidivism.The other was on a established through the generosity of col- and has helped organize a conference at joint technology and traffic safety project leagues, friends, and admirers of the late Pro- the Stanford Law School to consider sen- he is working on with the University of fessor Irving Younger, who was the first Marvin tencing reform in the State of California. Minnesota’s Department of Mechanical J. Sonosky Professor of Law at the Law School. Professor Reitz also continues his work as Engineering.The project, In-Vehicle Professor Younger was perhaps the best-known Technology to Correct Teen Driving reporter for a revision of the Model Penal law teacher in the United States, and his love Code’s articles on sentencing and correc- Behavior:Addressing Patterns of Risk, tions. He presented a large draft of pro- involves building a car that has a variety of for language and the lawyer’s craft inspired a posed amendments to the code at the technologies that monitor a teen’s driving generation of law students and lawyers. annual meeting of the American Law conduct, warns them when they are Institute in May 2006.The draft is avail- exceeding the speed limit or accelerating able from Professor Reitz too rapidly, and records their driving ([email protected]). Professor Reitz’s behavior for later review by their parents book with Henry Ruth, The Challenge of (the technology also includes a seat belt Crime: Rethinking Our Response (2003), and alcohol ignition interlock).A test was issued in a paperback edition this vehicle has been built and is currently spring by Harvard University Press. undergoing testing, and Professor Simon has coauthored and submitted a paper on this topic. In his capacity as head of the STEPHEN M. SIMON Minnesota Criminal Justice System DWI Professor Simon taught the Defense an Task Force and as a DWI researcher Pro- Prosecution Clinics in the spring and fall fessor Simon testified numerous times at of 2005, and Trial Practice during th sum- the 2005 Minnesota Legislature on DWI- mer of 2005. He conducted 12 Judicial related legislation. During summer and fall Trial Skills Training Programs at the Law 2005 he completed the 2005 update of his School from April 2005 through February coauthored book, Minnesota Misdemeanors 2006. In October 2005 Professor Simon and Moving Traffic Violations. Currently, he is taught two programs at the annual Min- working on research related to administra- nesota new judge orientation program tive vehicle forfeiture and DWI recidivism Evidence in the Courtroom and Alcohol and the type of implied consent alcohol and the Intoxilyzer. He also taught the concentration test, time to license revoca- Evidence in the Courtroom program at tion, and DWI recidivism. the General Jurisdiction course for new judges at the National Judicia College in

Perspectives SPRING 2006 9 Faculty R&D

Gregg D. Polsky Kevin R. Reitz Stephen M. Simon

E. THOMAS SULLIVAN DAVID WEISSBRODT Provost Sullivan has served this year as a In August 2005 Professor Weissbrodt was manuscript reviewer for the University of elected for a two-year term on the eight Chicago Press. He published an op-ed member International Executive Commit- THE EVERETT FRASER CHAIR IN LAW “The Value of Teaching in a Research tee of Amnesty International, representing University,” in The Minnesota Daily in 1.8 million members in more than 150 REAPPOINTMENT LECTURE October 2005 and he has submitted his nations. In September 2005 he presented On Feb. 7, 2006, Mary Louise Fellows presented book proposal, The Emerging Doctrine of an introduction to “United Nations her lecture, “From Beowulf to Æthelgifu: Proportionality in the United States, with Human Rights Procedures” for a Contin- Richard Frase, to several university presses. uing Legal Education Program in Min- Lessons from Anglo-Saxon Will-Makers,”to He continues to serve as provost of the neapolis entitled “International Advocacy commemorate her reappointment as the University of Minnesota and has become on U.S. Human Rights Cases.” In Decem- Everett Fraser Chair in Law. Professor Fellows is a trustee of the University of Minnesota ber 2005 he gave a CLE lecture for the a nationally recognized scholar in the areas of Foundation. Minnesota Attorney General’s office in St. trusts and estates, federal tax law, and feminist Paul,“The Absolute Prohibition of Torture jurisprudence. She has published articles KEVIN K. WASHBURN and Ill-Treatment.” For a week in late Jan- widely on diverse topics ranging from taxation Professor Washburn had a busy fall semes- uary and early February 2006 he served as to same-sex partnerships and prostitution. She ter. In September, he testified before the a member of the fivemember Board of Trustees of the U.N.Voluntary Trust Fund also has coauthored casebooks on wills and U.S. Senate Committee on Indian Affairs for Contemporary Forms of Slavery, trusts and feminist jurisprudence as well as on Indian gaming matters and also pre- sented papers at the University of Col- which distributes support for nongovern- coedited books on the federal tax system, and orado-Boulder and the University of Ari- mental projects to assist persons who have on law and feminism. She teaches courses on zona on issues related to criminal justice been trafficked or who were otherwise wills and trusts, estate planning, taxation, and in Indian country. In October, Professor victims of contemporary forms of slavery. feminist theory. Upon graduation from the Uni- Washburn appeared at a symposium, In February Professor Weissbrodt taught versity of Michigan Law School, magna cum Indian Law at the Crossroads, at the Uni- classes at Tilburg University and Utrecht laude, she joined the faculty of the University of versity of Connecticut, where he pre- University in the Netherlands on the “U.S.Approach to International Human Illinois College of Law, and in 1982, she became sented a paper,“Tribal Self Determination at the Crossroads.”Also in October, Pro- Rights Law.” He coauthored a chapter in a a professor at the University of Iowa College of fessor Washburn was named to the six- book published by Oxford University Law. In addition to serving as a tenured mem- member Executive Board of Editors of Press on Non-State Actors and Human ber of these faculties, Professor Fellows has vis- Cohen’s Handbook of Federal Indian Law, for Rights. He also coauthored an article in ited at Columbia University Law School, Cornell purposes of revisions, updates, and future the new Minnesota Journal of International University Law School, Harvard University Law editions (Professor Washburn served as an Law on “Physician Testimony in Interna- School, and the University of Michigan Law author on the recent revision that tional Criminal Trials.” In addition, he School She was the Visiting Everett Fraser Pro- appeared in December).The spring wrote a brief introduction for an article by semester has been busy as well. In January Professor Donald Marshall published in fessor of Law at the Law School during the he presented a paper on Indian country the Minnesota Law Review. He also has sev- 1989–90 academic year and was named criminal justice at th University of North eral additional articles forthcoming in the (continued on next page) Dakota in Grand Forks. In February, his Harvard Human Rights Journal, the Human article “American Indians, Crime and the Rights Quarterly, and the University of Law,” was published in the Michigan Law Cincinnati Law Review. Review. Professor Washburn continues to serve as a member of the Minority Affairs SUSAN M. WOLF Committee of the Law School Admission Professor Wolf published an article in Sci- Council and is chairing a subcommittee. ence on “Incidental Findings in Brain He has also continued to consult infor- Imaging Research” with Dr. Judy Illes mally with the Center for Civic Educa- (Stanford University) and others.This tion. Professor Washburn has accepted an grew out of a National Institutes of offer to visit at the Harvard Law School Health (NIH)/Stanford meeting that she for the school year of 2007–08, where he will teach American Indian law, first year helped lead.The group is now working criminal law, and gaming law. on a further article. She is also collaborat- ing with Professor Mildred Cho (Stanford University) and others on a consensus

10 Perspectives SPRING 20006 E. Thomas Sullivan Kevin K. Washburn David Weissbrodt paper on offering research results to Press. Professor Wolf continues to chair human subjects in large-scale genomic the University’s Consortium on Law and research. Professor Wolf is leading a two- Values in Health, Environment & the Life year NIH-funded project at the Univer- Sciences (lifesci.consortium.umn.edu) and sity of Minnesota’s Consortium on Law directs the Joint Degree Program in Law, Professor Mary Louise Fellows and Toni A. McNaron, and Values in Health, Environment & the Health & the Life Sciences (jointdegree. professor of English, emerita, University of Life Sciences on “Managing Incidental umn. edu).The programs have offered 10 Minnesota. Findings in Human Subjects Research.” events this year, including an upcoming Coinvestigators are Professors Frances conference on the law and ethics of pro- the Everett Fraser Professor of Law in 1990. She Lawrenz, Jeffrey Kahn, and Charles Nel- tecting the food supply from bioterrorism son (Harvard University).The national and a symposium on analyzing and regu- recently completed her Ph.D. in English at the working group met in December 2005 lating the risks of new biomedical tech- University of Minnesota; her dissertation is a and April 2006. Professor Wolf and col- nologies.The Consortium continues to cultural study of an Old English will written by leagues from the consortium submitted a publish the Minnesota Journal of Law, Sci- a wealthy widow in the late 10th century. Pro- grant proposal to the National Science ence & Technology (mjlst.umn.edu) twice a fessor Fellows is a member of the American Foundation on evaluating oversight mod- year; Professor Wolf serves as executive Law Institute, and is an adviser for the Restate- els for nanotechnology. Coinvestigators are editor. She collaborate with Professor ment of the Law, Third-Property (Donative Professors Efrosini Kokkoli, Gurumurthy Kahn and others in founding a new Ramachandran, and Jennifer Kuzma; and organization in 2005 for directors of Transfers), and for the Restatement of Law, Jordan Paradise. Professor Wolf also collab- bioethics programs; representatives have Third-Trusts. She serves as the representative of orated on a grant proposal to the Min- now met with the director of NIH on law schools on the joint editorial board for Uni- nesota Partnership on Biotechnology to bioethics funding priorities. Professor form Trust and Estate Acts. In 2004 and 2005 develop guidelines on DNA biobanking. Wolf recently participate in an American she served as reporter for the Task Force for The principal investigator is Professor Academy of Arts & Sciences meeting on Transfer Tax Reform, which had representatives Barbara Koenig (Mayo Clinic College of the societal implication of neuroscience. from a number of professional groups including Medicine and University of Minnesota); She lectured at the 2005 Human Professors Wolf and Kahn are coinvestiga- Research Protection Program Conference the American Bar Association’s Section on Real tors. Professor Wolf is completing an arti- in Boston. She appeared on Minnesota Property, Probate and Trust Law; the American cle on “Doctor and Patient:An Unfin- Public Radio, reviewing key develop- Bar Association’s Section of Taxation; and the ished Revolution” for the Yale Journal of ments in medicine in 2005. American College of Trust and Estate Counsel. Health Law, Policy & Ethics. She and Pro- fessor Kahn also have an article forthcom- Everett Fraser was the third dean of the Law ing in the Journal of Law, Medicine & Ethics JUDITH T. YOUNGER School and served as dean from 1920 to 1948, Professor Younger gave newspaper and on “Genetic Testing an Disability Insur- the longest tenure of any of the Law School’s ance: Ethics, Law & Policy.” They are radio interviews on the complications of the Binger estate and the issues raised by deans. He led the Law School to academic editing a symposium on this topic to be excellence and to a position of leadership published with the article. Professor Wolf the Kelo case decision on eminent among the nation’s law schools. Many of the is editing another forthcoming sympo- domain. She wrote “Whose America?, sium for the Journal of Law Medicine & which is forthcoming in Constitutional innovative programs established under his Ethics on “Proposals for the Responsible Law Commentary and is working on an leadership fostered curricular change in legal Use of Racial and Ethnic Categories in article dealing with antenuptial, postnup- education throughout the nation. The Everett tial, and cohabitation agreements. She Biomedical Research.” She recently pub- Fraser Chair in Law was established through lished an article on this topic in Nature appeared in all four performances of the annual TORT show, West Bank Story, the generosity of a Law School alumnus, the Genetics. Professor Wolf has been writing late James H. Binger, ’41. Mr. Binger, former an article on “Death and the Written playing herself, and is currently teaching Property and Family Law. CEO of Honeywell Inc., and a Broadway theatre Word:A Normative Theory of Advance Directives” growing out of a lecture she owner, was widely recognized for his corporate gave at the University of Chicago Law Affiliated Faculty leadership and quiet philanthropy to man edu- School. Professor Wolf drafted two entries TIMOTHY R. JOHNSON cational, medical, and social-advancement for The World Book Encyclopedia on Professor Johnson recently published an organizations. “Euthanasia” and “Living Will.” She also article with James F.Spriggs II and Paul J. published an op-ed after the Supreme Wahlbeck in the American Political Science Court’s decision in Gonzales v.Oregon on Review (Vol. 100, #1), which demonstrates “Court Ruling Doesn’t Answer Assisted that the quality of oral argumentation Suicide Questions” in the St. Paul Pioneer presented to the U.S. Supreme Court

Perspectives SPRING 2006 11 Faculty R&D

FACULTY WORKS IN PROGRESS

FALL 2006 Susan M. Wolf Judith T. Younger Timothy R. Johnson JANUARY affects the decisions justices make. He was Do We Restore Our Credibility?”, and 19 Professor Bernard M. Levinson, also involved in an American Bar Associa- appeared on a panel,“Ethics: New Threats, University of Minnesota and University tion Dialogue with Jason Roberts of the New Frontiers,” at the Southern Newspa- of Minnesota School of Law University of Minnesota on the process of per Publishers Foundation ethics confer- selecting Supreme Court justices.This ence in Oklahoma City on Dec. 2, 2005. The First Constitution: Rethinking the dialogue appeared in Focus on Law Studies Other panel appearances include “News- Origins of Rule of Law and Separation (2006). Most recently, Professor Johnson gathering, Right of Privacy and Related was awarded a $53,922 National Science Torts,” at the Practising Law Institute’s of Powers in Light of Deuteronomy Foundation grant (SES-0550276, total annual Communication Law conference 26 Professor Richard H. Fallon, grant $284,440, with James F.Spriggs II in New York on Nov. 10, 2005;“Freedom and Paul J.Wahlbeck) to examine the of Speech: Do the Same Press Rules Harvard Law School establishment of stare decisis as a norm in Apply in a Changing Media Landscape?” Strict Judicial Scrutiny the American legal system. He gave a at the NABEF National Freedom of recent talk,“The Influence of Oral Argu- Speech Program at the National Press FEBRUARY ments on the U.S. Supreme Court,” at Club in Washington, D.C., on Oct. 18, Vanderbilt Law School. Professor Johnson 2005; and “Challenges to a Free Press” at 2 Professor Mark V. Tushnet, also is engaged in two ongoing research the Society of Professional Journalists Georgetown University Law Center projects.The first examines the dynamics National Convention in Las Vegas on Oct. of the court’s agenda setting process.This 16, 2005. Professor Kirtley was also a pan- Weak Courts, Strong Rights: Judicial project formally and empirically examines elist at the Washington New Council’s Review and Social Welfare Rights in why the court continues to follow the Public Forum in Spokane,Wash., on Feb. Rule of 4.The second project focuses on Comparative Constitutional Law 8, 2006, critiquing controversial newsgath- how justice begin to build coalitions with ering techniques used in the local newspa- 9 Professor Chantal Thomas, one another during oral arguments. per’s investigation of the city’s mayor, Visiting Professor University of which led to his recall. She also took part in a post-screening discussion about civil Minnesota Law School; Professor of JANE E. KIRTLEY Professor Kirtley delivered a lecture, liberties with actor David Strathairn and Law, Fordham Law School “Reporter’s Privilege Redux:A Reflec- ACLU of Minnesota Executive Director tion on the Reporter’s Privilege in the Chuck Samuelson following the Twin Democracy in the Fast Lane United States, 1995–2005,” at the A Cities premiere of Good Night and Good IDEM/Canadian National Media Lawyer Luck at the Walker Art Center in Min- Association Annual Conference in Halifax, neapolis on Oct. 8, 2005. Professor Kirtley Nova Scotia, on Nov. 12 2005. Other lec- was a judge for the Scripps Howard tures include “Shooting the Messenger, or Foundation National Journalism Awards in Shooting Ourselves in the Foot? Chal- Cincinnati on Feb. 23–24, 2006. She was lenges to a Free an Independent Press,” as widely quoted in (or appeared on) numer- part of the September Project Lecture ous media outlets, including the Atlanta Series at Gustavus Adolphus College in St. Journal-Constitution, American Prospect, Asso- Peter, Minn. on Nov. 17, 2005;“The ciated Press, Chattanooga Times Free Press, Right to be Wrong: Current Issues in Columbia Journalism Review, Editor & Pub- Media Ethics and Law,” the final lecture in lisher, Gannett News Service, Globe and th series “A Question of Ethics” sponsor Mail (Toronto), International Herald Tribune, by the St. Croix Valley Chapter of the Los Angeles Times, Marketplace, Minneapolis University of Minnesota Alumni Associa- Star Tribune, Minnesota Public Radio, New tion; and “Media Ethics” at the Min- York Sun, New York Times, News-Press (Fort neapolis Uptown Rotary Club on Jan. 5, Myers, Fla.), Reuters, St. Cloud Times, St. 2006. She moderated two panel discus- Paul Pioneer Press, Spokesman-Review sions:“The End of Journalism? Why News (Spokane,Wash.), Technology Daily, and Still Matters,” at Coffman Union on Feb. Wall Street Journal. She was a guest on 20, 2006, and “Protecting Sources by WNYC/NPR’s “On the Media,”Air Going to Jail: Is There a Better Way?” at America’s “The Wendy Wilde Show,” and the New England Press Association annual “The Jack Rice Show” on WCCO convention in Boston on Feb. 10, 2006. Radio, and on two editions of Gary She moderated a Town Hall Talk,“How Eichten’s “Midday” program on MPR.

12 Perspectives SPRING 20006 Jane E. Kirtley Bernard M. Levinson Karen Miksch Robin Stryker

BERNARD M. LEVINSON Karls-Universität Tübingen in Germany; Dr. Levinson was named a Wissenschaft- at the University of Zurich; at the Society Faculty Works In Progress, cont. skollegzu Berlin, Research Fellow for of Biblical Literature Annual Meeting in 2007–2008; he is one of only eight inter- Philadelphia; and at the Upper Midwest MARCH Regional Meeting of the Society of Bibli- national scholars in different fields of the 2 Professor Mariano-Florentino Cuéllar, humanities and social and natural sciences cal Literature at Luther Seminary in St. chosen to hold this fellowship at Ger- Paul. Dr. Levinson serves as a member of Stanford Law School the steering committee for the Center for many’s Institute of Advanced Study.This Refugee Security and the Organizational support will allow him to begin an unin- Jewish Studies and the Faculty Summer terrupted year of work on a ne book on Research Proposal Review Committee, Logic of Legal Mandates the relation between ancien legal and on the editorial board of Zeitschrift für hermeneutics and contemporary problems Altorientalische und Biblische Rechtsgeschichte. 9 Professor Regina Austin, of constitutional theory. His article,“The During the spring semester Dr. Levinson University of Pennsylvania Law School First Constitution Rethinking the Origins taught a course, Biblical Law and Jewish of Rule of Law and Separation of Powers Ethics, which was cross-listed with the “Face Time”: Katrina, Class, and the Role of in Light of Deuteronomy,” published in Law School. the Visual in the New Legal Realism the Cardozo Law Review, marks the move- 23 Professor A. Michael Froomkim, ment of his research into a new area of KAREN MIKSCH cross-disciplinary inquiry and illustrates Assistant Professor Miksch researches the University of Miami School of Law the overlooked contribution of the law of higher education and became an Winners and Losers: The Internet Changes Hebrew Bible to th development of mod- affiliate faculty member in Fall 2005. She ern law. Dr. Levinson has published a delivered a symposium at the annual con- Everything—Or Nothing? book, L’herméneutique de l’innovation: ference of the Association for the Study of 30 Professor David Stras, Canon et exégèse dans l’Israël biblique, and Higher Education (ASHE) in November has several articles either published forth- 2005.The symposium,“Challenges to University of Minnesota Law School coming, or under consideration, includ- Race-Targeted and Race-Conscious Pre- Are Senior Judges Unconstitutional? ing:“‘Du sollst nicht hinzufügen und college, Summer-Bridge, and Retention nichts wegnehmen’,” in Zeitschrift für The- Programs,” was part of the ASHE Public APRIL ologie und Kirche;“The Birth of the Policy Forum. In addition, she was an Lemma:The Restrictive Reinterpretation invited participant at the Fall 2005 Educa- 8 Professor Neil Duxbury, of the Covenant Code’s Manumission tion Law Association’s “Innovative Manchester University School of Law Law by the Holiness Code (Leviticus Approaches in Teaching School Law.” She 25:44-46),” in the Journal of Biblical Litera- also delivered her paper “The Courts and ture;“The ‘Effected Object’ in Contractual Two Precedent Problems (and Minnesota’s Education: How Lawyers and Researchers Contribution to One of Them) Legal Language:The Semantics of ‘If You Should Work Together” at the Education Purchase a Hebrew Slave’ (Exodus xxi Law Association conference based on a 2),” forthcoming in Vetus Testamentum in case study, including her interviews with September 2006;“The Manumission of social scientists and attorneys working Hermeneutics:The Slave Laws of the together on seminal education litigation. Pentateuch as a Challenge to Contempo- The Social Science Research Council rary Pentateuchal Theory,” in Congress Vol- (SSRC) commissioned her to be the law ume, Leiden 2004; and “Deuteronomy’s field reviewer for the Transitions to Col- Conception of Law as an ‘Ideal Type’:A lege Project sponsored by the Lumina Missing Chapter in the History of Consti- Foundation.The law field review covers tutional Law,” forthcoming in Ma’arav:A 20 years of scholarship and case law in the Journal for the Study of the Northwest Semitic areas of college preparation, access, and Languages and Literatures in August 2006. retention, and will be a chapter in a forth- Dr. Levinson also continues work on his coming book.The Civil Rights Project at book Revelation and Redaction: Rethinking Harvard University also recently commis- Biblical Studies and Its Intellectual Models, sioned Miksch to write a chapter for a which is under contract with Oxford forthcoming book on college access. Her University Press. Dr. Levinson read refer- chapter titled “Unequal Access to College eed papers at an international conference, Preparatory Classes:A Critical Civil “Textualization of Religion,” at Eberhard- Rights Issue” was recently published in

Perspectives SPRING 2006 13 Faculty R&D the Thurgood Marshal Scholarship Fund from the Sociology of Law Section of the published two law-related book reviews: 2005 book Brown v. Board of Education: American Sociological Association for her Race Politics in Britain and France: Ideas and Its Impact on Public Education 1954–2004. 2004 article “The Strength of a Weak Policymaking Since the 1960s, by Erik Ble- Agency:Title VII of the Civil Rights Act ich, in the American Journal of Sociology ROBIN STRYKER and the Transformation of State Capacity (November 2005); and Rethinking Equality Affiliated Professor Stryker (Professor of at the Equal Employment Opportunity and the Value of Difference, by Davina Commission, 1965–1971,” American Jour- Sociology, Scholar of the College Cooper, in Social Forces (forthcoming). nal of Sociology, with Nicholas Pedriana. 2004–07) had a busy year. In 2005, she Professor Stryker was an invited faculty received a two-year National Science Her law-related publications in the last year include “Law and the Economy,” instructor at the Law & Society Associa- Foundation grant for her research project tion’s Graduate Student Workshop in Las titled “Social Science in Government with Lauren Edelman, in Handbook of Eco- Vegas, May 31–June 1, 2005, and she gave Regulation of Equal Employment nomic Sociology (Princeton University Opportunity” (#SES-0514700). She has Press, 2005);“The Welfare State, Family multiple invited talks around the country been engaged in archival work and a Policies and Women’s Labor Market Par- about her research on social science in series of in-depth interviews with lawyers, ticipation,” in Method and Substance in employment discrimination law. She also social scientists, politicians, and policy Comparative Political Economy, with Scott was an invited panelist at the Third makers active in employment discrimina- Eliason and Eric Tranby (Russell Sage, Annual Work Life Law Conference on tion law and policy making (1965–pres- forthcoming); a chapter on the “Sociology Working Time, co-organized by Joan ent). In addition, starting in 2005, she has of Law” in the Handbook of 21st Century Williams, Center for Work Life Law, participated in a project funded by the Sociology (Sage Publications, forthcoming); University of California Hastings, with “Sociological Analysis of Labor Law,” in American Bar Foundation, Ford Founda- the University of San Francisco School of Encyclopedia of Law and Society:American tion, and Center for Advanced Studies in Law, Equal Rights Advocates and the the Behavioral Sciences, which brings and Global Perspectives (Sage Publications, Legal Aid Society-Employment Law together legal scholars and an interdisci- forthcoming); and “Law and Economy,” in plinary group of social scientists to con- Encyclopedia of Sociology (Blackwell, forth- Center March 10, 2006. Professor duct and disseminate results of interrelated coming). She is preparing an invited arti- Stryker’s pane was “New Institutionalism: research projects on employment discrim- cle titled “Half Empty, Half Full or Nei- How do Legal Changes and Concepts ination and employment discrimination ther? Law, Inequality and Social Change,” Turn into Organizational Practice? law. In August 2005, Professor Stryker for the Annual Review of Law & Social Sci- Lessons for Practitioners.”● won the Distinguished Article Award ence. In the last year, Professor Stryker also

14 Perspectives SPRING 2006 Faculty Perspective

Copyright and Feminism in Digital Media, 13 J. Gender Soc. Pol’y & L. __ (forthcom- Faculty In Print ing 2006). Electronic Gaming and the Ethics of Informa- Publications by the full-time, visiting, tion Ownership, 2 Int’l Rev.Info. Ethics library, and affiliated faculty (2005) www.i-r-i-e.net/inhalt/ 004/burk.pdf. Jan. 1, 2005 through Jan. 30, 2006 Law as a Network Standard, 8 Yale J. L. & Tech. 63 (2005) http://research.yale. edu/lawmeme/yjolt/. BEVERLY BALOS Philosophy of Law: Critical Concepts Legal and Technical Standards in Digital Articles & Book Chapters in Philosophy, 4 vols. (ed. 2006). Rights Management Technology, 74 Fordham Lawyers Matter:Vindicating the Right to be Law and Morality (ed. 2005) (with L. Rev. 537 (2005). Free From Domestic Violence, Temple Pol. & Kenneth Einar Himma). Expression, Selection,Abstraction: Copyright’s Civil Rts. L.Rev. (forthcoming). Articles & Book Chapters Golden Braid, 55 Syr. L.Rev.101 (2005). Raz,Authority, and Conceptual Analysis, Am. Inherency, 47 Wm. & Mary L. Rev.371 STEPHEN F. BEFORT J. of Juris. (2006). (2005) (with Mark A. Lemley). Books Reductionism and Explanation in Legal The- Quantum Patent Mechanics, 9 Lewis & Employment Law and Practice 2nd ed. ory, in Properties of Law (Timothy Endi- Clark L. Rev.29 (2005) (with Mark A. (Supp. 2005). cott, Joshua Getzler & Ed Peel eds., 2006). Lemley). Privacy and Property in the Global Datas- Articles & Book Chapters The ALI Principles and Agreements: Seeking a Balance Between Status and Contract, in phere, in Information Technology When Quitting is Fitting:The Need for a Reconceiving the Family: Critical Ethics: Cultural Perspectives (Soraj Reformulated Sexual Harassment/Constructive Reflections on the American Law Hongladarom & Charles Ess eds., forth- Discharge Standard in the Wake of Pennsyl- Institute’s Principles of the Law of coming 2006). vania State Police v. Suders, Ohio St. L. J. Family Dissolution (Robin Fretwell Designing Optimal Software Patents, in Intel- (forthcoming 2006) (with Sarah J. Gora- Wilson ed., 2006). lectual Property Rights in Frontier Indus- jski). Problem: Conceptual Analysis (translated into tries: Software and Biotechnology 81 The Story of Sutton v. United Airlines, Spanish), 5 Discusiones 197 (2005) (Robert Hahn ed., 2005) (with Mark A. Inc.: Narrowing the Reach of the Americans Lemley). with Disabilities Act, in Employment Dis- Everything I Know About Marriage I Learned crimination Stories 329 (2006). from Law Professors, 42 San Diego L.Rev. 823 (2005). MARY PATRICIA BYRN A Reprise of a Classic: Gorman & Finkin’s Basic Text on Labor Law: Unionization and Cautions and Caveats for the Application of Articles & Book Chapters Collective Bargaining, 7 U. Pa. J. Lab. & Emp. Wittgenstein to Legal Theory, in Topics in Same-Sex Couples and Artificial Insemina- L. 1031 (2005). Contemporary Philosophy 217 (Joseph tion: Determining Legal Parenthood Under the Keim Campbell, Michael O’Rourke & Uniform Parentage Act (forthcoming). Accommodation at Work: Lessons from the David Shier eds., 2005). Americans with Disabilities Act and Possibili- The Use of Prebirth Parentage Orders in Sur- ties for Alleviating the American Worker Time Some Reflections on Methodology in Jurispru- rogacy Proceedings, 39 Fam. L.Q. 633 (2005) Crunch, 12 Cornell J.L. & Pub. Pol’y 615 dence, in Problemas contemporáneos de (with Steven H. Snyder). (2005). la filosofía del derecho 67 (Enrique Cáceres et. al. eds. 2005). Other DALE CARPENTER State Interests in Marriage, Interstate Recogni- The Labor and Employment Law Decisions of tion, and Choice of Law, 38 Creighton Articles & Book Chapters the Supreme Court’s 2003–04 Term, 22 GP L.Rev.337 (2005). Constitutional Betrayal, in Gay Marriage Solo 40 (ABA September 2005). (Mark Strasser ed., forthcoming 2005). John Austin, in The Stanford Encyclope- What has Changed in Federal Discrimination dia of Philosophy, in Edward N. Zalta, Lawrence Past, in The Future of Gay Law? II 2005 Employment Law Hand- ed. (rev. ed. 2005). 2005). Public Sector Update 2004–05, Public Sec- Bad Arguments For and Against Gay Mar- tor Labor and Employment Law § 4 DAN L. BURK riage, __ Florida Coastal L. Rev. __ (Minnesota CLE 2005). (forthcoming 2005). Articles & Book Chapters Legal and Ethical Research Issues in Auto- Other BRIAN BIX mated Internet Data Collection, 7 Ethics & Is the Solomon Amendment Unconstitutional?, Books Info.Tech. ___ (forthcoming 2006) (with Preview of United States Supreme Jurisprudence:Theory and Context Gove N.Allen & Charles Ess). Court Cases 3: 143 (ABA, Nov. 28, (4th ed., 2006). Academic Data Collection in Electronic Envi- 2005). Jurisprudence: Cases and Materials (2d ronments: Defining Acceptable Use of Internet Response:The Value of Institutions and the ed. 2006) (with Stephen Gottlieb, Robin Resources 30 Mis Q. __ (forthcoming Values of Free Speech, 89 Minn. L.Rev. West & Timothy Lytton). 2006) (with Gove N.Allen & Gordon B. 1407 (2005). Davis).

Perspectives SPRING 2006 15 Faculty Perspective

The Bonds of Common Ground, National Mastering Eliot’s Paradox: Fostering Cultural Articles & Book Chapters Review Online (Oct. 25, 2005) (available Memory in an Age of Illusion and Allusion, The Story of NLRB v.Gissel Packing:The at www.nationalreview.com/comment/ 89 Minn. L.Rev.1361 (2005). Practical Limits of Paternalism, in Labor carpenter200510250830.asp). Biodiversity and Biotechnology:A Misunder- Law Stories (Laura J. Cooper & Cather- stood Relation, 2005 Mich. St. L. Rev.51 ine L. Fisk eds., 2005) (with Dennis R. GUY-URIEL E. CHARLES (2005). Nolan). Articles & Book Chapters Across the Apocalypse on Horseback: Imperfect The Enduring Power of Collective Rights, in Regulating Section 527 Organizations, __G. Legal Responses to Biodiversity Loss, 17 Labor Law Stories (Laura J. Cooper & Wash.L.Rev.__ (forthcoming) (with Wash.U. J.L. & Pol’y 12 (2005). Catherine L. Fisk eds., 2005) (with Gregg Polsky). Clarence Thomas, in The Yale Biographi- Catherine L. Fisk). Judging the Law of Politics, 103 Mich. L. cal Dictionary of American Law A Tribute Honoring Clyde Summers, Employ. (Roger K. Newman ed., forthcoming R. & Employ. Pol’y J. (forthcoming Rev.1099 (2005). 2005) (with David Stras). 2006). Colored Speech: Crossburnings, Epistemics, and The Process of Process:The Historical Develop- the Triumph of the Crits?, 93 Geo.L.J.575 BRADLEY G. CLARY ment of Procedure in Labor Arbitration, Arbi- (2005). Books tration 2005: The Evolving World of Work, Proceedings of the Fifty- JIM CHEN Successful First Depositions (2d ed. Eighth Annual Meeting, National 2006) (with Sharon Reich Paulsen & Articles & Book Chapters Academy of Arbitrators, Bureau of Michael Vanselow). National Affairs (forthcoming 2006). Around the World in Eighty Centiliters, 15 Minn. J. Int’l L. (forthcoming 2006). Articles & Book Chapters ABA Sourcebook on Legal Writing Programs PRENTISS COX There’s No Such Thing as Biopiracy…And (2d ed.) (Eric Easton ed., forthcoming It’s a Good Thing Too, 37 McGeorge L. Articles & Book Chapters 2006). Rev. (forthcoming 2006). Foreclosure Equity Stripping: Legal Theories Conduit-Based Regulation of Speech, 54 and Strategies to Attack A Growing Problem, Duke L.J. (forthcoming 2005). LAURA J. COOPER 37 Clearinghouse Rev. (forthcoming). The Parable of the Seeds: Interpreting the Books Regulatory Perspectives: State Attorney Gen- Plant Variety Protection Act in Furtherance of ADR in the Workplace, 2nd Ed., (2005) eral Case Selection and Investigation, in Innovation Policy, 81 Notre Dame L. Rev. (with Dennis R. Nolan & Richard A. Practising Law Institute (forthcoming). 105 (2005). Bales). With All Deliberate Speed: Brown II and Labor Law Stories (Laura J. Cooper & ELVIRA EMBSER-HERBERT Desegregation’s Children, 24 L. & Ineq. Catherine L. Fisk eds., 2005). Articles & Book Chapters (forthcoming 2005). Workplace ADR Simulations and Changes in Latitudes, Changes in Attitudes: Is The Midas Touch, 7 Minn. J.L. Sci. & Tech. Teacher’s Guide, 2nd Ed. (2005) (with There a Role for Canadian Jurisprudence in (forthcoming 2005). Carolyn Chalmers). Ending Discrimination in the U.S. Military?, Legal Mythmaking in a Time of Mass Extinc- 32 Wm.Mitchell L. Rev., 599 (with tions: Reconciling Stories of Origin with Melissa Sheridan Embser-Herbert). Human Destiny, 29 Harv.Envtl. L.Rev. Why the Heck is there a Standing Committee 279 (2005). for Lesbian and Gay Issues,Anyway?, AALL Spectrum, 10 (2006). New Kid on the Blog, Law Librarians for Employment Law and Practice the New Millennium, 8 (March–April, 2005): 1, 6. Supplemented in 2005 BY STEPHEN F. BEFORT ALLAN ERBSEN Thomson West Articles & Book Chapters From “Predominance” to “Resolvability”: New This is a comprehensive one-volume hardbound source Approach to Regulating Class Actions, 58 of information covering a full range of legal issues that Vand.L.Rev.995(2005). arise daily in the workplace. The book is tailored to The Substance and Illusion of Lex Sportiva, Minnesota employment practice and comprehensively in The Court of Arbitration for addresses judicial and legislative developments on both Sport—1988–2004 (Rob Siekmann et al a federal and state level. It also contains an extensive eds., 2005). index which makes topics easily accessible to attorneys and nonattorneys alike. This is particularly important, BARRY C. FELD given the ever-increasing laws which regulate the employment relationship. Employers and employees Books need to be aware of their respective rights and 2006 Supplement to Cases and Materi- obligations under these laws. als on Juvenile Justice Administration (2nd ed. 2004).

16 Perspectives SPRING 2006 Faculty Perspective

Articles & Book Chapters Race and the Changing Jurisprudence of Juve- Labor Law Stories nile Justice:A Tale in Two Part 1950–2000, EDITED BY LAURA J. COOPER & CATHERINE L. FISK in Our Children, Other People’s Chil- dren (D. Hawkins & K. Kempf-Leonard Labor Law Group Trust eds., 2005). The Inherent Tension of Social Welfare and Criminal Social Control: Policy Lessons From In 1935, at the depths of the Great Depression, when the American Juvenile Court Experience, in prospects for American workers and businesses seemed Juvenile Law Violators, Human Rights, bleak, Congress sought to improve both the lives of work- and the Development of New Juvenile ers and the economy by enacting the National Labor Justice Systems (E. Jensen & J. Jepsen Relations Act (NLRA). The text of the NLRA was brief. eds., 2006). Congress created an administrative agency, the National Juveniles’ Competence to Exercise Miranda Labor Relations Board, and entrusted it further to define Rights:An Empirical Study of Policy and the meaning of the statute and to implement its provi- Practice, in 91 Minn. L.Rev.__ (forthcom- sions. The chapters in Labor Law Stories tell the story of ing 2006). the development of labor law over the course of nearly 70 years, beginning with one of the earliest of the Girls in the Juvenile Justice System, in The Supreme Court’s cases under the NLRA and ending with Delinquent Girl:An Assessment of one of its most recent. The 10 chapters present the story What We Know (forthcoming 2006). of 14 decisions of the Supreme Court and one from the National Labor Relations Board that never made it to the RICHARD S. FRASE Supreme Court. The cases were identified as the most Articles & Book Chapters important labor law decisions from a survey of professors who regularly discuss these cases in their labor law Proportionality Principles in the American Sys- courses. The stories behind the cases show the great vari- tem of Criminal Justice, Perspectives 28 ety of ways in which landmark cases become landmarks. (2005). This book was written by members of the Labor Law Why Minnesota Will Weather Blakely’s Blast, Group, a nonprofit organization composed of approxi- 18 Federal Sentencing Reporter 12 mately 50 professors in the United States, Canada, (2005) (with Dale G. Parent). Europe, and Israel, who today have six books on labor Punishment Purposes, Symposium,A More and employment law in print. This book, like the statute Perfect System:Twenty-Five Years of Guideline that gave rise to its subject, is inspired by the belief that Sentencing Reform, 58 Stan. L. Rev. 6 people working together can achieve objectives that (2005). those working alone cannot. The Warren Court’s Missed Opportunities in Substantive Criminal Law, 3 Oh. St. J. DANIEL J. GIFFORD Preventive Interrogational Torture, in The Crim. L. 75 (2005). Articles & Book Chapters Global War on Terrorism: Executive The Impact of Contextual Factors on the Deci- Branch Challenges in Forming Coun- Trade Tensions, __ Minn J. Int’l L. __ sion to Imprison in Large Urban Jurisdictions: terterrorism Policy 107 (2006). (2006) (forthcoming). A Multilevel Analysis, 51 Crime & Delin- Stability and Flexibility:A Dicey Business, in quency 400 (2005) (with Robert R.Wei- Rhetoric and Reality in the Merger Standards Global Anti-Terrorism Law and Pol- dner and Jennifer S. Schultz). of the United States, Canada, and the Euro- icy (Victor Ramraj, Michael Hor & Kent pean Union, 72 Antitrust L.J. 423 (2005) State Sentencing Guidelines: Diversity, Con- Roach eds., 2005). (with Robert T. Kudrle). sensus, and Unresolved Policy Issues, Sympo- sium, Sentencing:What’s At Stake for the RALPH F. HALL States?, 105 Col. L. Rev.1190 (2005). OREN GROSS Articles & Book Chapters Book Excessive Prison Sentences, Punishment Goals, To Recall or Not to Recall,That is the Ques- and the Eighth Amendment:“Proportionality” Law in Times of Crisis: Emergency tion:The Current Controversy over Medical Relative To What?, 89 Minn. L.Rev.571 Powers in Theory and Practice Device Recalls, 7 Minn. J.L.Sci. & Tech. 161 (2005). (Cambridge University Press, 2006). (2005). Sentencing Guidelines in Minnesota, Articles & Book Chapters A Proposed Solution to the Notification Prob- 1978–2003, in Crime and Justice:A lem, 7 Minn J. L. Sci. & Tech. 189 (2005). Review of Research vol. 32 (Michael Control Systems and the Migration of Anom- Tonry ed., 2005). alies, in Migration of Constitutional Off-Label Speech: Uncertainty Reigns for Ideas (Sujit Chowdhury ed., 2006). Device and Drug Makers, Washington Other What Emergency Regime?, __ Constella- Legal Foundation, vol 29 No. 59 America’s Sentencing Future, in Corrections tions __ (2006). (2005). in the 21st Century (Frank Schmalleger The Concept of “Crisis”:What Can We Medical Device Recalls—Current Controversy and John Smykla eds., 2005). Learn from the Two Dictatorships of L. Quinc- and Proposed Changes, Food and Drug tius Cincinnatus?, in Diritti Civili ed Law Institute—Update, Jan/Feb 2006. Economici in Tempi di Crisi (2006).

Perspectives SPRING 2006 17 Faculty Perspective

JILL ELAINE HASDAY JOAN HOWLAND Panarchy and Adaptive Change:Around the Loop and Back Again, 7 Minn. J. L. Sci. & Articles & Book Chapters Article & Book Chapters Tech. 59 (2005). Intimacy and Economic Exchange, 119 Harv. Expressing Our Values Through Our Actions, L. Rev.491 (2005). in The Spirit of Law Librarianship 233 Transboundary Ecosystem Governance, in (2005) (with Mersky and Leiter). Public Participation in the Gover- The Canon of Family Law, 57 Stan. L. Rev. nance of International Freshwater 825 (2004). Time to Hold ’Em or Fold ’Em? American Resources 73 (Carl Bruch et al. eds., Mitigation and the Americans with Disabilities Indian Gaming and the Explosion of Internet 2005). Act, 103 Mich. L.Rev.217 (2004). Gambling, Proceedings of the XVIII American Indian Sovereignty Sympo- Transboundary Ecosystem Governance: sium VI-I (2005). Beyond Sovereignty?, 35 Envtl. L.Rep. KRISTIN HICKMAN 10094 (2005). Articles & Book Chapters BRAD KARKKAINEN The Need for Mead: Rejecting Tax Exception- HEIDI KITROSSER Articles & Book Chapters alism in Judicial Deference, 90 Minn. L.Rev. Articles & Book Chapters __ (forthcoming 2006). The Police Power Revisited: Phantom Incor- poration and the Roots of the Takings Muddle, Globe Newspaper Co. v.Superior Court, How Did We Get Here Anyway? Consider- 90 Minn. L.Rev. (forthcoming 2006). Press-Enterprise Co. v.Superior Court I & II, ing the Standing Question in Daimler- Richmond Newspapers, Inc. v.Virginia,and Chrysler v. Cuno, 4 Geo. J.L. & Pub. Managing Transboundary Freshwater Ecosys- U.S. v.Eichman, in Encyclopedia of the Pol’y 47 (2006). tems: Lessons from the Great Lakes, 36 First Amendment (David L. Hudson, McGeorge L.Rev. (forthcoming 2006). Foreword: Daimler Chrysler v. Cuno and David A. Schultz & John R.Vile ed., the Constitutionality of State Tax Incentives Information-Forcing Environmental Regula- forthcoming). for Economic Development, 4 Geo. J.L. & tion, 33 Florida St. U. L. Rev. (forthcom- Introduction to the Symposium Issue: Justice Pub. Pol’y 14 (2006)(with Sarah L. ing 2006). Blackmun and Judicial Biography:A Conver- Bunce). Information-Forcing Environmental Regula- sation With Linda Greenhouse, ___ Brook. Taxpayer Standing and DaimlerChrysler v. tion: Penalty Defaults, Destabilization Rights, L.Rev.___ (forthcoming). Cuno:Where Do We Go from Here?, 110 and Environmental Governance, in New Presidential Secrecy and the NSA Spying tax notes 863 (Feb. 20, 2006) (with Governance and Constitutionalism in Controversy, Jurist (2006 op-ed). Donald B.Tobin). Europe and the U.S. (Grainne de Burca & Joanne Scott eds., forthcoming 2006). Containing Unprotected Speech, 57 Fla. L. Rev.843 (2005).

CONNIE LENZ Articles & Book Chapters Prescribing a Legislative Response: Educators, Cases and Materials on Juvenile Physicians, and Psychotropic Medication for Justice Administration Children, __ J. Contemp.Health L. & Pol’y __ (Fall 2005). BY BARRY C. FELD Other Thomson West 97 Law Libr. J. 385 (2005) (reviewing Pillow, Unfit Subjects: Educational Cases and Materials on Juvenile Justice Administration Policy and the Teen Mother). explores recent “get tough” policies that have compro- mised the traditional model of a discretionary and thera- peutic justice system for children. The casebook examines JOHN H. MATHESON the “law in action” as well as the “law on the books,”and Articles & Book Chapters incorporates empirical evaluations, criminological stud- Convergence, Culture and Contract Law in ies, and developmental psychological research to enrich China, 15 Minn. J. Int’l. Law ___ (2006). students’ understanding and to explore controversial Challenging Delaware’s Desirability as a issues such as gender and racial disparities in juvenile jus- Haven for Incorporation, 32 Wm. Mitchell tice administration. Professor Feld approaches this topic L. Rev.769 (2006). from a dual comparative perspective. He compares and contrasts the juvenile justice system with the criminal jus- American Bar Association, Common Law, tice system used for adults, and also compares and con- Directed Verdicts, Freedom of Contract and trasts the different states’ laws and juvenile justice poli- Summary Judgment entries, in The Ency- cies. The casebook focuses on three themes: (1) the legal clopedia of Civil Liberties in America and administrative consequences of regulating children (2005). rather than adults; (2) the procedural and substantive implications of a justice system that nominally empha- BRETT H. MCDONNELL sizes treatment rather than punishment; and (3) the ten- Articles & Book Chapters sions between discretion and rules that occur in a system which treats children rather than punishes adults. Shareholder Bylaws, Shareholder Nominations, and Poison Pills, Berk. Bus. L. J. (forth- coming).

18 Perspectives SPRING 2006 Sarbanes-Oxley, Fiduciary Duties, and the Conduct of Officers and Directors, Eur. Bus. Law in Times of Crisis Org. L. Rev. (forthcoming). Emergency Powers in Theory and Practice “Is There a Text in This Class?”The Conflict BY OREN GROSS AND FIONNUALA NÍ AOLÁIN Between Textualism and Antitrust, 14 J. Cont. Legal Issues 619 (2005) (with Cambridge University Press Daniel A. Farber).

The terrorist attacks of Sept. 11, 2001, and the ensuing “war FRED MORRISON on terror” have focused attention on issues that have Articles & Book Chapters previously lurked in a dark corner at the edge of the legal No Left Turn:Two Approaches to International universe. This book presents the first systematic and com- Law, in Weltinnenrecht 461 (2005). prehensive attempt by legal scholars to conceptualize the theory of emergency powers. It considers post-September Between a Rock and a Hard Place: Sover- 11 developments from theoretical, historical, and compara- eignty and International Protection, 80 Chi.- tive perspectives. The authors examine the interface Kent L.Rev.31 (2005). between law and violent crises through history and across jurisdictions, bringing together insights gleaned from the FIONNUALA NÍ AOLÁIN Roman republic and Jewish law through to the initial Books responses to the July 2005 attacks in London. Three unique models of emergency powers are used to offer a novel Law in Times of Crisis—Emergency Powers, conceptualization of emergency regimes, giving a coherent in theoretical and comparative per- insight into law’s interface with and regulation of crisis, and spective (forthcoming 2006) (with Oren a distinctive means for states to evaluate the legal options Gross). open to them for dealing with crises. International Human Rights: Law, Policy and Process (4th ed) (forthcom- ing)(with Weissbrodt, Fitzpartick and The Minneapolis Desegregation Settlement: MARK D. ROSEN Nueman). Legal Remedies and School Choice to Achieve Articles & Book Chapters Desegregation Fifty Years After Brown II,24 Articles & Book Chapters L. & Ineq. __ (forthcoming 2006). Why the Defense of Marriage Act is Not (Yet?) Unconstitutional: Lawrence, Full Faith Rights After the Revolution: Progress or Back- Segregation and Environmental Justice, 7 and Credit, and the Many Societal Actors That slide after the Good Friday Agreement, in Minn. J. L., Sci. &Tech. __ (December Determine What the Constitution Requires, Human Rights Advocates and Con- 2005). 90 Minn. L. Rev. (forthcoming 2006). flict Resolvers (Lutz ed., 2006). The Surprisingly Strong Case for Tailoring Enforcing Social and Economic Rights at the GREGG D. POLSKY Constitutional Guarantees, 153 U. Penn. L. Domestic Level—A Proposal, in Poverty: Rev. 1513 (2005). Rights, Social Citizenship and Gover- Articles & Book Chapters nance (Young et al eds.,forthcoming Reforming the Taxation of Deferred Compen- Institutional Context in Constitutional Law, 2006) (with G. McKeever). sation (forthcoming) (with Ethan Yale). Symposium, Democracy in Action:The Law and Politics of Local Governance, 21 J. L. & Political Violence and Gender in Times of Regulating Section 527 Organizations, 73 G. Pol. 223 (2005). Transition, Col. J. of Gender & L. (forth- Wash.L.Rev.1000(2005) (with Guy- coming 2006). Uriel E. Charles). Modeling Constitutional Doctrine, Sympo- sium, On Teaching Constitutional Law, 49 Transitional Justice, International Law and the Taxing the Promise to Pay, 89 Minn. L. St. Louis U.L.J. 691 (2005). Power of the Hegemon: Collision or Elision, in Rev.1092 (2005)(with Brant J. Hellwig). Human Rights, Democracy and Transi- Other tion (Morison, McEvoy & Anthony eds., KEVIN R. REITZ Testimony of Mark D. Rosen,Associate forthcoming 2006) (with C. Bell and C. Articles & Book Chapters Professor, Chicago-Kent College of Law, Campbell). on the Subject of Congressional Power to Don’t Blame Determinacy: U.S. Incarceration The Paradox of Democratic Transitions,27 Enact H.R. 1755, the “Child Custody Growth Has Been Driven by Other Forces, 84 (Vol. 1) Hum. Rgts.Q. (2005). Protection Act,” before the United Tex. L. Rev.___ (forthcoming 2006). States House Committee on the Judi- The Enforceability of Sentencing Guidelines, MYRON ORFIELD ciary Constitution Subcommittee, Leg- 58 Stan. L. Rev. 155 (2005). islative Hearing on H.R. 1755, The “Child Articles & Book Chapters The New Sentencing Conundrum: Policy and Custody Protection Act” (forthcoming Racial Integration and Community Revital- Constitutional Law at Cross-Purposes, 105 2006). ization:Applying the Fair Housing Act to the Colum. L. Rev.1082 (2005). Low Income Housing Tax Credit, 58 MARY RUMSEY Vand.L.Rev.__ (forthcoming 2006). Other Articles & Book Chapters Land Use and Housing Policies to Reduce American Law Institute, Model Penal Code: Concentrated Poverty and Racial Segregation, Sentencing, Discussion Draft No. 1 (2006). Foreign and International Law Librarianship, 33 Fordham Urb. L.J. __ (forthcoming in Law Librarianship in the 21st Cen- 2006). tury (Lisa Smith-Butler et al eds., forth- coming 2006).

Perspectives SPRING 2006 19 Faculty Perspective

Is the Law Library a Woman’s World?, AALL SHAYNA M. SIGMAN Retaining Life Tenure:The Case for a “Golden Spectrum, February 2006, at 16. Articles & Book Chapters Parachute,” 83 Wash.U.L.Q. ___ (forth- coming 2006) (with Ryan W.Scott). Foreign and Transnational Legal Forms, Decriminalizing Family:The Private Ordering LLRX (December 2005), www.llrx.com/ of Polygamy (forthcoming). Justice Clarence Thomas, in Yale Biographi- features/foreignlegalforms.htm. cal Dictionary of American Law The Jurisprudence of Judge Kenesaw Mountain Basic Guide to Researching Foreign Law, (Roger K. Newman ed., forthcoming Landis, 15 Marq. Sports L.Rev.277 2005) (with Jim Chen). GlobaLex (September 2005), www. (2005). nyulawglobal.org/globalex/Foreign_Law_ Research.htm. E. THOMAS SULLIVAN STEPHEN M. SIMON A Guide to Fee-Based U. S. Legal Research Books Books Databases, GlobaLex (August 2005), Antitrust Law, Policy and Procedure www.nyulawglobal.org/globalex/US_ Minnesota Misdemeanors and Moving (2006 Supp.) (with H. Hovenkamp). Fee-Based_Legal_Databases.htm. Traffic Violations, revised ed. (2004). Articles & Book Chapters Bibliography on Non-State Actors in Interna- Articles & Book Chapters tional Law, in Non-State Actors and The Value of Teaching in a Research Human Rights (Philip Alston ed., 2005). The Time to License Revocation or Plate University, The Minnesota Daily (Oct. Impoundment and DWI Recidivism, Minn. 13, 2005 op-ed). Learn from the FCIL Folks, PLL Perspec- Police & Peace Officers Assoc. J.(Win- tives, Summer 2005, at 8. ter 2005). “Judicial Activism,” from the Left or Right, Paper vs. Electronic Sources for Law Review Undercuts the Rule of Law, Baltimore Sun In-Vehicle Technology to Correct Teen Driving (Sept. 6, 2005 op-ed). Cite-Checking: Should Paper Be the Gold Behavior:Addressing Patterns of Risk, ITS Standard?, 97 Law Libr. J. 31 (2005) (with Institute, University of Minnesota April Schwartz). (with Shawn Brovold). CHANTAL THOMAS Other Articles & Book Chapters 33 Int’l J. Legal Info. 283 (2005) DAVID STRAS Intersections Between Labor,Trade and IP (reviewing Transnational Commercial Articles & Book Chapters Rules, in Strategies To Optimize Eco- Law: International Instruments and nomic Development In A Trips Plus Era “Foreword,” Symposium on the Future of the (Daniel E. Gervais ed., forthcoming Commentary). Supreme Court: Institutional Reform and 33 Int’l J. Legal Info. 151 (2005) Beyond, 90 Minn. L.Rev.___ (forthcom- 2006). (reviewing The Future Competition ing 2006) (with Karla Vehrs). Max Weber and the Social Science of Legal Framework). The Incentives Approach to Judicial Reform:A Reassessment, Minn. J. Int’l L. Retirement, 90 Minn. L.Rev.___ (forth- (forthcoming 2006). coming 2006). On Constitutional Democracy and Globaliza- tion, in Legislatures and Constitution- alism:The Role of Legislatures in the Crime and Justice, Vol. 33 Constitutional State (Tsvi Kahana ed., Crime and Punishment in Western forthcoming 2006). Governance Feminism and its International Countries, 1980–1999 Law Projects in War and Trade, __ Harv.J. EDITED BY MICHAEL TONRY AND DAVID P. FARRINGTON L. & Gender (forthcoming 2006)(with University of Chicago Press Journals Janet Halley, Prabha Kotiswaran & Hila Shamir).

Volume 33 of Crime and Justice presents comprehensive, up-to-date summaries of crossnational crime trends in MICHAEL TONRY Australia, Canada, England, Wales, the Netherlands, Books Scotland, Switzerland, and the United States. These Crime and Punishment in Western essays take an interdisciplinary approach to crime, its Countries, 1980–99 (ed. with David P. causes, and its repercussions. Farrington, 2005). Contributors: Marcelo F. Aebi, Catrien C. J. H. Bijleveld, Crime and Justice:A Review of Alfred Blumstein, Carlos Carcach, Philip J. Cook, Mark H. Research, vol. 32 (2005). Irving, Darrick Jolliffe, Nataliya Khmilevska, Martin Killias, Philippe Lamon, Patrick A. Langan, Asheley Van Ness, Articles & Book Chapters Paul R. Smit, David J. Smith, and Brandon C. Welsh. Punishment and Crime Across Space and Time, in Crime and Punishment in Michael Tonry is the Sonosky Professor of Law and Public Western Countries, 1980–1999, (ed. Policy and director of the Institute on Crime and Public with David P.Farrington, 2005). Policy at the University of Minnesota, and senior fellow in the Netherlands Institute for the Study of Crime and Law Enforcement, Leiden. David P. Farrington is professor of psychological criminology at Cambridge University.

20 Perspectives SPRING 2006 Faculty Perspective

Cross-national Measures of Punitiveness, in Crime and Punishment in Western The American Congress Countries, 1980–1999, (ed. with David P. BY JASON M. ROBERTS Farrington, 2005) (with Alfred Blumstein and Asheley van Ness). Cambridge University Press Obsolescence and Immanence in Penal Theory and Policy, 105 Col. L. Rev. 1233 (2005). Informed by the authors’ Capitol Hill experience and nationally The Functions of Sentencing and Sentencing recognized scholarship, The American Congress presents a crisp Reform, 5 Stan. L. Rev. 37. (2005). introduction to all major features of Congress: its party and committee systems, leadership, and voting and floor activity. Should Mexico Harmonize its Substantive Including the most in-depth discussions of the place of the Criminal Law and Sanctions Systems?, in president, the courts, and interest groups in congressional Harmonization of Criminal Law, (Jan- policy-making available in a text, this text blends an emphasis Michael Simon, Ulrich Sieber & Hans- on recent developments in congressional politics with a clear Jörg Albrecht eds., 2005). discussion of the rules of the game, the history of key features The Prospects for Institutionalization of of Congress, and stories from recent Congresses that bring Restorative Justice Initiatives in Western politics to life. Countries, in Institutionalizing Restorative Justice, (Ivo Aertsen,Tom DAVID WEISSBRODT Genetic Testing and Disability Insurance: Daems & Luc Robert eds., 2005). Books Ethics, Law & Policy, J. Law, Medicine & Why Are Europe’s Crime Rates Falling?, 5 Ethics (forthcoming 2006) (with Jeffrey Criminology in Europe 8 (2005). Immigration Law and Procedure in a P.Kahn). Nutshell (5th ed. 2005)(with Laura Danielson). Death and Dying in America: Schiavo’s Impli- KEVIN K. WASHBURN cations, Minn. Medicine, June 2005, at 34. Articles & Book Chapters Articles & Book Chapters Other Human Rights Responsibilities of Businesses Tribal Self Determination at the Crossroads, as Non-State Actors, in Non-State Actors Euthanasia, in The World Book Ency- 38 Conn.L.Rev.__(forthcoming 2006). and Human Rights 553 (Philip Alston clopedia (2007 ed.) (forthcoming 2008). Federal Criminal Justice and Tribal Self- ed., 2005) (with Muria Kruger). Living Will, in The World Book Ency- Determination, 84 N. Carolina L. Rev.__ Minnesota Professor Helps Draft International clopedia (2007 ed.) (forthcoming 2008). (forthcoming 2006). Standards for Business, Minn. Syllabus 11 Court Ruling Doesn’t Answer Assisted Suicide American Indians, Crime and the Law, 104 (Issue No. 1, 2005–06). Questions, St. Paul Pioneer Press, Jan. 29, Mich. L. Rev.709 (2006). Introduction to Socratic Method and the Irre- 2006, Op-ed. The Federal Criminal Justice System in Indian ducible Core of Legal Education, 90 Minn. L. Country and the Legacy of Colonialism, 52 Rev.i (2005). JUDITH T. YOUNGER The Federal Lawyer 40 (March/April Piercing the Confidentiality Veil: Physician Tes- 2005). Articles & Book Chapters timony in International Criminal Trials Reconsidering the Commission's Treatment of Whose America?, Const. Comm. (forth- Against Perpetrators of Torture, 15 Minn. J. coming). Tribal Courts, 17 Federal Sentencing Int’l L. 43 (2006) (with Ferhat Pekin & Reporter 209 (February 2005). Amelia Wilson). Tribal Voting Rights and Election Law, Section Affiliated Faculty 4.06, in Felix S. Cohen’s Handbook of SUSAN M. WOLF Federal Indian Law (3d ed. 2005). ELIZABETH HEGER BOYLE Articles & Book Chapters Articles & Book Chapters Other Incidental Findings in Brain Imaging Social Science and Human Rights, 1 J. for Prepared Statement and Testimony, Over- Research, 311 Science 783 (2006) (with J. Interdisciplinary Legal Thought __ sight Hearing on the Regulation of Class III Illes et al). (with Ay_egul Kozak) (forthcoming). Indian Gaming following Decision by the Are We Making Progress in the Debate Over Power and Autonomy in the History of Chil- United States District Court for the Dis- Racial and Ethnic Categories in Biomedical dren’s Rights, in Youth, Globalization trict of Columbia’s decision in Colorado Research?, 37 Nature Genetics 789 and Law ___ (Sudhir Venkatesh & River Indian Tribe v.NIGC, United States (2005). Senate, Committee on Indian Affairs Ronald Kassimi eds., 2006) (with Trina (John McCain, Chairman), 109th Con- Assessing Physician Compliance with the Smith & Katja Guenther). Rules for Euthanasia and Assisted Suicide, 165 gress, 1st Session (Sept. 21, 2005). Globalization: Processes of Legislation, in The Archives of Internal Medicine 1677 Encyclopedia of Law and Society: Prepared Statement and Testimony, Over- (2005). sight Hearing on the Regulation of Indian American and Global Perspectives __ Gaming, United States Senate, Commit- Bioethics Matures:The Field Faces the Future, (David S. Clark ed., 2006). tee on Indian Affairs (John McCain, Hastings Center Report, July-Aug Chairman), 109th Congress, 1st Session 2005, at 6 (with Jeffrey P.Kahn). (April 27, 2005). Doctor and Patient:An Unfinished Revolution, Yale J. Health Law, Policy & Ethics (forthcoming 2006).

Perspectives SPRING 2006 21 Faculty Perspective

Das moderne Recht als saekularisiertes global JANE E. KIRTLEY Using Technology to Facilitate Response to Modell: Konsequenzen fuer die Rechtssoziolo- Articles & Book Chapters Intervention Monitoring, in The handbook gie (Modern Law as a Secularized and Global of response to intervention:The sci- Model: Implications for the Sociology of Law), Legal Evolution of the Government-News ence and practice of assessment and in Weltkulture:Wie die westlishen Media Relationship, in Institutions of intervention (S. R. Jimerson, M. K. Prinzipien die Welt durchdringen 179 American Democracy:The Press Burns & A. M.VanDerHeyden eds., forth- (Georg Kruecken ed., 2005) (translated by (Geneva Overholser and Kathleen Hall coming) (with J.Ysseldyke). Jamieson eds., 2005). Barbara Kuchler) (with John W.Meyer). Leadership, Change, and Technology, IBM The First Amendment Tradition and Its Other Education Leadership Newsletter, Critics, in Institutions of American (November 2005). Introduction to Forum on Laura Nader, 39 L. Democracy:The Press (Geneva Over- & Soc.Rev.114 (2005). holser and Kathleen Hall Jamieson eds., Data-Driven Decision-Making Resources: 2005) (with Bruce W.Sanford). CASTLE Builds Technology Systems That Deliver, The Leader (July 2005). JOHN W. BUDD Other Technology Tools for Data-Driven Teachers Articles & Book Chapters Judges and Journalists, The Baltimore Sun, (2005), retrieved October 1, 2005 from The Ethics of Human Resources and Indus- July 5, 2005. Microsoft Innovative Teachers trial Relations, Champaign, Ill: Labor and Thought Leaders at Employment Relations Association, BERNARD M. LEVINSON www.microsoft.com/education/Thought (John W.Budd and James G. Scoville eds., LeadersDDDM.mspx. Books 2005). Data-Driven Teachers (May 2005), retrieved The Effect of Unions on Employee Benefits: L’Herméneutique de l’innovation: October 1, 2005 from Microsoft Innov- Updated Employer Expenditures Results, 26 J. Canon et exégèse dans l’Israël biblique ative Teachers Thought Leaders at of Lab.Research 4 (Fall 2005). (Le livre et le rouleau 24) (2006)(Preface http://www.microsoft.com/education/Th by Jean Louis Ska). Employment With A Human Face:The oughtLeadersDDDM.mspx. Author Responds, Employee Responsibili- Articles & Book Chapters Bridging the No-Man’s Land Between School ties & Rights Journal, vol. 17, no. 3 The Birth of the Lemma:The Restrictive Technology and Effective Leadership, Techno- (September 2005). Reinterpretation of the Covenant Code’s Man- logical Horizons in Education 32(11), umission Law by the Holiness Code (Leviticus 20 (2005)(with A. G. Dikkers & J.E. TIMOTHY R. JOHNSON 25:44–46), 124 J. Biblical Lit. 617 (2005). Hughes). Articles & Book Chapters The First Constitution: Rethinking the Ori- Profiles in Leadership: District Distinction, gins of Rule of Law and Separation of Powers Threshold, 3(2), 18 (2005). The Evaluation of Oral Argumentation before in Light of Deuteronomy, 27 Cardozo L. the U.S. Supreme Court, in 100 Amer. Preparing Technology-Literate Administrators, Rev. 1853 (2006). Political Sci.Rev. (forthcoming 2006) Teaching in Educational Administra- (with Paul J.Wahlbeck and James F. The Manumission of Hermeneutics:The Slave tion 12(1), 2 (2005)(with J. Hughes). Spriggs). Laws of the Pentateuch as a Challenge to Algebra Achievement in Virtual and Traditional Contemporary Pentateuchal Theory, in Con- Pivotal Politics, Presidential Capital, and Schools, Naperville, Ill: North Central gress Volume, Leiden 2004 281 (André Supreme Court Nominations, Congress and Regional Educational Laboratory, Lemaire ed., 2006). the Presidency 32 (2005) (with Jason United States Department of Educa- Roberts). “Du sollst nichts hinzufügen und nichts weg- tion (with J.E. Hughes et al.) (July 2005). nehmen” (Dtn 13,1): Rechtsreform und Passing and Strategic Voting on the U.S. Staff Development and Student Perceptions of Hermeneutik in der Hebräischen Bibel, Supreme Court, 39 L. Soc. Rev.349 (2005) the Learning Environment in Virtual and Tra- Zeitschrift für Theologie und Kirche (with James Spriggs & Paul Wahlbeck). ditional Schools, Naperville, Ill: North (forthcoming 2006). Central Regional Educational Labo- American Bar Association Dialogue: Selecting The “Effected Object” in Contractual Legal ratory, United States Department of Supreme Court Justices, in Focus on Law Language:The Semantics of “If You Purchase a Education (with J. E. Hughes et al.) (July Studies 1 (2005) (with Jason Roberts). Hebrew Slave” (Exod. xxi 2),Vetus 2005). Other Te stame ntum (forthcoming 2006). The Chicago Data Competencies:A Profes- National Science Foundation Grant Deuteronomy’s Conception of Law as an sional Development Framework for Data-Dri- ($53,922), Collaborative Research:The Estab- “Ideal Type”:A Missing Chapter in the His- ven School Improvement, Chicago, Ill: lishment of Stare Decisis in the American tory of Constitutional Law, Ma’arav: Jour- Chicago Public Schools (April 2005). Legal System (with James F.Spriggs II and nal for the Study of the Northwest Interim Report 1: Evaluation of the Rochester Paul J.Wahlbeck) SES-0550276.Total Semitic Languages and Literatures 12: Public Schools Smaller Learning Communities Grant: $284,440 (2006). 1–2 (2005). Implementation Grant, Minneapolis: Uni- Book review of Seeking Justices:The versity of Minnesota (December Judging of Supreme Court Nominees, SCOTT MCLEOD 2005)(with B. Brahier & J. Richardson). by Michael Comiskey, 3 Perspectives Articles & Book Chapters Minnesota INFOCON Enhancing Education on Politics 897 (2005). Through Technology Final Evaluation Report, School Technology Leadership:Theory to Prac- Minneapolis: University of Minnesota tice, Academic Exchange, 9(2), 51 (2005) (December 2005)(with N.Vagle). (with J. E. Hughes et al.).

22 Perspectives SPRING 2006 Faculty Perspective

Minnesota INFOCON Enhancing Education ROBIN STRYKER Through Technology Preliminary Survey Articles and Book Chapters Report, Minneapolis: University of Min- nesota (April 2005) (with N.Vagle). A Sociological Approach to Law and the Econ- omy, in Handbook of Economic Sociol- ogy, 2nd Ed. 527 (2005) (with Lauren KAREN MIKSCH Edelman). Articles & Book Chapters The Welfare State, Family Policies & Women’s Unequal Access to College Preparatory Classes: Labor Market Participation:A Fuzzy-Set A Critical Civil Rights Issue, in Brown v. Analysis, in Method & Substance in Board of Education: Its Impact on Comparative Political Economy (forth- Public Education 1954–2004 (Dara N. coming 2006)(with Scott Eliason & Eric Byrne ed., 2005). Tranby). Immigrant Students and the DREAM Act, 22 Sociology of Law, in Handbook of 21st Research & Teaching in Developmental Century Sociology (forthcoming 2006). Ed. 59 (2005). Sociological Analysis of Labor Law, in Law Review of the Transition to College Literature and Society:American and Global in Law, Transitions to College (SSRC Perspectives (forthcoming 2006). ed. forthcoming 2006) (with Jesse Mendez). DAVID E. WILKINS Books JASON M. ROBERTS Cohen on Tribal Constitutions: Basic Books Memorandum on Drafting of Tribal The American Congress, 4th ed. (2005). Constitutions (1934) (forthcoming 2007). Articles & Book Chapters American Indian Politics and the Redistricting, Candidate Entry, and the Politics American Political System, revised ed. of Nineteenth Century U.S. House Elections, (2006). Am. J. Pol. Sci. (forthcoming). Minority Rights and Majority Power: Condi- Articles & Book Chapters tional Party Government and the Motion to Vine Deloria, Jr.: Indigenous Champion, Recommit in the House, 1909–2000, Leg- Wicazo Sa Rev. (forthcoming 2006). islative Stud.Q. (2005). Other Strategic Politicians and U.S. House Elections, Stuart Banner, How the Indians Lost Their 1874–1914, J. Pol. (2005). Land: Law and Power on the Frontier (2005) Pivotal Politics, Presidential Capital, and Book Review in The American Histori- Supreme Court Nominations, Congress and cal Review,Vol. 111 (forthcoming 2006). the Presidency (2005). Lindsay G. Robertson, Conquest by Law: How the Discovery of America Dispossessed KATHRYN SIKKINK Indigenous Peoples of Their Lands (2006) Articles & Book Chapters Book Review in The Western Histori- cal Quarterly (forthcoming 2006).● Argentina’s Contributions to Global Trends in Transitional Justice, in Transitional Justice in the Twenty-First Century: Beyond Truth vs. Justice (Naomi Roht-Arriaza & Javier Mariezcurrena eds., forthcoming 2006) (with Carrie Booth Walling). The Transnational Dimension of the Judicial- ization of Politics in Latin America, in The Judicialization of Politics in Latin America (Rachel Sieder, Line Schjolden and Alan Angell eds., 2005). Patterns of Dynamic Multilevel Governance and the Insider-Outsider Coalition, in Transnational Protest and Global Activism (Donatella Della Porta and Sid- ney Tarrow eds., 2005).

Perspectives SPRING 2006 23 Faculty Perspective

❯ Faculty Profile

After graduating from the Boalt Hall Brett McDonnell School of Law at the University of California-Berkeley in 1997, Associate Professor of Law McDonnell clerked for Ninth Circuit Court of Appeals Judge Alex Kozinksi, Brett McDonnell joined the Law School faculty as an associate professor. He was the 2005 Julius E. Davis whom Legal Affairs has called,“the Professor of Law. He teaches and writes in the areas of business associations, corporate finance, law and eco- most controversial judge in our most nomics, securities regulations, mergers and acquisitions, contracts, and legislation. controversial court.” McDonnell called usiness law Associate Pro- him a brilliant, fascinating, and loyal fessor Brett McDonnell is boss—and one who “nearly works his taking his scholarship in a clerks to death,” which McDonnell new direction, looking at found to be good preparation for pri- how corporate law could vate practice. evolveB to increase employee involve- During the late 1990s tech boom, ment in corporate decision-making. McDonnell worked for a San Fran- “Most American scholars who think cisco-based law firm doing public about corporate governance focus on offerings, acquisitions, and general cor- boards of directors, shareholders, and porate counseling. He translated that top managers, and they don’t look experience to the classroom after join- much at anyone else,” he says.“I think ing the Minnesota Law faculty in 2000. that is wrong.An important part of While preparing a lecture on prospec- corporate governance is how it inter- tuses for his securities and regulation acts with employees of the company.” course, he recalled having worked on McDonnell is best known for his writ- an initial public offering for an Inter- and a high school teacher mother.“I ing on corporate federalism, the inter- net-based credit card company. Curi- knew I was going into academia from play of state and federal efforts to regu- ous about how it had fared, he a pretty young age. It was all a matter late business. Now he is returning to checked the stock price history and of what field I would go into,” he says. topics that intrigued him as an eco- found it dropped 75 percent in one nomics doctoral student at Stanford For a long time, that field was eco- day—after being investigated for University. nomics. He attended Williams College, fraud. (This happened after he left the Williamstown, Mass., and was inspired firm, which had nothing to do with His PhD thesis examined the relation- by his economics professors, including the problem.) ship between worker cooperatives and Michael McPherson (who went on to banks, he says. One argument for why The company became embroiled in a become president at Macalester more co-ops haven’t flourished is class action suit, fertile ground for a College in St. Paul, Minn.) and by because banks are unfamiliar with their case study. McDonnell instructed stu- books such as Ken Arrow’s The Limits business model, making it difficult for dents to go through the prospectus as of Organization (W.W.Norton & co-ops to secure capital. Like the both corporate and shareholders’ Co., 1974). financial system, the legal system is attorneys and to argue both sides of more familiar with the traditional He earned a masters in philosophy the suit. shareholder-owned business model. from Cambridge University before Although McDonnell has strong McDonnell wants to develop a theo- attending Stanford. It wasn’t until his California ties, he has chosen to stay in retical legal framework that encourages last year of graduate school that he Minnesota.“It is coming back home,” more employee involvement in corpo- found economics’ formal mathematical he said.“My father still lives in Beloit. rate governance. His aim is to explain modeling too confining. McDonnell My partner and I love the Twin Cities. why employee involvement is benefi- then shifted gears. We like the faculty a lot.That’s what cial, and he plans to investigate which “I realized that there was this thing keeps us here.” ● changes to the law would encourage called law and economics where I such employee input. By Scott Russell. Russell is a freelance writer could use a lot of my econ training,” and full-time reporter, covering Minneapolis McDonnell grew up in Beloit,Wisc., he explains.“I could do broader city government for Skyway News and South- the son of a college professor father research and writing.” west Journal.

24 Perspectives SPRING 2006 Faculty Perspective

❯ First Person

tized material will be woven into vari- ous parts of the Web site where rele- vant to the subject area or chronologi- cally appropriate. Already we have digitized 337 letters (totaling 489 pages) written by Darrow to family members and friends; we also scanned 35 envelopes, which help illustrate the historic aspects of the let- ters.These digital images of the Dar- row letters are vitally important, as they allow us to provide universal access to this one-of-a-kind collection while at the same time preserving and protecting the actual letters from dam- age.The letters were scanned by the University’s Digital Collection Unit (DCU) located in the Elmer L.Ander- sen Library.The DCU will continue to provide guidance and support as our Work Continues on digitization project progresses. In addition to digitizing the letters, we Darrow Papers are transcribing each of the Darrow letters and will provide online and print access to the transcriptions. Bon- The Law Library celebrated the acquisition of its millionth volume, nie Johnson, executive secretary/special The Papers of Clarence Darrow, in October 2005. The centerpiece of events coordinator for the Law Library, this collection are hundreds of Darrow’s personal letters as well as is undertaking this essential project. letters written by other family members. While her task is slow and sometimes tedious, legible transcriptions will greatly increase the value of the collec- BY PROFESSOR MICHAEL HANNON, ’98 tion; Darrow’s handwriting skills fell far short of his trial skills, and without o establish the Law for Collection Development, is work- transcriptions everyone from dedicated Library as the preeminent ing on locating and acquiring Darrow scholars to curious amateurs would be resource on the work and material for our general collection, hampered in their efforts to learn more life of Clarence Darrow, while Katherine Hedin, curator of about this great American lawyer. one of the most impor- Rare Books & Special Collections, is tantT lawyers in American legal history, pursuing Darrow material for the Rare To guide us in the process of creating we are working on several long-term Books collection. the Library’s digital Darrow collection, goals. First, we are acquiring as much Digitization, the process of scanning we fortunately have several excellent substantive written material as possible and capturing paper or photographic models, including the Lincoln Papers about Darrow, including material that materials in digital form, gives us a at the Library of Congress and letters he wrote as well as material that was wonderful opportunity to provide uni- of John Muir by the Wisconsin Histor- written about him such as books, versal access and permanent preserva- ical Society, both of which feature dig- articles, news accounts, pamphlets, and tion of the Law Library’s Darrow col- itized letters and transcriptions As we also photographs. In addition to this lection. Our current plan is to scan and continue our work on the Law comprehensive collection of Darrow- capture a significant portion of new Library’s Darrow collection, we are related materials, we intend to acquire Darrow acquisitions, which will then grateful for the generosity and hard trial transcripts of important Darrow be added to a publicly accessible Web work that has made this outstanding cases. Connie Lenz, associate director site.The Darrow letters and other digi- acquisition possible. ●

Perspectives SPRING 2006 25 FEATURES This issue of the alumni magazine is devoted to constitutional law and to the careful consideration and debate given to it by outstanding faculty at the Law School. In this time of war and increasingly expansive executive branch powers, constitutional law is a hotbed of controversy. The Features section contains articles about the work of Professors Michael Stokes Paulsen, Dale Carpenter, and Jim Chen. Professor Heidi Kitrosser examines executive privilege, and in the final feature, she is joined by Professors Paulsen and Carpenter in a thought-provoking discussion, facilitated by e-mail, about wartime presidential powers. Building A More Perfect Law School

The Law School’s constitutional law faculty offers lively and diverse insights on sometimes controversial constitutional topics.

BY SCOTT RUSSELL

cholarship is the cornerstone of any excellent constitutional law program; it inspires classroomS teaching, attracts top guest lecturers, creates student opportunities in research and writing, and eventually, leads students to top jobs and clerkships. By any scholarly standard, the Law School’s constitutional law program has a solid foundation. Associate Dean Michael Stokes Paulsen is writing The Dean Alex M. Johnson, Jr., is proud of the depth and Constitution of War, a book examining the constitutional breadth of faculty scholarship, yet even more so of its civility issues of war, peace, national security, terrorism, and indi- and collegiality despite differences. Constitutional law is vidual liberties.The project grew out of a course he began filled with controversial issues from abortion to gay mar- teaching shortly after 9/11. He also is coauthoring a new riage, issues that can create acrimony and ill will, he explains. constitutional law casebook, built on a “Great Cases” The faculty’s ideological diversity is its greatest strength. theme. “Faculty members don’t always agree,” Johnson says.“They Professor Dale Carpenter is writing a book on the untold are able to address counterarguments in advance of publica- history of Lawrence v.Texas, the 2003 U.S. Supreme Court tion.As a result, I think their work has much more depth, is decision that struck down the Texas sodomy law and estab- much stronger, and is more robust.” lished a constitutional privacy right for consensual sex between adults.A native Texan,Carpenter travels there for The Law School’s constitutional scholars do not shy from first-person research with the case’s key players. controversy. Paulsen argued in the Yale Law Journal that the court should decide future abortion cases based on the Associate Dean Jim Chen has focused his recent scholar- Constitution alone, not on stare decisis.“Congress could pass ship on the Supreme Court’s desegregation cases.This past a law relieving the court of its perceived obligation to year he coordinated a Law School symposium,“With All follow precedent,” he writes. Carpenter has testified before Deliberate Speed: Brown II and Desegregation’s Children.” the U.S. Senate Judiciary Committee, arguing against a con- Chen’s research traces the odd literary origins and serious stitutional amendment banning gay marriage.The amend- legal consequences of the Court’s oxymoronic phrase “all ment would undermine federalism, cutting short an impor- deliberate speed” that allowed southern school districts to tant national debate, Chen says. He is watching as state delay desegregation. politicians prepare to debate tougher policies on illegal

Perspectives SPRING 2006 27 Building A More Perfect Law School immigrants. Such policies raise important constitutional All the journal members had an opportunity to attend the issues, and he hopes that politicians will respect these Brown II symposium and listen to the speakers before immigrants’ rights. starting work on articles for publication.“It was nice to hear them speak, talk through their ideas, and see how that The legal academy is often accused of bias, Johnson says: translated into an actual written academic work,” says “but, you can see from our faculty we have a wide spec- Gassman-Pines, who will clerk for Minnesota Supreme trum of ideas.” Court Chief Justice Russell Anderson, ’68, after graduating. The “Future of the Supreme Court” symposium was par- It’s about the students ticularly timely, coinciding with two Supreme Court Second-year law student Kari Bomash probably won’t vacancies, explains Vehrs, who plans to do civil litigation at pursue a career as a constitutional law scholar, but her Lindquist & Vennum after graduating.The Law School has experience speaks to the importance of a strong and prepared her well, she says.“The thing about constitutional inspiring constitutional curriculum. Bomash is in the joint issues, they can come up in any matter that you are degree program and is pursuing both a law degree and a working on.” masters degree in public health. In another boon to students, the Law School is reviving the school’s Jurist in Residence program. It hopes to host a U.S. Supreme Court Justice on Outside the classroom, law students campus next spring. “The program will allow students to interact have ample opportunity to engage with judges on a more intimate level,” says Johnson, who credits Associate Professor David in constitutional discussions with Stras with spearheading the effort.“We hope the participating judge will be in the building, the nation’s top scholars. attend classes and seminars, and have one-on- ones with students over a period of a week to ten days.” Bomash got hooked on Carpenter’s constitutional law class, her favorite first-year course. She now is taking a public The Jurist in Residence program also would help Supreme health law class, focusing on the constitutional issues raised Court and federal justices recognize the high caliber of by such policies as quarantine and government collection Minnesota Law School students and steer them to top of individuals’ health data.“If you are going to work in clerkships. Stras, who sits on the Law School’s clerkship public health, even if you don’t use it directly, you need to committee, clerked for Justice Clarence Thomas in be cognizant of how much power you have,” she says. 2002–2003, and had a behind-the-scenes role in the term that included important cases addressing affirmative action, Outside the classroom, law students have ample opportu- three-strikes laws, and Megan’s law. nity to engage in constitutional discussions with the nation’s top scholars. Chen coordinated the first inaugural The University also delighted in hosting recently retired Constitution Day lecture series this past fall, showcasing Supreme Court Justice Sandra Day O’Connor on May 23 the University’s talent, including lectures by Professor as part of the University of Minnesota Alumni Association’s Kevin Reitz on criminal procedure and by Associate annual celebration. Professor Jill Hasday on equal protection. “We filled the biggest room in the law school, in excess of Scholarship in action 200 people,” Chen says.“We had overflow video rooms The constitutional scholarship done at the Law School and arranged for video linkage throughout the campus and covers a broad landscape. university system.” In Chen’s writings on desegregation and Brown II, he traces Third-year students Jenny Gassman-Pines and Karla Vehrs the U.S. Supreme Court’s first use of the phrase “all delib- are engaged in Supreme Court scholarship. Gassman-Pines, erate speed” to Virginia v.West Virginia (1911). Justice Oliver editor-in-chief of the Journal of Law and Inequality, and her Wendell Holmes erroneously attributed it to English staff of 45 are publishing many of the lectures from this Chancery, where it does not appear, according to Chen. past spring’s Brown II symposium, which featured NAACP The phrase’s most likely source is the 1893 poem The chairman Julian Bond and top scholars from Duke, the Hound of Heaven by Francis Thompson, a laudanum addict University of Chicago, and other law schools.Vehrs is the who sought refuge in religion and poetry. Minnesota Law Review articles editor for the Lindquist & Vennum 2005 Symposium,“The Future of the Supreme “One aspires to inform and inspire one’s peers and one’s Court: Institutional Reform and Beyond.”The fall event students,” Chen says.“Showing some of the artistic, literary, drew 13 national scholars, including Kenneth Starr, dean of and historic aspects of the law—putting legal decisions in the Pepperdine Law School and former special prosecutor. their broader cultural context—is very important to me, to

28 Perspectives SPRING 2006 Build Your Constitutional IQ Before the Bill of Rights added a slew of rights to the U.S. Constitu- tion, the original document used the term “right” but once. Can you give the citation?

Tick, tick, tick, tick…ding. understand these He writes,“Marbury stands instead for constitutional Time’s up. landmarks for what supremacy…and the personal responsibility for all who they are.They are swear an oath to support the Constitution to be guided by The answer is patently simple: not perfect.They are their best understanding of the Constitution and not pli- doctrinally flawed.” antly to accede to violations of the Constitution by other See Art. I, § 8, cl. 8: “The Congress government actors.” shall have Power…”To promote the Chen’s sweeping Progress of Science and useful Arts, scholarship also In The Constitution of Necessity, Paulsen says the presidential by securing for limited Times to includes First oath of office—to “preserve, protect and defend the Amendment issues Authors and Inventors the exclusive Constitution of the United States”—creates a self-preserva- such as Conduit-Based Right to their respective Writings tion principle that in some cases overrides specific consti- Regulation of Speech, and Discoveries… tutional restraints. It’s a key issue given the current debate where he argues over presidential powers.The president’s first duty, writes against applying dif- This is one question in a 21-item Paulsen,“is to preserve, protect and defend the ferent free speech constitutional scavenger hunt cre- Constitution of the United States by preserving, protecting standards to different and defending the United States by every indispensable ated by Associate Dean Jim Chen media. In coming as part of the inaugural Constitu- means within his power.” (For more on this issue, see the years, he plans to faculty debate on page 35.) tion Day event, held in Fall 2005. write more on the The hunt is available online at “economic Other professors are expanding constitutional scholarship www.law.umn.edu/constitutional Constitution,” at the Law School, including Associate Professor Guy- law/index.html. building on work he Uriel E. Charles on voting rights and Associate Professor has done on such Heidi Kitrosser on free speech and separation of powers. cases as Wickard v. Filburn (his favorite), a significant New Deal case that And Law School colleagues help shape each other’s work greatly expanded the federal government’s role in regu- as well. Carpenter, a self-described conservative, was con- lating harvested commerce, right down to the amount of sidering an idea for a new article: How could a conserva- grain grown for on-farm consumption. tive reconcile a basic distrust of substantive due process with the fact that it is a basic constitutional doctrine, a part Paulsen has challenged conventional wisdom in numerous of the Supreme Court’s jurisprudence for more than a areas. In The Irrepressible Myth of Marbury, he confronts the century? long-held interpretation that Marbury v.Madison (1803) made the Supreme Court the final interpreter of the He never wrote it.After taking his ideas to a faculty “half- Constitution, often called “judicial supremacy.” baked ideas” seminar and getting feedback, he scuttled it as

Perspectives SPRING 2006 29 Building A More Perfect Law School

Alumnus and Jurist Michael A. Wolff on Prevailing Side in Two Supreme Court Speakers

HIEF JUSTICE MICHAEL A. WOLFF, ’70, Stanford precedent. Atkins said executing men- custody—with specific directions to withhold played a significant role in two recent U.S. tally retarded criminals violated the Eighth the Miranda warning. The Rolla investigator CSupreme Court cases: one rejecting the Amendment. interviewed her informally, took a short break, death penalty for juveniles who commit then gave her the Miranda warning and took a murder, the other ending a police interrogation taped statement using information gleaned tactic he called an “end run”around the from the first interview. Miranda warning. The litigants referred to it as “the Missouri Justice Wolff sits on the Missouri Supreme two-step,”Justice Wolff says. He wrote the Court, which heard both cases. He voted on the Missouri Court’s opinion and said, for him, it prevailing side of both 4-3 votes. On appeal, the was “clear cut.” U.S. Supreme Court upheld the Missouri court’s “The interrogation was set up to violate Miranda decisions on similarly thin margins. to secure a confession,”the opinion read. Ask Justice Wolff what it’s like to have the high “The prosecution has not overcome the pre- court parse one’s prose, and he responds sumption that this tactic produced an involun- tary confession.” philosophically. “It is a matter of some interest, obviously, but it is not nerve wracking,”he says. The case merited U.S. Supreme Court review, “Most judges —except for those on the U.S. The U.S. Supreme Court confirmed the Missouri Justice Wolff says. The investigator testified the Supreme Court—always stand the prospect of court’s decision 5-4 March 1, 2005. “When a two-step tactic was part of his police training. being reversed. It doesn’t change much about juvenile offender commits a heinous crime, the Other police departments used it. The U.S. how you feel about it.” State can exact forfeiture of some of the most Supreme Court upheld the Missouri decision on basic liberties, but the State cannot extinguish a 4-1-4 plurality June 28, 2004. In Simmons v. Roper, the Missouri Supreme his life and his potential to attain a mature Court reversed Christopher Simmons’death Justice Wolff became the Missouri Supreme understanding of his own humanity,”wrote penalty conviction. At age 17, Simmons Court’s Chief Justice on July 1, 2005. The posi- Associate Justice Anthony Kennedy. murdered Shirley Crook. Following a botched tion rotates among justices for two-year terms. robbery, he bound and gagged her and pushed In Missouri v. Seibert, a jury convicted Patrice Justice Wolff says the University of Minnesota her into a river, the opinion said. Seibert of second-degree murder based on her Law School gave him a good, comprehensive taped statement. According to court summaries, Simmons’attorneys appealed on Eighth legal education. In particular, he recalled Seibert’s severely disabled 12-year-old son died Amendment grounds, calling it cruel and Professor Bob Levy’s family law course. “Levy in his sleep. She feared neglect charges because unusual punishment to execute someone for a and two psychiatrists had a wonderful seminar he had bedsores. Her older son burned their crime committed as a minor. In Stanford v. Ken- on divorce counseling that explored some of the mobile home to conceal the death, also killing human aspects of decision making,”he says. tucky (1989) the U.S. Supreme Court refused to an unrelated youth who lived with them. bar executions of 16 and 17 year olds, saying a Minnesota Appeals Court Judge Harriet Lansing, “national consensus”did not exist. However, The question, Justice Wolff said, was whether a classmate and friend, says “Justice Wolff had a Justice Wolff said the Missouri Supreme Court’s Seibert knew about the arson or directed it. creative intelligence grounded in concrete majority thought the U.S. Supreme Court’s deci- A Rolla, Mo., police investigator called the St. scholarship. We all greatly benefit though any sion in Atkins v. Virginia (2002) weakened the Louis police and asked them to take Seibert into involvement he has in the development of law.” a hopeless cause.“The seminars can be very valuable, both yet serious scholarly journal of constitutional law.” Chen in shaping an article and in discouraging people from calls Constitutional Commentary “our playground.” One of wasting time on an article that is going to be very hard to the nation’s few faculty-edited law journals, it attracts write,” he says.The faculty also has more formal “Faculty works by a number of top scholars. Works in Progress” seminars to offer internal critiques. The Law School continues to build on its rich tradition of Faculty members also work together to publish constitutional scholarship, from former deans Carl Constitutional Commentary, one more example of the col- Auerbach and William Lockhart to former professors laborative environment that Johnson and predecessor deans Philip Frickey, Suzanna Sherry, and Daniel Farber. such as Robert Stein and E.Thomas Sullivan have worked “We have the scholars,” Johnson says.“We may want to to create. add one or two more in the future, but our key issue is ● Paulsen and Chen coedit Constitutional Commentary with retaining the core that we have.” Carpenter, Charles, Professor Brian Bix, and others. Paulsen Scott Russell is a freelance writer and full-time reporter, covering says it aspires to be “an interesting, occasionally irreverent Minneapolis city government for Skyway News and Southwest Journal.

30 Perspectives SPRING 2006 ❯ Faculty Essay

Revisiting Executive Privilege

he topic of executive privilege has been in the news quite a bit of late. Invoking the doctrine, members of the Bush administration have refused to turn over documents or Tto testify on matters including Hurricane Katrina,1 recent Supreme Court nominees2, and 9/11.3 A claim of executive privilege generally is a claim by the president of a constitutional right to withhold information from Congress, the courts, or persons or agencies empowered by Congress to seek information.4 Executive privi- lege is not mentioned in the text of the Constitution, nor is it statutorily authorized. Rather, executive privilege claims are based on the notion that some information requests effectively infringe on the president’s Article II powers by threatening his ability to receive candid advice or to protect national security.5

This essay and the article on which it is based6 assess the constitutional validity of executive privilege doctrine.The executive privilege con- BY HEIDI KITROSSER, Associate Professor of Law flicts focused on are solely those between Congress and the president or other high- This essay is based on an article draft entitled Secrecy ranking executive branch officers.This essay and Separated Powers: Executive Privilege Revisited. The defines such conflicts broadly to include clashes draft is available at http://papers.ssrn.com/sol3/ over information sought by Congress or by a papers.cfm?abstract_ id=874874. The final version of committee or subcommittee thereof pursuant the article will be pulished in Volume 92 of the Iowa to statutory authorization, clashes over informa- Law Review. tion sought by individuals through congression- ally drawn public access statutes, and clashes over information sought by congressionally cre- ated agencies with statutory investigative powers.This essay concludes that executive privilege claims made in such contexts are con- stitutionally illegitimate and that courts, when turned to, should order compliance with statu- torily authorized demands for information in the face of such claims.

Perspectives SPRING 2006 31 Revisiting Executive Privilege

Part I of this essay summarizes major judicial and scholarly Nixon, weighs the interests in secrecy against the interests in approaches to executive privilege.These approaches disclosure but places a presumption on the side of secrecy.9 examine the respective legislative and executive powers Furthermore, the prosecrecy presumption, as stated in listed in Articles I and II of the Constitution.Were a tool Nixon and as echoed implicitly by lower courts, is much other than information control at stake, the judiciary and stronger where the president invokes national security.10 many scholars would have matters well in hand in deeming information control a shared legislative/executive power This approach is not unattractive if one focuses solely on and in combining judicial restraint with occasional interest the respective legislative and executive powers listed in balancing to resolve intractable conflicts.As Part II explains, Articles I and II of the Constitution. Indeed, one could however, existing judicial and scholarly approaches credibly argue both that information control is a facet of uniformly err in failing to consider whether there is some- Congress’ power to pass legislation “carrying into 11 thing constitutionally unique about information control Execution” presidential power, and that once the execu- that dictates treatment different from that which other tools tive has been given tasks by the legislature to effectuate, of power might receive. Part II further explains that infor- information control falls within the president’s power to 12 mation control does have special constitutional significance. effectuate such tasks (e.g., to execute the law). Proponents Specifically, analysis of constitutional text, structure, and of executive privilege also rely on history. Perhaps their history suggests that secrecy within the political branches most significant historical argument is that members of the must, to be legitimate, remain a politically controllable tool founding generation referred approvingly to presidential “secrecy.”13 The best means to reconcile the II. The Special Constitutional constitution’s respective approaches to Significance of Information Control openness and secrecy is to treat secrecy The core problem with the arguments cited above is that they fail to account for the special constitutional signifi- as a tool that government may use to cance of information control as a textual, structural, and historical matter. In other words, even if we assume that effectuate its purposes, but which must there is some realm of implied presidential power that be kept within the sight of its overlaps with Congressional power and that interbranch tugs of war as to such power often are best addressed ultimate owners, the people. through a combination of judicial restraint and balancing tests, information control is different from other tools of of the people.To keep such secrecy within the ultimate power in a way that directs a unique conclusion about it. In control of the people, mechanisms must exist to keep the fact, information control has very special constitutional sig- secrecy “shallow” and politically checkable. In other words, nificance. Reliance on openness as an operative norm can mechanisms must exist to ensure that the very fact of such be detected throughout the Constitution. Specifically, con- secrecy is subject to public debate, reconsideration, and stitutional text and structure suggest a faith in openness reprisal.This is particularly crucial with respect to executive between the political branches and between such branches branch activities, given that branch’s special capacity for and the people.At the same time, constitutional structure, secrecy. Part III explains that the natural mechanisms to text, and history also suggest an understanding that govern- keep government secrecy shallow and politically checkable ment secrecy sometimes is a necessary evil. Ultimately, text, are statutory authorizations to Congress, to the public, and structure, and history suggest that the means of reconciling to agencies to demand information. Such authorizations, these points is to ensure that any government secrecy rather than judicial or executive second-guessing, should be remain a politically controllable tool of the people and conclusive as to the relative merits of secrecy and openness their representatives. Specifically, text, structure, and history in cases where executive privilege is claimed. suggest that, to keep government secrecy within the ulti- mate control of the people and hence nontyrannical, the I. Existing Judicial and very fact of such secrecy must remain shallow, or as close to the public eye as possible. Furthermore, for secrecy’s shal- Scholarly Approaches lowness to be meaningful, any secrecy, the fact of which is known, should be subject to political checking, whether Existing judicial approaches to executive privilege, and through reprisals or through public exposure of secrets. most existing scholarly approaches to the same, accept the existence of a “qualified” executive privilege.7 That is, they The article on which this essay is based details the textual, effectively deem control of executive branch information, a structural, and historical support for these conclusions.This power shared by the executive and legislative branches.As a essay summarizes that support very briefly. First, reliance on result, courts, with the blessing of many scholars, encourage information flow as the presumptive lifeblood of our con- political resolution of executive privilege conflicts, but are stitutional system can be detected in three major ways: (1) willing to employ a balancing test to resolve the matter from the very fact of popular sovereignty, which would be should political resolution seem unlikely.8 The standard bal- illusory absent substantial information about government; ancing test, borrowed from the well-known case of U.S. v. (2) from the First Amendment, the existence of which helps

32 Perspectives SPRING 2006 Revisiting Executive Privilege to confirm the structural inference just mentioned and the III. Statutory Access Requirements doctrine of which suggests the particular importance of free information flow about government; (3) from the legisla- If the theoretical reconciliation of constitutional openness tive, treaty-making, and nomination processes outlined in and secrecy values is the notion of shallow and politically Articles I and II, which are structured around public and checkable secrecy, so the practical manifestation of that rec- intrabranch dialogue and which suggest the importance of onciliation is allowing the executive to operate in secret intrabranch and public information flow with respect to but subjecting such operation to any checks authorized regulatory and other major decisionmaking.14 through the legislative process.The statutory process itself thus would be conclusive of any Article II concerns, and Second, recognition that government secrecy sometimes is any judicial enforcement provided by statute would be a necessary evil is reflected in two major ways: (1) through appropriate.As suggested earlier, three major types of Article I, section 5, clause 3.This provision requires each checks can be authorized. First, Congress can pass statutes house of Congress to “keep a Journal of its Proceedings, granting the public access rights to categories of executive and from time to time publish the same” but allows each branch information. Second, Congress can pass statutes house to “except such Parts as may in their Judgment giving itself and its committees and subcommittees require Secrecy;” (2) through founding era statements that subpoena power, subject to contempt penalties, to seek suggest that an advantage of having one person as president information from the executive branch.Third, Congress (as opposed to a council of copresidents) is the relative can create agencies similarly empowered to demand infor- ability of a single person to operate with “secrecy…dis- mation from the executive branch. patch…vigor and energy.”15 Third, as a logical matter, the best means to reconcile the The impact of White House secrecy constitution’s respective approaches to openness and secrecy is to treat secrecy as a tool that government may on current events reminds us of the use to effectuate its purposes, but which must be kept within the sight of its ultimate owners, the people.The systemic significance of information logical means of keeping the tool so in check are mecha- control between the political branches nisms designed to help ensure secrecy’s shallowness and political checkability.This conclusion is bolstered by the and between those branches and very factors often cited to support unfettered executive branch secrecy—the Article I, Section 5 provision men- the people. tioned above and the founding era references to presiden- tial secrecy mentioned above.With respect to Article I, The statutory process is the most intuitive means to subject Section 5, its status as the only textual reference to secrecy presidential secrecy to a public process of political ques- suggests a choice to accord an explicit secret-keeping tioning and consideration.As suggested earlier, the power only to the branch that will logically and politically legislative process is designed to ensure relative openness find it most difficult to keep secrets and to couch this and deliberation between the political branches and power as an exception to a general norm of openness.16 between those branches and the people.The legislative This suggests an understanding that when government process thus places the parameters of openness mandates secrecy occurs, it should be rare, difficult to engage in, and and debate about them in the sunlight, even as the policies sufficiently exceptional as to be detectible and hence themselves permit some secrecy.While the legislative shallow.With respect to founding era references to presi- process constitutes a metalevel on which broad access poli- dential secrecy, these references occurred within the con- cies are formulated, the policies so created then generate a text of larger discussions extolling the virtues of a unitary second level of activity through which executive secrecy is president, including the relative transparency, upon investi- overseen more directly.Thus, individuals can vindicate gation, of a single person’s doings. For example,Alexander Congressional openness policies by seeking specific pieces Hamilton famously stated that “[d]ecision, activity, secrecy, of information through public access statutes, and and dispatch will generally characterize the proceedings of Congressional committees and subcommittees and legisla- one man…”17 Yet Hamilton,in the same Federalist Paper tively empowered agencies similarly can vindicate such in which he made this statement, followed the statement policies through their investigations. with an approving explanation of the responsibility and potential transparency of a unitary president. Hamilton Conclusion argued that “multiplication of the executive adds to the difficulty of detection,” including the “opportunity of dis- The time is ripe to revisit the constitutional validity of covering [misconduct] with facility and clearness.” One executive privilege. Reassessing executive privilege has person “will be more narrowly watched and most readily significance both for the doctrine itself and for executive suspected.”18 This suggests a compromise between the branch secrecy more generally—including the nearly com- advantages of presidential secrecy and the risk of tyranny plete discretion accorded the executive branch to classify that such secrecy poses:The president can use his unique information19—as the justifications for the two overlap sub- capacity for secret-keeping but such use must remain on a stantially.20 Furthermore, the impact of White House relatively short political leash. secrecy on current events reminds us of the systemic signif-

Perspectives SPRING 2006 33 Revisiting Executive Privilege icance of information control between the political Senate Select Committee on Presidential Campaign Activities branches and between those branches and the people. v. Nixon, 498 F.2d 725, 729, 731-33 (D.C. Cir. 1974); United States v. United States House of Representatives,. 556 F.Supp. Additionally, understanding that executive secrecy is subject 150, 151-53 (D. D.C. 1983). For scholarly support of a qualified to legislative control helps to remind us that the dangers of executive privilege see generally, e.g., ROZELL, supra note 5; see information disclosure are mere policy arguments, not also, e.g., J. Richard Broughton, Paying Ambition’s Debt: Can the static constitutional truths, and that they should be debated Separation of Powers Tame the Impetuous Vortex of and weighed in the realm of legislative policy-making Congressional Investigations?, 21 WHITTIER L.REV. 797, 821–30 along with the dangers of secrecy itself. Indeed, scores of (2000); Dawn Johnsen, Executive Privilege Since United States v. recent commentators, ranging from the 9/11 Commission Nixon: Issues of Motivation and Accommodation, 83 MINN. L.REV. 1127, 1127–28, 1131 (1999); Randall K. Miller, Congressional to students of the 2003 Iraq invasion, have observed the Inquests: Suffocating the Constitutional Prerogative of Executive catastrophic consequences that secret, and hence Privilege, 83 MINN. L.REV. 631, 635, 684–85 (1997); Jeffrey P. unchecked, decisionmaking can have on policymaking and Carlin, Note, Walker v. Cheney: Politics, Posturing and Executive 21 on national security in particular. This is not to Privilege, 76 S.CAL. L.REV. 235, 270–771 (2002). suggest that it is always a mistake for the government to 9. See U.S. v. Nixon, 418 U.S. at 708, 712–14. The Nixon test is operate in secrecy. It is to suggest, however, that the very used in spite of the Nixon Court’s admonition that its analysis fact of secrecy must be subject to public debate and does not necessarily apply to legislative/executive disputes. checking through the dynamic and dialogic legislative Id. at 712 n. 19. process outlined in Articles I and II of the Constitution and through the robust effectuation of any openness direc- 10. See U.S. v. Nixon, 418 U.S. at 706, 710–11. See also In re tives derived from that process. ● Sealed Case, 121 F.3d 729, 743 n.12 (D.C. Cir. 1997) (Nixon Court implied that the national security based privilege is FOOTNOTES “close to absolute”). 1. See, e.g., Eric Lipton, White House Declines to Provide Storm 11. U.S. CONST. art. I, § 8, cl. 18. Papers, NY TIMES, Jan. 25, 2006, at 12. Cf. Bowsher v. Synar, 478 U.S. 714, 733-34 (1986) (“once www.nytimes.com/2006/01/25/politics/25katrina.html. Congress makes its choice in enacting legislation, its partici- 2. See, e.g., President Refuses to Release Miers Documents, CNN.COM, pation ends. Congress can thereafter control the execution of Oct. 24, 2005, at www.cnn.com/2005/ its enactment only indirectly”); Youngstown Sheet & Tube Co. POLITICS/10/24/miers.ap/index.html. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring) (referring to “zone of twilight” in which “distribution [of power 3. See, e.g., Chris Strohm, 9/11 Commission Sets Precedent for between President and Congress] is uncertain”). Executive Privilege Challenges, www.govexec.com/dailyfed/ 0704/072904c1.htm, July 29, 2004; James G. Lakely, Rice to 13. See discussion of such founding era statements in Part II of Testify Publicly About 9/11, THE WASHINGTON TIMES, March 31, this essay. Executive privilege proponents also argue that a 2004, www.washingtontimes.com/functions/print.php?Story series of post-ratification information disputes between the ID=20040331-123308-9604r; Sharon Kehnemui, Senators Push president and Congress reflect an early embrace of executive for Rice Testimony, FOXNEWS.COM, March 30, 2004, privilege. As I explain in the article on which this essay is www.foxnews.com/printer_friendly_story/0,3566,115569,00. based, there are substantial flaws in the post-ratification argu- html. ments. See Kitrosser, supra note 6 at Section III(A)(1). 4. See, e.g., Mark J. Rozell, Executive Privilege Revived: Secrecy and 14. See Kitrosser, supra note 6 at Section III(B)(1) (exploring these Conflict During the Bush Presidency, 52 DUKE L.J. 403, 404 arguments in greater detail and with supporting citations). (2002). The term “presidential communications privilege” 15. See, e.g., 1 FARRAND’S REPORTS 112 (quoting George Mason: sometimes is used to distinguish the privilege discussed in “The chief advantages which have been urged in favor of this Article from other forms of immunity labeled “executive unity in the Executive, are the secrecy, the dispatch, the vigor privilege,”such as immunity from civil suit while in office. See, and energy…”); id. at 70 (quoting James Wilson to similar e.g., In re Sealed Case, 121 F.3d 729, 735 n.2 (D.C. Cir. 1997). effect). This essay uses the term “executive privilege” to refer solely to the communications aspect of the privilege. 16. See Kitrosser, supra note 6 at Subsection III(B)(3)(b) (explaining this argument and the premise of relative legisla- 5. See, e.g., U.S. v. Nixon, 418 U.S. 683, 706 (1974); MARK J. ROZELL, tive openness in greater detail). EXECUTIVE PRIVELEGE: PRESIDENTIAL POWER, SECRECY, AND ACCOUNT- ABILITY 43–48 (2002). 17. THE FEDERALIST No. 70, at 423–24 (Alexander Hamilton) (Clinton Rossiter ed., 1961). 6. Heidi Kitrosser, Secrecy and Separated Powers: Executive Privilege Revisited (2006) working draft available at 18. Id. at 427-30. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=874874. 19. See, e.g., Christina E. Wells, “National Security Information” and The final version of the article will be published in Volume 92 the Freedom of Information Act, 56 ADMIN. L. REV. 1195, 1199 of the Iowa Law Review. (2004); Note, Keeping Secrets: Congress, the Courts and National 7. But see Kitrosser, supra note 6 at Part II(B) for discussion of Security Information, 103 HARV. L.REV. 906, 907–10 (1990). other scholarly approaches. 20. See Note, Keeping Secrets, infra note 19 at 917. 8. See, e.g., Nixon v. Administrator of General Services, 433 U.S. 21. See Kitrosser, supra note 6 at Part V (summarizing numerous 425, 443, 446-50 (1977); Association of American Physicians current and historical arguments to this effect). and Surgeons v. Clinton, 997 F.2d 878, 909 (D.C. Cir. 1993);

34 Perspectives SPRING 2006 A DISCOURSE: Presidential Powers in Time of War

“Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds,” said Supreme Court Justice Thurgood Marshall, who, as a misbehaving schoolboy, was once given the punishment of reading the entire U.S. Constitution.

In the spirit of such constitutional heritage and free thinking, Law School faculty regu- larly gather to challenge each other’s views, to take on legal issues pertinent to the cur- rent political and social landscape, and to engage in discourse that ultimately becomes scholarship. This kind of academic interaction has taken place in a variety of settings, from formal panel discussions to more intimate coffee-klatch style office get-togethers.

So it was just a matter of time, really, before the setting for intellectual discussions took a more technological turn. In this case, e-mail has facilitated a discussion of the merits and liabilities of expanding executive privilege in a time of war. Professors Michael Paulsen, Heidi Kitrosser, and Dale Carpenter bring their collective constitutional law interest, insight, and expertise to the following e-mail exchange, which took place in February 2006.—Eds.

communications where it leads, in order to wage the war Associate Dean Michael Stokes Paulsen against the enemy and, of vital importance, to protect the ONE OF THE HOTTEST issues of the day is presidential nation against further attacks. power in time of war—specifically the president’s power unilaterally to order the interception of overseas communi- There is no doubt that we are at war. On Sept. 18, 2001, cations by persons in the United States who have been in Congress issued what is arguably the most sweeping decla- contact with al Qaeda forces and terrorists. ration of war in our nation’s history, authorizing the presi- Some of my colleagues may well disagree, but I think the dent to employ “all necessary and appropriate force” issue is relatively straightforward.The president’s power as against those nations,“organizations or persons” that “he military commander in chief, in time of constitutionally determines” planned, authorized, committed or aided the authorized war, of course includes the power to intercept 9/11, attacks, or who harbor such persons or organizations. enemy communications, including enemy communications The last clause of the authorization is important: “in order with persons here in the United States who may be in to prevent future acts of international terrorism against the league with the enemy, and to follow the chain of such United States” by such organizations.We are at war.

Perspectives SPRING 2006 35 A Discourse: Presidential Powers in Time of War

Congress has declared the war, and granted the president sweeping authority to wage it as he sees fit, in order to Associate Professor Heidi Kitrosser defend against future attacks by al Qaeda and its allies. THE BUSH ADMINISTRATION’S appetite for unfettered power has been observed with some frequency during the Clearly, the commander in chief past several years.The NSA spying controversy marks one powers of the president are fully in of the more alarming manifestations of this appetite. play.Those powers unquestionably include the power to gather intelli- In my view, neither constitutional text, with its careful bal- gence concerning communications ancing of military and domestic powers between executive with the enemy forces with whom and legislature, nor constitutional history, which is steeped we are at war. I would go so far as partly in fears of an out-of-control monarch, can justify a to say that if the president failed to unilateral presidential power to authorize the interception monitor such communications, he of American’s overseas calls. would be grossly derelict in his As Professor Paulsen’s reasoning reflects, the arguments in commander in chief responsibilities. support of such a presidential power rely on two major As a straightforward matter of constitutional law, Congress points: (1) the executive has an inherent power to engage may not by statute purport to take action displacing the in such activity (or at least has such power in wartime— president’s constitutional power as commander in chief. If proponents of such power argue, pursuant to point #2 some action falls within the commander in chief’s power, a below, that we currently are in wartime as declared by statute may not limit it. In this sense, the Foreign Congress); (2) Congress’ Sept. 18, 2001 Joint Resolution Intelligence Surveillance Act (FISA) either must be con- not only declared war and thus created the conditions strued as not limiting these powers—this seems the view underlying point #1, but also in fact directly authorized most consistent with judicial decisions in this area—or else the claimed presidential power. FISA is an unconstitutional restriction on the president’s The first point proves way too much to be consistent with power as commander in chief in time of authorized war- our constitutional system of balanced military and making. My own view is that FISA is best understood as a domestic powers.As Justice O’Connor noted in Hamdi v. “safe harbor.” Congress has provided a framework for Rumsfeld,“a state of war is not a blank check for the presi- obtaining a warrant (of a certain type) that should permit dent when it comes to the rights of the Nation’s citizens.” the introduction of evidence obtained by such surveillance Indeed,Articles I and II of the Constitution outline a in a criminal prosecution, if prosecution should be the system of shared powers even with respect to military mat- course of action the executive branch chooses to take with ters.Thus, while the president is the “commander in chief,” respect to an al Qaeda operative or spy who happens also it is for Congress to declare war in the first place, to pro- to be a U.S. citizen or resident alien. vide for the common defense, to raise and support the But ordinary criminal prosecution is certainly not the only army and navy, to “make Rules for the Government and option for dealing with captured enemy persons in time of Regulation of the land and naval Forces,” and to make war. Such persons can simply be held as prisoners for the other laws “necessary and proper” to effectuate its own duration of the war (whether or not entitled to legal POW powers and those of the president.And of course, it is the status under the Geneva Conventions).They may be sub- legislative process through which domestic legislation and jected to “military commission” proceedings, for violations legislation affecting citizens’ rights generally must pass. of the law of war, in which various civilian “exclusionary rule” principles may not apply. (Of course, detention and military tribunal prosecutions themselves have presented …the “Use of Military Force” in no way some of the most interesting constitutional questions before the courts in the past three years.) clearly or intuitively encompasses the Finally, the Fourth Amendment bars “unreasonable” power to intercept Americans’ phone searches and seizures and does not invariably require calls with persons overseas. warrants. Just as airport metal detectors are deemed “rea- sonable” (I’ve never been presented with a warrant as I half-strip and empty my pockets), so too the interception Furthermore, a quick review of the nature of the legislative of communications of persons in contact with enemy process elucidates why it is so crucial that wartime not be forces, in time of war, is surely not an unreasonable search deemed a “blank check” for presidential activity, particu- and seizure. larly presidential activity that impacts citizens’ rights.The Constitution brilliantly provides for open, dialogic, multi- branch review before legislation may be passed.This process is among the Constitution’s most important pro- tections against government tyranny.Among other things, it reflects the founding generation’s well-known fear of monarchical power.Were a declaration of war automati-

36 Perspectives SPRING 2006 A Discourse: Presidential Powers in Time of War cally to generate presidential power to monitor American’s phone conversations whenever the president claims a link Professor Dale Carpenter to terrorism, the careful protections of Articles I and II THE PRESIDENT’S POWER to authorize warrantless sur- would lose much meaning. veillance of communications in the United States must come, if it exists at all, from either (1) a power lawfully The second major point raised in support of the Bush given him by Congress, or (2) a power he unilaterally and administration’s actions—that the Joint Resolution not irrevocably enjoys under the Constitution. only declares war, but also more directly authorizes President Bush’s actions.This is inconsistent with the text (1) FISA forbids electronic surveillance of communications and history of the legislation and with the constitutional in the United States unless approved by a court. By its own system already described. First, the legislation’s text speaks terms, FISA is the “exclusive means by which electronic almost entirely of military force. Indeed, the Joint surveillance…may be conducted.” (18 U.S.C. Sec. Resolution is entitled the “Authorization for Use of 2511[2][f].) It covers the field. Except as allowed under Military Force.” Naturally, the use of military force will FISA, such surveillance is criminal.The statute is not require some activities incidental to such use. But the “Use ambiguous on this point, so there is no reason to invoke of Military Force” in no way clearly or intuitively encom- the constitutional avoidance canon of statutory construc- passes the power to intercept Americans’ phone calls with tion to read it some other way. persons overseas.The counterintuitive nature of this associ- The Justice Department appears to ation is exacerbated by the context in which the Joint concede that the NSA program is Resolution was created—one in which existing legislation not affirmatively authorized by FISA already comprehensively addresses the monitoring of procedures. Instead, it contends that calls made by U.S. citizens. Indeed, the Congressional Congress authorized warrantless sur- Research Service recently concluded that FISA pertains to veillance, despite FISA, in the precisely the type of surveillance engaged in by the Authorization for Use of Military Bush administration. (AUMF) force of Sept. 18, 2001. Furthermore, were the Joint Resolution’s text and FISA’s It’s true that the AUMF gives the existence insufficient to belie the Bush administration’s president fairly broad power to interpretation of the Joint Resolution, the Resolution’s his- respond with force to the terrorist attacks of Sept. 11, tory does just that. In a Washington Post op-ed piece of Dec. 2001. (One consequence of the administration’s aggressive 23, 2005, former Senate Majority Leader Tom Daschle, who claims of power under the AUMF is that future Congresses helped to negotiate the Joint Resolution with the White may be more careful—even too careful—in future force House counsel’s office, states “categorically” that: authorizations.) But two qualifications count against the DoJ’s argument. the subject of warrantless wiretaps of American citi- zens never came up. I did not and never would have First, the AUMF does not give the president unlimited supported giving authority to the president for such power to respond to the attacks.The AUMF gives the wiretaps. I am also confident that the 98 senators president power to respond only with “necessary and who voted in favor of authorization of force against appropriate force.”While gathering intelligence about al Qaeda did not believe that they were also voting foreign enemies is surely part of wielding military force, for warrantless domestic surveillance. warrantless spying on Americans in the United States is— while not unprecedented—surely a very ambitious applica- In the same op-ed piece, Daschle explains that the admin- tion of such force. Past historical examples of warrantless istration had sought to include language in the Joint domestic surveillance of enemies—such as those Resolution which, while not mentioning or encompassing conducted by FDR in World War II—were done with wire-tapping, would generally have accorded the White clear congressional approval, and never in the face of fed- House broader discretion than the Joint Resolution ulti- eral statutory disapproval. mately accorded it and would explicitly have authorized the use of force within the United States. Significantly, this Also, if the president could effectively conduct surveillance proposed language was rejected. within the United States under FISA’s own procedures, the NSA program is not “necessary” and thus not authorized Given the Joint Resolution’s text and history and the under the AUMF.Since 1978, the executive branch has existence of FISA, a construction of the Joint Resolution sought wiretap permission from the FISA court some that would encompass the powers claimed by the Bush 19,000 times. Only a handful of those requests have been administration could stem only from a vision of presiden- denied. FISA even allows the attorney general to authorize tial power so broad as to demand such construction. But surveillance for 72 hours on an emergency basis before this only brings us back to the Constitution’s careful bal- seeking court approval. (The time period was increased ance of powers. For such a vision of presidential power is from 24 hours after 9/11 by Congress in order to give the antithetical to the checks and balances brilliantly reflected executive precisely what he says he needs here: more flexi- in Articles I and II of the Constitution. bility to conduct warrantless surveillance.) The administra- tion has not established why the compliant FISA court and

Perspectives SPRING 2006 37 A Discourse: Presidential Powers in Time of War

flexible process under which it operates is too cumbersome military when force is authorized.This general presidential to accommodate current surveillance needs. So it hasn’t power, however, is subject to specific constraints elsewhere established that warrantless domestic spying is “necessary” in the Constitution. One constraint on the president’s gen- under the AUMF.“Trust me on this” is simply insufficient. eral command authority is Congress’s specific power “to make Rules for the Government and Regulation of the Second, because the AUMF does not explicitly repeal or land and naval Forces.”Art. I, Sec. 8, cl. 14. FISA is one amend FISA, the president argues that it does so by such regulation. implication. But implied repeals of legislation are strongly disfavored, accepted only when two statutes are irreconcil- The Constitution further gives to Congress, not to the able. FISA and the AUMF are not irreconcilable; they can president, the power to make laws “necessary and proper” be read together to give the president broad power to deal to carry into execution its own powers and “all other with the aftermath of 9/11, limited by established and Powers” enjoyed by any part of the federal government, specific legal precommitments to prevent abuse of such including the executive. (Art. I, Sec. 8., cl. 18.) This leaves power in the domestic sphere. On this view, if the NSA to Congress the judgment about what legal authority is program violates FISA (as I have argued) and FISA is a needed to make effective the president’s own powers, constitutional exercise of Congress’s power to regulate sur- including the commander in chief power. If gathering veillance activities in the United States (as I’ll argue in a intelligence about the enemy is an incident of the presi- moment), then the NSA program is not an “appropriate” dent’s commander in chief power over the military, then exercise of force and is thus not authorized by the AUMF. limiting the use of that power within the United States is an incident of Congress’s Article I authority to legislate its The administration proposed, but leaders in Congress execution. rejected, language in the AUMF that would have extended the president’s power to use force specifically “in the Once Congress has regulated the president’s use of his war United States.”The president is thus attempting to do powers inside the United States, he can no more violate under the guise of interpretation of the AUMF what he the law for reasons he believes are good than he could col- could not achieve in the actual legislation. lect more taxes than Congress has authorized because he thinks the government needs more money for the war or …when [the president] directs that appoint more justices to the Supreme Court without the advice and consent of the Senate because he thinks the considerable power inward, toward the Court is deciding war-related cases incorrectly. United States itself, special concerns The president has expansive powers under the arise from the history of the abuse of Constitution and under the AUMF to fight the country’s foreign enemies. But when he directs that considerable executive power and from the nation’s power inward, toward the United States itself, special con- cerns arise from the history of the abuse of executive commitment to civil liberties. power and from the nation’s commitment to civil liberties. When the president fights a war inside the United States, The NSA program is thus contrary to existing federal law. the balance between the needs of national security and the Congressional opposition to warrantless domestic surveil- liberties of the people, between the danger of catastrophic lance is far clearer here than was Congress’s opposition to attack and the danger of repression, is better struck by Truman’s action in Youngstown Steel, where the court involving all three branches of the federal government than rejected a claim of broad executive authority to conduct by acquiescing to the diktat of one. war. Unless the president has some independent constitu- tional authority to conduct warrantless domestic spying If the president believes that FISA is inadequate to deal and unless that independent authority is not subject to with the war on terror, he should make that case before congressional limitation or regulation, he is acting uncon- the body that has the constitutional responsibility to make stitutionally. law in this republic—the Congress. He may believe with all his heart that he needs the authority to conduct war- (2) The president’s top priority must be to defend the rantless spying on people in the United States in order to country against attack, but he does not have limitless con- protect the country from another devastating attack. He stitutional power to do so. Notably, there is no “necessity may be right about that. But more than two centuries ago clause” in the Constitution giving the president authority this nation rejected the principle that one person could to do whatever he thinks necessary to protect us.The secu- run the country, even for very good reasons, in favor of a rity of the United States is no more the sole constitutional more cooperative and democratic approach that better fiefdom of the president than legislation is the sole fief of serves both liberty and security. Congress, or the Constitution itself is the sole fief of the Supreme Court.The president’s powers over security are shared and blended with the other branches.The president is commander in chief of the army and navy, which most obviously means that he has operational control over the

38 Perspectives SPRING 2006 A Discourse: Presidential Powers in Time of War

Associate Professor Heidi Kitrosser I’D LIKE TO add one point to Carpenter’s excellent argu- ments about FISA’s provisions. FISA also authorizes the Attorney General to conduct electronic surveillance without a court order for up to 15 days following a Congressional dec- laration of war.The legislative his- tory suggests that this provision is intended to give Congress time to Associate Dean Michael Stokes Paulsen consider any necessary changes to THE KEY PROBLEM with my colleagues’ extraordinarily FISA in light of the war declaration. thoughtful points about the NSA communications inter- This provision has three negative ception program is this:They read the Sept. 18, 2001, implications for the White House’s AUMF as if it were any old statute passed by Congress. arguments in the current contro- If (as I believe), the AUMF is in legal effect a Declaration versy: of War, then arguments that “repeals by implication are dis- • First, it is very likely, as the Congressional Research favored,” or that “the AUMF does not specifically mention Service has suggested, that this 15-day exemption does surveillance,” or that “Congress did not have this in mind” not apply to the AUMF,as the latter does not constitute a (or, in its weakest form, that former Senator Tom Daschle congressional declaration of war. (See Congressional was not thinking about this specific question), or that the Research Service, Presidential Authority to Conduct president might have been able to obtain FISA authoriza- Warrantless Electronic Surveillance to Gather Foreign tion, are almost entirely irrelevant. Intelligence Information at 26 [2006]). If war has been authorized, then the commander in chief • Second, assuming that the 15-day exemption does not power to wage war against enemy forces has been apply here, it would be deeply counterintuitive to read unleashed in its entirety.That power is a fearful and formi- an unspoken, substantially broader exemption into FISA dable one, but properly so.Where war is declared or allowing for years of secretive electronic surveillance fol- authorized, the president possesses the full military and lowing a resolution of force. executive power of the nation with respect to waging that war.The president determines matters of military strategy • Third, even if the 15-day exemption does apply to the and tactics; the rules of engagement with the enemy; the AUMF,its terms clearly were exceeded by the president’s means and methods to be employed; how resources are to secretive surveillance program of several years.And again, be deployed; and whether, when, and under what circum- the notion that more substantial leeway implicitly is stances hostilities will be terminated. authorized by FISA is virtually unthinkable in light of FISA’s careful enunciation of the 15-day exemption. Whatever the scope of the president’s The president thus is left only with the argument that constitutional power as commander in Article II allows him to operate in a manner contrary to FISA. For reasons already argued, such a reading of chief in time of authorized war, no Article II is inconsistent with the Constitution’s careful balance of powers. statute of Congress constitutionally may limit it.

Where the commander in chief power is brought into play, it is the president’s power alone. No statute of Congress may limit it.As Alexander Hamilton put it in Federalist #74:“Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength forms a usual and essential part in the definition of the executive authority.” Here is the crucial point:Whatever the scope of the presi- dent’s constitutional power as commander in chief in time of authorized war, no statute of Congress constitutionally may limit it.This is basic Marbury v.Madison: If the Constitution provides one thing, Congress may not pass a statute altering it. Congress has the choice whether or not

Perspectives SPRING 2006 39 A Discourse: Presidential Powers in Time of War to trigger the commander in chief power of the president in time of war; but if it chooses to do so, it may not control Professor Dale Carpenter the exercise of that power with collateral statutory restric- PROFESSOR PAULSEN MAKES several provocative policy tions. Put simply:When war is declared, the commander in assertions about the president’s wartime powers. Remark- chief chooses how to conduct it. ably absent from his discussion is any sustained attention to the constitutional text or any consideration of the types of Nowhere is this more clear than in the Sept. 18, 2001 concerns that caused the founding generation to break AUMF,which sweepingly gives the president power to use from colonial and monarchical control. Nothing in the “all necessary and appropriate force” against those nations, Federalist papers, including Hamilton’s writings, suggests organizations, or persons he finds to be connected to the that the president’s wartime power is illimitable.An ener- events of Sept. 11, 2001. getic president, yes; wartime king, no. If the interception of communications of persons in contact “If (as I believe), the AUMF is, in legal effect, a Declaration of with the enemy is a legitimate part of the commander in War, then [standard arguments about statutory interpretation] are chief’s conduct of war—and I think this almost impossible almost entirely irrelevant.” to deny—then no act of Congress may impair it. If FISA, designed as peacetime authorization for covert surveillance Having practically conceded the statutory arguments, of suspected foreign agents, limits the commander in chief Professor Paulsen now says they don’t matter because the power in time of war, it is to that extent unconstitutional. president has unlimited war-making authority.Yet the That’s the endpoint of the game, when push comes to Constitution does not provide that in time of war all bets shove. Professor Kitrosser’s arguments about how to read are off—that all powers of government are put at the presi- FISA are excellent ones; but in the end if FISA cannot be dent’s disposal to use as he pleases.There are special provi- construed in a manner consistent with the president’s over- sions that deal with wartime emergencies (e.g., allowing arching power as commander in chief in time of war, then Congress to suspend habeas corpus in cases of invasion or it is the FISA statute that must yield, not the president’s rebellion,Art. I, Sec. 9, cl. 2), but notably none of them are constitutional power as commander in chief. in Article II.There is no general “emergency clause” or “necessity clause” holding the usual rules automatically in Professor Carpenter’s argument that Congress’s power to abeyance, and certainly none that give the president such make “Rules for the Government and Regulation of the power. Land and Naval Forces” trumps the president’s power as commander in chief is, I think, unsound—and dangerous. “If war has been authorized, then the commander in chief Congress’s power to prescribe general rules for regulating power to wage war against enemy forces has been unleashed in our armed forces surely cannot be read as a power to dic- its entirety.” tate rules for how military and defensive efforts are to be This is a restatement of the problem, not an argument.The conducted by the president.That would effectively read the very question here is what the “entirety” of the commander in chief clause out of the Constitution! The commander in chief power is and whether and to what same cannot be said the other way round: extent it may be limited by the co-equal branches of the Congress’s power to regulate the military still has content, government.Those who resist the president’s claim of as a general proposition; it is simply limited by the presi- power to engage in domestic warrantless spying argue that dent’s power to direct and conduct offensive and defensive his war power does not extend in this way to the domestic operations—to command—in wartime. sphere where Congress has acted to the contrary, as it has in FISA. The alternative is to run war operations by committee—by Congress.That was one of the grave defects of the Articles “Where the commander in chief power is brought into play, it is of Confederation that the framers of the Constitution the president’s power alone. No statute of Congress may limit it.” (including General George Washington) sought to remedy What is the basis for this extraordinary claim? Congress has by making “a single hand,” the president, the commander two explicit and specific powers that seem to limit, when in chief of the armed forces, and of the militia, when called exercised, the president’s commander in chief power: the into actual service. power to make rules and regulations for the armed forces and the power to make laws effectuating the president’s own powers. Nothing in the text declares the president’s powers immune to these provisions, even in wartime. Indeed, the Constitution itself makes no general demarca- tion between wartime and peacetime powers. “Congress’s power to prescribe general rules for regulating our armed forces surely cannot be read as a power to dictate rules for how military and defensive efforts are to be conducted by the presi- dent…The same cannot be said the other way round: Congress’s power to regulate the military still has content, as a general propo-

40 Perspectives SPRING 2006 A Discourse: Presidential Powers in Time of War sition; it is simply limited by the president’s power to direct One way to think of this continuum is that it ranges from and conduct offensive and defensive operations—to command— actions clearly foreign and command-operational (and thus in wartime.” clearly within the president’s commander in chief power) to actions purely domestic and non-operational (and thus This passage both errs and oversimplifies the division of clearly within Congress’s legislative powers).The war-related authority between Congress and the president. Constitution tells us the president is commander in chief First, while Professor Paulsen suggests that the Rules-and- “of the Army and Navy,” not “of the United States.” Regulations Clause “has content,” he appears to think that its content is alterable at the will of the president in the use There will be hard cases between these two poles.The of his power to conduct a war. But the president cannot president’s authorization of warrantless surveillance within unilaterally change the scope of congressional power:This the United States is somewhere between the two ends of is, one might say, basic Marbury v.Madison. No fewer than the continuum.The NSA program implicates military seven of the 18 clauses enumerating congressional power needs because it is gathering information about enemy deal with military or war-related matters.We need a theory plans. But it is not just a “military effort,” cut off from any for what the content of the respective war powers of the domestic concerns. It occurs domestically and intrudes on president and Congress are, whose power prevails in the the legitimate privacy interests of people inside the United event of a conflict, and under what sorts of circumstances. States.As I’ll explain, I believe the NSA program falls much closer to the congressional-power end of the con- Second, while the commander in chief authority surely tinuum and is thus subject to congressional regulation, gives the president the power to control the operational where Congress has chosen to regulate (as it has here details of military action, it does not obviously give him through FISA). the power to do whatever he pleases to facilitate the use of military force, even where war has been declared, and espe- So the question comes down to this: May the president cially where he turns that might inward toward the United order the warrantless surveillance of communications in States itself. the United States under his commander in chief power despite a congressional command that he may not? Or, In the war on terror, even more than other wars, there is may the Congress prohibit such warrantless surveillance no clear line between domestic and foreign war-fighting. under its Rules-and-Regulations power and its All-Other- Thus, to accept Professor’s Paulsen’s concept of unlimited Powers authority despite the president’s strong desire to executive war power is to cede to the president practically conduct warrantless surveillance? dictatorial control over the whole country. Which war-related power controls the matter of warrant- The Constitution’s blending of war powers among the less domestic surveillance, the president’s or the Congress’s? branches does not reasonably admit the stark either-or, cat- Professor Paulsen does not even begin to grapple with this egorical approach Professor Paulsen advocates. It is helpful difficult question; he simply asserts the conclusion that the to think of the question of the president’s and Congress’s president’s power controls no matter what. war-related authority as involving a continuum. On one end we have clear exercises of operational control of mili- Yet I can think of several reasons why the president’s action tary forces against a foreign enemy abroad.The president’s turning force inward means that Congress’s will, expressed power to act on behalf of the whole country is at its in FISA, should prevail here. Briefly: (1) Congress enjoys height when he acts on matters of foreign affairs and/or the power to make laws relating to the president’s own matters of core operational control of the military directed powers, including his commander in chief power, while the outward, away from the United States itself. Shall we reverse is not true; (2) Congress, not the president, is given invade at the Pas de Calais or at Normandy? Shall we do the power to regulate the armed forces; (3) domestic war- so on June 5 or June 6? These are decisions it would rantless surveillance implicates, as the Justice Department indeed be “unsound” and “dangerous” to confide to acknowledges, not just military necessity but significant Congress.These “military and defensive efforts” would be domestic civil liberties interests; (4) the history of abuse of clearly within presidential command authority. domestic spying by presidents under the guise of pro- tecting national security makes giving any president On the other end of the continuum are all the ways in unchecked authority in this area very dangerous; and (5) which events at home may affect the war effort. Money is the president has not shown how the legal alternatives he necessary for war; but the president could not raise taxes has under FISA are unworkable or, if they are unworkable, on his own, even if he believed it was absolutely vital to do why he could not seek amendment of the law from a so. Guns are essential; but he could not seize the steel Congress that is responsible for making laws to protect industry against a contrary legislative command. Conscripts national security. are critical; but he could not unilaterally institute a draft. Public support is vital; but he could not jail dissenters on I’m glad Professor Paulsen has reminded us of George the ground that they were sapping morale.The Washington. General Washington understood the differ- Constitution itself limits the president’s command ence between running the war and running the country. authority in each of these areas.All of them are for President Washington would never accept a crown.We Congress to deal with in the first instance, if they can be could use a bit more of that executive restraint today. ● dealt with at all.

Perspectives SPRING 2006 41 AT THE LAW SCHOOL At the close of academic year 2005–06, mighty changes were in the works. After four years of service and continued improvements at the Law School, Dean Alex M. Johnson, Jr., announced his resignation, and two faculty members stepped in as interim leaders. Long-time Professor Fred L. Morrison and Professor Guy-Uriel E. Charles, a more recent addition to the faculty, will be reaching out to connect with alumni and students throughout the coming months and beyond regarding the Law School’s future. The foundation they’ll build on is highlighted in this section, which features a small sample of the events that took place throughout the winter and spring, including a distinguished guest lecture on human rights; a celebration of 90 years of the Law Review; the Race for Justice benefiting students and graduates who pursue public interest law; and a standing-room-only appearance by bestselling author-attorney Scott Turow.

42 Perspectives SPRING 2006 At the Law School

William A. Schabas, Professor of Human Rights Law and Director of the Irish Centre for Human Rights at the National University of Ireland, Galway, delivered the third annual lecture of the University of Minnesota Law Library Distinguished Lecturer Series.

ipants to limit crimes against humanity to those acts committed in connection with war. Jackson stated: [O]rdinarily we do not consider that the acts of a government toward its own citi- zens warrant our interference.We have some regrettable circumstances at times in our own country in which minorities are unfairly treated.We think it is justifi- Legalizing Human Rights able that we interfere or attempt to bring retribution to individuals or to states only The University of Minnesota Law Library Distinguished Lecture Series, the Law Library, because the concentration camps and the and the Human Rights Center Explore the Past and Present of International Justice deportations were in pursuance of a common plan or enterprise of making an unjust or illegal war in which we became BY KATHERINE HEDIN, Curator of Rare Books especially in light of U.S. support for involved.We see no other basis on which and Special Collections international criminal justice.“The we are justified in reaching the atrocities paradox of the hostility of the current N NOVEMBER 1, 2005, which were committed inside Germany, government of the United States William A. Schabas, Professor under German law, or even in violation toward the ICC,” notes Schabas “is the of Human Rights Law and of German law, by authorities of the O fact that it is set in a background of 60 1 German state. Director of the Irish Centre for years of great enthusiasm for interna- Human Rights at the National tional criminal justice, unmatched by As Professor Schabas noted,“You can University of Ireland, Galway, delivered any other government in the world.” imagine this room...there’s someone the third annual lecture of the from the United Kingdom—I can just University of Minnesota Law Library This support, dating back to the war see the guy scratching his head, saying Distinguished Lecturer Series. Professor crimes trials of Dachau and ‘That’s a good point.You know, now Schabas’s lecture,“Dachau to Darfur: Nuremberg, flows from the idea that that you mention it, think of India, human rights are “on the agenda”— Arresting Impunity with International Nigeria, and Ghana…’”Thus, prosecu- that they stand at the heart of the war Justice,” was cosponsored by the Law tion of the Nazi atrocities became the aims of the Allies of World War II. Library and the University of Minn- prosecution of war crimes. Professor Indeed, Schabas asserts the success of esota Human Rights Center.The lec- Schabas then picked up another strand the ICC, which had been ratified by ture and an accompanying exhibit, of the developing human rights frame- 100 countries at the time of his lec- “Defending Human Rights:The work: the concept of genocide. In ture, leads to one conclusion:This is an Legacy of Dachau and Nuremberg,” reaction to what Professor Schabas idea whose time has come. were presented in commemoration of described as the “ugly limitation” the 60th anniversary of the war crimes Professor Schabas examined the devel- restricting crimes against humanity to trials at Dachau and Nuremberg.The opment of the concept of crimes wartime, developing countries came to exhibit highlighted valuable and against humanity, first articulated in the United Nations to put genocide unique photographs and documents 1945 to cover atrocities, persecutions, on the UN agenda.The UN adopted collected by Horace R. Hansen, a St. and deportations committed against a the Genocide Convention in 1948 to Paul, Minn.-based attorney and a pros- civilian population on the grounds of address states that perpetrate narrowly ecutor of war crimes trials at Dachau. race, political belief, and religion.At the defined atrocities (i.e., genocide) Professor Schabas’s presentation London Conference to draw up plans against their own people during peace- focused on the development of inter- for the prosecution of the Nazis, Justice time. Until 1995, these two strands— national criminal prosecution, with Robert Jackson argued for a key limi- genocide and wartime crimes against particular emphasis on the develop- tation. Conscious that the United humanity—remained separate.A deci- ment of the International Criminal States’ own conduct toward its minori- sion from the International Tribunal Court (ICC). He explored various ties amounted to what he termed for the former Yugoslavia (ICTY), explanations for the overt hostility of “regrettable circumstances,” Jackson however, united them.2 The ICTY the United States toward the ICC, convinced the other conference partic- ruled that crimes against humanity can

Perspectives SPRING 2006 43 At the Law School

The Law Library Distinguished Lecturer Series was presented in cooperation with the University of Minnesota Human Rights Center, Regent Frank R. Berman, ’65, and Associate Dean Joan S. Howland under the direction of Professor David Weissbrodt, above.

The Hansen archives contain personal photographs of the R. Berman, ’65, Regent of the courtroom at Dachau, including a chilling photograph of 40 University of Minnesota. Regent Berman is a member of the United defendants, with Hansen’s handwritten annotation, “These are the States Holocaust Memorial Council, bastards now on trial.” the governing body of the U.S. Holocaust Memorial Museum in Washington, D.C. occur during peacetime. Professor criminals after World War II. Schabas Hansen (1910–1995) received his J.D. Schabas summarized the current state noted that the legal principles have from the St. Paul College of Law (now of international law as follows:“Crimes expanded to address crimes during the William Mitchell College of Law) against humanity cover all gross and both war and peace, and that the inter- in 1933. Before joining the armed systematic violations of human rights. national community now has a perma- forces in 1943, Hansen served as a This is codified in the Rome Statute nent institution to prosecute such prosecuting attorney in the Ramsey of the International Criminal Court.” crimes.As Professor Schabas concluded, County (Minn.) Attorney’s Office. To show the impact of this change, “That’s pretty good progress in 60 The Hansen archives include personal Professor Schabas touched briefly on years, and I think Horace Hansen pictures of the surrender of German the situation in Sudan.While much would have been proud of us for doing soldiers and officers in the weeks discussion of Sudan’s actions in Darfur it.” leading up to V-E Day, May 7, 1945. has focused on whether genocide is In conjunction with Professor In one of Hansen’s extensive letters occurring, he emphasized that the UN Schabas’s lecture, the Law Library and home, he wrote, in his characteristic has affirmed that Sudan’s actions the Human Rights Center staged an straightforward manner,“When the amount to crimes against humanity. In exhibition—“Defending Human great V-E news is announced, there is his view, this affirmation has been Rights:The Legacy of Dachau and mild excitement lasting about five “grievously misunderstood” as some Nuremberg”—focusing on war crimes. minutes.Then everyone goes back to trivialization of what is happening in The exhibition took place in the work.” Darfur:“If they put you in the same Riesenfeld Rare Books Research category as the Nazis, Hitler, Bormann, Center at the Law School.The center- The archives include a complete file of and Goering…that’s a pretty terrible piece of this exhibit is the Horace R. these letters, which were widely circu- crime.” Hansen Archives, a unique collection lated and published in the St. Paul Dispatch. Professor Schabas concluded by sum- of photographs and documents col- marizing the development of legal lected by Hansen and donated to the Hansen’s transfer in January 1945 to principles and institutions since Hansen, University of Minnesota Law Library the Judge Advocate’s General Corps prosecutor of the war crimes division in May 2005 by his family.The exhibit with assignment to the war crimes for the U.S.Third Army, tried Nazi war was opened by the Honorable Frank division led to his appointment as a

44 Perspectives SPRING 2006 At the Law School prosecutor at Dachau.The Hansen archives contain personal photographs of the courtroom at Dachau, including a chilling photograph of 40 defendants, with Hansen’s handwritten annotation, “These are the bastards now on trial.” On Hansen’s staff at Dachau were five of the eight stenographers who had recorded verbatim Hitler’s military-sit- uation conferences. Hansen conducted interviews with each of these recorders, documenting first-hand information about Hitler’s rise to power and his command of the war. The archives include transcriptions of these immensely valuable oral histories. Of particular interest is an eyewitness account by Reichstagsstenograph Heinz Buchholz of the attempt on BY JESSICA JOHNSON, CLASS OF 2007. PHOTO Hitler’s life on July 20, 1944. Hansen’s experiences as a prosecutor and his interviews with Hitler’s chief recorders 90 Years of Law Review form the basis for his book, Witness to Barbarism, published in 2002. HE MINNESOTA LAW REVIEW James Hale, ’65, Robert Stein, ’61, and After the war, Hansen became a partner honored its many accomplished John Tunheim, ’80, received the in the St. Paul, Minn., firm now known T alumni and celebrated the suc- Minnesota Law Review Distinguished as Hansen, Dordell, Bradt, Odlaug & cessful publication of the journal’s 90th Alumni Awards, sponsored by Gray Bradt. He was a nationally recognized volume at its 2006 banquet in April. Plant Mooty. expert in insurance, banking, and health More than 250 Law Review board and law, and he served as general counsel staff members, faculty, administration, volumes reunited, all in attendance for the Independent Bankers of alumni, attorneys, and friends flocked honored their accomplishments, which America. Hansen was one of the to The Grand Hotel in Minneapolis have contributed to the proud history founders of Group Health, now for the event—making it the best- of the Minnesota Law Review. HealthPartners, and served as its attended banquet in memory. Former counsel for many years. Law School Dean Robert Stein, ’61, Volumes 35 and 36 Endowed Writing who served the Law School from Awards were presented to staff mem- The University of Minnesota Law bers Amy Bergquist, ’07;Todd Olin, Library and Human Rights Center 1979–1994, delivered the keynote address. He commented on changes in ’07; Daniel Robinson, ’07; and Lindsey gratefully acknowledge the support of Tonsager, ’07; for their contributions to Hansen, Dordell, Bradt, Odlaug & the legal profession in the past decades and predicted future changes. the 90th Volume of the Minnesota Law Bradt, as well as HealthPartners in Review.Those awards were presented making this exhibit possible.The A highlight of the evening was the by former Law Review editor-in-chief Library and Center also appreciate the awarding of the second annual Richard Lareau, ’52, who helped create assistance of the University of Minnesota Law Review Distinguished the Law Review’s Memorial Fund Minnesota Human Rights Program Alumni Awards, sponsored by Gray Award for Outstanding Staff and the Center for Holocaust & Plant Mooty.Awards were presented to: Publication.Volume 89 editor-in-chief Genocide Studies as well as Minnesota Ryan Miske, ’05, presented the Advocates for Human Rights.● • James Hale, ’65, former general counsel to Target Corp. Leonard, Street and Deinard–endowed FOOTNOTES writing awards to board members • the Honorable John Tunheim, ’80, Aaron Chapin, ’06;Alyson Tomme ’06; 1. Minutes of Conference Session of July U.S. District Court Judge, and and Megan Backer, ’06; for their 23, 1945, in Report of Robert H. Jackson, United States Representative to the • Dean Robert Stein, executive exceptional scholarship. International Conference on Military director of the American Bar Next year’s banquet is scheduled for Trials 333 (1949). Association. April 12, 2007. Nominations for the 2. Prosecutor v. Tadic. Case No. IT-94-1- Special recognition also was given to Distinguished Alumni Awards may be AR72, Decision on the Defense Motion members of Volumes 40 and 65, who made at www.law.umn.edu/ for Interlocutory Appeal on Jurisdiction, lawreview/alumni.html. ● at para. 141 (Oct. 2, 1995). served on the journal 50 and 25 years ago, respectively.As members of these By Matthew D. Krueger, Class of 2006.

Perspectives SPRING 2006 45 At the Law School

tenures of justices, the fourth panel of Minnesota Law Review Hosts Lindquist & Vennum Symposium the symposium assessed the interaction between the Supreme Court’s case docket, justices’ workload, and justices’ “The Future of the Supreme decisions about how long to remain on the court. Court and Beyond” The Lindquist & Vennum symposium attracted positive attention both at the The nation’s leading constitutional and federal courts scholars Law School and elsewhere. More than addressed timely issues and drew national attention 200 members of the Minnesota legal community attended the symposium N FRIDAY, OCT. 21, 2005, on campus, while others the Minnesota Law Review watched the event via hosted the Lindquist & live webcast.The day O before the symposium, Vennum Symposium,“The Future of the Supreme Court: Institutional Minnesota Public Reform and Beyond.”The sympo- Radio’s Midmorning pro- sium’s goal was to examine critical gram featured two of the issues surrounding the Supreme Court symposium’s partici- as an institution, including justices’ pants—Mark Tushnet status and tenure on the court, the (Georgetown University importance of precedent in the court’s Law Center) and decision making, and the proper role Kenneth Starr of the Supreme Court in the constitu- (Pepperdine University tional structure. Underlying much of Law School)— in a dis- the discussion was the troublesome cussion on the future of problem of politics and ideology inter- the court.Additionally, acting with fundamental notions of author Jeffrey Rosen justice and equality.Although leaders examined issues on and scholars have debated many of “super precedent” raised these same ideas since the beginnings by symposium panelists of our nation, history and scholarly Michael Gerhardt, research continue to uncover new per- Daniel Farber, and spectives and create new proposals for Randy Barnett in his finding a satisfactory balance. Indeed, Oct. 30, 2005, New York history intervened again to coincide Times article,“So, Do with the symposium, offering insight You Believe in ‘Super into two new Supreme Court vacan- Precedent’?” cies, and reinvigorating a very public that quickly joined scholars’ vocabulary The May 2006 issue of debate on the Supreme Court, its during the confirmation hearings for the Minnesota Law Review will feature Justices, and politics. Chief Justice John Roberts.The the articles written for the symposium Thirteen of the country’s leading con- second panel of the symposium exam- by each of the 13 participants. Further stitutional law and federal courts ined the role of external influences on information on the symposium, scholars traveled to the Law School to the justices’ decision making, such as including the archived Webcast of all participate in the symposium, individual backgrounds, cultural panels and presentations is available including professors Adrian Vermeule, norms, and foreign laws.The recent through the Minnesota Law Review Randy Barnett, Mark Tushnet, Martin nomination of then-Judge Samuel website, at www.law.umn.edu/law Redish, Kenneth Starr, and Steven Alito to replace Justice Sandra Day review/symposium.html.To access the Calabresi.The symposium consisted of O’Connor highlighted the importance Minnesota Public Radio program on an introductory presentation by of this panel’s discussion, as observers the symposium, go to http://news. Professor Vermeule on “The Obstacles questioned the significance of a jus- minnesota.publicradio. org/programs/ to Supreme Court Reform,” followed tice’s background.The symposium’s midmorning/listings/ by four panels that addressed various third panel addressed the tension mm20051017.shtml.To access the New topics on the future of the Court.The between some of the intensely political York Times article discussing “super first group of panelists discussed the controversies brought before the precedent,” go to role of precedent in the Supreme Supreme Court and the Constitution’s www.nytimes.com/2005/10/30/ ● Court’s decision making, building placement of the court above politics. weekinreview/30rosen.html. upon the concept of “super precedent” Finally, given the increasingly long By Karla Vehrs, Class of 2006.

46 Perspectives SPRING 2006 At the Law School

It’s Only Words At the Kellar Lecture, attorney-author Scott Turow inspects the links between the law and our use of language

TTORNEY AND BESTSELLING Death Penalty (Farrar Straus and Attorney-author Scott Turow author Scott Turow has said that Giroux, 2003) is a reflection on capital entertains an overflowing crowd at Amystery novels deliver answers punishment. Lockhart Hall with an impression of that life, and certainly the courtroom, The Illinois native has been a partner one of his former professors. cannot. Fiction, he explains, gives you a in the Chicago office of the national, truth that reality can’t always deliver. 600-lawyer firm Sonnenschein Nath In March, he entertained and informed and Rosenthal LLP,since 1986.Turow’s Ellsworth Kellar was a banker in Albert an overflowing crowd at Lockhart Hall work focuses on white collar criminal Lea, Minn. In keeping with his father’s about the ways in which language defense, and he devotes a substantial interests, Curtis Kellar designed a lec- shapes our storylines in life and in law. part of his time to pro bono matters. He ture series at the Law School that is He presented “It’s Only Words: has served on a number of public interdisciplinary in nature and connects Thoughts of a Lawyer & Novelist” at bodies. In 2000, he was appointed by emerging issues in the law with other this year’s Horatio Ellsworth Kellar Governor George Ryan to the Illinois disciplines such as art, drama, and Distinguished Visitors Program. Commission on Capital Punishment to literature. recommend reforms to Illinois’ death Turow is the author of seven best- The younger Kellar retired in 1981 penalty system, and he is a past presi- selling novels, including his first, from Mobil Oil Corp. He is a former dent of the Authors Guild. Currently, Presumed Innocent (Farrar Straus and member of the Board of Directors of he is chairman of Illinois’ Executive Giroux, 1987), and his most recent, the Law Alumni Association and of the Ethics Commission regulating execu- Ordinary Heroes (Farrar Straus and Board of Visitors at the Law School. tive branch employees and a trustee of Giroux, 2005). He also has written two Kellar is the generous and visionary Amherst College, his alma mater, in nonfiction books: One L (Farrar Straus donor of The Curtis Bradbury Kellar Massachusetts. and Giroux, 1977), captures his experi- Chair in Law (held by Professor Ann ence as a first-year Harvard law student The Horatio Ellsworth Kellar M. Burkhart), which the Law School (and has been read by generations of Distinguished Visitors Program was named in his honor. ● law students). Ultimate Punishment:A established in 1996 by Curtis B. Kellar, By Scotty Mann, assistant director of Alumni Lawyer’s Reflections on Dealing with the ’40, in memory of his father. Horatio Relations and Annual Giving.

Perspectives SPRING 2006 47 At the Law School

1

Race for Justice Attracts Hundreds of 2 Participants, Breaks Attendance Record

COMMUNITY SUPPORT FOR PUBLIC INTEREST FUNDRAISER CONTINUES TO GROW. More than 600 registrants, dozens of volunteers, first-ever Race underwriter Westlaw, and 27 other generous sponsors made the 4th Annual Race for Justice a tremendous success. Emeritus Professor Don Marshall 3 served as the Ceremonial Starter for the 5K Fun Run and Walk on April 9, 2006, at historic Nicollet Island in Minneapolis. The event attracted students, faculty, staff, and alumni from the University of Minnesota and other local law schools, as well as members of Minnesota’s legal community. Participants ran, rolled, and strolled to raise more than $13,000 for the Loan Repayment Assistance Program of Minnesota (LRAP), which helps new attor- neys provide legal assistance to the disadvantaged by subsidizing daunting 4 education debts. 1. Race participants head toward downtown The 2006 Race also included the first Team Competition, inspiring friendly Minneapolis across the Hennepin Avenue Bridge after rivalry between more than 20 teams from the law school, legal services offices, circling Nicollet Island. law firms, and judicial districts. The Law School Cross Country Team blew away the nearest competitors for first place, led by overall race winner Chris Lund- 2. Student performers from the TORT production West berg, ’08. The second-place Sharks, reprising their roles from the 2006 TORT Bank Story reprise their roles on Team “PILS”(Public musical West Bank Story, proved that even corporate lawyers can do their part Interest Law Students). for public interest. Third-place winner Team Meagher & Geer also ran away 3, 4. Team Meagher & Geer got into the spirit with with the prize for biggest team, with more than 20 participants. custom T-shirts and more than 20 participants, leading it Thanks to all who helped make the 2006 Race such a success. Mark your to a third-place team finish. calendar for Sunday, April 15, 2007, our Fifth Annual Race for Justice! 48 Perspectives SPRING 2006 5. Top women finishers include Annie O’Neill, ‘07 (3rd At the Law School place), Emily Koller (2nd place), and Betsy Flanagan, ‘08 (1st place). 6. Top men included Chris Lunberg, ‘08 (1st place), Tom Church, ‘06 (2nd place), and Jay Nelson (3rd place). 7. Participants enjoyed refreshments, including oranges donated by Lunds. 8. Returning Race supporters Professor David Weissbrodt and colleague Dr. Sy Gross enjoy the fine Spring day. 9. Emeritus Professor Donald Marshall, who inspired generations of University of Minnesota graduates to infuse service into practice, cheers on race finishers. 8 10. A record-setting crowd starts the race on Nicollet Island.

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Perspectives SPRING 2006 49 At the Law School

Gifts to Deinard Memorial Lecture Series Help Legal Scholarship Keep Pace with Scientific Advances

INGERPRINTS, DNA, AND other telltale biological signs of Fidentity have been starring in courtrooms for years, and the electri- fying pace of technological advances in genetics seems certain to deliver new scientific tests and tools into criminal legal proceedings.At the 2006 Deinard Memorial Lecture on Law and Medicine, held in January,Arizona State University Professor David H. Kaye, JD, MA, discussed the social, eth- ical, and constitutional implications of such probable advances in “The Science of Human Identification: From the Laboratory to the Courtroom.” Commentary on the lecture was deliv- ered by Professor Barbara Koenig of the Mayo College of Medicine and the University of Minnesota Center for Bioethics and by Professor William Iacono of the University of Minnesota Department of Psychology. Professor David Kaye, a leading expert on scientific evidence and statistical The Deinard Memorial Lecture Series methods in law, delivers the 2006 Deinard Memorial Lecture on Law & on Law and Medicine received two Medicine. He drew on the history lessons from DNA typing and fingerprinting gifts this year that will allow it to be to propose how the process of migrating new biotechnologies and related offered annually.Twin Cities–based tests from the lab to the courtroom might be improved. He also speculated on Leonard, Street and Deinard con- the future of the rapidly growing DNA databases for criminal investigations tributed $25,000 to increase the and the implications of genetic-identification technologies for personal privacy. endowment, as did Amos S. Deinard, Jr., MD, MPH, associate professor in the Medical School’s Department of Pediatrics, and his sister, Miriam Kelen. The purpose of the series, cosponsored by the Joint Degree Program in Law, Health & the Life Sciences (www.joint degree.umn.edu) and the Center for Bioethics (www.bioethics. umn.edu), is to present educational programs on law, medicine, public health, and biomedical ethics.Videos of past lectures are avail- able at www.jointdegree.umn.edu/con- ferences/deinard_series.php. The Deinard Memorial Lecture Series Law and Medicine was created through Professor Amos S. Deinard, Jr.; Miriam Kelen; Professor David Kaye; and Byron a generous donation from the family of Starns, Esq., chair of the Leonard, Street and Deinard litigation practice group. Amos S. Deinard, Sr., ’21, in honor of him and his brother, Benedict S. Street and Deinard supports the Law which supported the creation of the Deinard, ’21, who were founding part- School in numerous ways. Past major Law School’s wireless network; and the ners of the law firm of Leonard, Street gifts from the firm include the Leonard, Street and Deinard Founda- and Deinard. Both attended the Leonard, Street and Deinard tion Scholarship, established in 2001. ● University of Minnesota Law School Scholarship, established in 1969; a By Scotty Mann, assistant director of Alumni and Harvard Law School. Leonard, major gift to Campaign Minnesota, Relations and Annual Giving. 50 Perspectives SPRING 2006 Perspectives SPRING 2006 51 52 Perspectives SPRING 2006 At the Law School

team was undefeated in the Regional, and advanced to the national finals in Chicago in April.That team’s brief was the runnerup for regional best brief, and Francis was named the Region’s Moot Court Report fourth-best oral advocate.The teams were coached by adjunct advisor Students take honors in intercollegiate faceoffs; the Michael Vanselow, ’83. Law School hosts national Civil Rights competition National Environmental Law Moot Court OMEWHERE BETWEEN ABA Moot Court NATIONAL QUARTERFINALISTS adopting the mantle “1L” and UNDEFEATED REGIONAL CHAMPIONS, The Law School fielded a team in the Saccepting the final mission of the NATIONAL COMPETITORS Environmental Moot Court bar exam, many law students take on The Law School fielded two teams Competition held at Pace Law School the rite of passage of Moot Court. that competed in the New York in White Plains, N.Y.The three stu- Although the verdicts of the court Regional rounds of the National dents were 3Ls Patrick Hynes and don’t carry much legal weight, there Appellate Advocacy Competition.The Andrew Pierce and 2L Beth Stack.The are important career lessons to be four students were 3Ls Laura Witt and team advanced to the quarterfinal learned and academic accolades to be Erin Blower and 2Ls Alex Hontos and round.The team was coached by earned. In 2005–06, Law School stu- Luke Francis.The Hontos-Francis adjunct advisor Elizabeth Schmiesing. dents participated in nearly a dozen intercollegiate moot court competi- tions around the country, while the school hosted the 21st Annual William E. McGee National Civil Rights Moot Court Competition here at home.

National Moot Court UNDEFEATED REGIONAL CHAMPIONS, NATIONAL FINAL SIXTEEN The Law School’s National Moot Court Competition teams had another stellar year.The Law School fielded two teams for regional competition. The Petitioner team consisted of 3Ls Careen Martin,Tom Sinas,and Jamie Wiemer, while the Respondent team consisted of 3Ls Kathryn Hoffman, Nick Hydukovich, and Nathan Marcusen.The Respondent team was undefeated and won the regional championship. Hoffman won the American College of Trial Lawyers bowl for the best oral argument in the championship round. In the national final rounds, the Respondent team advanced to the national final 16.This was the fourth straight year (as well as the fifth of the past seven, and the sev- enth of the past 10) that a team repre- senting the Law School has advanced to the national finals.The teams were coached by Clinical Professor Brad Clary, ’75, and adjunct coadvisor Kristin Sankovitz, ’99.

Perspectives SPRING 2006 53 At the Law School

Intellectual Property peted in the Phillip C. Jessup Moot Court International Law Moot Court REGIONAL RUNNER-UP, NATIONAL Regional Competition in COMPETITOR Chicago.The team made an impressive showing, finishing For the third consecutive year, the fifth overall.Adjunct advisor Intellectual Property Moot Court Betsy Hoium, ’95, coached the competition team was successful.The team. team of 3Ls Charles Frohman and Angela Ni finished second in the Giles Professor Brad Clary, ’75; with National S. Rich Northeast Regional Competi- ABA Negotiation Moot Court Respondant team members tion in Boston. Ni was named Best Competition Nathan J. Marcusen, ’06; Kathryn Hoffman, Oral Advocate for achieving the highest REGIONAL FINAL ROUNDS ’06; and Nicholas Hydukovich, ’06; and first-round score. In April, the team COMPETITORS adjunct coadvisor Kristen Sankovitz, ’99. competed in the National Competition 3Ls Mark Abbott and Nena Street gram director of the Law School’s in Washington, D.C.Will Schultz and and 2Ls Anna Pia Nicolas and Dean Multi-Profession Business Law Clinic. Rachel Zimmerman, with help from Parker represented the Legal Rachel Hughey, ’03, coached the team. Negotiation Society at this year’s regional rounds of the ABA Wagner Moot Court International Moot Court Negotiation Competition.The Competition REGIONAL, FIFTH PLACE Nicolas-Parker team advanced to the NATIONAL COMPETITORS 3L Lesli Rawles and 2Ls Katrina regional final rounds in the Law 3Ls Christy Han, Bryan Lazarski, and Hammell, Joseph Kosmalski, Matt School’s first year of participation.The John Thames represented the Law Povolny, and Rosalie Strommen com- team was advised by Mary Alton, pro- School at the 30th Annual Robert F.

Law School Hosts National Civil Rights Moot Court Competition

The 21st Annual William E. McGee National Civil Rights Chapel Hill School of Law–Team 1, Best Oral Advocate Moot Court Competition was held March 2–4, 2006, at of the Preliminary Rounds award; Brock Specht of the the Law School. Thirty-six teams from law schools across University of St. Thomas School of Law–Team 2, honor- the nation submitted briefs and then traveled to the Law able mention School to argue Johnson v. Governor of State of Florida, • Southern Illinois University School of Law–Team 2, 405 F. 3d 1214 (11th Cir. 2005), a Florida class action that University of Connecticut School of Law, University of asserted that the state’s constitutional provision that St. Thomas School of Law–Team 2, and Chicago Kent denies ex-felons the right to vote violates the 14th College of Law–Team 2 advanced to the quarter-finals Amendment of the U.S. Constitution and §2 of the • Georgetown University Law Center, New York Law Voting Rights Act. School, Hamline University School of Law–Team 2, Chief Judge Edward Toussaint, Jr., Judge Natalie E. University of St. Thomas School of Law–Team 1, William Hudson, ‘82, Judge Bruce Willis of the Minnesota Court of Mitchell College of Law–Team 2, Seton Hall School of Appeals, Hennepin County (Minn.) District Court Judge Law–Team 2, University of South Dakota Law Lloyd Zimmerman, and Ramsey County (Minn.) District School–Team 2, and Campbell University School of Court Judge John Van de North presided over the final Law–Team 1 advanced to the Round of 16. argument in Lockhart Hall. Winners included: Members of the bar and bench, numbering nearly 170, judged briefs and oral arguments. Prior to the competi- • Brooklyn Law School, first place tion, on January 28, the Civil Rights Moot Court offered • Stetson University College of Law, second place the volunteer judges the free Continuing Legal Educa- • The DePaul University College of Law, third place tion program, “Silenced Voices: The Constitutionality and • Chicago Kent College of Law–Team 1, fourth place Legality of Felon Disenfranchisement Provisions.”At the conference, Professor Christopher Uggen, associate chair, • Southern Illinois University School of Law–Team 2, University of Minnesota Department of Sociology, Best Brief honors addressed the topic “Felon Disenfranchisement and • Michael Bell of Brooklyn Law School, Best Oral Democracy,”which was followed by a panel discussion Advocate Overall honors concerning the legal, constitutional, societal, and policy- • Tina Brown of the University of North Carolina at making implications of felon disenfranchisement provi-

54 Perspectives SPRING 2006 At the Law School

Wagner National Labor and Milind Shah, and Jody Ward competed coached by adjunct faculty advisor Employment Law Moot Court in the regional rounds of the National Suzanne Senecal-Hill and Bev Butler. Competition held at the New York Student Trial Advocacy Competition, Law School.Adjunct advisor Leslie sponsored by the American Trial Maynard Pirsig Moot Court Watson, ’99, coached the team. Lawyers Association.The team nar- rowly missed qualifying for the In the Law School’s own Maynard Pirsig Moot Court Competition, 2L ACTL National Trial regional final four.The team was assisted by Professor Brad Clary, and by Trevor Helmers argued as respondent Competition David Koob, ’98. in the final championship round and REGIONAL COMPETITORS won the Harold Will Cox oral argu- 3Ls Shannon Harmon and Eric ment prize.Arguing as appellant in the Steinhoff competed in the regional Evans Constitutional Law final championship round, 2L Matt rounds of the National Trial Moot Court Competition Johnson took second place in oral Competition, sponsored by the OCTO-FINAL COMPETITORS arguments.Top Best Brief honors and American College of Trial Lawyers and 3L students Leon Beasley, Holly the Dorothy O. Lareau Award went to the Texas Young Lawyers Association. Hartung, and Rebecca Wilson com- 2L Nathan LaCoursiere, and 2L John The team was assisted by Richard Gill, peted in the Evan A. Evans Kokkinen claimed second place in the ● ’71, and by Cindy Hanneken, ’03. Constitutional Law Moot Court, held Best Brief competition. at the University of Wisconsin in April. By Professor Brad Clary, Class of 1975. One team advanced from the prelimi- ATLA National Student Trial nary round to the octofinals.The brief Advocacy Competition written by Rebecca Wilson and Leon REGIONAL COMPETITORS Beasley won runnerup for Best 3Ls Lisa Hird Chung, Kristine Kerig, Practitioner’s Brief.The teams were

sions. The panel included Catherine Weiss, associate counsel, Brennan Center for Justice at New York University School of Law; Art Eisen- berg, litigation director of the New York Civil Liberties Union; Keith Ellison, ‘90, of the Minnesota House of Representatives; Gary Dickey, Jr., Meaghan Atkinson and Michael David Bell of First Place Brooklyn Law School and Laurie-Ann Sharpe and general counsel and policy advisor James McTyier of Second Place Stetson University College of Law flank members of the McGee National Civil to Governor Tom Vilsack of Iowa; Rights Moot Court Competition final panel: Chief Judge Edward Toussaint, Jr., of the Minnesota Court of and Marc Mauer, executive director, Appeals; Hennepin County District Court Judge Lloyd Zimmerman; Judge Natalie E. Hudson, ’82; and Judge Sentencing Project of Washington, Bruce Willis of the Minnesota Court of Appeals; and Ramsey County District Court Judge John Van de North. D.C. Following the panel discussion, Michael Bell of Brooklyn Law School also won Best Oral Advocate Overall honors. Weiss spoke concerning the stan- dards and appropriate method of analyzing the 14th Amendment and Voting Rights Act issues in the Johnson case, and Mr. Mauer talked about the racial disparity in incarceration.

For more information about the McGee competition and additional 2005 highlights, including top 10 briefs and best oral advocate lists, visit www.law.umn.edu/mootcourt/ The 2005–06 McGee National Civil Rights Moot Court Administration team, from left to right, index.htm. Administrative Directors Misha Wright, ’06, Jody Ward, ’06, and Shaela Cruz, ’06, and Research Assistant By Professor Carl Warren, Class of 1975. Anna Pia Nicolas, ‘07.

Perspectives SPRING 2006 55 At the Law School

Faculty, Alumnae Present Tribal Court Management Program

N ANCIENT LUMBEE TRIBE teaching—“Seek wisdom, not Aknowledge/Knowledge is of the past/Wisdom is of the future”— provides the essence of a Tribal Courtroom and Trial Management course recently presented by Professor Steve Simon and Minnesota Native American attorneys Heidi A. Drobnick and Tammy J. Swanson, both Class of 1991 Law School alumnae.The course was presented at the Essential Skills for Tribal Court Judges, a weeklong annual program held at the National Judicial College at the University of Nevada in Reno, Nev. The Tribal Court Courtroom Management course is a simulation- based teaching course where attorneys experienced in practicing in tribal courts raise a variety of trial manage- Minnesota Native American attorneys Heidi A. Drobnick and Tammy J. ment and courtroom dynamics issues. Swanson, both class of 1991 Law School alumnae. Student judges rotate on and off the bench during the simulation.After the Drobnick and Swanson initially the country are continually expanding simulation, a senior judge leads a dis- designed this program with Professor and developing their courts, with the cussion with the students about how Simon for Minnesota Tribal Court adoption of tribal codes of law, rules of the various judges dealt with the issues judges. Professor Simon’s Judicial Trial civil and criminal procedure, and evi- and dynamics raised, and how they Skills Training Program was the dence and the development of tribal could be handled differently.The stu- starting point for the development of court case precedents through the dents, drawing on their perspectives as courtroom management training pro- tribal appellate courts. judges, offer their insights and experi- grams for tribal court judges.Tribal The Tribal Court Courtroom ences in terms of what does and does Courts are complex entities that not work in the courtroom. involve dynamics not experienced in Management course—which is steeped state courts.These include the deter- in the Native American proverb “Tell Simulation-based learning involves the me and I will forget./Show me, and I learner in a way that brings the com- mination and application of tribal may not remember./Involve me, and I plex real world of the courtroom into custom to legal disputes, the role of will understand”—speaks to the Law the classroom, and allows a closer elders in court, the choice of laws School’s commitment to judicial edu- approximation of the complexity and between tribal law and foreign state cation and reflects its leadership in the variety of issues and dynamics that and tribal statutes and case decisions, development of innovative educational often occur simultaneously in real the use of tribal language as the lan- programs for state and tribal court courtrooms. Simulation-based learning guage of the tribal court, and the judges. ● strives for wisdom, insight, and skill extent of nonlaw-trained advocates and development. judges in tribal courts.Tribes around By Professor Stephen Simon, Class of 1971.

56 Perspectives SPRING 2006 At the Law School Thank You to All Our 2006 Race for Justice Sponsors

Perspectives SPRING 2006 57 At the Law School forward Momentum REFLECTIONS ON THE LEGACY OF DEAN ALEX M. JOHNSON, JR. ≥

BY LESLIE WATSON

ITH HIS APRIL 14 ANNOUNCEMENT of great change for the Law School, with many faculty that he would be stepping down as the ninth retirements and administrative restructuring.” Under dean of the Law School,Alex M. Johnson, Jr., Johnson’s forward-thinking leadership, the Law School saw ended a four-year deanship that was marked unprecedented growth, with an influx of talented new fac- by a wealth of accomplishments. Johnson, ulty lending depth to its existing programs and expanding Wwho joined the Law School in 2002, will move to emer- its capacity in key areas. Johnson also guided recruitment itus status for the 2006–07 school year, during which he efforts that led the Law School to welcome an ever more will be on sabbatical. Professor Fred Morrison and capable group of students, with diverse backgrounds that Professor Guy-Uriel Charles will serve as Interim Co- reflect the complex world in which they will practice. Deans during the search for a successor. ≥ Johnson’s lasting legacy seems assured, thanks to his tireless work to secure the Law School’s position in the top ech- A Great Faculty, Made Even Better elon of public law schools. Morrison, who has seen five deans during his decades at the Law School, offers a long- mong the distinguishing characteristics of Johnson’s term perspective of Johnson’s time at the helm:“The deanship was his success at building academic excel- Dean’s tenure was actually longer than that of the average Alence among the Law School’s faculty.As Charles law school dean in the United States, which is now three puts it,“Dean Johnson has done an absolutely remarkable years,” Morrison says.“His deanship coincided with a time job in the last four years with improving and increasing the faculty, in a way that has been tremen- dously exciting for the entire school.” Johnson made more lateral hires than the Law School has seen in a decade, including a number of leading scholars, and with particular focus on criminal law, environmental law, intellectual property, and international law.The addition of these members to the existing roster of talented faculty means that the Law School now boasts one of the best faculty/student ratios in the country and has secured its position as a leader in several significant areas of law.“Dean Johnson’s focus on key cen- ters of excellence where the Law School would be well-regarded nation- ally has proven to be a highly successful strategy for putting the institution in a strong position,” observes Professor Ruth Okediji, an authority on interna- tional intellectual property law who joined the faculty in 2002.

58 Perspectives SPRING 2006 The arrival of these talented scholars has brought an infu- sion of energy to the existing curriculum.The Law School expanded its business law program under Johnson, through the lateral hires of Professors Claire Hill and Richard Painter, and through new developments at the Kommerstad Center for Business Law and Entrepreneurship.The Center now offers a corporate externship program that secures in- house positions for students with companies such as 3M, Allina, Land O’Lakes, Medtronic, and Piper Jaffray. Professor Brad Karkkainen, a nationally prominent scholar in environmental law, is among the new faculty members To leverage other outstanding strengths, the Law School who joined the Law School during Johnson’s tenure. created three student concentrations in Health Law, “Dean Johnson recruited me very aggressively and persist- Employment and Labor Law, and International Law. Under ently,” Karkkainen says.“He made it clear I would have a Johnson’s leadership the Law School’s Health Law program true intellectual home at Minnesota, and that he would do subsequently rose to the top ten in the country in U.S. everything in his power to help build a first-class environ- News & World Report’s recent rankings.The Law School mental law program here as part of a broader strategy to added new institutes and centers under Johnson, including strengthen the faculty and strengthen the student body. the Institute on Crime & Public Policy. Johnson also And he’s delivered on everything he promised.” helped to strengthen the school’s interdisciplinary footprint by bolstering its joint-degree programs. According to Charles, the wave of faculty additions has not gone unnoticed outside the Law School.“The dean ≥ brought so many talented people, with national and inter- national reputations, that their arrival has generated Widening the Field, Narrowing the Gate national attention to the Law School and the great strides it has made in strengthening its faculty,” he says.“Due to nother signature element of Johnson’s leadership his efforts, we now have one of the best criminal law facul- was his commitment to diversity. In charting the ties in the country; we have one of the best corporate fac- ALaw School’s course in this arena, Johnson brought ulties in the country; we have one of the best IP faculties to bear his own experience as the first African American in the country; and we have one of the best public law fac- dean not only of this Law School, but of any top 20 law ulties in the country. It’s been absolutely amazing.And, school.“In so many respects, Johnson has been an inspira- perhaps equally important, Dean Johnson has also helped tion to the entire legal community, and especially to to establish relationships between these new people and scholars of color,” says Okediji.“Having his career as a role the faculty already here, creating new synergies and fos- model is something that many, many scholars of color take tering a vibrant intellectual community.” seriously and find greatly encouraging.” Johnson implemented the popular “Square Table” program From the beginning of his deanship, Dean Johnson was last summer, which brings the faculty together on a weekly committed to bringing in students from all kinds of basis to share ideas in an informal setting; faculty are often backgrounds, both ethnic and experiential.This year’s grad- very focused on their research—work that is generally uating class reflected these efforts, and included students done independently—and the program provided the fac- with a range of previous life experiences, from a former ulty with an opportunity to work collaboratively and to professional NFL player to individuals with established benefit from sharing their work. public service careers. Johnson’s efforts to attract a diverse

Perspectives SPRING 2006 59 At the Law School

student body have benefited everyone at the institution. entering class had a median GPA of 3.54 and a median “The diversity in the Law School’s student body has made LSAT score of 164, the strongest statistical showing that for a rich and stimulating classroom environment,” Okediji the Law School has seen.The Law School broke its record says.“Students with diverse backgrounds bring a maturity for applicants in 2005, and again in 2006–2007, a fact that of perspective and a passion for the law that helps tradi- is doubly significant given the national trend of declining tional students appreciate the kind of environment in applications.As Charles points out, the caliber of the stu- which the law must operate, and better prepares everyone dent body profits the entire institution, including the fac- for the reality of what life and career can bring.” ulty.“It is quite frankly a joy, as a law professor, to be teaching these wonderful students,” he says. Karkkainen Under Johnson, the student body became not only more agrees, and believes that Johnson deserves a great deal of diverse, but also more academically elite. In 2005, the credit.“He made it a top priority to expand our applicant pool by aggressively promoting our excellence, and that has allowed us to be more selective in our admissions,” observes Karkkainen.“Having top students makes it easier to recruit and retain top faculty, which in turn makes us even more attractive to the next year’s applicant pool. It becomes a self-reinforcing cycle of excellence.” ≥

Building a Law School Community ven in the midst of concentrated efforts to build upon academic strengths, Johnson did not neglect Ethe Law School’s sense of community. He was an enthusiastic proponent and supporter of the production by the Theater of the Relatively Talentless (TORT), an all-student musical parody that now draws an audience of more than 1,000 and has become an annual tradition. “The production is a really wonderful way of bringing the law school together as a community, and it’s become something that both faculty and students look forward to every year,” Okediji says. “Not only does it showcase

60 Perspectives SPRING 2006 At the Law School the life that our students live outside of the Law School and the remarkable gifts that they have, but it’s tremen- dously fun.” Johnson also initiated new ways for the Law School com- munity to come together for the benefit of its own mem- bers, such as the annual race for Justice 5K Fun Run/Walk to raise money for the Loan Repayment Assistance Program.The Race was one part of the dean’s support for the Public Interest Law Students’Association; Johnson was instrumental in providing financial support and increased public awareness for the group. In addition to the demands of managing the Law School, Johnson made time to return to the classroom each spring, teaching both first-year and upper-level courses.This made him accessible to students, who came to know him more personally than they might otherwise have done.“He was also a great mentor to both young and mid-level faculty,” Okediji says.“For junior faculty in particular, the dean’s direct and unvarnished opinions were tremendously helpful • The Law School maintained its rank of 19th in the for building skills and confidence, and finding new ways to country (in U.S. News & World Report), a significant develop professionally.” accomplishment given the ongoing pressures on public schools created by funding cuts. ≥ • Johnson helped to secure several significant donations for the Law School, including a generous gift of A Well-Kept House, on a Road Well Paved $1 million from the law firm of Robins, Kaplan, Miller eyond Johnson’s more glamorous successes in & Ciresi. attracting topnotch faculty and students, he also Bperformed unsung work that played an equally crit- From the standpoint of the bright future that he helped to ical part in enhancing the Law School’s capacity as it secure, Johnson’s tenure will undoubtedly be remembered moves forward in the 21st century.“Perhaps some of Dean for his forward-looking, energetic commitment to pro- Johnson’s greatest strengths were on the administrative pelling the Law School toward greater capacity, and corre- side,” notes Morrison,“which allowed him to help the spondingly greater stature.“It’s the mark of a true leader to institution adapt to the many changes it has seen over the be able to improve on the past and set a path for the last several years.” future,” Okediji says,“and it is this quality that Dean Johnson brought to his deanship. He helped us to identify Johnson increased staff support in all areas of the Law where it is that we need be in order to position ourselves School, including the Career and Professional among the very top two or three public law schools in the Development Center, which provides education, training, country.Through his leadership, the Law School has gained and opportunities to students and alumni. He expanded a strong sense of where we have been, and a definitive annual fund and alumni relations work, and elevated the framework for where we should be headed.” Law School’s public image by adding a new communica- tions position. His efforts paid off almost immediately, with “Dean Johnson has provided us with a very strong founda- the Law School winning the 2006 University of tion,” agrees Charles.“He has had a great vision about the Minnesota Communicators Forum Gold Award for best direction that the Law School ought to be going, and part print publication. Johnson also led efforts to keep the Law of the role that both Interim Dean Morrison and I will School abreast of cutting-edge technology, instituting a play is to carry on that vision until we pass the baton to program designed to equip every student with a laptop his permanent successor.” computer while in school. Beyond his institutional legacy, Johnson will also be The Law School achieved other significant milestones warmly remembered for his personal integrity and honesty, during Johnson’s deanship: and for the stimulating intellectual atmosphere that he cul- tivated.“He is a great human being, with a wonderful • The Law Library, the eighth largest in the country, heart, who truly cares about people and their develop- acquired its millionth volume, the Papers of Clarence ment,” Charles says,“and it was a pleasure being a member Darrow. of this faculty under his leadership.” ●

• The Law School developed strong ties to China, and this Leslie A. Watson is a freelance writer and a 1999 graduate of the Law year launched its summer study abroad program in School. She can be found online at www.thebusypen.com. Beijing.

Perspectives SPRING 2006 61 STUDENT PERSPECTIVE The students at the Law School bring their real-world experience into classroom conversations; out-of-class studies and scholarship; internships and clinic projects; and also to their shockingly wide range of extracurricular activities. Based on their undergraduate seasoning, lessons learned on the job, their daily interactions within the community, and their individual cultural perspectives, our students are parsing, sifting, analyzing, and imagining just how the theory and the practice of the law meet up in contemporary society. In this section, meet three students who made their way to the Law School from paths as diverse as science and the circus. Find out how the Women’s Law Student Association has evolved from a mission of helping with child care to one of total career enhancement. Get the story on why the Briggs and Morgan Scholarship is better than ever, and read what legal insights students generated after examining the catastrophe of Hurricane Katrina.

62 Perspectives S P R I N G 2 0 0 6 Student Perspective

TORT Show Sings and Dances to Sell-Out The Theatre of the Relatively Talentless (TORT) is a theatrical musical parody of the law school experience. Each year, Law School students write, direct, and perform an original, full-length musical, abandoning their normally reserved demeanors as they showcase hidden talents in humor, song, and dance. Past productions include The Wizard of Fritz, Law Wars, and last year’s sold-out smash hit, Walter Wonka and the Lawyer Factory. This year’s production, West Bank Story, told a tale of two star- crossed law school students caught between rival groups—the Sharks and the PILs.

Each year, more than 70 students participate in the acting, singing, and technical work for the show. Running for four performances, TORT has become a major theatrical event. West Bank Story held four sold-out performances at St. Paul Student Center Theatre, and drew nearly 1,300 students, faculty, and alumni. All productions featured cameo appear- ances from respected legal luminaries, including former Vice President Walter Mondale, ’56; Attorney General Mike Hatch, ’73; Eighth Circuit Chief Judge James Rosenbaum, ’69; and Hennepin County Attorney Amy Klobuchar. Law School faculty and staff also participated in each show.

Several top Minneapolis-based law firms sponsored TORT to show commitment to the values of entertainment, quality of life, and humor, in addition to hard work. TORT corporate sponsors include Dorsey & Whitney LLP; Faegre & Benson LLP; Robins, Kaplan, Miller & Ciresi LLP; Gray Plant Mooty; Fredrikson & Byron PA; and Shumaker & Sieffert, PA. The firms’ contribution went directly to the technical costs associated with this surprisingly high-quality theatrical production; this year, it cost $12,000 to produce West Bank Story.

For more information or to support TORT, visit www.umn.edu/~tort, where you can download original cast performances and purchase DVDs of past performances. We look forward to seeing you at the show next year! ● By Anna Pia Nicolas, Class of 2007

Perspectives S P R I N G 2 0 0 6 63 Student Perspective

❯Student Scholarship

As the Waters Recede: Legal Lessons from Hurricane Katrina

Wetland Restoration in the Students in the seminar “The Legal Implications of Hurricane Katrina” evaluated the poli- Aftermath of Katrina cies and laws that compounded the hurricane’s destruction—and how changes might BY BEN KREMENAK, CLASS OF 2007 help mitigate the effects of future natural disasters.

S FEDERAL, STATE, AND LOCAL Hurricane Katrina was the most catastrophic natural disaster in U.S. history. Like many governments plan the future of other Americans, the members of the University of Minnesota Law School responded ANew Orleans, they must look with an outpouring of financial and emotional support. Many of our students pondered beyond the levees for a lasting solution to whether they might contribute their intellectual resources to the recovery effort. the region’s vulnerability to hurricanes. Responding to student interest, Associate Dean Jim Chen and former Law School Pro- Aggressive investment in the restoration of the coastal wetlands in the area will reap fessor Daniel A. Farber (now of Boalt Hall School of Law at the University of California at environmental and economic benefits for Berkeley) taught a one-week intensive seminar on Hurricane Katrina and the broader years to come. topic of natural disasters and the law. The seminar addressed a broad range of issues, New Orleans sits on the south shore of from pre-storm planning to emergency response and post-disaster reconstruction. The Lake Pontchartrain, the second-largest following abstracts offer a glimpse of the scholarship that Minnesota’s law students have saltwater lake in the United States (after generated in response to Hurricane Katrina, in the uniform hope that America might Utah’s Great Salt Lake), and in the center recover from this disaster and be better prepared to withstand future catastrophes. of the Lake Pontchartrain Basin—a water- shed covering 5,000 square miles.The nificant drop in fish and oyster harvests. reconstruct a coast that will be less vul- basin supports hundreds of species of Today, the MRGO provides just 3 percent nerable to future destruction by natural aquatic and terrestrial wildlife, and nearly of southeast Louisiana’s shipping com- disasters. half of all North American migratory merce. Dredging costs for the MRGO are birds pass through the area each year. Hazard mitigation has been routinely used $22 million per year, which amounts to to reduce the costs of catastrophic events The Lake Pontchartrain Basin also hosts $12,657 per vessel per day. in cities prone to natural disasters.The almost 1.5 million people, one-third of Additional wetlands would provide effectiveness of mitigation measures has Louisiana’s total population. Growth numerous benefits.Wetland plants absorb been variable. Historically, the use of pressures such as dredging, sewage excessive amounts of suspended nitrogen structural techniques such as coastal jet- disposal, saltwater intrusion, and urban and and phosphorous compounds, destroy ties, levies, and dams has been unsuc- agricultural runoff have taken their toll. intestinal bacteria in human and animal cessful. In fact, these mitigation activities Twenty-eight percent of the Basin’s waste, convert inorganic nutrients to their have been found to exacerbate the prob- wetlands (some 266,000 acres), as well as organic forms, and facilitate photosyn- lems they are intended to solve, causing 75 percent of the submerged aquatic thesis by filtering sediment out of the environmental degradation and ecological vegetation, have been lost during the past water.This is especially important in the imbalance that enhances the severity of 60 years. Every 2.8 miles of vegetated area around Lake Pontchartrain because future disasters. wetlands can reduce a storm surge by the lake was the receptacle for the 114 By contrast, the potentially more effective about a foot.A wetland that equals only billion gallons of bacteria-, oil-, and use of nonstructural mitigation measures 15 percent of the acreage in a watershed chemical-infested water pumped out of such as land-use zoning, floodplain can reduce flood peaks by 60 percent. New Orleans after Katrina. Because New Orleans is separated from restrictions, and other noncompensatory the Gulf of Mexico by 107 miles, this is limitations on development has been quite significant. Parks for the Coast: largely ignored. Despite their political Unfortunately, since the late 1960s, Lake The Cost of Preventative unpopularity, these measures offer a more Pontchartrain has been connected to the Zoning Post-Katrina effective long-term solution to the problem by limiting population growth in ocean by the Mississippi River Gulf BY JENNIFER HANSON, CLASS OF 2006 Outlet (MRGO).When hurricanes strike hazardous areas and ensuring that natural the area, the MRGO acts as a funnel, URRICANE KATRINA CAUSED buffer systems remain intact. Because the allowing the storm surge to rush unim- devastation that was unprece- devastation of New Orleans offers a peded toward New Orleans. Furthermore, dented in recent U.S. history.The unique opportunity to comprehensively H rezone the city, nonstructural mitigation is the MRGO allows an excess of saltwater approach to the reconstruction and rede- to infiltrate the lake.This has created a velopment of affected areas continues to the natural solution to diminishing the 100-square-mile dead zone in Lake be a topic of controversy. Given what is at cost of future disasters. Pontchartrain, the destruction of tens of stake, in the near as well as long term, A comprehensive rezoning of New thousands of acres of marshland, and a sig- planners and politicians should strive to Orleans should be consistent with the

64 Perspectives S P R I N G 2 0 0 6 Student Perspective

approve predisaster mitigation programs. Since 9/11, FEMA has been reorganized three times, resulting in reduced staffing and programs.The Department of Homeland Security believes that FEMA should not be involved with predisaster mitigation and should focus solely on dis- aster response. However, the responders need to be the same as the mitigators or the relationship connection is lost. Government must refocus on predisaster mitigation, relationships, and community response. Otherwise, when the next dis- aster explodes on our horizon, the same delayed decisions and individualistic con- flict will continue to cause unnecessary loss of life.

Lessons From the GETTY ©2005 RADHIKA CHALASANI IMAGES. Kobe Earthquake designations of the updated federal flood mitigation.The next broken link in the BY ALEX GESE, CLASS OF 2006 map.Those properties at a significant risk chain of disaster response situates itself at of flooding should be rezoned to less the center of the National Response Plan T 5:45 IN THE MORNING OF intensive uses, such as recreational park- (NRP) and the Robert T. Stafford Disaster Jan. 17, 1995, residents of Kobe, land.An imposition of this regulatory Relief and Emergency Assistance Act AJapan, awoke to what must have limitation on development will raise (Stafford Act).The procedures designed in seemed like a nightmare. Unfortunately, questions as to whether a compensable the NRP and the Stafford Act for govern- the nightmare was real. Measuring 7.2 on “taking” under the Fifth Amendment of ment to follow in response to disastrous the Richter scale, an unexpected earth- the Constitution has occurred.The situations apply a waiting game and an quake spent 20 seconds mutilating a city Supreme Court analyzed a statute barring inherent division among individual offi- that, until that time, was most notable for development on coastal property in Lucas cials and individual agencies. its beef and for being one of the busiest v.South Carolina Coastal Council. Justice port cities in the world. Antonin Scalia, writing for the majority, Like the NRP and the Stafford Act, the The earthquake struck without warning, found the statute eliminated all economi- Constitution builds separates power causing the immediate death of more than cally viable use, and therefore was a between state and federal governments. compensable taking under the Fifth Uniting these levels of government to pro- 200 people. During the next several Amendment. If New Orleans imposes tect lives from disasters is inherently com- hours, another 6,000-plus would die hor- land-use restrictions that are found to plicated. In preparing for and responding rible deaths while trapped in rubble or deny all economically viable use, Lucas to disasters, governments at all levels need fires.The city of 1.5 million people saw analysis provides for compensation for the to invoke flexibility and embrace the idea buildings destroyed in each of its nine fair market value of the owners’ land. of community over individual. wards. More than 300,000 people were left homeless as a result of the quake. The federal government should be In the alternative, compensation may not Kobe’s transportation infrastructure was in involved with state and local preventive be required if the city chooses to allow ruins. Economic damages totaled well planning by requiring approval of the state activity that affords cognizable value. On over $100 billion, marking the Kobe dis- and local plans in order to fund mitigation sensitive coastland, however, New Orleans aster with the infamous distinction of projects.This is already in place, but on is well-advised to limit intrusive uses, and being the costliest disaster to befall any too small a scale. It had been only six must therefore be willing to accept the one country in history. initial cost of rezoning. Questions will years since government decided to fund arise as to how the market value should mitigation projects before a disaster actu- A quick look at population, geographic, be determined for these devastated prop- ally hit the area. and industrial data reveals a striking— almost eerie—resemblance between the erties. But whatever the ultimate price The main advantage to this system is that tag, the potential for long-term sustain- cities of Kobe and New Orleans.Another a relationship is built between the federal, similarity is that both cities have had to ability for New Orleans makes this major state, and local agencies. Relationships investment worthwhile. deal with unfathomable disaster. comprise the core of community. If a rela- Regrettably, each disaster exposed flaws tionship develops before a disaster hits, it and failures in the cities’ preparedness for Lacking Trust and Deciding would reduce friction between officials inevitable catastrophes. Eleven years after Late: Individualism in and agencies and reduce squabbling over that disastrous morning of Jan. 17, 1995, Emergency Response powers as was seen during Hurricane Kobe is once again a flourishing city. It Katrina. In turn, this would lend efficiency BY ALLISON HALEY, CLASS OF 2006 has reestablished itself as a thriving port to decision-making. In disastrous situa- city, its transportation infrastructure has HE GOVERNMENTAL BREAK- tions, trust is imperative to speedy deci- been rebuilt, its buildings are now both down associated with Hurricane sion-making. Relationships build trust. aesthetically and architecturally impressive, TKatrina begins with the federal gov- The Federal Emergency Management and its population is intact.While the ernment’s failed attempt at predisaster Agency (FEMA) worked with states to earthquake was tragic, it also brought to

Perspectives S P R I N G 2 0 0 6 65 Student Perspective

rescue and evacuation duties when local government became overwhelmed. Hurricane Katrina demanded that the executive branch rise to the occasion.The temporary nature of natural disasters makes it less upsetting that constitutional balance might have shifted as a result. In light of the historical precedent for the executive’s assumption of inherent powers in times of emergency, and in light of the responsibility of local governments to pre- pare for and respond to the foreseeable disaster, the blame belongs to these bodies alone, not the country’s governmental structure.

Did the United States ©2006 GETTY IMAGES Have a Legal Duty to bear a city’s ability to deal effectively and during, and after emergencies.The Rescue New Orleans? efficiently with profound adversity and, Stafford Act, which provides for federal BY KELLY G. LAUDON, CLASS OF 2006 ultimately, to rebuild in a very positive emergency relief, calls for state and local way. action to precede federal intervention, URRICANE KATRINA BATTERED Kobe and, indeed, many other cities can making it sometimes bureaucratically dif- a large area of the Gulf Coast offer much-needed hope and guidance to ficult for the federal government to pro- Hregion, but had a particularly dev- New Orleans as it is faced with the task vide immediate assistance. astating effect on the city of New of rebuilding and, perhaps, reinventing Blaming the drafters of the Constitution Orleans. Due to the city’s position below itself. History has shown that cities have a for government failures, however, would sea level and its dependence on an aging remarkable tendency to bounce back after be an injustice despite the inherent chal- and inadequate levee system, Katrina’s disaster: London after the blitz of 1940, lenges of operating a federalist system of enormous swells of water forced city resi- dents out of their homes. Hundreds of Mexico City after the earthquake of government. State and local governments thousands had no resources with which to 1985, New York City after 9/11—the list have a duty to prepare plans for pre- evacuate the city and relied on the gov- goes on.This phenomenon is commonly venting loss of life and property in case of ernment for emergency assistance.With known as “the resilience of cities.”While a major hurricane—not merely local and state resources overwhelmed by disasters are never welcome, lessons from responding after the fact. Nothing in the the catastrophe, hurricane victims history relating to disaster recovery structure of American government would expected the federal government to pro- response and short- and long-term plan- have prevented implementation of such pre-disaster measures. vide that relief.Americans watched in dis- ning methodology should be embraced belief as federal relief came slowly and with open arms. Moreover, the phenom- Conversely, the federal government, ineffectively to a city in desperate need. In enon of resilience should send a welcome specifically the executive branch, needed some cases, the aid came too late. signal of hope to New Orleans. to initiate a more active response to Katrina. State and local governments were The public swiftly placed blame on fed- incapacitated and under-equipped to eral leaders for failing the city of New Governmental Structure and address the needs of the citizenry after Orleans. How could a country as rich in Emergency Response disaster struck. Given the traditional role resources as the United States react so BY LOTEM ALMOG, CLASS OF 2007 of the states in emergency response, a poorly to a hurricane predicted days comprehensive federal response could before landfall? Moral blame may be easy MONG MANY LAWYERS’ require the stretching of the Constitution, enough to impose on the federal govern- attempts to lay blame for failures to but not its total abandonment. Despite ment, but legal liability is not. Aprepare for and respond to constitutional silence on the issue, the The first question one faces in analyzing Hurricane Katrina, some commentators drafters surely contemplated disasters federal liability for the government’s argue that the structure of the U.S. gov- requiring action by a unitary executive. failure to provide adequate rescue services ernment itself made an effective response They likely presumed that the president to New Orleans is fundamental to any to Hurricane Katrina impossible. would exercise inherent powers under his cause of action: Did the United States The Tenth Amendment of the authority to execute the laws and as have a duty to rescue the city of New Constitution reserves to states all powers commander in chief during these crises. Orleans? The answer is likely no.There not expressly granted to federal govern- History is rife with instances where the are three theories of duty one might con- ment.Among federally delegated powers, executive did so. sider to hold the United States liable for domestic disaster response authority is not Katrina, however, exposed an executive failed relief efforts in New Orleans.All fail one of them. Consequently, state and local branch that was neither unitary nor active. as a matter of law. governments are expected to be the first Among the failures, the executive branch The first theory argues that a government responders to disasters in their territories. failed to call up the military in a timely created to protect the life and property of For example, pursuant to Louisiana law, it fashion, delayed establishing a disaster site its citizens has an affirmative duty to do is the state’s responsibility to prepare for multiagency coordination center, and so.The United States purportedly evacuation, rescue, and care before, failed to have a plan in place for assuming assumed a constitutional duty to protect

66 Perspectives S P R I N G 2 0 0 6 Student Perspective citizens from harm under the due process there is likely no theory by which legal have more to do with questions as to clause of the Fifth Amendment. Supreme liability may be imposed.Whether one whether price-gouging laws actually work Court jurisprudence rejects this theory, takes a constitutional, common law tort, and whether such legislation has desirable however, by interpreting the due process or statutory approach, any claim against impacts, despite the good intentions that clause as a statement of negative rather the United States would likely fail because lead to their passage. than positive rights.The due process the federal government had no legal duty Statutes that punish price-gouging have clause guarantees freedom from to rescue the residents of New Orleans. rightly arisen from society’s desire to keep oppression by the government, rather than the most vulnerable members of society governmental protection against oppres- Price-Gouging in the Gasoline from being priced out of access to neces- sion by others. sary items, such as food, medicine, and The second theory by which the law Market After Katrina energy in times of crisis and to prevent might impose liability on the federal gov- BY DAVE NARDOLILLO, CLASS OF 2007 individuals from unfairly profiting from ernment is the Good Samaritan doctrine. the confusion, desperation, and irra- This tort doctrine imposes a duty of rea- N THE AFTERMATH OF HURRICANE tionality that tends to proliferate amid dis- sonable care on a stranger who voluntarily Katrina, the one economic impact of astrous events. But even those who sup- intervenes to rescue a person in distress. Ithe storm that was most immediately port price-gouging statutes admit that the Although the Good Samaritan has no and broadly felt throughout the country efficacy of such laws leaves much to be duty to rescue, once she undertakes the could be readily observed at the local desired. Both critics and supporters of rescue she is liable for any increased harm gasoline station.The hurricane disrupted price-gouging statutes note that such laws her negligence might cause the distressed oil-drilling operations in the Gulf of can actually exacerbate shortages. Prices person.The United States arguably Mexico for days.As one might expect, in kept artificially low by statute could assumed a duty when it voluntarily a market with insatiable global demand encourage consumption beyond an indi- designed and built a levee system to for petroleum, the price correction for vidual’s needs and lead to runs on stores protect New Orleans from flooding.The any kink in the production chain would that can exhaust supply and leave people federal government also undertook a duty be swift and severe. unable to obtain necessary supplies and to act reasonably when it induced resi- Indeed, the Energy Information Agency resources at any price. Poorly crafted laws dents of New Orleans to rely on its reported that between August 29 and also can strip the incentive for store promise of relief before the hurricane hit. September 5, the period just after Katrina owners to stay open during a crisis, for Under the Federal Tort Claims Act struck the Gulf Coast, the average U.S. many price-gouging statutes do not allow (FTCA), injured parties have invoked the price for regular gasoline rose 46 cents to storeowners to charge higher prices that Good Samaritan doctrine to hold the $3.07 per gallon, at that time the largest offset the dangers and extra costs of federal government liable for failed main- weekly hike in prices on record. Not sur- staying open to serve the public.The tenance and rescue attempts.The problem prisingly, that price increase was coupled inability to pass along reasonable addi- in New Orleans is that Louisiana does not by an increase in the numbers of com- tional costs also discourages merchants follow traditional common law holding a plaints of price-gouging. Perhaps more from maintaining adequate stockpiles and Good Samaritan liable for her negligence. unexpectedly, complaints emanated from reserves in advance of emergency situa- Louisiana only holds rescuers liable for places far from the region that was tions, since they will not be able to intentional or grossly negligent acts. directly affected by Katrina. Complaints recoup the additional cost of maintaining Because the FTCA immunity waiver only were filed in states across the country, such inventories. applies to causes of action against the fed- from Vermont to Alaska, and even in for- There also seems to be a growing senti- eral government for which state law eign countries as far away as Australia.The ment that the statutes are themselves so would hold a private individual liable, an attorneys general of a number of states, structurally deficient as to be useless as a FTCA claim for negligence based on the backed by statutory authority to investi- guide to service providers and merchants. Good Samaritan doctrine would not stand gate and prosecute incidents of Many statutes employ vague and subjec- in Louisiana. price-gouging as well as general support tive terms to define the threshold at The third theory argues that Congress from the public, took swift action.These which price-gouging occurs.These laws assumed a duty to rescue victims of major efforts have resulted in fines to gasoline offer no markers as to what constitutes disasters by passing the Stafford Act.The service stations throughout the country unfair pricing. Several statutes define the Act authorizes the president to provide and in states far beyond the direct reach of threshold that constitutes price-gouging as disaster relief when a catastrophe over- the storm, such as New York,New Jersey, when the prices charged are “uncon- whelms state and local resources.The and Illinois. scionable” or when they “grossly exceed” legislation expressly provides, however, Despite public approval of these cam- the normal price for the product. Courts that the federal government is not liable paigns against service station owners and have fruitlessly attempted to define the for its employees’ negligence in carrying public statements by President George W. contours of these terms for decades.The out a discretionary function under the Bush declaring “zero tolerance” for result leaves merchants with no clear sense Act. Given the Supreme Court’s broad price-gouging in the wake of Hurricane of how the statutes operate.These laws interpretation of the term “discretionary Katrina, the federal government has also open the possibility of inconsistent function,” the federal government is likely consistently resisted calls to implement a punishments and fines. immune from liability for the negligent federal law against price-gouging.The By surveying the existing state of price- decisions and omissions made by federal Federal Trade Commission has explicitly gouging laws and examining how these employees in response to Katrina. refused to support federal price-gouging laws might be better crafted, we can learn Although the public continues to blame legislation, whether related to gasoline or how such laws can protect citizens while the federal government for its failed other products.The reasons for the lack of recognizing the real problems that mer- response to Hurricane Katrina and the support have less to do with concern over chants face when they attempt to serve increased harm caused by that failure, the limits of federal legislative power and their communities in times of disaster. ●

Perspectives S P R I N G 2 0 0 6 67 Student Perspective

❯Scholarship Spotlight

The Briggs and Morgan Scholarship

RIGGS AND MORGAN, P.A. “Of course, great students attract great faculty, and vice versa. raises money like a well-oiled Alumni benefit from the continued prestige of the Law School. The Bmachine: Firm leadership deter- mines a philanthropic objective and legal system and countless other compontants of society are fundraising target, marshals the troops, and matches individual lawyers’ dona- strengthened by the exemplary qualities of U of M lawyers.” tions with funds from the firm and from the Briggs and Morgan —Richard G. Mark, Class of 1971, Briggs and Morgan president Foundation.The Law School has been including future gifts, will be matched port.The firm currently employs 56 the fortunate beneficiary of this dollar-for-dollar and combined with University of Minnesota Law School effective protocol on numerous occa- income earned on the original endow- graduates. Briggs and Morgan lawyers sions.What makes that well-oiled ment; thus, the number and size of enrich the curriculum of the Law machine work, of course, are caring, Briggs and Morgan Scholarships will dedicated people. School by serving as adjunct professors, be increased significantly. as judges and coaches of the nine moot Michael J. Galvin, Jr., ’57, served as The firm, its members, and its founda- court teams, and as panelists for scholarship cochair for the Law School tion have advanced strategic priorities numerous career-related programs. during Campaign Minnesota. In 1999, of the Law School.The Briggs and Firm members volunteer time and under Galvin’s determined and effi- Morgan Professorship in Law, endowed expertise to Law School advisory cient leadership, Briggs and Morgan in 1987, created a vital means by boards, organize alumni class reunions, and individual contributing lawyers of the firm established the Briggs and which the Law School has been able host alumni events, and counsel Morgan Scholarship Fund with a to acknowledge and encourage two prospective students.The Briggs and total commitment of $250,000.The world-class faculty members. David S. Morgan Scholarship is central to this endowment is an important resource Weissbrodt held the Briggs and dynamic alliance between the firm and for the Law School in recruiting and Morgan Professorship from 1989 to the school. retaining great law students.To date, 1998; its current holder, Michael As our partners at Briggs and Morgan $30,000 in income earned on the fund Stokes Paulsen, was appointed in 1999. has provided eleven scholarships, Briggs and Morgan and its lawyers know, scholarship giving is essential, awarded to eight Briggs and Morgan contributed leadership support for the with state funds comprising just two Scholars. Stein Scholars Endowment created in percent of the Law School’s annual 1996; initiated in honor of then- budget, and 2005–06 tuition and fees In 2005, the Briggs and Morgan retiring Dean Robert Stein, the at $21,328 for Minnesota residents and Foundation and individual lawyers of endowment was created to provide $31,712 for nonresidents. ● the firm pledged an additional $50,000 full-tuition scholarships. over five years to take advantage of the By Martha Martin, director of External current University of Minnesota Faculty, alumni, and especially students Relations. If you’d like to contribute to scholar- President’s Scholarship Match program. are grateful to Briggs and Morgan for ship giving, please contact Martha at Income earned on the new fund, its deep-rooted and meaningful sup- (612) 625-2060 or [email protected].

“With tuition ever on the increase, the Briggs and Morgan Scholarship has provided me with some much-needed piece of mind during law school. By worrying less about financial issues and more about academics, the scholarship has enabled me to become a better student.” —Justin Moeller, Class of 2006, Briggs and Morgan Scholar

68 Perspectives S P R I N G 2 0 0 6 Student Perspective

❯Student Profiles

A Bad Scientist, a Not-Geeky-Enough Computer Guy, and a Former Circus Intern Find Their Fit at the Law School

RISHI GUPTA otube retained its conductivity when it hopes to merge the two into a spe- CLASS OF 2008 returned to its original form. cialty. Or maybe not. GOT INTO LAW BECAUSE I WAS “That was a big turning point,” he “I don’t want to be pigeonholed into a bad scientist,” says Rishi Gupta, says.“It really guided the rest of my IP law,” he says.“I want to keep an Isipping green tea in a crowded scientific career.” open mind.” coffee house.“But,” he adds,“I was really good at talking about it.” The research, and its publication, At age 27, Gupta has already demon- helped him secure a National Science strated that. And then the first-year law student Foundation grant to study nanotech- jumps into a discussion of the electro- nology in Australia. In 2003, while still dynamic qualities of carbon nanotubes. AL VREDEVELD working at Zyvex, he began taking CLASS OF 2006 Soon his conversation is peppered with classes in applied physics at the O BE A COMPUTER references to quantum dots and lipid University of Texas-Dallas. bilayers. He draws diagrams on a programmer was Al Vredeveld’s reporter’s notebook, rolls a napkin into But the physics and electrical engi- Tambition.And then, as an under- the shape of a tiny nanotube, and is neering expertise didn’t help him graduate at Ohio State University, he delighted to find a roundish imperfec- when the company sought to find bio- landed a summer internship at IBM in tion on our beat-up table.“This looks logical uses for the S100. For that, Rochester, Minn. He liked the work. just like a cell,” he says. Gupta needed to hit the books.“I had He liked the people. But Vredeveld, to read hours and hours a day just to now 26, didn’t After graduating figure out the vernacular,” he says. really fit in. with a bachelor’s degree in electrical That’s where the cell-like spot on Many of engineering from the table comes in handy. Gupta Vredeveld’s co- the University of patiently notes that the S100 had to workers enjoyed Texas-Austin in slip through the outer edge of a cell, playing the fantasy 2001, Gupta took known as the lipid bilayer. By sticking card game “Magic: a job with Zyvex, a light-emitting quantum dot on the The Gathering” a Dallas nanotechnology company. tip of the S100’s probe, scientists could next to the Many observers believe the emerging see what they were doing.“The trick vending machines in the company high-tech industry could result in great is to get the quantum dot to stay on lunch room. He didn’t. In short, he was medical and technical advances in the the tip,” he says. an extrovert in a world of introverts. decades ahead. Gupta earned his “It’s a stereotype about computer master’s degree in people,” Vredeveld says.“But in this After a perfect score on the analytical applied physics in May case it bore itself out in reality.” 2005, but had long Vredeveld decided to apply his portion of the GRE, law school seemed since given up on a sci- knowledge of computers and other entific research career. high-technology applications to the like a smart alternative. University professors law.After completing his coursework, spent too much time the third-year student will work full- trying to win grants, while scientists at At Zyvex, Gupta toyed with the S100, time at Shumaker & Siefert, a firm private firms often had their research a robotic tool scientists hoped could specializing in intellectual property law. manipulate nanotubes. In his first inde- canceled when it didn’t match the pendent research project at the firm, whims of the marketplace, he believes. As an intern at the Woodbury, Minn., firm,Vredeveld has written about 20 Gupta worked with a physicist to After a perfect score on the analytical patent applications, the research for devise a way for the four-pronged portion of the GRE, law school which includes interviewing the S100 to electrically probe a nanotube, seemed like a smart alternative. He inventor.The key to writing an appli- causing it to buckle while measuring chose the University of Minnesota cation that will likely be approved by its conductance behavior. Due to its because of its expertise in international the U.S. Patent Office, he says, is to powerful molecular structure, the nan- and intellectual property law. Gupta

Perspectives S P R I N G 2 0 0 6 69 Student Perspective make realistic claims about the around the stage while wearing a huge University of Minnesota Law School. product’s possible uses in a “clear and Gopher head. It was an over-the-top “Minneapolis is more cosmopolitan organized” manner. finale to a successful play—and some- than I thought,” she says. thing he never would have done while “It was my job to describe cutting- sitting in the lunch room at IBM. As a law student, Nicolas has been edge technology in a way that non- impressed with the professors and technological people could under- intellectual rigor of her classes. In addi- stand,” he says. ANNA PIA NICOLAS CLASS OF 2007 tion to her studies, she’s also been Vredeveld’s graduation this spring S AN UNDERGRADUATE, involved with the Asian-American Law won’t be the end of his formal educa- Anna Pia Nicolas wasn’t sure Student Associa-tion,William McGee tion.The Ohio native plans to pursue a what occupation she wanted National Civil Rights Moot Court master’s degree in electrical engi- A Competition, and the American Bar to pursue, so she sampled several neering at the University of Minnesota possibilities. Association’s Negotiation in the next few years. Gaining Competition. expertise in that field will help him While attending New York University Nicolas joined the understand the microcomplexities of in Manhattan, Nicolas participated in University of computer processing. the “America Reads” program in public schools in Chinatown and the Minnesota Law School’s newly Many of Vredeveld’s Bedford-Stuyvesant neighborhood of Brooklyn. She also interned at Big formed negotia- co-workers enjoyed playing Apple Circus, a local performance tion team, which group. had an impressive the fantasy card game showing at a 2005 “Magic: The Gathering” next One of the highlights of that experi- tournament.With 16 teams com- ence, says Nicolas, was when she met peting, Nicolas and her colleagues fin- to the vending machines in actor Harrison Ford at a Big Apple ished first and third in the two-round the company lunch room. Circus fundraiser.“He said my name in competition, narrowly missing a that husky Indiana Jones voice,” she chance to advance to nationals. He didn’t. In short, he was says, giggling. “Negotiation is such an important an extrovert in a world of The native of Brick, N.J., graduated skill,” Nicolas says.“No one wants to summa cum laude with a degree in go to trial.” introverts. communication studies in 2002. She She’s clerked at Fishman, Binsfeld & So what about Vredeveld’s need to mix quickly secured a gig in the book pub- Bachmeier, gaining experience in it up socially? He’s shined in that area lishing industry—the quintessential immigration law.This summer, she through his involvement in Law Manhattan job. plans to work at Blackwell Igbanugo, a Council and TORT, the Theater of the At Wiley Publishing, a historic com- firm with offices in Minneapolis;Troy, Relatively Talentless. pany that printed the works of Edward Mich., and Washington, D.C.At After serving as secretary and vice Allen Poe and Herman Melville, Blackwell Igbanugo, she’ll focus on president of Law Council during his Nicolas was in commercial litigation. first and second years of law school, charge of marketing he’s now the group’s president. Law a line of architecture Council distributes funds to student and design books. The book publishing job was challenging, organizations and organizes social The book pub- the work fun, but in the end, it didn’t sustain events. lishing job was chal- lenging, the work her intellectual curiosity. One of its social events is TORT, the fun, but in the end, quirky, low-expectation play students it didn’t sustain her create every spring.This year, the intellectual curiosity. ad-hoc group performed West Bank Those experiences will help Nicolas Story.Vredeveld was a member of the “Law school was always in the back of decide what type of law to pursue after chorus, but not much else. He’s my mind,” she says.“But I didn’t want graduation. In the meantime, she’s busy extroverted, but not among the most to go just because I couldn’t find participating in school activities and talented actors of the relatively tal- something else to do.” studying, of course.“This is the most ented. He mostly focused on challenging thing I’ve done,” she says, During her stint at Wiley, Nicolas’ ● fundraising and promotion. clearly pleased that that’s the case. boyfriend studied law at Fordham By Todd Melby. Melby is a Minneapolis-based However, in the group’s 2005 produc- University. His classes prompted her to freelance writer and independent radio tion of Walter Wonka and the Lawyer take the LSAT in 2003.Two years later, producer. Factory,Vredeveld did get to bounce she was a first-year student at the

70 Perspectives S P R I N G 2 0 0 6 Student Perspective

❯Student Organization Spotlight

The Woman’s Law Student Association

LTHOUGH MUCH OF THE from the judges and students,WLSA Several smaller events held throughout history of the Women’s Law has added similar events to the the school year are the work of WLSA, AStudent Association (WLSA) schedule: One lunch includes local as well.The life balance panel explores group has been lost in the years since women attorneys, and the other fea- issues regarding balancing personal and its founding, rumor has it that the tures women from the Minnesota professional life. Successful practitioners group was originally founded to fund Legislature.These events have helped are regularly invited to share their childcare for women at the Law expand the imagination of WLSA insight and advice about their practice School.The group was given a space members as to what their future areas. In addition to such program- on the first floor for a used bookstore ming,WLSA cultivates a close relation- for that purpose.These days, the child- ship with Minnesota Women Lawyers care facilities are gone, but the used (MWL), providing access to experi- bookstore remains, and WLSA has enced women who willingly share grown in both size and purpose. It is WLSA has worked hard to their experiences regarding the legal one of the Law School’s oldest and profession. Many WLSA members in best-established student groups. open doors to a wide array turn are members of MWL, and participate in MWL events, on its Today, the group remains dedicated to of professional fields for committees, and in its attorney-student advancing the interests of women in mentorship program. the law and in the legal profession. the Law School’s women. WLSA has a particular interest in Since its inception,WLSA has worked helping its members find jobs and hard to open doors to a wide array of mentors in the local legal community. professional fields for the Law School’s To that end,WLSA hosts a number of women, and to inform the larger com- munity about issues that affect all events throughout the year to advance careers might hold and for giving them women.WLSA looks forward to con- these interests.An annual judicial practical advice on how they can tinued progress in making careers in luncheon brings female judges from achieve their career goals.WLSA also the legal profession suitable to the throughout the state to the Law sponsors one student law clerk each needs of women lawyers. ● School. Due to the success of the summer to work in a public interest luncheon, with positive endorsements firm addressing women’s issues. By Brita Johnson, Class of 2007.

Perspectives S P R I N G 2 0 0 6 71 Class of 1966

ALUMNI PERSPECTIVE The Law School is justifiably proud of its alumni and their accomplishments. To keep great graduates connected to the school and involved in its future success, this year marked a groundbreaking reunion effort. The first Spring Alumni Weekend featured events for all alumni, and specifically brought together the Classes of 1996, 1986, 1981, 1966, 1956, and all classes from 1955 and earlier. Get a glimpse of the emerging Alumni Weekend tradition in this section, along with coverage of the Hollywood flick North Country and its links to the Law School and to the University at large. Also in this section, read profiles of dis- tinguished alumni and the ever-informative Class Notes. Check the calendar on the back cover of Perspectives to find out when you can reconnect with fellow graduates in person—and mark your April 2007 calendar now for the Second Annual Spring Alumni Weekend, April 12–15, 2007!

72 Perspectives SPRING 2006 Alumni Perspective

HOLLYWOOD’S brush with the LAW The real-life lawyers of Jenson v. Eveleth Taconite Co. take a tour through North Country

scar Wilde famously austere and uncompromising landscape also earned an Oscar nomination for said that life imitates of Minnesota’s Iron Range, the film her supporting role as Glory Dodge, a art more often than tells a fictionalized version of Jenson v. salty, straight-talking miner who even- the reverse.When it Eveleth Taconite Co.Venued in tually throws her support behind the comes to the law, it’s Minnesota federal court, Jenson was lawsuit even as she battles the debili- Odifficult to tell just how this truism the first sexual harassment lawsuit cer- tating effects of Lou Gehrig’s disease. cuts. In a courtroom, real-life stories tified as a class action. In 2002, authors Reviewers gave North Country high emerge only under the influence of Clara Bingham and Laura Leedy marks for the strength of its acting and artful advocacy, bound by a framework Gansler published a nonfiction account its cinematography, and for its depic- of rules and procedures, and pruned of of the case entitled Class Action:The tion of the dynamics between the lead legally irrelevant details.And if a real Landmark Case that Changed Sexual character, her family, and her commu- courtroom provides only an imitation Harassment Law. Released last fall, nity. But in the next breath, many also of life, should anyone be surprised North Country is based on a screenplay expressed dismay at the maudlin antics when art’s depiction of a courtroom adapted from the book. Directed by of its pivotal courtroom scene and the saga fails to bear the unmistakable ring Niki Caro (Whale Rider), the film fea- melodrama of its conclusion. Many of of truth? tures an Oscar-nominated performance by Charlize Theron as Josey Aimes, a the real-life lawyers and judges who The film North Country offers an thinly veiled version of the real-life actually argued and decided the case opportunity to consider the question lead plaintiff, Lois Jenson. In a far cry were Law School alumni (see sidebar), from the vantage point of our own from her “you betcha” turn as a police and those who saw the film echoed backyard. Set against the sometimes officer in Fargo, Francis McDormand this mixed reaction.

Perspectives SPRING 2006 73 Alumni Perspective

With the possible exception of the But when filmmakers take too broad a union’s unwillingness to address it, plaintiffs’ real-life lead counsel, Paul dramatic license with the facts or the even when the women tried to lodge Sprenger, probably no lawyer was more law, they run the risk of deflating the complaints.After she began legal pro- involved in Jenson v.Eveleth than Jean narrative effect they seek, losing credi- ceedings in 1984, she continued to Boler, ’82. Boler, who spent thousands bility along the way, and ultimately work at the mine for eight more years. of hours on the plaintiffs’ case during selling their stories short. During that time, she kept extensive her 10 years at Sprenger & Lang, says notes and wisely took photos to docu- that she didn’t expect the film to be A brief history of ment the escalating harassment, while anything but fictional.“I wasn’t disap- Jenson v.Eveleth slowly convincing her fellow women pointed that it wasn’t factually accurate, miners to join the lawsuit. because I think that it is certainly pos- ith North Country, the film- After the initial victory of the class sible to portray a story’s significance makers faced the chal- certification in 1991, the case was without telling every detail,” she says. Wlenging task of compressing bifurcated into liability and damages But she was less than enthusiastic about more than twenty years of litigation phases.Throughout the case, the mine’s other aspects of the film, especially its and its preceding events into just two management company refused to make wholly fictional ending. brief hours. Jenson v.Eveleth’s legal his- tory spanned nearly 15 years, from the any reasonable settlement offer, even Larry Schaefer, ’88, was also with mid-1980s until its final settlement in after a 1992 ruling by Judge Richard Sprenger & Lang and was involved in 1998. (See timeline.) The lawsuit had Kyle, ’62, stated that the mine was the case during its damages phase. Like its origins in a pattern of sexual harass- liable for maintaining a hostile working Boler, Schaefer thought that the film ment that began a decade earlier, in environment. Following a lengthy set up the story’s factual background 1974, when the Eveleth Taconite Mine damages trial that included extensive well, but fell short in its portrayal of in Eveleth, Minn., first began hiring inquiry into the women’s personal the case’s legal aspects.“But I think the women miners as the result of an lives, Magistrate Patrick McNulty, ’49, filmmakers had a real challenge in how Equal Employment Opportunity recommended only modest awards. to depict that kind of litigation,” he Commission consent decree. The U.S. Court of Appeals for the points out.“There were many different Eighth Circuit reversed Magistrate hearings, first for class certification, The women miners, from their first McNulty’s decision in 1997, and then liability, and then the damages days on the job, experienced persistent remanded the case for a jury trial on trial, not to mention the incredibly and sometimes soul-crushing harass- damages.The mine, now under new long discovery process.All of that is ment from both the male miners and management, finally settled the difficult to portray in a condensed, their supervisors.The women’s entry women’s claims for a total of $3.5 mil- Hollywood sort of way.” Chief Judge into this exclusively male-dominated lion in 1998. James Rosenbaum, ’69, who oversaw world was met with scorn and sexual As the case wound this long and tor- the class certification proceeding, sums intimidation that included crude jokes tuous path through the legal system, it up bluntly:“I only handled part of and derogatory comments; sexually many of the plaintiffs, including Jenson, the case, but I believe that there was explicit posters and graffiti in the paid an enormous personal price.Their evidence at the hearing that I con- lunchrooms and locker rooms and families and neighbors in the insular ducted for everything shown to have on the walls, tools, and equipment; Iron Range community considered the occurred on the job site.And I think unwelcome touching; and even phys- lawsuit a betrayal of the union and the it’s fair to say that nothing, absolutely ical assault. miners, and they openly accused the nothing, that was shown in the film’s Lois Jenson began working in the plaintiffs of trying to close the mine courtroom ever actually happened.” mine in 1975, and for nine years she and rob the community of badly No one expects Hollywood to accu- grew progressively angrier and more needed jobs.To make matters worse, rately portray every detail of a legal disillusioned about the treatment that the permanent downturn in the proceeding, and North Country certainly she and the other women miners taconite industry coincided with the doesn’t pretend to be a documentary. endured, and the company’s and the beginning of the lawsuit, and more and

April 1974 October 1984 January 1987 Under an EEOC consent decree to settle Jenson files a sexual The State finds probable cause and moves for conciliation, but charges of discriminatory hiring, Eveleth harassment the mine’s management company, Oglebay Norton, refuses to Mine agrees to hire women and minori- complaint with the pay any punitive or compensatory damages to Jenson. May 1991 ties in 20 percent of all new jobs. Minnesota August 1988 The class certifica- March 1975 Department of Paul Sprenger files the case in U.S. District Court, tion hearing begins Lois Jenson begins working Human Rights requesting certification as a class action. The case before Judge James at Eveleth Mines. includes three named plaintiffs. Rosenbaum.

74 Perspectives SPRING 2006 Alumni Perspective

initially deeply hostile toward Josey, but he eventually rallies to her side when his innate sense of decency becomes too deeply offended, both by the harassment itself and the treatment that Josey receives after she sues. Larry Schaefer found this element of the film particularly effective.“Even though it was purely fictionalized, I imagine that it resonated with many of the women who actually participated in that case,” he says.“These women took on a lot, not just Oglebay Norton and Eveleth Mines, but their commu- nities and their families. I don’t know that there are many of us who would © Explore Minnesota Tourism Photo. Tourism Minnesota© Explore have the courage, or the principle, or more jobs were lost to lay-offs.The reaching, because it created new pro- even the stamina to do what these duration and intensity of the litigation, tections for sexual harassment plaintiffs women did.The movie could have including its grueling discovery and by limiting the scope of permissible portrayed that more, but it did give a damages phase, was another formidable discovery into their personal histories. sense of what they faced.” challenge, and more than one plaintiff ended up with serious health complica- North Country’s Jean Boler agrees.“I think the film did tions such as post-traumatic stress dis- Version of the Facts a nice job with the preceding events order (PTSD). Consumed by the and setting up the conflicts in the Iron n its effort to capture this complex litigation, Jenson developed such dis- Range and the conflicts in the main history, North Country substantially abling PTSD that she was finally forced plaintiff’s community,” she says.“It por- truncates the case’s chronology. Its to stop working at the mine in 1992, to I trayed well the sense of this woman protagonist, Josey Aimes, begins work- her great financial detriment. Pat going up against virtually everyone in ing at the mine, encounters the harass- Kosmach, an original plaintiff who her family, her community, her work- ment, quits her job, institutes the law- partly inspired Frances McDormand’s place, to stand up against the condi- suit, and convinces the other women character in the movie, died of Lou tions at the mine.” miners to join the lawsuit in just over a Gehrig’s disease before the case reached year. Despite its rapid pacing, the film Boler does think that the film played a its final resolution. carefully crafts a compelling portrait of bit too loose with at least one of the But as difficult as the case was for these the conditions at the mine, and gives a underlying details. In the movie, the women their sacrifice was not in vain. nuanced portrayal of the conflict that plaintiffs’ attorney, played by Woody Although very few similar class actions Josey encounters with her children, her Harrelson, conceives of bringing the followed in its wake, the case often father, and her fellow women miners case as a class action while sitting in a receives credit for helping to usher in when she levels her accusations of bar before a wall of mounted deer an era of heightened awareness of sexual harassment.Although it has no heads.As he lifts his beer, Harrelson sexual harassment in the American basis in fact, Josey’s relationship with catches sight of the deer and thought- workplace, prompting employers to her father is particularly well-drawn, fully says to himself,“Hmm, the herd.” bring serious and sustained efforts to lending emotional depth to the film’s “Woody Harrelson coming to the real- addressing it.The Eighth Circuit’s 1997 effort to illustrate the opposition the ization in a bar surrounded with stuffed opinion reversing the original damage real plaintiffs met within their own heads that a class action might be the award was perhaps even more far- families.The father, a miner himself, is route to take was very annoying,” Boler

December 1991 January 1992 May 1993 Anita Hill begins testifying in the Clarence Thomas Lois Jenson’s deteriorating health forces her to Judge Kyle rules that Eveleth Mines is liable confirmation hearings. stop working at the mine. Shortly after, she is for maintaining a sexually hostile working diagnosed with post-traumatic stress disorder. environment. 824 F. Supp. 847 (D. December 1991 Minn.1993). Judge Kyle subsequently Judge Rosenbaum certifies the case as December 1992 appoints retired magistrate Patrick McNulty a class action, the first such certifica- The liability phase of the bifurcated of Duluth, Minn., as a special master to tion for a sexual harassment lawsuit. trial begins before Judge Richard oversee the damages phase of the case. 139 F.R.D. 657 (D. Minn. 1991). Kyle in St. Paul, Minn.

Perspectives SPRING 2006 75 Alumni Perspective laughs.“I just thought, what about all of changed hearts and newfound sup- But when it comes to the film’s failure the briefs? What about all the research? port for Josey and the lawsuit. to convey the lasting lesson of Jenson v. And now John Q. Public thinks that Eveleth, Boler has unabashed misgiv- Of course, a few theatrics need not that this is how the law gets changed! It ings.At the end of the courtroom necessarily sound the film’s death knell. was painful.” scene, amid its clear suggestion of a Mary Stumo, ’80, who was the lead plaintiffs’ victory because of the class For his part, Schaefer wishes that the defense counsel during the liability and certification, a few sentences flash on film’s cast had included an additional damages portion of the case, chose not plaintiff’s lawyer to depict Jean Boler. the screen explaining that the real-life to see the film, and so cannot pass plaintiffs waited another 10 years “Of the lawyers that worked on the judgement on the legitimacy of its case, Jean was probably the most before finally reaching a “modest courtroom scenes.“I lived the real case, financial settlement” of their claims. heroic,” Schaefer says.“It was a tremen- or at least the part of it after the class dous credit to Paul Sprenger to have But the sobering impact of this mes- certification and before the appeal,” she sage is immediately undercut by the had the foresight and vision to direct explains.“I was there when the testi- the case as he did, and the tenacity to final scene, which shows a jubilant mony came in, and I know the real Josey teaching her teenage son to drive have stayed with it. But Jean was so story, and I’ve just left it there.” important to the case, and she had along an Iron Range highway, through such an incredible connection to the But on the more general issue of a springtime forest, newly green with women and empowered them in many Hollywood’s depiction of the legal fresh growth. ways, especially during the many times process, she is willing to cut filmmakers By ending on this uplifting note of during the 10- or 12-year legal some slack.“The reality is that you redemption and reconciliation, the odyssey when they didn’t have the can’t begin to portray a real case in the filmmakers ignored the hard and energy to proceed and they were won- sense of its complexity, the amount of painful reality that for the real-life dering whether it was worth it. So I time that it takes to develop and get to plaintiffs, justice came much later, and wish there had been a female character trial, and then the amount of time it at an incredible cost.“A filmmaker’s in the film advocating for the women, takes at trial,” Stumo points out.“And, obligation is to make a good film like there was in real life.” of course, trials can be boring, and most where the emotions are authentic and But these oversights pale in compar- people just aren’t going to watch that.” the ideas are complex, and they aren’t ison to the film’s abandonment of the Schaefer agrees, noting that Holly- selling out for a Hollywood ending,” facts of Jenson v.Eveleth for a tidy, wood’s dramatization of the courtroom Boler says. From her perspective, North Hollywood-style ending. North serves essentially the same purpose as Country didn’t meet this ultimate obli- Country’s pivotal courtroom scene takes theatrics in a real-life courtroom. gation because it neglected the real place near the end of the film, during “Trials can be grinding and mind- drama of the case, which was the the class certification hearing, and numbingly boring to anybody who’s women plaintiffs’ long struggle to includes its fair share of classic cine- not intimately involved with the facts come together as a class, and then to matic contrivances.The judge vows to of a case,” he says.“As a trial lawyer, persevere through the many years of certify the class from the bench if your job sometimes is to try to make litigation that followed.“The film- Woody Harrelson can produce “just things digestible and entertaining if you makers had an opportunity to portray three plaintiffs” (a plot development can, and theatrics in the courtroom can how difficult the legal case was in a that Judge Rosenbaum dismisses as be part of being a good advocate.” way that would have been more artisti- “pure gibberish”).A defense witness cally fulfilling as well as more true to emotionally recants critical testimony Boler is unwilling to weigh in on the the story,” she says.“But to do that, you in the face of Harrelson’s grand- relative merits of North Country’s have to deal with the messy details.You standing cross-examination.There is courtroom scene.“I’m probably a little have to give up on the quick even an “I am Spartacus” moment, in too close to be objective about how it Hollywood denouement, and which the spectators in the courtroom fit in to the pantheon of Hollywood somehow make it still the kind of stand up, one by one, in a silent show courtroom scenes,” she admits. movie that people want to see.”

November 1994 January 1995 December 1997 Plaintiff Pat Kosmach dies of Lou The first half of the damages trial begins. The Eighth Circuit reverses McNulty’s deci- Gehrig’s disease. sion and remands the case for a jury trial May 1995 on damages. 130 F.3d 1287 (8th Cir. 1997). February 1994 The damages trial resumes, concluding on June 13. December 1998 Magistrate McNulty permits defense March 1996 On the eve of trial, the remaining 15 counsel to request plaintiffs’medical Magistrate McNulty issues a 416-page report plaintiffs settle with Eveleth records dating from birth; weeks of that awards plaintiffs minimal damages. grueling depositions follow. Mines for a total of $3.5 million.

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Instead, North Country forces the story of a long and exhausting legal odyssey to fit Who’s Who in North Country uncomfortably into the conventions of a tra- ditional romantic story, complete with the From lawyers to judges to expert witnesses, many people associated with the inevitable victory of good over evil. But in University of Minnesota had a role in the legal odyssey of Jenson v. Eveleth real life, complex and lengthy litigation, Taconite Co. whether it involves a broken contract or gut- wrenching sexual harassment, rarely ends on such a satisfying note. In its 1997 decision, Attorneys the Eighth Circuit said,“It should be obvious Jean M. Boler, ’82, began work on the case as an associate at Sprenger & Lang (where she that the callous pattern and practice of sexual later became a partner), the firm that represented the plaintiffs for most of the case’s 15- harassment engaged in by Eveleth Mines year legal sojourn. She invested more than 5,600 hours in the case over the course of 10 inevitably destroyed the self-esteem of the years, and argued the case on appeal before the United States Eighth Circuit Court of working women exposed to it…[and] sought Appeals. She is now the director of the Employment Division at the Seattle City Attorney’s to destroy the human psyche as well as the human spirit of each plaintiff.The humilia- Office. tion and degradation suffered by these Lawrence L. Schaefer, ’88, also worked on the case while an associate at Sprenger & Lang, women is irreparable.” particularly during the damages phase of the trial. He was a partner and then a managing The court also acknowledged the role that partner of the firm until 2005, when he joined Mansfield, Tanick & Cohen on an of-counsel the protracted litigation had played in com- basis. Schaefer practices in the areas of class and complex litigation, with an emphasis on pounding the damage:“No one can expect employment law. that justice will be rendered to any of the parties when a final opinion is issued more Mary E. Stumo, ’80, was the lead defense counsel for defendant Eveleth Taconite Co. from than 10 years after this litigation com- 1992 to 1996, during the liability and damages phases of the lawsuit. Currently a managing menced…If justice be our quest, citizens partner at Faegre & Benson, Stumo specializes in employment-related disputes, including must receive better treatment.” discrimination, breach-of-contract, whistleblower, and defamation claims. But strangely enough, North Country’s dis- service to these facts may have yielded a fic- Judges tion with its own peculiar claim to truth. U.S. District Court Judge Richard Kyle, ’62, presided over the liability portion of the case, Schaefer points out that if the film had been a and oversaw the damages phase that took place before Special Master Patrick McNulty. truly accurate telling, it probably would have been more cautionary tale than inspirational Magistrate Patrick McNulty,‘49 (now deceased), came out of retirement to serve as a spe- fable.“I don’t think that any woman would cial master in the damages phase of the case. have willingly gone through what those women did, even to achieve the justice that Chief Judge, U.S. District Court, James Rosenbaum, ’69, presided over the class certification ultimately was served,” he observes.“The legal proceeding, and issued the landmark 1991 ruling that permitted plaintiffs to pursue their process was just so harrowing and so difficult hostile work environment claim as a class. He became Chief Judge of the District of for them, that had it been depicted, the mes- Minnesota on July 1, 2001. sage would have been a little troubling.” U.S. District Court Judge John Tunheim, ’80, was presiding over the case in 1998, after its And while he also wishes that the film had remand by the Eighth Circuit, when it settled on the eve of trial. remained more faithful to the women miners’ story, he walked out of the theater with some appreciation of its message of Other Professionals hope.“I felt good about the fact that Dr. Eugene Borgida is a professor of Psychology and Law at the University of Minnesota and someone watching the film would at least get an affiliated faculty member at the Law School who served as plaintiffs’expert witness a glimpse of what heroes these women during the class certification and liability portions of the case. Borgida testified about the were,” he says.“And maybe they would effect of sexual stereotyping and sexual imagery in the workplace, and its tendency to con- think, if they were ever subject to that kind tribute to a hostile work environment. of treatment, they would also be able to stand up and take on a big corporation and try to Catharine MacKinnon, who was on the University of Minnesota faculty in the early 1980s, vindicate their rights.” first argued in a 1979 treatise, Sexual Harassment and the Working Woman, that a hostile The truth is, in a post Jenson v.Eveleth world, work environment could form the basis for a sexual harassment claim under Title VII. The Schaefer’s hypothetical moviegoer is much, Equal Employment Opportunity Commission embraced the theory in its 1980 guidelines, much likelier to be right. ● and the Supreme Court eventually recognized hostile work environment claims in Meritor Savings Bank, FSB, v. Vinson, 477 U.S. 57 (1986). Mackinnon has been on the faculty of the By Leslie A. Watson. Watson is a freelance writer and a 1999 graduate of the Law School. She can be University of Michigan Law School since 1990. found online at www.thebusypen.com.

Perspectives SPRING 2006 77 Alumni Perspective

New Spring Alumni Weekend Celebrates the Law School and Its Alumni

Pre-1956 Luncheon Class of 1956

Pre-1956 Luncheon

n a lovely weekend in April, alumni The Weekend began with a luncheon for all alumni who graduated more from around the country gathered for than 50 years ago.A jovial crowd gath- ered at the University of Minnesota’s the Law School’s first Spring Alumni Campus Club to reminisce and to O hear about all that is happening at the Weekend.This new event celebrating the Law Law School. Next year that group will be joined at the luncheon by the Class School and its alumni featured a weekend of of 1956, which held its 50th Reunion at Eastcliff during the Weekend. One activities for the whole Law School community. of the most influential Law School

78 Perspectives SPRING 2006 Alumni Perspective

All-Class Reception Class of 1981

Class of 1986 Class of 1996 Save the date now for next year’s Spring Alumni Weekend, April 12–15, 2007 faculty, students, and staff; a free We hope to see you there! CLE program with former Law School Professor Donald Dripps classes, the Class of 1956 includes Law School is very grateful to the (now with the University of San approximately 16 people elected to many class reunion volunteers who Diego School of Law); and a various offices, including former helped organize their class dinners Sunday brunch at Nicollet Island Vice President Walter Mondale.The and other class-specific events Inn in conjunction with the Law classes of 1966, 1981, 1986, and during the weekend. In addition to School’s annual Race for Justice, a 1996 also held individual reunions individual class reunions, Spring 5K fun run and walk. during the weekend at venues Alumni Weekend included a cock- By Sara Jones, ’88, director of Alumni throughout the Twin Cities.The tail party for all Law School alumni, Relations and Annual Giving.

Perspectives SPRING 2006 79 Alumni Perspective

❯ esting, Mr. Day, but the law doesn’t Distinguished Alumni Profiles work that way.” He decided to learn the parameters for himself and enrolled at the Law School in 1975. However, by the time he graduated in 1978, he knew the legal/tribal boundaries were ever- JEFFER ALI Merchant & Gould to practice patent litigation in 1998. changing.As a result, he needn’t—and CLASS OF 1994 couldn’t—know all the answers; he HE NEXT TIME YOU SAVE In 1999 and 2000, he taught at the “just got good at finding them.” money by having a generic pre- Law School as an adjunct professor for Tscription filled, thank an the Intellectual Property Moot Court. attorney. Like chemists, doctors, and Also in the late ’90s, he cochaired his the Federal Drug Administration, firm’s pro bono program and served on lawyers play a key role. the board of directors of the Volunteer Lawyers Network. In 2000, he received “Generic drug makers are invariably the Volunteer Lawyers Network Pro sued,” explains Jeffer Ali.Ali is a partner Bono Attorney of the Year Award for with Merchant & Gould, a his service.The 40-year-old father has Minneapolis-based firm renowned for also served as his firm’s hiring partner. its expertise in intellectual property law. He specializes in patent litigation, As for his work, he could not be more with much of his work helping satisfied with it.“These cases are signif- generic drug companies sell less- icant and consequential,”Ali says. expensive medications without com- “Generic drugs are important for mitting patent infringement. patients and for our health care system PAUL DAY in general.” Day set up a private practice in Bemidji, Minn., near the reservation of PAUL DAY his tribe of origin, the Leech Lake Band of Ojibwe.“It was half-Indian, CLASS OF 1978 half non-Indian,” he said of his clien- REDICTABILITY IS NOT FOR tele. But that didn’t last long.Through Paul Day.As District Court his work, Day had earned quite a repu- PJudge of the Mille Lacs Band tation.And he’d met the then-U.S. Tribal Court in Onamia, Minn., he Attorney, James M. Rosenbaum, ’69, might handle a divorce one minute, tax who encouraged Day to apply to matters the next. In addition, he must the office. not only consider the laws of the tribe—those cover everything but Day spent his next five years as an assis- major crimes, which are handled by tant to the U.S.Attorney, expanding JEFFER ALI the federal judiciary—but also its cul- not only his knowledge, but his scope tural values and traditions. of experience.“Once the Red Lake Ali is especially qualified for his line of Band of Ojibwe sued the Bureau of work. He obtained a doctor of phar- Frustration with his first career led Day Indian Affairs (BIA), over regulations macy degree from the University of to discover his knack for navigating and management of the tribe’s sawmills. Michigan College of Pharmacy in complex matters. I represented the BIA, the white guys,” Day recalls with a chuckle. 1990 and then spent a year working as Armed with a sociology degree from a retail pharmacist.While he enjoyed St. Cloud State University, Day After his stint with the attorney’s office helping people, he decided he wanted devoted the first half of the ’70s to and an interim position with a to help society in a broader way.With bettering the education of American Wisconsin tribe, Day found a position the aid of a full Royal A. Stone schol- Indian youth.“The dropout rate was closer to both his Twin Cities and arship, he enrolled in the University of 70 to 80 percent,” Day says. Something tribal homes as corporate counsel for Minnesota Law School.The study of needed to be done, yet many of the the Mille Lacs Band of Ojibwe’s busi- law combined with his knowledge of potential solutions Day proposed met ness division. But that didn’t last long, science led Ali to his niche. the same brick wall. Be it a not-for- either. Just months into his position, After graduating in 1994,Ali spent a profit, the Minneapolis school district, the tribal chair and council appointed few years at Bassford Remele prac- or the legislators whom he worked him district judge.“It’s a different chal- ticing mainly in the area of medical with, Day repeatedly heard the lenge every day,” explains Day, who’s malpractice defense. He joined inevitable reply,“Well that’s all inter- been content ever since.

80 Perspectives SPRING 2006 Alumni Perspective

SARA GURWITCH York.Gurwitch signed on with OAD eight years ago. For most of that time, CLASS OF 1995 she has reflected on a past client “at N VOGUE INVESTIGATIVE least once a week.”This young man had crime and courtroom shows been convicted of murder based on the Edrive Sara Gurwitch crazy. testimony of older, tougher gang mem- “They’re so pro-prosecution,” she bers.“He was the weakest of the laments. group,” Gurwitch points out, as though As deputy attorney-in-charge of the there’s still a chance someone might nonprofit Office of the Appellate hear her. Defender (OAD) in New York City, To sustain her through such times, Gurwitch knows this mindset’s inadver- Gurwitch has both her passion for the tent victims: people falsely convicted, work and the energy of fresh recruits. or, as is frequently the case, fairly con- As an adjunct professor at New York KAREN JANISCH victed but serving sentences dispropor- University’s School of Law, she works tionate to their drug-related crime. with 10 students each year, as well as With everything from snowmobiles to Gurwitch cites ineffective representa- three to five attorneys in OAD’s gaming compacts to advise upon—basi- tion for the disadvantaged as a training program.“They remind us, the cally anything the governor’s office common culprit. For example, one of supervisors, why we went into this might be interested or involved in— her clients—a Vietnam vet suffering work,” she says. Janisch is never bored. Nor does she from post-traumatic stress disorder—is Gurwitch is proud to play a role in the have time to be. Often, the governor serving six to 12 years for selling $20 students’ lives similar to that played by needs an answer within just a few hours. worth of crack.Although he’s the Human Rights Center and clinics at This immediacy is one of the ways undoubtedly an addict, Gurwitch says, the Law School.The Human Rights “there is strong evidence that he’s not Janisch’s role differs from that of the Center was ahead of the curve, attorney general’s. Janisch also works a drug seller, evidence the jury never Gurwitch says.“It recognized very early learned about.” with the governor on judicial selection on that human rights issues are a U.S. and advises on the legality and implica- issue, a backyard issue…My area of tions of yet-to-be proposed policies. interest was criminal law, and that human rights perspective to doing crim- Janisch focuses on legal matters related inal law, I carry it with me in my work to policy issues rather than the develop- and try to instill it in my students.” ment of policy proposals. For example, in relation to illegal immigration policy, she reviewed federal law that expressly KAREN JANISCH prohibits local communities from CLASS OF 1994 enacting ordinances that restrict police officers and other employees from AREN JANISCH MAY HAVE A inquiring about a person’s immigration sought-after office, but she never status. Khad designs on it. In fact, Janisch was quite surprised when Minnesota The only thing Janisch misses from her SARA GURWITCH Gov.Tim Pawlenty tapped her to be prior practice is being involved directly general counsel for the Office of the in litigating cases. But that is a small Gurwitch handles 15 to 20 cases at a Governor in 2003.“I’m not a political tradeoff, she says. time, and is sometimes able to get a person,” Janisch explains. reversal of a wrongful conviction, or Janisch says she hopes Pawlenty wins in reduction of a particularly harsh sen- But the governor wasn’t after a politico; ’08.“It’s a fun job,” she says,“I’d like to tence. However, there is usually at least the office required someone he could keep it.” one case each year that sticks with her, trust.And after he worked with Janisch where she can’t get the court to see in an adjoining office at Rider Bennett the unfairness, and the circumstances in Minneapolis (both practicing educa- RICHARD LARSON seem truly unjust. tional law) for some eight years, she was CLASS OF 1969 a natural pick. As a student, Gurwitch received a ’VE NEVER BEEN ON THE Human Rights Center fellowship grant Although it certainly wasn’t in any wrong side of a case,” says Richard to work with the California Appellate career plan, and certainly pays less ILarson.Throughout his 35 years of Project in San Francisco.After law than her private-practice career, the practice, Larson has consistently fought school she spent a year working against position suits Janisch well.“It’s really for the rights of workers, women, racial the death penalty in Minnesota and fun,” she says.“You never know what minorities, the differently abled, and the then completed a clerkship in New will happen.” underprivileged.

Perspectives SPRING 2006 81 Alumni Perspective

Business Law Clinic Needs Volunteers!

RICHARD LARSON

Most recently, he won a civil rights case against the Los Angeles County Metropolitan Transportation Authority (MTA).“It was going to gut its bus system in order to put hundreds of million of dollars into a rail-line to nowhere,” Larson says. After a decade-long fight, which began in 1994, Larson, working with the NAACP Legal Defense and Educational Fund Inc., forced the MTA to shaft its subterranean plans—and double on-the-street The University of Minnesota Law School’s Business Law service. Center needs experienced volunteer business, real estate, and “In general, poor folks and minorities from across employment law attorneys willing to supervise students in the the spectrum rely on public transportation to get to work, shop, etc.,” Larson says.“You can link it to the Minnesota Multi-Profession Business Law Clinic. The clinic Montgomery bus boycott of 1955 with Rosa Parks.” provides no-fee transactional legal services for start-up and Through the years, Larson has argued before the emerging businesses. Supreme Court four times, including the landmark 1984 National Black Police Association Inc. v.Velde.Then with the American Civil Liberties Union, Larson Many of the Clinic’s business clients are minority-owned for- convinced the high court that the Department of Justice should deny federal funds to local enforce- profit entities that do not qualify for pro bono service under ment agencies that discriminate against minorities and women through unnecessarily restrictive Minnesota Rule of Professional Responsibility 6.1(a). They may requirements, such as a minimum height of 5'7". qualify as pro bono clients under Rule 6.1(b). Such victories frequently thrust this alum into the spotlight. Larson, who lives just below the “Hollywood” sign, has appeared as a guest commen- The Clinic takes clients by referral from the Minnesota tator on every major network, presented testimony Economic Development Association, the University’s Office of in 10 congressional hearings, and is also a frequently requested guest lecturer. Business Development, the Carlson School of Management, the There is one group in particular Larson is interested University’s Patent and Technology Marketing office, and in reaching—the next generation of civil rights attorney-activists.Through the University of other sources. Southern California,Adjunct Professor Larson has taught Civil Rights Law to roughly two dozen stu- dents at a time for the past six years.“It’s great to see Interested attorneys can contact Mary Alton in the Clinic law students interested in working on civil rights for offices at 612-524-5779 or Professor John Matheson at the future,” he says. 612-525-3879. As for his own plans, only one thing is certain: Retirement is not in the immediate future.“I love what I do,” he says,“and I’m not quitting.” ● By sue rich, a St. Paul, Minn.-based freelance writer and editor.

82 Perspectives SPRING 2006 Alumni Perspective

1976 Stuart Gibson works in Washington, D.C., for the U.S. Department of Justice and was recently pro- moted to senior litigation counsel. He is primarily Class Notes responsible for litigating and coordinating the civil litigation of large tax shelter cases. Send us your news 1976 Tell us about the important things that happen in your life! We welcome submissions for inclusion in the Class Notes section of Perspectives. Submit your news through our Web Richard Kaplan and Madge Thorsen, ‘77, site at www.law.umn.edu/alumni/submit.html. opened their own firm in Minneapolis, Thorsen Kaplan LLC. You can also send your update to Scotty Mann via e-mail at [email protected], regular mail at N160 Walter F. Mondale Hall, 229 19th Ave. S., Minneapolis, MN 55455, or fax at 1977 (612) 626-2002. We need your submissions by Oct. 1, 2006, for inclusion in the next issue. Finally, anyone interested in serving as a Class Reporter please contact Scotty Mark E. Warren has been promoted to executive Mann. vice president and general counsel of NCL Corp. Ltd. The company, based in Miami, owns and operates Thank you for keeping in touch! Norwegian Cruise Line, NCL America Cruises, and 1936 1969 Orient Lines. Myer Shark was featured in the January 2006 issue Daniel Gislason, a partner 1978 of Hennepin Lawyer. Shark believes attorneys, in Gislason & Hunter LLP in regardless of age, do not outgrow their obligation to New Ulm, Minn., has become Ron Hunter, of Cargill Inc., was elected to the the community, saying, “If they’re able, it’s impor- a fellow in the American board of the Minnesota Association of Black tant for seniors to keep applying their legal skills to College of Trial Lawyers. Lawyers, Minneapolis. help low-income families…without our commit- Charles E. Lundberg, a ment, they have no voice in court and no effective shareholder with Bassford constitutional protection.”The 92-year-old St. Louis 1970 Remele PA, was elected as a Park, Minn., attorney continues to participate in fellow in the American Magistrate Judge Raymond L. Erickson has utility matters before the Minnesota Public Utilities Academy of Appellate become the Chief U.S. Magistrate Judge for the Commission (MPUC) and the courts. Besides volun- Lawyers at the academy’s District of Minnesota. He was first appointed in teering to represent individuals through the recent meeting. The 1992 and was reappointed in 2000. Volunteer Lawyers Network, Shark has initiated a American Academy of proceeding that seeks the recovery of excess utility 1972 Appellate Lawyers recognizes outstanding appellate fees, a surplus estimated at $150 million, collected lawyers and promotes the improvement of appel- from ratepayers over and above “just and reason- Justice James H. Gilbert has opened the Gilbert late advocacy and the administration of the appel- able”rates approved by the MPUC. Mediation Center in Eden Prairie, Minn. late courts. 1941 1974 1979 Judge Gerald Heaney will retire in June after a James B. Wieland, a principal at the Ober|Kaler Steven A. Anderson, of rural Princeton, Minn., has long career as a labor lawyer and jurist. Among law firm, has been appointed to the Maryland legis- been appointed a district judge by Minnesota Gov. many career accomplishments, he represented the lature’s Task Force to Study Electronic Health Tim Pawlenty. He will fill the Seventh Judicial Duluth teacher’s association and helped make the Records, an advisory panel that will make recom- District opening at the Mille Lacs County courthouse Duluth School District the first in Minnesota to mendations to Maryland lawmakers on electronic in Milaca, Minn. adopt the same pay scale for men and women. medical records policy and issues related to regional health information organizations. Edward Fox was selected for 1957 inclusion in The Best Lawyers in America. Silver is a share- Len Kne has been voted as a 1975 holder with Bassford Remele member of the board of Cynthia Fischer joined Schnader Harrison Segal & PA, practicing in the area of directors for the Central Lewis LLP as a partner in the firm’s New York office. complex commercial litiga- Minnesota Development Co. She is general corporate counsel and business tion. in Coon Rapids, Minn. advisor to a number of Italian and other foreign- owned companies and individuals doing business in the United States, as well as United States-based 1980 companies and individuals. She provides general Joe Finley a 25-year real estate attorney at corporate, distribution, licensing, franchising, trade Leonard, Street and Deinard, became president of 1966 regulation, and intellectual property advice. the 200-lawyer firm. Finley, 53, a Saint Paul, Minn., John W. Thompson is an attorney with the native who hails from an extended family of Alan Silver was selected for inclusion in The Best lawyers, joined the firm in 1979. Missouri Department of Social Services and repre- Lawyers in America. Silver is a shareholder with sents the Children’s Division in child abuse and neg- Bassford Remele PA, practicing in the area of com- lect cases in St. Louis City and County, Missouri. mercial and business litigation.

Perspectives SPRING 2006 83 Alumni Perspective

at the Law Timothy Jung joined Rider Bennett as an associate In Memoriam Tribute School.The and practices in the litigation department focusing David J. Byron scholarship on the defense of personal injury and commercial Class of 1966 honors Stuart W. litigation. Rider, Jr., ’43; David J. Byron passed away on Feb. 13, Gene F.Bennett, Benson Whitney was appointed U.S. Ambassador 2006. Prior to attending the Law School, ’50;William T. to Norway. He looks forward to representing Mr. Byron graduated from the University’s Egan, ’50; and American values, achievements, and even weak- Carlson School in 1963. He joined Rider Edward M. nesses, and to listening to people with other per- Bennett LLP (then known as Rider, Arundel, ’51.The spectives. Bennett, Egan & Arundel) in Minneapolis Law School is in 1969, after several years with the grateful to Mr. Byron for his support, and Niel Willardson was named general counsel for Minnesota Attorney General’s Office. In for his leadership in creating this important the Federal Reserve Bank of Minneapolis. In addi- the course of an outstanding legal career, scholarship benefiting students with tion to this new responsibility, he will continue to be Mr. Byron served as Rider Bennett’s man- demonstrated financial need. the senior vice president responsible for the bank’s aging partner and was chair of the business supervision, regulation, and credit division. department for more than 15 years. In At the 40th Reunion for the Class of 1966 addition to his practice at Rider Bennett, in April, Mr. Byron was fondly recalled by 1988 Mr. Byron was a retired colonel of the a number of classmates, who praised him Minnesota National Guard, having served Jeff Alch has joined U.S. Trust Co. as a vice president for the qualities that made him beloved by for 26 years, and at the time of his death he and client relationship officer. family, friends, clients, and colleagues. Mr. was chairman of the City of Edina Byron will be remembered as an out- Perry Johnston has joined Aperio Technologies, Planning Commission. standing attorney, a warm and loving friend the leading provider of virtual microscopy systems and family member, and a devoted Twins to the health care information technology industry, Mr. Byron and his partners at Rider fan. He is survived by his beloved wife of Bennett were instrumental in the creation as vice president of legal, regulatory, and compli- 34 years, Nancy; children,Therese (Eric) ance. of the Rider, Bennett, Egan & Arundel Otten and Daniel (Christina) Byron; and Founders Scholarship, which provides two grandchildren,Andy and Daisy. annual scholarships for third-year students 1990 Wayne D. Anderson has been appointed examiner Susan Gaertner, Ramsey County, Minn., attorney, 1985 of titles by the judges of the Second Judicial District, was elected president of the Minnesota County Jeff Saunders has joined Fulbright & Jaworski LLP Ramsey County, Minn. Attorneys Association. as a partner in the Minneapolis office. Saunders is a Donald Enockson has practiced family law in 1981 member of the firm’s corporate department, and Minneapolis and St.Paul since graduation. Since has represented public and private companies for 1998 he has been with El-Ghazzawy Law Offices LLC Laura Cadwell accepted a position as director for more than 20 years, handling private and public in Minneapolis. He is chair of the Family Law Section Ending Long-Term Homelessness in Minnesota Gov. equity offerings, mergers and acquisitions, joint of the Minnesota State Bar Association for 2005- Tim Pawlenty’s office. ventures, corporate governance, and compliance. 2006. Betty Shaw has been named acting director of the Saunders counsels companies in a broad range of Kristine Kubes was been appointed by Minnesota Lawyers Professional Responsibility Board and the industries, focusing primarily in the areas of medical Gov. Tim Pawlenty to the Board of Architecture, Client Security Board. device, biotechnology, healthcare, information tech- nology, and telecommunications. Engineering, Land Surveying, Landscape Michael Unger has opened his own firm in down- Architecture, Geoscience, and Interior Design. She town Minneapolis, the Michael Unger Law Office. 1986 has been an attorney in the construction law group Doris E. Yock has been elected a shareholder of Joseph Kinning has joined Fulbright & Jaworski at Meagher & Geer in Minneapolis since 2002. Leonard, Street and Deinard. Her practice focuses on LLP as a partner in the Minneapolis office of the Kristin K. Schoephoerster is providing expert intellectual property, primarily trademark and copy- firm’s corporate department. Kinning has success- guidance in estate planning at the Columbus Group right matters. fully counseled a variety of regional and national of Northwestern Mutual Financial Network. corporate clients through complex mergers and 1982 acquisitions, securities offerings, financings, and 1991 Robert C. Phelps has been named a partner at other business transactions. He also has represented Peter K. Richardson has joined the law depart- Pillsbury Winthrop Shaw Pittman LLP’s San Francisco clients in a variety of industries and has significant ment of The Northwestern Mutual Life Insurance Co. office. His practice emphasizes antitrust litigation experience representing buyers and sellers of energy as assistant general counsel on the products and and counseling, franchise litigation under the assets. distribution team. Previously, he was a partner at Petroleum Marketing Practices Act, and litigation Michael Best & Friedrich LLP in Milwaukee. under the California Unfair Competition Act. 1987 John P. Boyle joined Moss & Barnett as a member of the firm’s litigation department, where he is prac- ticing in the areas of commercial disputes and labor and employment litigation.

84 Perspectives SPRING 2006 Alumni Perspective

MEMBERS OF THE CLASS OF 1968 GATHERED together bright and early on the morning of Jan. 23, 2006, at the Law Class of 1968 School to celebrate their classmate Minnesota Supreme Court Justice Russell Anderson as he prepared to be sworn in as the chief justice. The breakfast, held in Auerbach Com- Breakfast mons, was also attended by Dean Alex M. Johnson, Jr., and Emeritus Professor Don Marshall.

Celebrates New Classmates traveled from near and far to honor Chief Jus- tice Anderson, who was appointed by Minnesota Gov. Tim Pawlenty, ’86, to replace retiring Chief Justice Kathleen Chief Justice Blatz, ’84. Previously, Chief Justice Anderson had served as an associate justice of the Minnesota Supreme Court; he was first appointed by Gov. Arne Carlson in 1998. He came to the Supreme Court from the Ninth Judicial District, where he was a district court judge (chambered in Crook- ston) from 1982 to 1998.

After Dean Johnson’s welcoming remarks, a number of classmates offered stories, words of wisdom, and possibly a tall tale or two. Among the speakers were Minnesota Supreme Court Justice Paul Anderson, former Michigan Gov. James Blanchard, Robert Tennessen, Alan Weinblatt, Robert Hennessey (who shared an amusing anecdote about an exchange between Professor Arnold Enker and Bruce Burton, ’68), and Michael Gavin. As a finale, Chief Justice Anderson briefly addressed the group, sharing serious insights about judging and some amusing words of his own.

The Law School is grateful to Robert Tennessen for organ- izing the breakfast and for serving as master of ceremonies, Classmates laud—and occasionally roast—Minnesota and special thanks is due to William Cameron, ’69, for pro- ducing 16- by 20-inch prints of the original Class of 1968 Supreme Court Chief Justice Russell Anderson photo for those in attendance and for serving as the event’s photographer. —Eds.

Holly Williams is the new general counsel for nology company in Orange County, Calif., and a 1992 Precept, a provider of employee benefits procure- partner for 10 years at national law firm Robins Deena M. Bennett works in Riverside County, ment, HR consulting, administration, health man- Kaplan Miller & Ciresi, where she handled employ- Calif., in the district attorney’s office, where she has agement, and data management solutions. She will ment and business matters for Fortune 100 and 500 tried several high-profile cases. She was a con- provide labor law and general corporate law to the firms. testant on the reality TV show Survivor (#6): The company’s middle-market employer clients, and will Amazon in 2003, and also competed in the Ironman advise senior executives on risk management issues. World Championships in Kona, Hawaii, in 2004. She She was previously general counsel for a biotech-

Perspectives SPRING 2006 85 Alumni Perspective and her husband Paul, a deputy sheriff, are raising 1995 Gray Plant Mooty announced that Charles Wilson two sons. Laura Baumann is staff counsel for the California has been elected principal of the firm’s Minneapolis office. Wilson concentrates his practice in the areas David Dormont tried and won two of the cases Secretary of State in Sacramento, Calif. She works in of real estate and commercial financial services. listed in the Pennsylvania Law Weekly review of the the business programs division as a corporate state’s top 10 largest judgments or settlements for merger attorney. 1997 the year. Andrew (Scott) Fruechtemeyer, a partner at Marcy Frost has become a shareholder in Moss & Dinsmore & Shohl LLP in Cincinnati, has been Sascha (von Mende) Henry Barnett, Minneapolis. named an “Ohio Super Lawyer—Rising Star”by has volunteered to serve as your Law & Politics. Class Reporter for Perspectives. Jack Wightman, of Omaha, Neb., has been pro- Please send your news to her, and moted to general counsel of First Data Resources, Susanne Glasser has become an associate of the she will gladly compose a class part of First Data Corp.’s financial institution services M. Sue Wilson Law Offices in Minneapolis. report for the Fall 2006 edition of business segment. Erik Hawes joins the partnership of Fulbright & Perspectives. Jaworski’s Houston office, where he was formerly a 1993 senior associate. He practices primarily in the area of Her contact information Douglas R. Boettge has been elected a share- commercial litigation, with an emphasis on intellec- is as follows: holder of Leonard, Street and Deinard. His practice tual property matters. He also has extensive experi- Sascha Henry focuses on business and commercial litigation and ence handling all aspects of complex commercial class action litigation. Sheppard Mullin Richter & contract and patent litigation matters in state and Hampton federal jurisdictions across the country. Sachin Jay Darji joined Hinshaw & Culbertson LLP 333 S. Hope St., 48th Floor as a partner. His practice focuses on real estate Riddhi Jani married Minneapolis architect Los Angeles, CA 90071-1448 transactions, entrepreneurship, business planning, Christopher Nels Thompson in a traditional Hindu (213) 617-5562 (direct) and general business law. Gujarati ceremony. Honored guests included Peter (213) 617-1398 (fax) Michael Lafeber has been elected shareholder at Baatrup, ‘95; Dan Pauly, ‘95; Shawn Bruner, ‘96; Gina Briggs and Morgan. Michael practices in the firm’s Lombardo, ‘96; Minnesota Rep. Steve Simon, ‘96; [email protected] Amy Swedberg, ‘96; and Laura Walvoord, ‘97. The intellectual property section. Be sure to congratulate Sascha— couple honeymooned in Mauritius over the New she recently made partner at Duluth, Minn., native Aaron Latto was appointed Year’s holiday. second vice president for Technology/International Sheppard Mullin. Claims at St. Paul Travelers. He joined St. Paul Christopher J. Keller has accepted a position with Travelers in March 2000 after practicing law in Baker & McKenzie in Palo Alto, Calif. John Bursch, a partner with Warner, Norcross & Minneapolis, and was formerly director of under- Jon Tynjala was elected treasurer of the board of Judd LLP, was recently appointed the publications writing and technology/market solutions. directors of Lawyers Concerned for Lawyers, a non- chair for the American Bar Association’s Council of Lowell Rothschild was elected partner at Venable, profit that assists Minnesota lawyers, judges, and Appellate Lawyers. in Washington, D.C.. He advises corporate, institu- law students who are drug- or alcohol-dependent, Gregory Erickson has joined the law firm of tional, and governmental clients on federal and or suffer from mental health impairments, stress, Mohrman & Kaardal as a certified real property spe- state environmental, health, and safety issues. and life-balance issues. cialist practicing in the areas of banking, real estate, Sharna Wahlgren joins the partnership of 1996 bankruptcy/workout, and commercial litigation. Fulbright & Jaworski LLP, in the Minneapolis office; Foley & Lardner LLP announced the promotion of Kenyon & Kenyon announced the election of Linda previously she was a senior associate. Her practice is Madison, Wis.-based attorney Christopher C. Cain Shudy Lecomte as counsel in the firm’s New York devoted to litigation, including intellectual property, to the partnership. He is a member of the firm’s office. complex commercial, business, and franchise mat- business law department. He focuses his practice Lori Schneider recently moved to Austin, Texas, ters. Wahlgren’s intellectual property practice is primarily on mergers and acquisitions, technology focused on patent and trademark issues. Her com- where she is assistant director for grants in the Texas transactions (particularly software-related matters), Attorney General’s Bureau of Crime Victim Services. plex commercial and business litigation practice and corporate and commercial law. includes breach of contract, unfair competition, 1998 trade secret, and non compete matters. C. David Flower is working for Ameriprise Financial Inc. Stacey Drentlaw and Cyrus Morton have been 1994 elected partners of Oppenheimer Wolff & Donnelly Gregory Golla has joined the partnership at LLP, in Minneapolis. Bridget Hust made partner at Faegre & Benson Merchant & Gould PC in Minneapolis. LLP in the Minneapolis office. Steven Kluz has joined the law firm of Mohrman & The international law firm of Jones Day named Elizabeth A. Wefel is the director of career and Kaardal, practicing in the areas of insurance cov- Jason D. Krieser as a partner. He is based in Jones erage, commercial litigation, and trade regulation. professional development for the University of St. Day’s Dallas office and will focus his practice on Thomas School of Law in Minneapolis. technology issues. Clara Ohr serves as counsel in the Office of the General Counsel for the Export-Import Bank of the United States in Washington, D.C.

86 Perspectives SPRING 2006 Alumni Perspective

Byung Keun Jin works for the J&P Law Firm in Matthew Kostolnik joined Moss & Barnett in 2004 South Korea, where his practice focuses on tax law. Minneapolis. Altaf Baki is in Chicago working for Equity Office James W Poradek and Amy Seidel made partner David Selden joined Fried, Frank, Harris, Shriver & Properties Trust. at Faegre & Benson LLP in Minneapolis. Jacobson LLP in New York in November 2005, where David Cox is with the Anoka, Minn., firm Soucie & he focuses on a variety of investment management Andrew Shimek is the national sales manager for Bolt PA, practicing plaintiff’s personal injury. and securities law matters, with emphasis on the LexisNexis™ Applied Discovery.® formation and offering of private investment vehi- Amy Baumgarten has joined Meagher & Geer’s Laura M. Varriale recently became the assistant cles, including hedge funds, private equity and real health care practice group. general counsel for the State of Wisconsin’s estate funds, and funds-of-funds. Gina M. Nelson has opened her own firm, the Gina Department of Commerce, where she will be prima- Juha Vesala is with the department of private law M. Nelson Law Office, in Minnetonka, Minn. The rily responsible for legal issues arising from the at the University of Helsinki, Finland. firm represents clients in matters of estate planning, Petroleum Environmental Cleanup Fund Award. probate and trust administration, and business 1999 2002 organization and transactions. Erin Minkler is practicing in General Mills’legal Timothy Maher and Matthew Armbrecht Heather Olson, an associate in Gray Plant Mooty’s department in Minneapolis. started Guzior Armbrecht Maher, a general practice St. Cloud, Minn., office practicing in the area of busi- firm with a strong emphasis on immigration and on Mark Polston has joined the real estate develop- ness and general litigation, was one of three providing services to the immigrant communities in ment practice group in the Washington, D.C., office Minnesota lawyers appointed as legal counsel to the Twin Cities. of Womble Carlyle Sandridge & Rice PLLC. the recently opened 46th Consulate of Mexico in St. Paul, Minn. The priority of the consulate is to protect Greg McAllister joined Merchant & Gould, Maura Shuttleworth works in the civil division of and serve Mexican-Americans in Minnesota, North Minneapolis, as an associate. the Washington County (Minnesota) Attorney’s Dakota, South Dakota, and Northern Wisconsin by Office when she’s not training for or competing in Raphael (Ray) Wallander, was named a 2006 providing consular services, promoting trade and international bench-press championships. “Rising Star”by Minnesota Law & Politics magazine, investment, and encouraging cultural and educa- and has joined the law firm of Mohrman & Kaardal, Brian Stegeman has joined Henson & Efron PA as tional exchanges. practicing in the areas of bankruptcy/workout, deal- an associate. His practice focuses on corporate law. Dalindyebo Shabalala is a research fellow for the ership law, banking, and commercial litigation. Access to Knowledge in Developing Countries 2003 Project in Geneva, Switzerland. 2000 Joshua Brinkman joined Littler Mendelson’s Ryan M. Benson has the joined Benson Law Office Minneapolis office as special counsel. Adam C. Speer is an associate attorney at Best & in Siren, Wis., where he practices with his father and Flanagan LLP, practicing commercial real estate Dorothy Gause works in the 10th Judicial District brother. lending. Public Defender’s Office. She is full-time in the juve- Clayton W. Chan has been selected as a “Rising nile division in Washington County, Minn., and says, Sheree (Knack) Speer accepted a position as staff Star”by Minnesota Law & Politics magazine. Clayton “In other words, I got everything I had hoped for.” attorney for the Office of the Revisor of Statutes, in practices at Winthrop & Weinstine PA, in its estate Minnesota. Adam A. Gillette has accepted a position with planning and business succession group. Nichols Kaster & Anderson PLLP. Tamela Woods is practicing law at Mayer, Brown, Mark Girouard is an associate in the commercial Rowe & Maw LLP, in Chicago, in the firm’s corporate Cheree Haswell Johnson, 3M, and Nicole litigation and labor and employment groups of and securities group. Morris, Robins, Kaplan, Miller & Ciresi, were elected Halleland Lewis Nilan & Johnson, in Minneapolis. to the board of the Minnesota Association of Black 2005 Oliver Kim lives in Arlington, Va., and works as a Lawyers, Minneapolis. Divya Arora lives in Chicago, where she serves as legislative assistant on health and welfare issues to Cedar Holmgren recently moved to Denver and Illinois assistant attorney general in the employ- U.S. Sen. Debbie Stabenow of Michigan. has joined Snell & Willmer. ment and labor unit of the General Law Bureau. Jason Krellner recently moved to Denver and Jeremy Johnson is an associate at Gray Plant Best & Byron in Minneapolis hired associates Gulzar accepted a position with Morrison & Foerster LLP. Mooty and a member of the firm’s business and Babaeva, corporate and technology and e-com- Daniel J. Nitzani has accepted a position as staff general litigation practice group. merce group; Katie Nordahl, real estate group; attorney with O’Melveny & Myers LLP in Los and David Weber, corporate and international Sumbal Mahmud accepted a position as associate Angeles. group. corporate counsel for Best Buy Corp. She is grateful Mark Czarniecki is an associate in the corporate 2001 that her boss allowed her to defer her start date for one month so that she could travel to Pakistan and securities department of Chapman and Cutler LLP’s Anna Burgett and Christine Longe joined Rider join in earthquake relief efforts, as well as visit with Chicago offices. Bennett as associates in its business department. her family. Lindsay M. Fainé and Jennifer Cullen have Francis Green recently joined Larkin Hoffman Daly joined Rider Bennett LLP. & Lindgren as an associate, focusing on real estate transactions. He was also elected to the board of the Minnesota Association of Black Lawyers, Minneapolis.

Perspectives SPRING 2006 87 Alumni Perspective

Debra Frimerman and Brittany Stephens The UNIVERSITY OF MINNESOTA recently joined Lindquist & Vennum PLLP as asso- LAW SCHOOL ciate attorneys. Inchan Hwang joined Gray Plant Mooty’s THE TWENTY-SEVENTH ANNUAL Minneapolis office as an associate in the business law transactions and entrepreneurial services SUMMER PROGRAM OF groups. CONTINUING LEGAL EDUCATION Maribeth Klein joined Bryan Cave LLP in Phoenix as an associate in the environmental client service SEMINARS group. Prior to attending law school, Klein was a May 30–June 9, 2006 process engineer for General Mills. Andrew Lagatta joined Merchant & Gould in Featuring University of Minnesota Law School Faculty Minneapolis as an associate, practicing general intellectual property law. May 30 A Primer on and New Developments in Internet Law Landon Loveland joined Bryan Cave LLP in 8:30 a.m.–4:30 p.m. Professor Dan L. Burk Phoenix as an associate in the firm’s class and deriv- May 31 A Primer on the First Amendment ative actions and commercial litigation client service 8:30 a.m.–4:30 p.m. Professor Michael Stokes Paulsen groups. Brian Lindsey is working in the Office of the Law June 1 Systematic Statutory Interpretation Revision Counsel of the U.S. House of 8:30 a.m.–4:30 p.m. Professor Jim Chen Representatives. June 2 Recent Developments in Tax Procedure Fredrikson & Flanagan in Minneapolis hired Bart 8:30 a.m.–4:30 p.m. Professor Kathryn Sedo McIlonie and John Stern as associates in its com- mercial real estate lending group. June 3 Recent Development in the Regulation of Lawyers and 9 a.m.–3 p.m. Judges: Rules, Cases and Statutes (morning)* and Douglas Peters has joined Robins Kaplan Miller & Dealing with Bias in the Courtroom (afternoon)** Ciresi LLP. Professor Maury S. Landsman Christine Riopel is an associate in the public finance section of Briggs and Morgan. June 5 Digital Evidence and Related Issues in Cyberspace 8:30 a.m.–4:30 p.m. Professor Joan S. Howland Adam R. Smith is serving as in-house legal counsel Professor Michael J. Hannon for Grinnell Mutual Reinsurance Co. Alex Yap is working for Morrison & Foerster LLP in June 6 Business Concepts for Lawyers Los Angeles. 8:30 a.m.–4:30 p.m. Professor Edward S. Adams Luciana Zamith is practicing immigration law with June 7 Indian Gaming Law 101 and Recent Developments the firm of Bernstein & Associates in Florida. 8:30 a.m.–4:30 p.m. Professor Kevin Washburn June 8 Understanding the Current State of the Law in 8:30 a.m.–4:30 p.m Trademarks, Copyright, and Related Areas of Intellectual Property Professor Daniel J. Gifford June 9 The Constitution and the Rehnquist Court 8:30 a.m.–4:30 p.m. Professor Dale A. Carpenter 6.5 General credits have been requested for each course, May 30–June 2 and June 5–9. *3.0 Ethics credits have been requested for June 3 (morning). **2.0 Elimination of Bias Credits have been requested for June 3 (afternoon).

For more information: www.law.umn.edu/cle/ phone (612) 625-6674 e-mail [email protected]

$195 per seminar or use the SuperPass and save! Take up to 7 courses for only $695!

88 Perspectives SPRING 2006 Alumni Perspective

University of Minnesota Law School China University of Political Science and Law Summer Study Abroad Program in Beijing, China

May 27, 2006–June 30, 2006 www.law.umn.edu/llm/chinasummer.html

Curriculum and Course Descriptions Program Cost Information Tuition will be US$2,500 for five of fewer credits of Students may opt to enroll in three or fewer of the offered courses (no more than six instruction. Those who wish to take a sixth credit will credit hours total). Classes will run from Monday, May 29, through Wednesday, June 28. be charged an additional US$500. Housing costs for students staying at the on-site facility will be Final exams will be on June 29 and 30. Courses will be graded on an A-F basis in accor- US$1,890, which includes three meals a day for the dance with University of Minnesota Law School grading policies. Course grades will be duration of the program. A tuition deposit of US$250 determined largely by perfomance on final exams. and a housing deposit of US$150 are due within three weeks of notification of admission and the balance of tuition and housing shall be due May 1, 2006. Comparative Land Use Comparative Business Entities Professor Ann Burkhart Professor John Matheson Participating students are responsible to obtain the (featuring guest lecturers from local (featuring guest lecturers from local Chinese visa necessary to participate in the program. institutions) institutions) Transportation to and from Beijing is not included in the program cost—students should prepare to make Two semester credit hours Two semester credit hours their own arrangements for airfare. Monday–Wednesday, 10 a.m.–11:10 a.m.; Monday–Wednesday, 8:30 a.m–9:40 a.m.; two Thursdays, 8:30 a.m.–11:30 a.m. two Thursdays, 8:30 a.m.–11:30 a.m. The estimated total cost for the program is (in U.S. Dollars): Introduction to Chinese Economic Law Beginning/Intermediate Chinese Tuition and Fees $2,500 Dean Stephen Hsu Students may choose between beginning Housing (incl.meals)* $1,890 One semester credit hour and intermediate levels (double occupancy) Monday–Tuesday, 6 p.m.–7:10 p.m. Instructor(s) to be determined Incidental Expenses $500 Two semester credit hours Airfare $1,200 Monday–Wednesday, 1 p.m.–2:20 p.m.; Visa $100 Friday 8 a.m.–9:20 a.m. Total $6,190 *Single occupancy $2,730

Perspectives SPRING 2006 89 Alumni Perspective

In Memoriam CLASS OF 1939 CLASS OF 1953 Neil A. Riley Kenneth Jack Gill Nov. 14, 2005 Dec. 28, 2005 Brooklyn Park, Minn. Santa Monica, Calif.

CLASS OF 1950 Philip E. Schwab, Jr. E. Thomas Binger Aug. 28, 2005 Jan. 23, 2006 Santa Ana, Calif. Wayzata, Minn. CLASS OF 1955 Allan R. Lund Leroy C. Corcoran Feb. 9, 2006 Nov. 30, 2005 Minneapolis, Minn. Washington, D.C.

CLASS OF 1951 D. James Nielsen Peter Barna July 18, 2005 Sept. 29, 2005 Long Lake, Minn. Minneapolis, Minn. CLASS OF 1966 Thomas E. Ticen David J. Byron March 4, 2006 Feb. 13, 2006 Hopkins, Minn. Edina, Minn.

Mark H. Rodman March 2, 2006 Swampscott, Mass.

CLASS OF 1992 James C. Boos Nov. 15, 2005 Duluth, Minn.

90 Perspectives SPRING 2006 University of Minnesota Law Alumni Society

OFFICERS Stacy L. Bettison ’99, President Professor Brad Clary ’75, Secretary Professor Stephen F. Befort ’74, Treasurer

DIRECTORS

Term Ending 2006 Stacy L. Bettison ’99, Minneapolis, MN Elizabeth Bransdorfer ’85, Grand Rapids, MI Joseph T. Carter ’83, Apple Valley, MN Christopher J. Chaput ’98, Chatham, NJ Judge A. James Dickinson ’65, St. Paul, MN Neil Fulton ’97, Pierre, SD Judge Natalie Hudson ’82, St. Paul, MN Brian L. Johnsrud ’96, Palo Alto, CA Edmundo D. Lijo ’86, St. Paul, MN Charles Noerenberg ’82, St. Paul, MN

Term Ending 2007 Grant D. Aldonas ’79, Washington, DC Thomas A. Clure ’63, Duluth, MN Judge Joan Ericksen ’81, St. Paul, MN Joan L. Heim ’68, Washington, DC Thomas R. Hood ’73, New York, NY Dave M. Kettner ’98, Madison, WI Judge LaJune T. Lange ’78, Minneapolis, MN David V. Lee ’70, Los Angeles, CA Judith L. Oakes ’69, Minneapolis, MN Judge Edward J. Wallin ’67, Orange, CA

Term Ending 2008 Leslie M. Altman ’83, Minneapolis, MN J. Charles Bruse ’71, Washington, DC James Cho ’99, Chicago, IL Bradley J. Clary ’75, Mendota Heights, MN Dan Goldfine ’88, Scottsdale, AZ Joan Humes ’90, Minneapolis, MN Nora Klaphake ’94, Minneapolis, MN Marshall Lichty ’02, St. Paul, MN Judge Peter Michalski ’71, Anchorage, AK Nick Wallace ’05, Minneapolis, MN Ann Watson ’79, Minneapolis, MN Carolyn Wolski ’88, Minneapolis, MN

Alex M. Johnson, Jr., Dean Emeritus Fred L. Morrison, Interim Dean Guy-Uriel E. Charles, Interim Dean MAY 30–JUNE 9, 2006 JUNE 22, 2006 SEPTEMBER 12, 2006 Law School Alumni and Friends Benjamin N. Berger Professor of Criminal Law Twenty-Seventh Annual Summer Program of Reception at the Minnesota Reappointment Lecture Continuing Legal Education Seminars State Bar Professor Richard S. Frase Walter F. Mondale Hall 2006 Convention, June 21–23 University of Minnesota Law School Madden’s in Brainerd, MN

SEPTEMBER 19, 2006 OCTOBER 3, 2006 OCTOBER 10, 2006 James Anneberg Levee Land Grant Chair in The Julius E. Davis Professor of Law William B. Lockhart lecture Criminal Procedure Law Appointment Lecture Reception Professor Jack Balkin, Knight Professor Professor Kevin Reitz of Constutional Law and the First Amendment Minneapolis Club University of Minnesota Law School Yale University Law School

OCTOBER 13, 2006 OCTOBER 24, 2006 NOVEMBER 2, 2006 Minnesota Law Review John Dewey Lecture in the Philsophy of Law William B. Lockhart Club Dinner Symposium “9/11 Five Years On: A Comparative Look at Professor George Fletcher McNamara Almuni Center the Global Response to Terrorism” Columbia Law School University of Minnesota

NOVEMBER 28, 2006 NOVEMBER 3, 2006 NOVEMBER 4, 2006 Briggs and Morgan Professor of Law Reappointment Lecture Law Alumni Society Board of Law Alumni Society Directors Annual Meeting Professor Michael Stokes Paulsen Homecoming CLE University of Minnesota Law School

This is not an exhaustive list of events occurring at the Law School. For a complete listing, please see the Law School’s Web Site, www.law.umn.edu, or contact Scotty Mann at (612) 626-5899 or [email protected] for additional information.

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