Law School The Law Nonprofit Org. laws in translation U.S. Postage Professor Jerome Cohen has spent PAID his life bridging East and West, and Rochester, NY promoting the rule of law in China Office of Development and Alumni Relations Permit No. 841 The 161 Avenue of the Americas, Fifth Floor beyond borders New York, NY 10013-1205 Ten experts debate what’s at stake t h e at the intersection of immigration m a Law School the magazine of the new york university school of law | 2009 and law enforcement g a z ine

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Brick by cahill gordon & reindel llp cravath, swaine & moore llp fried, frank, harris, shriver & jacobson llp paul, weiss, rifkind, wharton & garrison llp sullivan & cromwell llp Brick wachtell, lipton, rosen & katz weil, gotshal & manges llp Between Liberty 2009 |

v and Security o l Find out what you can do to have Please contact Marsha Metrinko at u m e IN THE WAKE of 9/11, SACRED TENETS OF DEMOCRACY ARE BEING challengED your firm acknowledged on our (212) 998-6485 or [email protected]. XIX Wall of Honor. and a NEW LEGAL DISCIPLINE grapples with the fallout. Take A Shot

saturday $400 Million 16–17, 2010 &d fr ai y Double the nyu school of law april 2005 Annual Fund 2000 1995 Increase Alumni 1990 1985 1980 Participation Rate 1975 1970 1965 to 30% 1960 1955 Please visit law.nyu.edu/reunion2010 for more information

Our historic capital campaign concludes on December 31, 2009. Contributions of any amount bring us closer to hitting all three of our campaign targets.

For more information: Nick Vagelatos, Campaign Manager | (212) 998-6007 | [email protected] A Message from Dean Revesz one of the institutional characteristics of the nyu school of law that I am most proud of is its innovative spirit. Our forward-thinking faculty and student body are always trying out ideas. This can manifest itself on a small scale—as when Katrina Wyman structured an environmental law seminar around the recent nonfiction book Last Flight of the Scarlet I also greatly admire Jerome Cohen’s expertise and fore- Macaw—or it can loom large. sight; he is profiled by Pamela Kruger beginning on page 30. In our cover story, “A Measured Back in the 1960s Jerry studied Mandarin in his Berkeley base- Response,” starting on page ment, which led to his taking part in many watershed moments 12, Paul Barrett examines how over the last four decades as China became a world power— NYU Law gave shape to a new from Nixon’s historic trip in 1972 to the 2008 election of Jerry’s field—Law and Security—in former student Ma Ying-jeou (LL.M. ’76) as president of Taiwan. response to the events of 9/11. Nancy Morawetz ’81 gathers nine colleagues and former In particular, Barrett details students on page 24 for a fascinating discussion of one of the the scholarship of six faculty thorniest issues of our times: immi- members whose work is central to this field: David Golove, gration enforcement. Ten years ago Stephen Holmes, Richard Pildes, Samuel Rascoff, Margaret Nancy started the Immigrant Rights Satterthwaite ’99, and Stephen Schulhofer. (Rascoff, one of Clinic, which has inspired influential the nation’s first tenure-track faculty in national security student casework, launched many law, just won a Carnegie grant to research the U.S. govern- careers, and been widely imitated by ment’s understanding of Islam.) Barrett also reports on the law schools across the nation. singular leadership of Karen Greenberg at the Center on This fall, Joseph Weiler inaugu- Law and Security, where she boldly gathers a global mix rates two centers, described on page of police and military officials, 39. His powerful vision is to make an judges, investigative journalists, academic home on Washington Square for great thinkers of and high-level policy experts our time, giving them the freedom to explore their ideas. We as fellows and guests to engage welcome the distinguished fellows of the Straus Institute for in an informed dialogue—with the Advanced Study of Law & Justice and the Tikvah Center for real-world consequences. Law & Jewish Civilization to our campus, where they will surely I am especially proud enrich the Law School’s intellectual discourse. that the emerging fields of The past year has been marked by two galvanizing Law and Security and Law of events: the financial crisis and the presidential election. I am Democracy—last year’s cover impressed by our alumni serving the public through their story—were incubated and developed by our faculty. In each roles in the economic recovery and the Obama administration. year’s magazine, we feature an area of law in which I am con- I want to highlight David Kamin ’09 and our back-page subject, fident a peer review would say we lead the way among top law Max Kampelman ’45. Kamin graduated in January and imme- schools. Past articles have highlighted our programs in inter- diately became special assistant to Peter Orszag, director of the national, environmental, and criminal law, as well as in legal Office of Management and Budget. Kampelman, an ambassa- philosophy, civil procedure, and clinical law. To maintain our dor in the Carter administration and Reagan’s arms negotiator, leadership even during this recession, we continue could be enjoying a leisurely retirement; instead, to invest in expanding our faculty, and I am pleased, he has shown an inspiring determination to bring in this issue, to introduce five full-time tenured addi- about the global eradication of nuclear arms. I tions. My joy is tempered, however, by the death couldn’t ask for better examples of graduates who last May of our esteemed colleague Thomas Franck. Richard REvesz are devoted to making the world a better place. The Law School the magazine of the new york university school of law | 2009

Senior Director of Communications Elyse Mall Klayman 4 92 student scholarship Managing Editor Tabatha Abu El-Haj (J.D./Ph.D. ’08) makes Jeanhee Kim Notes & intriguing observations about the right of assembly, and Brian Burgess ’09 examines Creative Director Renderings David Niedenthal preemption of environmental law. Debo Adegbile ’94 argues the Supreme Designers Court’s most-watched case; Nagel, Rascoff, Michael Bierman Kara Van Woerden and Stevenson win big awards or grants; Karin Wood NYU Law Review editors take a lead in put- 97 contributing editors ting legal scholarship online; and more. Around the Pamela Kruger Jill Rachlin Marbaix Law School Editorial adviser Albright, Volcker, and Brown promote Elizabeth Rohlfing 43 multilateralism; HUD Secretary Donovan Senior Writer Faculty Focus makes his first policy speech; Holbrooke Atticus Gannaway blasts U.S. action in Aghanistan; and more. An illustrious tribute to Design coordinator Andreas Lowenfeld; Julia Lovallo moving remembrances of Thomas Franck; Editorial Coordinator course innovations by Geoffrey Miller 109 Brad Tucker and Katrina Wyman; and more. Alumni Contributing writers Thomas Adcock, Daniel Benjamin, Carol additions to the roster Eisenberg, Gretchen Feltes, Catherine Fredman, 53 Almanac Jennifer Frey, Edna Ishayik, Elizabeth Lynch, The Law School welcomes five Radhakrishnan ’02 fights unfair patents; Travis Mushett, Helaine Olen, Roger Parloff, new faculty members, includ- Anthony Ramirez, Dody Tsiantar Wall Streeter Glickenhaus ’38 keeps ing Richard Epstein, and calm; Barofsky ’95 becomes TARP czar; Photographers 32 visiting faculty and fellows. Mathieu Asselin, Dan Creighton, Mark Steinberg ’82 is Alumna of the Year; Finkenstaedt, Annemarie Poyo Furlong, Boies (LL.M. ’67) remembers Bush v. Gore; Phil Gallo, Elena Olivo, Ilene Pearlman, faculty scholarship Don Pollard, Debra Rothenberg, Leo Sorel, 64 and more. Juliana Thomas Cynthia Estlund, Cristina Rodríguez, and Jeremy Photo retouching Mitchell Hartman, Benjamin Jackson, Waldron share excerpts from Tito Saubidet their recent academic work. 121 Printed by Full Circle Color Making 75 good reads Special thanks to the NYU Photo Bureau A list of works published in 2008 by the Grade Copy Editors full-time faculty. Plus, excerpts from U.S. envoy to Afghanistan Zalmay Heidi Ernst, Parlan McGaw, Emma Winter recent books by Lily Batchelder, Barry Khalilzad extols the rule of law, and editorial Assistants Friedman, and Margaret Satterthwaite ’99. Secretary of State Clinton takes to the Tania Nguyen, Andrelie Suarez (Yankee) field. Student Contributors Michelle Christenson ’08 (LL.M. ’09), Nadia Khan (LL.M. ’09), David Kienzler ’10, 81 Ruben Loyo ’11, Lindsey Raub ’09 Student 128 Please send your comments to A Chat with... [email protected] Spotlight Reagan’s arms negotia- © 2009 New York University School of Law. A 1L’s African internship culminates tor, Max Kampelman ’45, All rights reserved. in a coronation; Jacob Karabell ’09 at the explains why, at 88, he Supreme Court; Justice Alito presides is campaigning for the over the Marden Moot; and more. abolition of nuclear arms. 12 From the Ashes Most of the world reacted with shock and grief after 9/11. A mile away from Ground Zero, at its Washington Square campus, the NYU School of Law shared in the dismay and mourning but then 24 responded in the way it does best: by Our Huddled Masses applying the intellectual powers of its Tough anti-immigration laws and policies faculty and students to untangle the have been in effect in the U.S. since 1986, complicated legal and policy questions long enough to gauge their efficacy. Ten emerging in a changed world. What are alumni and faculty experts debate the costs and benefits of enforcing laws that affect the limits of executive authority? What our social fabric and national security. are the obligations of the U.S. under inter- national human rights conventions? How, if at all, should precious liberties be limited in times of crisis? In seeking answers, the Law School is helping shape a new field known as Law and Security. 30 China’s Biggest Fan NYU Law professor Jerome Cohen has spent five decades studying and visiting China, eventually becoming one of the world’s best-connected and most influen- tial experts on China law. He has opened doors for multinational corporations, freed political prisoners, and worked steadfastly to help China create a rule of law.

39 22 at Washington Square University Professor Joseph Weiler launches the Straus Institute and the Tikvah Center to invite and support 22 eminent scholars to research, engage, and interact. Great minds don’t all think alike! Rascoff Wins Notes & Renderings Carnegie In just his first year in academia, Assistant Professor Samuel Rascoff has won a grant from the Carnegie Foundation of New York. One of 24 Carnegie Scholars who will receive up to $100,000 for research projects to “enrich the quality of the public dialogue on Islam,” Rascoff will The State of Matrimony examine how the U.S. under- stands Islam, drawing on com- ast may, near the end of a year-long period in parisons to the United Kingdom which six states legalized same-sex marriage, David Boies Reframing and the Netherlands, as well as (LL.M. ’67) teamed with Bush v. Gore rival Theodore Olson Sotomayor with Cold War-era Sovietology. L to challenge Proposition 8, the ballot measure ending gay Before joining the Law School marriage in California. “This is not something that is a partisan In July, the Bickel and Brewer faculty, Rascoff was the NYPD’s Latino Institute convened an in- issue,” but one of civil rights, said Boies in the New York Times. formal discussion regarding the director of intelligence analy­sis Not all proponents applauded the bold move. Jennifer Pizer coverage of Sonia Sotomayor’s and special assistant to Ambas- ’88, marriage project director for Lambda Legal, told the Times nomination to the U.S. Supreme sador Paul Bremer with the Coali- the federal suit was “risky and premature” and that a Supreme Court. Sotomayor has strong tion Provisional Authority ties to the Law School: She Court loss could set the cause back decades. But Olson, a Dwight in Iraq. He is the fifth attended the New Appellate academic from NYU D. Opperman Institute of Judicial Administration board member, Judges Seminar offered by the Law to score a grant countered, “We studied this very, very carefully,” adding that it was Dwight D. Opperman Institute since the program hard to tell clients, “Why don’t you...wait another five years?” of Judicial Administration in 1998, her rookie year as judge began in 1999; Meanwhile, antidiscrimination law expert Kenji Yoshino, of the U.S. Court of Appeals no other law Chief Justice Earl Warren Professor of Constitutional for the Second Circuit, and she school has won Law, weighed in on the sanctioning of same-sex mar- was an adjunct professor of law more than two. from 1998 to 2007. riage rights in multiple states—including Iowa and Previous win- Vermont in the span of four days last April—in the “We want to take stock of ners include Times, on NPR, and in other media outlets. In a how Latinos have helped professors podcast for the NYU Law Web site, Yoshino inter- shape the law in the United Noah Feld- preted the Iowa Supreme Court’s unanimous de- States,” said the institute’s man (now at faculty director, Professor cision: “A 7-0 decision says that there really isn’t Harvard Law Cristina Rodríguez. “A lot of School), Ste- an argument we can credit on the other side, the media focus has been phen Holmes, and this manifests a movement away from on how Sotomayor would and Richard edenthal thinking about the same-sex marriage issue add demographic diversity Pildes, as well i d n as being up for debate and toward the idea to the Court, but without a as Aziz Huq, i that to be against same-sex marriage is like meaningful discussion of former deputy on: dav being against interracial marriage.” (Listen the historical contributions director of the i to the full interview at law.nyu.edu/news/ of Latinos, including ad- Brennan Cen- vancements in civil rights.” llustrat yoshino_podcast_marriage.) ter for Justice. i

A Baker’s Dozen of Food for Thought

This fall, University Professor Jeremy Waldron delivers one of the most prestigious lectures in the academy, the Oliver Wendell Holmes Lecture at Harvard Law School. It will be the 13th major lecture that Waldron, a legal philosopher, will have given at top universities throughout the world. “These famous lecture series are great events in academic life, and ouse

the universities that sponsor them are understandably anxious to te H i match the quality and reputation of each year’s speaker to the high importance of the occasion,” said Ronald Dworkin. October 2009 P Images/Wh “It is a wonderful tribute to Jeremy that so many of the Oliver Wendell Holmes Lecture best universities have turned to him for that purpose.”

Harvard Law School, sotomayor: A Cambridge, MA 4 NYU SCHOOL OF LAW notes & renderings ruling, said, “If we look at where the problems have taken Voting Rights Endure—for Now place in recent elections, Ohio hen debo adegbile procedures. Since the district 5 unconstitutional. Adegbile and Florida come to the fore, ’94 appeared before does not register voters, it was faced skeptical questioning and neither one is a covered W the Supreme Court in deemed ineligible to bail out, from several justices; one of jurisdiction under Section 5.” April to argue against a consti- and so brought suit to win that the most prominently raised Adegbile, on the other tutional challenge to Section 5 right or, alternatively, to over- questions was whether the mix hand, considers the continued of the Voting Rights Act of turn Section 5 entirely. The of covered ju- 1965, it was the climax of latter possibility made North- risdictions was several years’ effort to win west Austin Municipal Utility now outdated. congressional reauthoriza- District Number One v. Holder Many legal ana- tion of provisions of the VRA. the most highly anticipated lysts predicted a Adegbile, director of litigation opinion of the last term. 5-4 decision. at the NAACP Legal Defense The tone of the oral argu- The Court and Educational Fund, had ment on April 29 led most ob- surprised both testified in both the House and servers to believe the Supreme sides on June 22 Senate and made appearances Court might declare Section when it ruled 8-1 across the coun- to address the West Feliciana Parish, Louisiana, 1963 try to educate the case narrowly, A Message from Dean Revesz public and engage leaving Section 5 intact. The relevance of Section 5 a leg- in debate about Court gave non–voter-regis- islative matter rather than we have a tremendous issue here! i am delighted to be able to present you VRA issues. tering entities the right to seek a judicial one: “Where you On the sur- bailout relief, but also implied have a statute that has with- with a timely cover story that will shed light on the intersection between law and face, the case that Section 5’s constitutional stood the test of time and has was a simple one. status might be under threat. been a transformative piece politics as we come into the fi nal stretch of the 2008 presidential race. Two of our A small Texas Professor Richard Pildes, of legislation…that system utility district whose congressional tes- should not lightly be set aside.” faculty, Samuel Issacharoff, the Bonnie and Richard Reiss Professor of Constitutional Law, with an elected timony on Section 5’s 2006 Acknowledging that no board wanted reauthorization was quoted in system is flawless, Adegbile and Richard Pildes, the Sudler Family Professor of Constitutional Law, along with their the opportunity the opinion, said, “Congress said, “Section 5 has never been to “bail out” of had thrown down a gauntlet a perfect metric of all of the colleague Pamela Karlan, a past judge on and president of its obligations to the Court by not updat- places where discrimination professor at Stanford Law the Inter-American Court of under Section 5, ing the Act in 2006, and the is happening, but it’s been a School, are the co-creators of Human Rights, Buergenthal which requires Court responded in its own very effective one at getting at a legal fi eld called the Law of has made profound contribu- that certain lo- more gentle way by essentially some of the most entrenched Democracy. tions to the cause of human cal jurisdictions throwing the gauntlet back discrimination.” He added, Th e groundbreaking case- rights. In fact, as the magazine with a history of down to Congress and saying “In my work I travel near and book they published in 1998, was going to press, he was one voting rights dis- the Act is in serious constitu- far to hear from those folks The Law of Democracy: Le- of two recipients of the Gruber crimination seek tional jeopardy.” about whether or not they gal Structure of the Political Foundation International Jus- Justice Depart- Agreeing with Pildes, need Section 5…. Their experi- Process, has transformed the tice Prize, a $500,000 award ment preapproval Professor Samuel Issacharoff, ence has been such that they way scholars view election honoring those who advance Adegbile, left, with other LDF counsel, emerging law. Defi ning the cluster of the cause of justice through before chang- after arguments at the U.S. Supreme Court. whose law review article understand that the struggle ing their voting on Section 5 was cited in the for equality is not done yet.” legal issues underpinning the legal system. the practice and theory of On a lighter note: Did you American democracy, their know that Professor Roderick 2009 2008 2007 2006 2006 2005 work turned diff use areas of Hills Jr. had to fi nd a new home the law into a coherent dis- for Refl ector, his horse, before Tanner Lectures Space for Storrs Julius Stone Jonathan I. Charney F.W. Guest cipline—one that is quite coming to NYU? Turn to page on Human Values Thought Lectures Address Lecture in Memorial Lecture popular among law students. 46 to learn more about the 27 University of London School Yale Law School, Sydney Law School, International Law University of Otago As you may know, each enormously accomplished ac- California, Berkeley of Economics, New Haven, CT Australia Vanderbilt University Faculty of Law, year we highlight an academic ademics who have joined our England Law School, Dunedin, s area that we are confi dent a full-time faculty since 2002. I bi Nashville, TN New Zealand peer review would say is the am also quite proud of all our strongest of its kind among faculty, and delighted to wel- 2005 2004 2001 2000 1999 1996 the top law schools. Th is year come six new members, whose

b adelman/cor Daniel Jacobson Robert G. Kadish Lecture Sir Malcolm Knox Carlyle John Robert Seeley that area is the Law of Democ- profi les begin on page 40. Lecture Wesson Lectures University Memorial Lecture Lectures Lectures in Social and racy. Larry Reibstein, the for- Th is was a great year for The Hebrew Stanford of California, University of University of Political Studies midable journalist who wrote student scholarship. An article hoto: ©Bo University of University, Berkeley, St. Andrews, Oxford, England Cambridge about Law and Philosophy for the magazine in 2005, explores that Brian Frye ’05 began as a third year, published in the NYU val p val i Jerusalem, Israel Palo Alto, CA School of Law Scotland University, England this new legal specialty in “Leveling the Playing Field” on page 18. Journal of Law & Liberty, was cited in Supreme Court Justice An- arch As you’ll discover in our story “Follow the Numbers” on tonin Scalia’s majority opinion in District of Columbia v. Heller. And page 28, Jennifer Arlen ’86, Norma Z. Paige Professor of Law, a paper that Sima Gandhi ’07 (LL.M. ’10) wrote for Batchelder’s tax THE LAW SCHOOL 2009 5 and Geoff rey Miller, Stuyvesant P. Comfort Professor of Law, are and social policy seminar won the Brookings Institution’s inaugu- also blazing new trails in the burgeoning area of Empirical Legal ral Hamilton Project Economic Policy Innovation Prize. To read Studies, known as ELS. Along with almost two dozen members more about students’ achievements, please turn to page 73. of the faculty, including Professors Lily Batchelder in tax and Finally, we are privileged to have so many active and thought- social policy, Marcel Kahan in corporate law and Stephen Choi ful alumni. Don’t miss our back page piece about the new presi- in securities law, Arlen and Miller have been publishing real- dent of Taiwan, Ma Ying-jeou (LL.M. ’76), who is married to Chow world, data-driven research that illuminates a range of public Mei-ching (LL.M. ’76). Th e interview was conducted by Law School policy matters, and have made NYU Law a locus of ELS activity. Professor Jerome Cohen, who taught Ma at Harvard in the 1970s. It’s hard to understand why Th omas Buergenthal ’60, who And many thanks to an alumnus who sent an email last year sug- received an honorary doctorate during our most recent com- gesting that Th e Law Schoolcould improve its environmental prac- mencement ceremonies, isn’t a household name. tices. Th is issue is our fi rst printed on paper con- Turn to the remarkable story, “From Darkness,” on taining 30 percent post-consumer recycled fi ber; page 10, and you will see Buergenthal’s early life as the quality of recycled paper continues to im- was the stuff of nightmares; he was one of the few prove, that percentage will increase. So, enjoy, and children to survive the Auschwitz Death March. A when you’re fi nished reading these pages, please judge on the International Court of Justice, and a   be sure to recycle the magazine!

AUTUMN 2008 1 Experts in the House

Who: Barry Adler, Who: Rachel Barkow, Who: Clayton Gillette, Who: Linda Silberman, Bernard Petrie Professor Professor of Law Max E. Greenberg Professor Martin Lipton Professor of Law of Law and Business Where: House Committee of Contract Law Where: House Committee on Where: House Committee on on Energy and Commerce, Where: House Committee on the Judiciary, Subcommittee the Judiciary, Subcommittee Subcommittee on Com- Government and Oversight on Commercial and on Commercial and Adminis- merce, Trade, and Consumer Reform, Subcommittee on Administrative Law trative Law Protection Domestic Policy When: February 12, 2009 When: September 26, 2008 When: July 8, 2009 When: September 18, 2008 What: Silberman addressed What: In a hearing titled What: In the hearing “The What: Gillette testified about the problem of “libel tour- “Lehman Brothers, Sharper Proposed Consumer Finan- the appropriate scope of the ism,” in which plaintiffs Image, Bennigan’s, and cial Protection Agency: Im- federal tax exemption on sue American authors and Beyond: Is Chapter 11 Bank- plications for Consumers municipal bond interest. He publishers for defamation ruptcy Working?” Adler and the FTC,” Barkow gave suggested that the exemption in countries where U.S. First noted that, independent her take on the structure should be limited to those Amendment protections do of the Bankruptcy Abuse of the CFPA, which would projects that have beneficial not apply. One such venue is Prevention and Consumer protect and inform consum- consequences beyond the England, where the burden Protection Act of 2005, there ers in the complex market jurisdiction that issues the is on the defendant to prove has been a “sea change” in of financial services and bonds. Gillette also argued that allegedly defamatory bankruptcy reorganization products. She recommended that while projects funded statements are benign. for large, publicly traded limiting the CFPA’s five- by payments in lieu of taxes Silberman pointed out that companies. The shift has member board to no more (PILOTs) may be desirable the U.S. has no bilateral or been from debtor to creditor than three members of any for the state or municipal- multinational treaty regard- control of bankruptcy, with a political party, ensuring that ity in which the projects are ing the recognition and trend toward more meaning- consultation is at the CFPA’s located, the proper availabil- enforcement of foreign judg- ful changes to the organiza- discretion and not subject ity of the federal tax exemp- ments and called it “curious” tion’s management structure to judicial review, modify- tion should depend on other that such cases are consid- as firms attempt to address ing the statute of limitations factors. Municipal projects ered a matter of state, rather the roots of fiscal difficulties. provision, limiting the ability funded by PILOTs have than national, law: “As a re- The shift has also resulted of agency board members to become popular in recent sult, the judgment of a...Ger- in a greater number of firms practice before the CFPA for years, and were controver- man or Japanese court might being liquidated, which can a certain period following the sially used in the funding be recognized and enforced be a better solution, Adler end of their terms, and giving of the new Yankee Stadium. in Texas, but not in Arkansas, said, than a futile capital the CFPA’s research unit a Gillette warned that PILOT in Pennsylvania but not in restructuring that fails to mandate to analyze and re- financing could be less New York.” She prescribed ce i

solve the real problem. port on suppliers of financial transparent than financing a comprehensive federal ff s O

services and products, as through direct expenditures, statute concerning the rec- w e well as regulations imposed and thus was susceptible ognition and enforcement on suppliers by other bodies. to abuse: “These payments in the U.S. of foreign judg- arvard N Barkow also pointed to a lack permit evasion of the kinds ments. On June 16, the House H of clarity regarding the rela- of democratic scrutiny that passed H.R. 2765 prohibiting hoto/ tionship between the CFPA ensure projects and financ- recognition and enforcement

and the president. ing structures that qualify of foreign defamation judg- hase p for the federal tax exemption ments not consistent with the e): Jon C reflect constituent prefer- First Amendment; the bill’s i ost

ences and serve the objec- accompanying report cited pp n (o tives of the local economy.” Silberman’s testimony. i ork Dw

6 NYU SCHOOL OF LAW In the majority In a decision last March, In his dissent, opinion written by Justice David Souter Justice Anthony the Supreme Court cited the article ➘ five more times.

Kennedy, Pildes’s cited an article by

And Justice ➘ “Is Voting Rights Law Now at War with Richard Pildes Stephen Breyer, also dissenting, ➘ Itself? Social Science numerous times in and Voting Rights in the once again cited

2000s” from the 2002 both the majority Pildes. Clearly, one North Carolina Law opinion and thing the justices could Review is cited four times. agree on in their two dissents. 5–4 decision was the

significance of

Pildes V. PildesPildes’s work. The Court held in Bartlett v. Strickland that a part of the Voting Rights Act aimed at helping minorities elect their preferred candidates applies only in electoral districts where minorities make up at least half of the voting-age population. utor ib A Million for His Thoughts Two Alumni Clear University Professor Thomas Scheffler, once Nagel’s student. Nagel won a 2008 Balzan Prize “He has an uncanny ability and one million to cut to the heart a Painful Docket Swiss francs (roughly of a complex issue hen articles are written about how the thousands $885,000) for his work without in any way of victims of the 9/11 terrorist attacks were compensated, in moral philosophy. oversimplifying it.” W there will be one interesting footnote: All but three claim- Nagel was honored The Balzan is just ants reached out-of-court settlements with the help of two Law last December, in the latest in recent School alumni—Sheila Birnbaum ’65 and Kenneth Feinberg ’70. reyer: getty/charles ommanney/contr part “for the origi- honors for Nagel. Feinberg, the Obama admin­istration’s new “pay czar” over- nality and fecundity Last year, Oxford seeing executive compensation for companies receiving federal of his philosophical University gave him aid, was the special master of the September vlla/staff b i approach to some of an honorary doctor- 11th Victim Compensation Fund established the most important ate, and the Royal by Congress 10 days after the attacks as an questions in contem- Swedish Academy administrative alternative to litigation. ip somode porary life.” of Sciences awarded The vast majority—98 percent—of eligible “Thomas Nagel is one of him a Rolf Schock Prize in victims and families submitted claims to etty/ch America’s most distinguished Logic and Philosophy—and the fund, and by June 2004 Feinberg had living philosophers,” says 500,000 Swedish kronor (then supervised payouts of more than $7 billion University Professor Samuel roughly $82,000). to 5,560 claimants. nger souter: G i The 95 remaining victims and families filed suits against the airlines, security s/str i A Crimson Feather in His Cap companies, and others in the U.S. District Court for the Southern District of New York. aul morr Legal philosopher and University Professor Ronald Dworkin received That court, in turn, appointed Birnbaum, d p i an honorary doctorate of laws at Harvard University’s 358th com- a specialist in mass torts and a partner at mencement on June 4. A graduate of Harvard College and Harvard Law Skadden, Arps, Slate, Meagher & Flom, as School, Dworkin stood onstage in crimson and black robes as Provost mediator. From February 2006 to March 2009, she settled all Steven Hyman enumerated the quandaries of legal philosophy that but three wrongful death and personal injury lawsuits for a Dworkin has tackled, including the role of morality in constitutional in-

kennedy: getty/dav total of $500 million. terpretation, the core principles citizens share in a polarized democracy, In her concluding report to Judge Alvin Hellerstein, Birn- and how to determine an individual’s political rights. Hyman observed: baum wrote that many families had not had a chance to “tell the “His impact on the philosophy of story of their loss.” So, she arranged for the families to address law is such that over the past three airline representatives in face-to-face sessions that were “heart- decades nearly every contribution wrenching and emotionally draining.” In Hellerstein’s order ac- to the field is either directly cepting the report, he praised Birnbaum’s “extraordinary work”: “She absorbed their losses and their pain with empathy.... She or at least indirectly an en- gained plaintiffs’ confidence. Without her assistance, most of gagement with his work.” these cases, in my opinion, would not have settled.”

THE LAW SCHOOL 2009 7 delman b A s/Bo bi or hoto: C val p val i arch Félicitations to Bellamy In an April 7 ceremony in Stanley, a New York state sena- Paris, Carol Bellamy ’68 was tor, president of the New York made a chevalier in the Legion City Council, and director of of Honor in recognition of her the U.S. Peace Corps. service from 1995 to 2005 as French Secretary of State executive director of UNICEF, Alain Joyandet presented the the children’s agency of the medal “to pay tribute to [Bel- United Nations. Created by lamy’s] commitment to the Napoleon Bonaparte, the cause of children all over the Légion d’honneur is France’s world.” He praised Bellamy oldest and highest distinction. for her “intense and tireless In recent years, Law School contribution...at the head of professors Theodor Meron and UNICEF to fight discrimina- Ronald Noble as well as NYPD tion against children and Attorney and Client, Fortitude and Impatience Commissioner Raymond Kelly advocate for the recognition (LL.M. ’74) have also received of their rights.” Ensuring the right to the medal. Bellamy is president and Bellamy has crisscrossed CEO of World Learning, a the private and public sectors Vermont-based nonprofit or- rest one’s weary head throughout her career, having ganization that seeks to help Steven Banks ’81, attorney-in-chief of the Legal Aid Society, may worked as a corporate lawyer Americans become more ef- have developed a new appreciation for Charles Dickens’s Bleak for Cravath, Swaine & Moore, fective global citizens through House after brokering a deal with New York City to shelter the a managing director at Bear study abroad, graduate educa- homeless. But unlike the long-running fictional case Jarndyce Stearns, a principal at Morgan tion, and community projects. and Jarndyce, this 25-year legal battle had a hopeful ending. In 1983 the Legal Aid Society filed the primary lawsuit in the “Being at the head of UNICEF was an honor matter, McCain v. Koch, to obtain better shelter for families. Sub- and a privilege. I can think of no work that sequent lawsuits concerned questions of shelter eligibility and is more vital to humanity than ensuring that services for the homeless. By 2008, more than 40 court orders children everywhere survive their early years were in play. In an attempt to end the quarter-century legal con- flict, the city made reforming the shelter system a top priority. and grow up with health, dignity, and peace.” The settlement between the Legal Aid Society and New York City explicitly guarantees the right to shelter and formalizes qualifying standards for shelter, assisting individuals with ob- taining necessary documents and helping them find somewhere to go in the event that shelter is denied. In a September 2008 news conference with Mayor Michael Bloomberg at City Hall, Banks said the hard-won development made this “a historic day for homeless children and their families,” adding, “An enforceable right to shelter for home- less children and their families is now permanent, no matter

what administration is in office, no matter who is mayor.” age.com p ckens i ckens: charlesd pening Argument i harles d ; C “Clients have long hated the billable hour, and I understand why…. i The clients feel they have no control, that there is no correlation between cost and quality…. The billable hour makes no sense, /nooran

not even for lawyers. If you are successful and win a case early on, 2005-0016 you put yourself out of work…. That is frankly nuts.” cef/nyhq i n From “Kill the Billable Hour” by Evan Chesler ’75, presiding partner at Cravath, Swaine & Moore, U and a trustee and adjunct professor at the NYU School of Law, in Forbes, January 12, 2009 ellamy: © b

8 NYU SCHOOL OF LAW A not-for-profit joint Plugging Into a Powerful Partnership venture, the Legal Work- A three-year effort by the edi- in one of the participating shop is operated by cur- tors of seven top law journals law reviews. In June, for rent and former student culminated with the April instance, Senior Circuit editors. The idea came launch of the Legal Workshop, Judge Harry Edwards of about at a 2006 meeting of an online magazine featuring the U.S. Court of Appeals editors in chief of top law ideas found in the law reviews for the D.C. Circuit, a reviews who shared how “Sor”ing High of NYU, Cornell, Duke, George- visiting professor at NYU they were struggling to Maribel Hernández ’10 is one town, Northwestern, Stanford, School of Law, published make their individual of 31 immigrants or children of and the University of Chicago. an engaging editorial Web sites viable. Erin immigrants chosen to receive a Paul and Daisy Soros Fellow- The intent is to provide free about judicial politics Delaney ’07 embraced ship for New Americans, which legal scholarship in a read- that uses personal the idea of a collabora- provides tuition assistance for able, accessible format, said experience to illustrate tion, and the editors of graduate studies. Matthew Lawrence ’09, former the ideas in a Duke the NYU Law Review Hernández is currently a managing editor of the NYU Law Review article that took the lead in cutting joint J.D./M.P.A. candidate at Law Review, whose efforts he co-authored with through the legal red NYU and Princeton University. were integral to the Web site’s Michael Livermore ’06, tape to form a multi- A Bickel & Brewer Scholar, she launch. The Legal Workshop “Pitfalls of Empirical state consortium of private is an articles editor of the NYU presents short, plain-English Studies That Attempt and public entities. “It was Law Review and a student ad- articles written by an author to Understand the a simple vision,” said Law- vocate in the Immigrant Rights Clinic. She plans to continue whose related, full-length Factors Affecting Appellate rence, “but it took a lot of hard her work in immigration law work of scholarship appears Decisionmaking.” work to make it happen.” as both a lawyer and a policy advocate. “I want to represent immigrants and at the same time push for humane immigra- Committed to Diversity tion reform,” she said. “I want to help families stay together.” t a time when legal the Training and Recruitment before a student’s ninth-grade Born in Mexico, Hernández education is moving Initiative for Admission to year with an intensive crimi- came to Texas with her family further out of reach for Leading Law Schools (TRI- nal justice course, which was when she was 13 years old. She graduated magna cum laude A those with big career ALS) is a five-week summer held at NYU this summer; al- from Harvard University and ambitions but small financial residential program for socio- most every day an alumnus en- has interned with the U.N. High means, the NYU School of Law economically disadvantaged gaged students in discussions Commissioner for Refugees in has expanded or created out- students that offers rigorous on compelling legal issues. Mozambique and the Clinton reach and support programs. preparation for the LSAT, The Law School has also Foundation HIV/AIDS Initiative. Launched through a part- lectures by legal luminaries, expanded its AnBryce Scholar- nership of the Law School, and opportunities to meet ship Program, founded in 1998 Harvard Law School, and the with and observe lawyers in by Anthony Welters ’77, chair- Advantage Testing Foundation, the field. Harvard hosted the man of the NYU School of Law Theodor Meron, inaugural year of TRIALS board of trustees, and his wife, Charles L. Denison this past summer, and NYU Beatrice, to provide full schol- Professor of Law Law will host the program in arships and other support to Emeritus and Judicial 2010. “This is part of a compre- outstanding students who are Fellow, will be inducted hensive diversity effort,” said the first in their families to as a fellow into the Dean Richard Revesz. “In a pursue a graduate degree. The American Academy difficult economic environ- program, which began with of Arts and Sciences ment, we are not scaling back one student per year, is now in October, along with our programs but are expand- fully funded and has 30 stu- 211 other fellows and ing our commitment through dents—10 per class—annually. 19 foreign honorary a targeted approach that does “When I was in school, I never the most with each dollar.” considered the need to work members, including As part of this effort, the a hardship,” Welters recently Nelson Mandela, Law School has also joined told Diverse Issues in Higher forces with Legal Outreach, Education magazine. “But Dame Judi Dench, a college prep organization there were lots of opportuni- Colin Powell, that uses the law as a tool to ties I missed in law school inspire and prepare urban because of the need to work. Robert Caro, youth to succeed in high My wife and I facilitated these Bono, and school, college, and beyond. scholarships so that others Legal Outreach’s four-year could take advantage of the Marilyn Horne. program begins the summer full school experience.”

THE LAW SCHOOL 2009 9 affecting workers’ right to food. The first Green Team A Growing Problem: sentence of the paper Joining forces, law students puts it starkly: “It is from the Environmental Law Hungry Farmworkers both ironic and tragic Society and administrators that 80 percent of the from the dean’s office, resi- briefing paper written by Lama Fakih ’08, a fel- world’s hungry are food dential services, operations by members of Law Stu- low at the Center for Human producers.” and administrative services, A dents for Human Rights Rights and Global Justice, The two-day June and student affairs are work- and solicited by Olivier De and Professor Smita Narula, meeting was the first ing together to make sustain- Schutter, U.N. special rappor- CHRGJ faculty director and of several planned this ability an ingrained part of teur on the right to food and legal adviser to De Schutter’s year that will culminate campus life. former Hauser Global Visiting U.N. mandate, indicated that in a report to the U.N. “We see our sustainability efforts and conversations as Professor, became recom- a shrinking number Human Rights Council. part of an important culture mended reading at an of large traders Participants represent- change at the Law School,” international conference control a growing ing agribusiness, farmers, says Angela Gius ’10, who, held in June. proportion of the agricultural workers, and along with Joy Sun ’10 and Aaron Bloom ’11, Col- supply chain; their NGOs as well as academic Maron Greenleaf ’10, were leen Duffy ’11, Monica demand for cheap, experts received a synopsis of invited to join the NYU Law Iyer ’10, Aaron Jacobs- uniform food prod- the students’ paper as one of Sustainability Committee Smith ’11, and Laura Moy ucts pressures poor, three documents that formed supervised by Lillian Zalta, ’11 spent seven months small-scale farm- the basis for discussion. “I assistant dean for operations analyzing the interplay ers who lack the really hope that what we cre- and administrative services. of commodity traders, clout to contest ated was a foundation for a ”We’re hoping to food processors, global low compensa- good conversation there,” Iyer, make a ‘green’ retailers, and fast-food tion. As a result, the project leader, said, “and companies to investigate farmers must that people who were coming lifestyle the the role played by transna- reduce the to the conference learned norm on campus tional corporations in the wages of their from it and were able to build by ensuring that green habits global food supply chain. laborers, from that toward actually are easy and accessible, that The research, supervised adversely finding solutions.” our facilities—and how we use them—become increas- ingly energy efficient and waste-free, and that sustain- A Prized Fighter for Equal Justice ability is a priority in our deci- Bryan Stevenson, professor of rape at the age of 13 and ties in developing the voice sions as individuals and as an of clinical law and director sentenced to life in prison and arguments they need to institution,” says Gius. of the Equal Justice Initia- without the possibility of pa- demand equal justice under The Law School has tive, has won a 2009 Interna- role. In December, Stevenson law,” said U.S. District Judge already undertaken several tional Justice Prize from the filed a petition in Sullivan v. Bernice Donald of the West- significant steps, such as composting waste, improving Peter and Patricia Gruber Florida asking the Court ern District of Tennessee, recycling, reducing energy Foundation. The award is to determine whether who was a member of the use, replacing plastics in given to those who have “ad- Sullivan’s sentence prize commitee. “[His] dining halls, and producing vanced the cause of justice violates the Eighth work is a model for “Green Guides” to educate as delivered through the Amendment’s pro- human rights students, faculty, and staff. legal system.” Judge Thomas hibition on cruel advocacy and Facilities Manager Ken Buergenthal ’60 of the Inter- and unusual presents a com- Higgins says the Law School national Court of Justice was punishment. pelling case for buildings have also been one of last year’s recipients. “In securing the necessity upgraded, switching to low- Stevenson is one of two access to jus- of focusing on flow toilets and ditching halogen light bulbs in favor awardees who will each tice for those and developing of compact fluorescents. receive $250,000 during a most in need public interest Ideas flow from all parts ceremony this fall. The EJI of protection law in legal of the Law School, says Zalta, represents indigent defen- from discrimi- education and who appreciates the passion dants, death row inmates, nation—includ- practice.” of the student committee and juveniles who it believes ing, at times, Steven- members. “They push the have been denied fair and just discrimination son’s share agenda,” she says. “They are treatment in the legal system. within the legal of the prize extremely committed—you This term, the U.S. Supreme system itself— money will don’t have to ask them for Court has agreed to decide Bryan Stevenson be contrib- buy in. They’re in.” the case of EJI client Joe Sul- ... assist[s] op- uted to EJI’s livan, who was convicted pressed minori- budget.

10 NYU SCHOOL OF LAW notes & renderings

philip weiser ’94 Ignacia nia phillips ’99 Deputy Assistant Atttorney Moreno ’90 Deputy General General for International, Policy Assistant Attorney Counsel for Depart- and Appellate Matters, Anti- General for Environment mental and Legislative Trust Division, Department and Natural Resources Services, Department of Justice Division, Department of Education of Justice* Eric P. Schwartz ’85 Assistant Secretary of david kamin ’09 State for Population, Special Assistant to Refugees and Migration, Peter Orszag, Director Department of State of the Office of Management and Budget Alison Nathan, judith halle 2008–09 Alexander WURTZEL ’88 Fellow Deputy Assistant Associate White House Jon Leibowitz ’84 Secretary in the Office Counsel Chair of the Federal of Planning, Evaluation, Trade Commission and Policy Development, Department of Education cynthia mann ’75 Director of the Center for Medicaid Raymond and State Opera- Kelly (LL.M. ’74) tions, Department of Homeland Security Health and Human Advisory Council Services

m. Patricia Miriam Sapiro ’86 smith ’77 Deputy U.S. Trade Solicitor of the Representative* A Prized Fighter for Equal Justice Department of Labor* Seth Harris ’90 Bruce oreck Painting Deputy (LL.M. ’80) Secretary U.S. Ambassador of Labor to Finland* the White House

Laurie Louis Freeh Mikva ’83 (LL.M. ’84) Member, Board Homeland Security of Directors, Advisory Council Legal Services Vi let Corporation

The historic election of the first African American to be chief executive of the United States is also the return of a lawyer—and law professor—to the White House. In the first six months of the new presidency, more than a dozen Law School alumni said, “Yes, I can!” and have been nominated, confirmed, or appointed to a wide variety of influential roles in the Obama administration.

*Awaiting confirmation as of July 30, 2009

Prepping and Priming: professor Cynthia Estlund Pamela Gilbert ’84 Alan Houseman ’68 Faculty and alumni, and Catherine A. Rein Professor of Law, Consumer Protection & Safety Commission Legal Services Corporation National Labor Relations Board the agency review teams Keith Harper ’93 Also, Obama administration members they served on during Aderson Francois ’91 Department of the Interior and Harris, Mann, Schwartz, the transition Commission on Civil Rights Indian Gaming Commission Smith, and Weiser served on the transition team.

THE LAW SCHOOL 2009 11 sep 11, 2001: AP Photo/Daniel Hulshizer; Oct 2001: AP Photo/Christopher Morris/VII; Oct 7, 2001: AP Photo/Ron Haviv/ VII; Oct 26: 2001: AP Photo/Ron Edmonds scant two weeks after the respectable law school exam): “First, can a society World Trade Center was de- that prides itself on equality before the law treat ter- stroyed by terrorists, Supreme Court Justice Sandra rorists differently than ordinary criminals? And where do we draw Day O’Connor stood on a construction site some the line between them? Second, at what point does the cost to civil 20 blocks away from the smoldering ruins to pre- liberties from legislation designed to prevent terrorism outweigh side over the groundbreaking for a new academic the added security that the legislation provides?” Abuilding at the NYU School of Law. O’Connor admitted she was As the legal system grappled with those questions, a new disci- “still tearful” and shaken after having viewed the devastation at pline developed, known as Law and Security. The form it has taken ground zero. But she put on a shiny construction helmet, grasped at NYU is particularly expansive, welcoming not only legal schol- a ceremonial shovel, and gamely scraped at some Greenwich Vil- ars and practitioners but also investigative journalists, policy and lage dirt. After helping mark the beginning of what is now Furman government wonks, and police and military officials sharing infor- Hall on Sullivan Street, O’Connor spoke with striking prescience mation in ways that have benefited all parties. Here they have three about how 9/11 would change American life. primary outlets to practice, study, and exchange ideas: (1) the NYU She counseled the aspiring lawyers and legal scholars in the School of Law Center on Law and Security, a trailblazing interna- audience to remember the basic tenets of American democracy tionally focused forum—something akin to an old-style intellec- as they responded to seismic shifts in the legal landscape. “We’re tual salon updated for the life-and-death issues of the 21st century; likely to experience more restrictions on our personal freedom (2) the scholarship and classrooms of about a dozen faculty, includ- than has ever been the case in our country,” O’Connor said, re- ing, notably, David Golove on the law of war, Stephen Holmes on minding legal professionals of their obligation to protect the rule the rule of law, Richard Pildes on rights during wartime, Margaret of law. She urged politicians to move cautiously after a disaster that Satterthwaite ’99 on extraordinary rendition, Stephen Schulhofer “will cause us to reexamine some of our laws pertaining to crimi- on police antiterrorism tactics, and Samuel Rascoff, one of the na- nal surveillance, wiretapping, immigration.” And she predicted, tion’s first tenure-track professors of national security; and finally, “Lawyers and academics will help define how to maintain a fair and (3) the clinical and advocacy work of other Law School centers, such just society with a strong rule of law at a time when many are more as the Center for Human Rights and Global Justice, which oversees concerned with safety and a measure of vengeance.” the International Human Rights Clinic, the Brennan Center for Anticipating that momentous cases concerning presidential Justice, and the Center on the Administration of Criminal Law. and judicial authority during national emergencies would find Through its faculty and the centers, the NYU School of Law has their way to the Supreme Court, O’Connor, who retired in Janu- helped shape the national security debate, says New York City Police ary 2006, then posed a series of questions that continue to frame Commissioner Raymond Kelly (LL.M. ’74). “NYU Law has provided public discussion about terrorism (and would make for a very an important platform for an examination of crucial issues ranging

The 9/11 terror attacks “will cause us to reexamine some of our laws pertaining to criminal President Bush signs the surveillance, wiretapping, USA Patriot Act. immigration, and so on.”

At the groundbreaking for Furman Hall , Supreme The United States opens a Court Justice Sandra Day camp at Guantánamo Bay O’Connor predicts greater Cuba The United States begins bombing threats to our privacy and , to detain “enemy , urges those in the legal combatants.” Afghanistan. profession to maintain the rule of law. the law schooL 2009 13 society fair and just society “Lawyers and academics will help define how to faculty advisers. The center immediately entered into the public maintain a fair and just society with a discourse through the articles and books the scholars published on strong rule of law at a time when many such subjects as wartime effects on the rule of law, the Constitution, are more concerned with safety and a civil liberties, and separation of powers. (See the timeline, starting measure of vengeance.” on page 13.) Feldman was tapped to be a senior constitutional adviser , Sep 28, 2001 U.S. Supreme Court Justice Sandra Day O’Connor to the Coalition Provisional Authority in Iraq. His opinion pieces and feature articles for the New York Times and the Wall Street Journal, in- from constitutional safeguards to the ongoing threat posed by terror- fluenced by his role helping to craft a new Iraqi constitution, helped ists,” he says. “The Law School’s faculty and other experts involved to raise the profile of the CLS. “The center became a focal point for with the Center on Law and Security are valued resources for critical discussion of counterterrorism and security for both scholars and thinking on the most pressing security challenges of the day.” practitioners,” says Rascoff, now a CLS faculty adviser who in 2003 was a special assistant to Ambassador Paul Bremer in Iraq. However he development of law and security at the nyu it was the center’s response to reports that the U.S. was torturing pris- School of Law began with a desire to create something oners of war that—for a broader audience—put it on the map. T meaningful out of the stunning destruction. “Everyone was In early 2004, only months after the CLS officially opened its shocked, shattered, demented by getting up in the morning and doors, the Abu Ghraib scandal broke. Leaked photographs of watching 3,000 people murdered right next door,” recalls Stephen the abuse of Iraqi detainees sparked widespread concern about Holmes, Walter E. Meyer Professor of Law. “So there was an attempt whether tactics in the American war on terrorism had come to in- to come to grips with it, to think about it: What happened? How clude torture. Greenberg’s aggressive networking among journal- should we respond?” ists on the national security beat paid off as reporters—and soon The most immediate answer was to create the Center on Law thereafter, lawyers and human rights activists—began to request and Security. Dean Richard Revesz turned to four faculty members information about U.S. interrogation methods. As government whose specialties recommended them for the task: Holmes, a politi- whistle-blowers and enterprising journalists gradually pried clas- cal philosopher; Golove, an authority on international law; Pildes, a sified memoranda from locked drawers at the Justice Department constitutional law scholar; and Noah Feldman, an expert on Islamic and Pentagon, the center diligently collected copies, amassing a law who now teaches at Harvard Law School. In turn, they recruited lengthy paper trail of how the Bush administration justified deten- Karen Greenberg to help them draft a proposal. A former Soros tion policies that appeared to violate U.S. and international law. Foundation/Open Society Institute executive, she had founded a There was no other place where skeptics of Bush policies could do program that opened NYU campuses in Prague and London. such efficient one-stop shopping for internal accounts of what Vice Greenberg suggested that the Law School start a practical- President Cheney famously termed “the dark side.” minded center within the ivory tower. Her goal: “bring people with Among those who approached the center was Joshua Dratel, a policy-making responsibilities and academic credentials together, New York criminal defense attorney representing a detainee held so that officials would have a think tank of their own to rely upon, at the Guantánamo Bay naval base in Cuba. He collaborated with and academics and experts could apply their skills to a realistic set Greenberg in editing the comprehensive collection of primary of concerns.” She also wanted to bring journalists into the conver- sources they provocatively titled The Torture Papers: The Road to sation “because they had done their homework. They knew about Abu Ghraib (2005). Anticipation for the book was high. Senator Pat- Osama bin Laden and al Qaeda. They understood how to effect rick Leahy used an advance copy to shape his stiff questioning in a constructive dialogue between Muslim communities and the the attorney general confirmation hearings of Alberto Gonzales in West.” In Greenberg’s opinion, greater communication among January 2005. TheNew York Times later described the monumental scholars, reporters, law enforcement officials, and policy makers 1,284-page collection as “necessary, if grueling, reading for anyone was essential for national security. interested in understanding the back story to those terrible photos The proposal was greenlighted, and Greenberg was appointed ex- from Saddam Hussein’s former prison, and abuses at other Ameri- ecutive director, with Feldman, Golove, Holmes, and Pildes named can detention facilities.” Continued on page 17

The U.S. invasion of Iraq begins.

John Yoo of the Department of Justice’s Office of Legal Counsel writes the The Center on Law and “Bybee Memo,” asserting Security is founded at that interrogation methods NYU as “an independent , that may be “cruel , Congress passes a joint nonpartisan, global center inhuman , or degrading” resolution effectively of expertise designed to do not necessarily qualify clearing the way for an promote an informed as acts of torture. invasion of Iraq. understanding of the major legal and security issues that define the post-9/11 environment.” 14 NYU SCHOOL OF LAW A distinguished political theorist, Stephen Holmes, Walter E. Meyer Professor of Law, has spent decades thinking about the paradoxes of democracy and liberalism. In his 1995 book, Passions and Constraint: On the Theory of Liberal Democracy, he argued that individual liberty and tolerance While the Center on Law and of diversity tend to thrive only under active government— Security was formed in reac - but that publicly accountable decision making must be tion to 9/11, David Golove takes structured and constrained by formal rules to facilitate a much longer view. In a paper- collective rationality and self-correction. Rules and proce - in-progress, “The Case for Incorporating Global Justice into dures, in other words, can protect important freedoms. the U.S. Constitution,” Golove, Hiller Family Foundation - When his attention turned to counterterrorism after Professor of Law, brings 150-year-old concepts of how “civi - 9/11, Holmes naturally considered the role of rules in the lized nations” ought to conduct themselves into the 21st cen promotion of security. Characteristically, his analysis took tury. The concepts are found in the Law of War, a collection unconventional turns. In the prestigious Jorde Lecture of understandings among nations about the constraints on he delivered in April 2008 at Yale University, he noted that armed conflict that includes the Geneva Conventions, which in hospital emergency rooms, nurses and doctors spend forbid the torture of prisoners of war. precious seconds following protocols to ensure, for exam - “The United States is a civilized nation,” Golove explains. ple, that a Type O patient receives only Type O blood. The “It recognizes the obligations of civilized behavior, even to its ER teaches an important lesson about responding to the enemies, and that recognition should have a constitutional disorienting challenge of terrorism, Holmes says. By fol - dimension.” These obligations apply both to the president lowing rules—rather than trying to evade them—officials and Congress, he claims. can diminish the chance of error, build political and public The roots of the Law of War are found in guidelines support for controversial policies, and highlight collateral Abraham Lincoln imposed on the Union Armies during the dangers created by the best of intentions. Civil War, and in arguments his administration made to justify Throughout his writing, Holmes challenges the Bush such extreme exercises of executive authority as the naval administration’s argument that the need for flexibility in blockade of Southern ports and the denial of habeas corpus combating terrorism justifies suspending well-estab - protection for allegedly disloyal citizens. In each instance, lished rules, such as the Constitution’s instruction that Lincoln and his aides contended that he acted properly Congress shares war-making authority with the presi - “within the rules of civilized warfare,” Golove recounts in his dent, or the judiciary’s system for ensuring that prisoners 2003 paper “Military Tribunals, International Law, and the receive a hearing under the habeas corpus statute. Robust Constitution: A Franckian-Madisonian Approach.” congressional review of the reasons for war—as opposed The Bush administration adopted a different posture: to a rubber stamp based on contrived evidence of weap - that the president possesses inherent power to defy the law ons of mass destruction—could have prevented what most to protect national security. After President Bush added an Americans now see as a misguided adventure in Iraq, he ambiguous signing statement to 2005 legislation outlawing says. In an April 2006 essay in The Nation, “John Yoo’s torture, Golove played a leading role in challenging it. Golove Tortured Logic,” Holmes tallied the casualties he attri - told the Boston Globe: “The signing statement is saying, ‘I will butes to the once-secret legal memoranda by the former only comply with this law when I want to, and if something Justice Department lawyer who advocated virtually unlim - arises in the war on terrorism where I think it’s important to ited presidential power to fight terrorism. “By disman - torture or engage in cruel, inhuman, and degrading conduct, tling checks and balances, along the lines idealized and I have the authority to do so.’” Later, officials confirmed that celebrated by Yoo,” Holmes wrote, the Bush administra - this was indeed the White House position. tion “certainly gained flexibility in the ‘war on terrorism.’ Golove’s analysis doesn’t boil down simply to What It has gained the flexibility, in particular, to shoot first and Would Lincoln Do, however. “Lincoln did make a radical— aim afterward. It has acted on disinformation and crackpot and doubtful—claim of executive power,” the scholar says. - theories and utopian expectations that could perhaps have y, Filey, “But that claim provides no precedent for the kind of pow been corrected or moderated if traditional decision-mak a - ers that the Bush administration has asserted.” It’s critically ing protocols had been respected.” e Del m important, he says, that Lincoln told Congress what he had Expanding on this idea in his 2007 done and promised to abide by lawmakers’ judgment on the - book, The Matador’s Cape: America’s legitimacy of his actions. “In contrast, the Bush administra Reckless Response to Terror, Holmes hoto/Jero -

P tion acted secretly and withheld from Congress and the pub urged a reassertion of judicial and leg - : A lic the legal theories on which he was acting,” Golove says. islative oversight—a respect for the “Moreover, the Bush administration has repeatedly claimed - rule of law: “Law is best understood r 20, 2003 a that the radical powers [Bush] assert[ed] are not only inher not as a set of rigid rules but rather ; M ent executive powers but are exclusive powers, and that as a set of institutional mechanisms PTN Congress is without any authority to override his decisions. and procedures designed to correct These are hugely significant differences.” —P.B. the mistakes that even exception hoto/A -

P ally talented executive officials are : A bound to make.”—P.B. ct 11, 2002 O

the law schooL 2009 15 we learned...with a much prosecutions often shrouded in For some NYU Law students, the post-9/11 more detailed and in-depth secrecy. Culling through news interest in national security has aligned per- analysis of how strategy and reports and court records to fectly with their passions. Take Daniel Freifeld our actions have changed,” obtain reliable statistics on ter- ’08. A seasoned globetrotter who speaks she said. Laguardia, a for- rorism trials, students compiled Turkish, French, and conversational Arabic, mer investigative analyst in a database that has become an Farsi, and Spanish, Freifeld had worked at the the Rackets Bureau of the invaluable tool for assessing World Bank and Defense Department before Freifeld New York County District competing claims about the he matriculated, already aware of the Center Attorney’s Office, is currently efficacy of counterterrorism on Law and Security. He got involved with the working toward a Ph.D. in law prosecutions. center as a 1L, rising to his current position as and society from NYU. She The hands-on experience its director of international programs. “I can’t is also steering the center’s Peterson gained at CLS helped think of an organization that’s been more effec- latest mammoth undertak- him secure internships with tive in shaping the counterterrorism debate,” ing. The Accountability Papers the Department of Justice, the Freifeld said. “A lot of changes in the broader will “collect everything that Department of Homeland policy community would not have been pos- someone would want to know Security, and the Central sible but for the introductions we made, the as far as issues of account- Intelligence Agency’s Office events we put on, the research we did.” Peterson ability in the Bush adminis- of General Counsel, where Freifeld has run a project on European tration,” dealing with matters he now works as an attorney. counterterrorism for the center, and after tak- such as interrogation tactics, “The center provided not only ing a break to be a foreign policy staffer on surveillance, and justifications an incredibly deep but also a Hillary Clinton’s presidential campaign, he for the Iraq war. relatively broad exposure to has been laying the groundwork for a series Laguardia’s work helps all the different types of policy of roundtables on energy and geopolitics in her to think about politically decisions and legal issues in the Persian Gulf. “I literally dedicated my Law freighted issues from a more the counterterrorism world. School career to CLS. It was the ideal way to neutral stance, she said, and Right after 9/11, the discussion apply my legal education to the outside world.” Laguardia she pointed to the importance of the war on terror was still Another of Freifeld’s projects was head- of the center’s efforts to cre- relatively simplistic,” Peterson ing the Terrorist Trial Report Card, taking the ate dialogue: “We help Law and Security says. “The center was critical in helping to reins from its first research director, Andrew actors talk to each other and learn from each bring a much more complex analysis, and by Peterson ’06. Now a member of CLS’s board other when they would not otherwise have the doing that it informed policy going forward.” of advisors, Peterson began working with the opportunity to do so. The center performs a The center’s current research director, CLS at its inception: “I was very interested in vital role in making that kind of communica- Francesca Laguardia ’07, is the latest head national security and terrorism, so the mis- tion possible, and also gets the public involved of the Report Card, whose last edition is due sion of the center was appealing to me.” in the conversation. That’s a fundamental role out this fall. Weighing in at quadruple the PTN The Report Card, a comprehensive summary that the center fulfills in a way I’m not sure any pages of previous editions, this final report will

of U.S. terrorism cases, is a herculean effort other institution is doing.” —Atticus Gannaway hoto/A

crunch eight years of data to sum up “what P to construct a track record on government : A

Terrorists bomb four , hite; Jul 2005 7, Madrid commuter trains

“...in exercising his war killing 191 and ,injuring700. ulPa W more than 1 powers as commander in chief, hoto/

the President is constitutionally P

- : A bound, at a minimum, to com ply with international law.” r 11, 2004 a Publication of “Military Tribunals , International Law, and the Constitu - tion: A Franckian- Madisonian Approach” by David Golove in “American courts have neither cott Applewhite; M the NYU Journal of International Law endorsed unilateral executive President Bush declares an end to and Politics .

major combat operations in Iraq authority, nor...defined...the hoto/J. S

after donning a flight suit and P landing with great fanfare aboard substantive content of rights in : A Publication of “Between Civil the USS [times of crisis].” Abraham Lincoln . Libertarianism and Executive , 2003

Unilateralism: An Institutional y 1 Process Approach to Rights a

M During Wartime” by Richard Pildes and Samuel Issacharoff in 16 NYU SCHOOL OF LAW Theoretical Inquiries in Law . The CLS soon gained a reputation as a leading critic of govern- European and American security officials a neutral place to share ment security policies. In February 2005, Greenberg and her staff ideas. A group of about 20 counterterrorism authorities—includ- began producing the Terrorist Trial Report Card (see story on oppo- ing Michael Sheehan, the former deputy police commissioner re- site page), a widely cited print and online periodical that assesses sponsible for counterterrorism in New York, and Peter Clarke, the the prosecution of terrorism-related crime in the United States. former head of the antiterrorism branch of Britain’s New Scotland The Report Card has helped fuel a lively debate over the Justice Yard—convene at NYU’s Florence, Italy, campus to speak candidly Department’s policy of invoking the threat of terrorism when in- about their work. Although the discussions are off-the-record, they dicting hundreds of Muslim Americans on garden-variety finan- have sometimes sparked important public debate. In one notable cial fraud and immigration charges. In a January 22, 2009 editorial, instance at the June 2006 conference, Baltasar Garzón, Spain’s the Chicago Tribune cited the center’s research in arguing that the Obama administration needs to ensure that terrorism suspects are “I come from the afforded better legal representation. country of the Inquisition.... We had More recently, the center has begun analyzing terrorism trials in to learn from experience that torture, Europe. Among the insights gained from comparison to U.S. strate- and mistreatment and degradation, do not gies: European police tend to spend more time observing suspects work as investigation techniques.” before making arrests, sometimes yielding more concrete evidence, Spanish Magistrate Baltasar Garzón in the Jun 4, 2006 New York and some European judges have shown pronounced reluctance to Times, calling for the closing of the Guantánamo prison uphold convictions where there is evidence that alleged terrorists have been questioned harshly while in American custody. investigative magistrate and a former distinguished fellow at the This sharing of information, the center’s trademark, occurs not center, denounced the detention center at Guantánamo Bay. His only in its publications, but through conferences, open forums, and call to close Guantánamo crystallized growing European disillu- other live events where members of the faculty, students, and the sionment with American policy. community at large can voice their thoughts to guests to whom the While these examples draw a portrait of an organization that public may otherwise not have ready access. At the December 2008 was, during the Bush administration, opposed to government poli- forum “After Torture: Discussing Justice in the Post-Bush Era,” co- cies, the CLS has made concerted effort to give all sides an equal sponsored by Harper’s Magazine, Burt Neuborne argued passion- platform. Daniel Benjamin, a former senior fellow at the Brook- ately for civil litigation, alleging various abuses of power by top Bush ings Institution and a past member of the center’s outside board aides. “If we’re serious this time [about upholding the Constitution], of advisers, notes that one of CLS’s great contributions was to cre- we ought to go after the people who made the policy,” Neuborne, ate a venue for civil disagreement, even as it adopted a skeptical Inez Milholland Professor of Civil Liberties, told an overflow audi- stance toward the Bush administration’s policies. Interviewed ence in Lipton Hall. Retired Major General Antonio Taguba, an- before he joined the Obama administration State Department as other panelist, seemed to agree in principle. Taguba, who before coordinator for counterterrorism policy, Benjamin called Green- his retirement from the Army in 2007 led a Pentagon investigation berg “the doyenne of counterterrorism,” praising her ability to of the Abu Ghraib abuses, pointed out that while low-level soldiers “bring people together, people of such diverse views that you’re had been punished, those higher up in the chain of command have astonished to find them in the same place: senior officials of the largely escaped discipline. “We must have a single, uniform stan- Bush administration together with the human rights lawyers dard [for the treatment of military detainees overseas],” Taguba as- who are fighting them tooth and nail in the courts; strong advo- serted. “We deserve clarity. I’m speaking for the troops out there, cates of the ‘war paradigm’ in the struggle against terrorism and the 19-to-24-year-olds who are out there doing God’s work.” the scholars and journalists who have attacked them relentlessly; In further pursuit of strategic cross-pollination, the CLS hosts and American and European jurists and policy makers who are on an annual summer symposium that was specifically created to give opposite sides of issues such as Guantánamo, rendition, coercive Continued on page 19

With Margaret Satterthwaite standing behind him, U.S. Representative Edward Markey introduces the Tor - ture Outsourcing Prevention Act to ban extraordinary rendition. The bill is supported by research and reports from the Law School’s Center for Human Rights and Global Justice.

Publication of The Torture Papers: The Road to Abu Ghraib , co-edited by Karen Greenberg.

,

London public transit is bombed CLS issues its first by terrorists ; 56 killed , courts had Terrorist Trial Report, Card approximately 700 injured. which notes that at the time of publication convicted only one person— “Shoebomber” Richard Reid—of a direct act of terrorism.

the law schooL 2009 17 In the wake of 9/11, New In his Law and Security scholarship, Richard Pildes, York City built an unprece- Sudler Family Professor of Constitutional Law, searches dented counterterrorism for alternatives to constitutional extremes. Consider his force of its own: 1,000 2004 article, “Between Civil Libertarianism and Executive committed officers, an Unilateralism: An Institutional Process Approach to Intelligence Bureau, and Rights During Wartime,” in which Pildes and co-author 10 officers dispatched Samuel Issacharoff, Bonnie and Richard Reiss Professor as full-time liaisons to of Constitutional Law, chart a course at odds with both the police departments in the Middle East, Europe, and liberal advocacy of individual rights and the neoconserva- Southeast Asia. The elaborate program turned the joke tive ideal of judicial deference to presidential authority. The about the mayor of New York City having a foreign policy authors survey Supreme Court actions during wartime and into a “literal truth,” observes Assistant Professor of Law surprisingly conclude that the justices have checked exec- Samuel Rascoff, who ran the city’s counter­terrorism intel- utive authority more often than conservatives recognize, ligence desk for two years before joining NYU Law in 2008. but not through the individual-rights approach that liber- As a scholar, Rascoff has been considering “the para- als often urge. The Supreme Court has played this role by dox of national security federalism.” We tend to think of focusing on the procedural question of whether the presi- terrorism as a national and global challenge, one neces- dent has obtained congressional approval for his actions. sarily countered by agencies and officials in Washington. The notorious internment of Japanese Americans dur- New York’s unique response to 9/11, however, argues ing World War II offers a provocative comparison to today’s for local control over key counterterrorism functions. As controversies over “enemy combatants.” There is now Rascoff has observed, “Local departments…‘see’ the broad consensus that the forced relocation of U.S. citizens threat more clearly than their national counterparts: offi- of Japanese descent sprang from panic and bigotry rather cers…know their [mainly urban] terrain, speak relevant than real danger. The Supreme Court of that era shares languages, and are able to leverage their status as... v. in the notoriety because of its 1944 ruling in Korematsu peacekeepers within the community to useful effect.” United States deferring to the authority of President Franklin Embracing this position leads Rascoff to reject the D. Roosevelt and Congress. But largely eclipsed in constitu- debate over whether counterterrorism is a function of the tional memory is Ex parte Endo, wherein a unanimous court criminal justice system or a form of warfare. “Crime, unlike held that the continued detention of Japanese Americans terrorism, happens every day and does not threaten the was illegal. The justices distinguished between the two political order,” he explains. But neither is counterterror- actions: first, the emergency military roundup of Japanese ism warfare. “Wars end, but counterterrorism will require Americans, and, second, the political judgment to detain a sustained effort over at least a generation.” Instead the internees for years without any proof of disloyalty. “On Rascoff posits counterterrorism as a form of risk regula- the day the two decisions were handed down together, the tion, something akin to controlling pollution or ensuring most immediate practical matter at stake was whether the drug safety. To preempt mass violence, government must detained Japanese would be released,” the authors note. begin by getting better at intelligence gathering and analy- “Under Endo, they were.” As far as Pildes is concerned, the sis, he says, using a wide range of “risk assessment” tools. high court demonstrated sufficient backbone “to resist It will then be in a position to engage in various “regulatory executive branch actions that, at most, rested on political interventions,” from softer approaches (as when officials and policy, rather than military, judgments.” reach out in a conciliatory way to local Muslim leaders) to Pildes suggests that by acting in this fashion, the judi- more hard-edged techniques, as in the case of the NYPD’s ciary can impose limits on executive power while leaving periodic deployment of scores of vehicles, lights flashing latitude for military decision-making. The Supreme Court and sirens blaring, to send a message that potential tar- has done just that, insisting that the conduct of the war on gets will be difficult to attack. terrorism is not insulated from judicial oversight. The jus- Counterterrorism as risk regulation also suggests a tices have upheld preventive detention of suspected terror- need for rigorous balancing of relative dangers in decid- ists at Guantánamo while insisting that detainees deserve ing whether limited resources ought to be directed to to be tried under procedures approved by Congress. When all 50 states or concentrated in those cities and around the high court struck down the military commission system infrastructure like nuclear plants that present the most in 2006, Congress responded by passing legislation speci- pronounced risks. Finally, all branches of government fying how the commissions ought to work. In Pildes’s view, must play more of an oversight role in making sure that the judiciary has appropriately terrorism regulation obeys the rule of law. “We need a continued its role of channel- model of counterterrorism law that is sustainable, that s Jr. ing decisions to the “political treats the threat in the way of a chronic health issue,” a ri branches,” while invalidating he concluded, “not an acute problem that can be cured

executive actions taken without with a rapid surgical intervention.” —P.B. berto T m u

legislative approval. —P.B. H hoto/ P : A Jun 4, 2006 “It’s really helpful to hear from interrogation, and the like.” Among Benjamin’s fellow board mem- a combination of investigative journal- bers was Viet Dinh, a senior Justice Department official during the ists and former government officials Bush administration who teaches at Georgetown University Law ,” he said. “There are a lot of pieces of Center. “The exchange has been vital, and just about everyone the puzzle and the colloquium helps you comes away a bit better informed and even wiser,” says Benjamin. , fit the pieces together.” Andrew Sagor ’10, on the Law and Security Colloquium fter 9/11 there was bound to be a surge of scholarly attention to the sort of legal questions posed by Justice Afterward, Sagor, who hopes to combine private practice with A O’Connor: Would the rules of a war on terrorism be differ- future government service, called the colloquium a welcome con- ent from those of a conventional war? What lessons could be learned trast to more traditional black-letter law courses. “It’s really helpful from the constitutional conflicts that arose during Vietnam, World to hear from a combination of investigative journalists and former War II, or even the Civil War? (See the dossiers starting on page 15.) government officials,” he said. “There are a lot of pieces of the puz- “Although people liked to pretend that they knew all of this on zle, and the colloquium helps you fit the pieces together.” September 12, 2001, that just wasn’t true,” observes Richard Pildes. The newest addition to the curriculum, Counter-Terrorism Law and security issues seeped into classes on constitutional and and the National Security Constitution, taught by Samuel Rascoff criminal law with fresh problems related to surveillance, privacy, since 2008, guides students toward a practical view of the topic and the reach of government authority. New courses were created, that might confound the typical prosecutor, cop, or defense lawyer. too. The weekly Law and Security Colloquium, offered since 2003 During one class last fall, Rascoff urged his students to consider and led last year by David Golove and Stephen Holmes, gives some whether terrorism investigations should be shaped exclusively by 30 students the opportunity to read journalistic and academic the goal of achieving jury convictions, as opposed to squelching books in the field and then meet with the authors to debate their threats before they coalesce. With that choice in mind, prosecutors findings. Past guests have included Pulitzer Prize winners such as might refrain from taking marginal cases to court. Instead, they the Washington Post’s Barton Gellman (Angler: The Cheney Vice might concentrate on turning budding extremists into intelligence Presidency) and the New Yorker’s Lawrence Wright (The Looming sources. The government has undermined its counter­terrorism Tower: Al Qaeda and the Road to 9/11). Other visitors have more for- campaign by seeking to imprison people with radical views who mal expertise, such as former CIA operative Marc Sageman (Leader- have shown no proclivity for violence, rather than cultivate them less Jihad: Terror Networks in the Twenty-First Century). In December as informants, Rascoff told the class. He cited the Terrorism Trial 2008, New Yorker staff writer Jane Mayer, who wrote the critically Report Card: “It’s a pretty dismal or, at best, a lukewarm record on acclaimed The Dark Side: The Inside Story of How the War on Terror the part of the Justice Department.” Turned Into a War on American Ideals, a 2008 National Book Award finalist, was one of the colloquium’s guest speakers. In addition to here are two aspirations behind the law and security ample praise from several students, her discussion about interro- work of faculty and students: to help shape public policy gation received some respectful dissent. Andrew Sagor ’10, who be- T and help individuals caught in the web of new and hast- fore coming to NYU worked from 2003 to 2007 as a special assistant ily drawn laws. Besides the Center on Law and Security, several in the Office of War Crimes in the State Department, argued that other NYU Law centers make these goals possible: the Center for indefinite preventive detention of some terrorism suspects can be Human Rights and Global Justice, which oversees the International justified on security grounds and doesn’t necessarily lead to abuse. Human Rights Clinic, taught by faculty directors Smita Narula “No one wants to torture for the sake of torture,” added Sagor. and Margaret Satterthwaite; the Brennan Center for Justice and Perhaps not, Mayer said, but her conversations with CIA op- its Liberty and National Security Project; and the Center for the eratives have revealed that some of them earnestly believe that Administration of Criminal Law. indefinite detention, rough treatment, and, ultimately, the fear of In several papers published since 2004, all partly researched death can elicit valid information. “I’ve interviewed people at the by students in the human rights clinics, the CHRGJ has criticized agency,” Mayer explained, “who say that anyone who says torture the U.S. government for secret detentions, renditions, and torture. doesn’t work doesn’t know what they’re talking about.” A few months after releasing “Torture by Proxy: International and Continued on page 23

“Protecting national secrets in terrorism - trials presents a genu inely difficult problem. But...creating a special

military system to deal Publication of The Osama with it...is dangerously bin Laden I Know: An Oral History of al Qaeda’s short-sighted....” Leader by Peter Bergen. The Looming Publication of The Secrecy Spanish magistrate Publication of Problem in Terrorism Baltasar Garzón, while Tower: Al-Qaeda and by Trials , co-authored by participating in the the Road to 9/11

Stephen Schulhofer. CLS’s Transatlantic Lawrence Wright.

Dialogue, calls for

the closing of the U.S. prison at Guantánamo. the law schooL 2009 19 A Plan to Make the Worldper week. How theSafer information is used is ultimately In 2000, Ronald Noble took a leave of absence from the NYU important. Despite numerous terrorist plots that have - School of Law to assume the leadership of INTERPOL. As involved fraudulent passports, only 51 countries sys secretary general of an international police organization tematically screen travel documents at their ports; the that serves 187 countries, Noble has stressed the need to U.S. joined that group only recently. give police more prominence in the global fight against Noble made the case that law enforcement across terrorism. terrorism. He laid out his vision in a speech, “Confronting the globe must occupy a larger role in counter­ the Terrorist and Transnational Crime Challenges of the “One reckless murder or the destruction of property is 21st Century: Are We Prepared?” at the Law School’s a police matter,” he said. “So, too, mass murder and Hoffinger Criminal Justice Colloquium last January. mass destruction are police matters, not because of an “We must move from a predominantly military-led abstract categorization but because we, the police, have - approach to fighting terrorism to one that employs all the tools, the experience, the mindset, and the determi - components—diplomacy, military, intelligence, and nation to investigate and solve these sorts of crimes and, at times, to pre policing—with equal vigor,” said Noble, who served as undersecretary of vent them from happening again.” NUS enforcement for the U.S. Treasury from 1993 to 1996. In that job he oversaw Noble, who teaches criminal law to LL.M. students in the NYU@ the Secret Service, Customs Service, and the Bureau of Alcohol, Tobacco Singapore Program, raised the question of whether, given the current - and Firearms. Taking issue with the phrase “war on terror,” Noble argued global financial crisis, counterterrorism and combating other transna that such terminology skews counterterrorism too far in the direction of tional crimes could remain a top priority for the U.S. and other nations. military solutions “using soldiers, weapons, and combat strategies. Wars But, he argued, neglecting those issues also has a financial impact: have clearly defined opponents and objectives, but this does not apply to “Unless our citizens and businesses are secure physically and feel secure - al Qaeda, which is neither a state nor a nation, but instead a decentralized psychologically, there can be no solid and sustained economic develop network of individuals.” ment or recovery. Just one major international terrorist attack against the A major weapon in INTERPOL’s arsenal for tracking and neutralizing - U.S. or its allies could push us even deeper into a worldwide recession.” criminal networks is its collection of databases that allow the law enforce In the end, Noble concluded, everyone in the counterterrorism world ment community to connect tips and clues around the world. INTERPOL has an important function: “Please don’t think that the military only or manages a library that recently included 94,000 sets of fingerprints, diplomacy alone will solve the problem, and please don’t think that the - 88,600 DNA profiles from 50 countries, and information on 12,400 persons intelligence community can do it alone.” Rather, he says, effective coun suspected of being linked to terrorist activities. It also maintains the only - terterrorism requires a concerted effort in which law enforcment has an global stolen and lost travel documents database, whose 18.6 million doc essential role to play.—A.G. uments shared by 145 countries are queried more than five million times Beyond the Academy The Center on Law and Security funds some of the research of an impressive roster of journalists, scholars, and practitioners.

Peter Bergen Michael Sheehan c r e d e n t ia l s : Fellow, New America Foundation c r e d e n t ia l s : Former Deputy Commissioner of r e l e v a n t w o r k s : The Osama bin Laden I Know: Counterterrorism, NYPD; former Assistant An Oral History of al Qaeda’s Leader (2006) Secretary General, U.N. Department of Peacekeeping Operations Sidney Blumenthal r e l e v a n t w o r k s : Crush the Cell: How to Defeat c r e d e n t ia l s : Former senior adviser to President Terrorism Without Terrorizing Ourselves Bill Clinton and Senator Hillary Clinton (2008) r e l e v a n t w o r k s : How Bush Rules: Chronicles of a Radical Regime (2006) Lawrence Wright c r e d e n t ia l s : Staff writer, New Yorker Barton Gellman r e l e v a n t w o r k s : The Looming Tower: Al Qaeda c r e d e n t ia l s : Staff Writer, Washington Post and the Road to 9/11 (2006), winner of the r e l e v a n t w o r k s : Angler: The Cheney Vice Presidency 2006 Pulitzer Prize for nonfiction (2008), expanded from a Pulitzer Prize–winning series in the Washington Post In addition to the current fellows above, former fellows whose work has been supported in part by the Center on Law and Security include: Nir Rosen Tara McKelvey, senior editor at the American Prospect and author of the c r e d e n t ia l s : Journalist who has worked in anthology One of the Guys: Female Torturers and Aggressors; Amos Elon, occupied Iraq, Somalia, Congo, Syria, Jordan, historian and social critic who wrote Israelis: Founders and Sons, among Egypt, Turkey, Pakistan, and Lebanon several other books; Baltasar Garzón, magistrate for Spain’s National r e l e v a n t w o r k s : The Triumph of the Martyrs: Court, who has ordered the arrest of Augusto Pinochet and Osama bin A Reporter’s Journey into Occupied Iraq (2008); Laden; and Dana Priest, two-time Pulitzer Prize–winning investigative In the Belly of the Green Bird: The Triumph of reporter for the Washington Post who wrote The Mission: Waging War and Martyrs in Iraq (2006) Keeping Peace with America’s Military.

20 NYU SCHOOL OF LAW One part intellectual salon for counterterrorism issues and one part clearinghouse for hard-to-procure documents and analysis, the Center on Law and Security arose from the unique vision of its founder, Executive Director Karen Greenberg. By welcoming a broad range of views, the center has become a respected institution in policy, schol- arly, law enforcement, and media circles. Shortly after her book The Least Worst Place: Guantánamo’s First 100 Days was released in March, she sat down with CLS fellow and Pulitzer Prize–winning journalist Lawrence Wright to discuss her work.

The Center on Law and Security is the strang- The center was created in the context of the disappear—because it was beyond my imagi- est academic institution I have ever seen. Bush administration. Now that that admin- nation that there would be a government that There’s a mixture of academics and cops and istration is part of history and Obama has would embrace this policy as laid out in the spooks that you would never see in any other turned a new page, how is that going to affect memos. And then it became a cause only institutional setting. What kind of model did the center’s work? We had to pay so much because it so obviously was the wrong road you have? I didn’t have a model, but I had one attention to the policies of the Bush adminis- to go down. goal: reality. If you start with practitioners, tration that it limited us in scope. Now we are you’re guaranteed that some realistic relation- branching out into larger issues of national Was it your interest in exploring this issue ship between theory and practice will take place. and global security. So we’ve started a civil- that led you to Guantánamo? The detention ian military project, we’re doing some work on issue has been central to the war on terror One thing that strikes me in attending food security, and we’re increasing our focus and our need to design a policy, whether we’re the center’s events is that there is such on foreign policy and the way it relates to our having terrorism trials domestically, which a range of political views. It’s not eas- law enforcement and military strategies. And the center has spent a great deal of time ana- ily categorized as being left or right. Is of course, we’ll continue documenting what- lyzing and collecting data on, or whether at that deliberate? It’s important to listen to ever needs to be documented for current jour- Guantánamo, Bagram, or Abu Ghraib. And so people no matter what end of the spec- nalists and future scholars. it was the detention issue and the possibility of trum they’re on because they believe what trials that led me to Guantánamo, not neces- they think, and they think they’re serving a Do you feel you’re actually going to be able sarily torture. positive end by their ideas. I’m always want- to affect the policies of this administration? ing to bring a broad range of perspectives— Without a doubt. How does working in this dark area, on such provided they are willing to listen to each dark issues, affect your outlook? People used other—to the table. How? The center was created as a place to to say when I first took this job, “How can you broaden the perspective of practitioners. Having think about these things all the time? Don’t And your reach is not just American but inter- an institute that can take the time and effort to you get really scared?” You could get scared national. Our first fellows were from Spain and think through discrete issues such as detention thinking about some of the scenarios. But our the Continent. We’ve kept the transatlantic and or privacy could prove to be invaluable. feeling at the center is the more you know, the Middle Eastern dialogue as alive as possible. better informed you are, the safer you feel. Now, torture: How did you decide to champion And there are a lot of really good, smart peo- Why is this center at NYU? Because it has a this cause of shining light on practices of tor- ple working on this, and the more they have a vibrant law school that already has a reputa- ture? I had stumbled upon a national policy that, say and the more they’re in government, the tion for attending to public policy matters. once named and exposed, I thought would safer we are. lsh n Wa a 4,000th U.S. soldier dies us S in the Iraq War. hoto/ P : A “...rendition to justice, ...developed to uphold the- y; Juny; 26, 2008 rule of law against law m less terrorists, has become US Ar [extraordinary rendition], ons/ a lawless practice that mm o Vice President Cheney’s- Publication of The Matador’s Cape: America’s perverts the rule of law in Chief of Staff David Add Reckless Response to ington and former White relation to terrorism.” House lawyer John Yoo : Flickr C Terror by Stephen Holmes. Publication of “Rendered testify before the House Meaningless: Extraordinary Rendi Judiciary Committee about- tion and the Rule of Law” by - the use of torture in in r 23, 2008 Margaret Satterthwaite in the a terrogation of suspected

M George Washington Law Review terrorists. . the law schooL 2009 21 After 9/11, Stephen Schulhofer, Robert B. McKay Professor of Law, wondered how rules for international electronic surveillance differed from those governing domestic investigations and how the military commissions set up to try detainees at Guantanamo would contrast with con- ventional courts. A traditional scholar of U.S. criminal law (“My work had been about U.S. law, within domestic boundaries,” he says), Schulhofer followed his curiosity in a new direction that included military and international With the inauguration of Barack Obama, Associate Pro- law. Beginning with a detailed exegesis of the Patriot Act fessor of Clinical Law Margaret Satterthwaite held hope that that heavily informed his 2002 book The Enemy Within: her influential scholarship and activism against extraor- Intelligence Gathering, Law Enforcement, and Civil Liberties dinary rendition would cease to be necessary. Since 9/11, in the Wake of September 11, he inched his way into the field she has written articles such as “Rendered Meaningless: of Law and Security. Extraordinary Rendition and the Rule of Law” (2007) and Schulhofer’s examination of the Uniform Code of a 2004 white paper, “Torture by Proxy: International and Military Justice, the Geneva Conventions, and related Domestic Law Applicable to ‘Extraordinary Renditions,’” protocols spurred him to rethink the strengths and weak- that spell out the responsibility of the U.S. government to nesses of the U.S. court system in trying accused ter- end the practice of transferring terrorism suspects to third rorists. He concluded that the same Article Three courts countries known to use torture, as well as to investigate, that hear cases involving alleged gangsters and securi- prosecute, and punish those who utilize it. ties-fraud artists have proven themselves quite capable But Satterthwaite’s work continues. Just as the notori- of handling international conspiracies. Although clas- ous Guantánamo Bay detention center remains open while sified intelligence complicates the matter, he says, “if the administration studies what to do with its more dan- the courts can deal with taking down the mob, they can gerous prisoners, the CIA retains the authority to conduct deal with terrorism.” In Guantánamo and Beyond: What to “ordinary” rendition, meaning that the U.S. may continue to Do about Detentions, Trials, and the ‘Global War’ Paradigm, snatch terrorism suspects around the globe and send them published earlier this year, Schulhofer offers the Obama

to third countries provided that it obtains assurances from administration a road map for reasserting the primacy of the receiving countries that detainees won’t be tortured. conventional courts and military courts martial over spe- Satterthwaite, faculty director of the Center for Human cial military commissions. “Sometimes, despite the com- Rights and Global Justice, is now analyzing what legal plexity of a problem, the simplest solution is best,” he con- standards ought to apply to Obama’s “rendition lite.” She tends. By employing existing laws such as the Classified hopes her conclusions—which will appear in a forthcom- Information Procedures Act, federal judges can allow the ing law review article—will help shape the report of an government to protect secrets even while allowing for an interagency task force Obama has charged with address- accountable and largely public trial pro- ing the issue. “The work is intellectually harder, because cess. To support this view, Schulhofer the answers are less obvious” now that policies are less interviewed dozens of prosecutors, extreme, Satterthwaite says. defenders, and judges from the major In Satterthwaite’s clinical human rights work, which international terrorism trials in New York allows NYU students to participate in cutting-edge litiga- in the 1990s. These trials resulted in long tion, she represents Mohamed Farag Ahmad Bashmilah, prison terms for nearly all of the defen- a Yemeni who was rendered and held in CIA “black sites” dants and no significant exposure of for more than 18 months before being released in his classified intelligence. native country without having ever been formally charged Schulhofer and University Professor with terrorism. In 2007, Bashmilah sued Jeppesen Tom Tyler are now collaborating on a Dataplan in federal court, accusing the Boeing subsidiary large empirical study of the impact of of providing flight services for his allegedly illegal deten- counterterrorism investigations on tion and questioning. Muslim communities in Brooklyn and The Bush administration intervened in the ACLU- East London. Funded by the National Science Foundation, led case, arguing that the litigation should be dismissed the research involves hundreds of interviews to determine because open court proceedings risked revealing sensitive how surveillance, enforcement, and community-relations state secrets. The trial court agreed with the government, policies shape Muslim attitudes toward cooperating with and surprisingly, a Justice Department lawyer told the authorities in identifying dangerous individuals. “We want appellate court in February 2009 that the Obama adminis- to see which mixture of policies encourages compliance tration would continue to argue the so-called state secrets with the law and assistance to the police,” says Schulhofer. doctrine and seek to stop the lawsuit. The answer could point toward a wiser balance of security Satterthwaite said, “It was literally just Bush redux— and civil liberties. —P.B. exactly the same legal arguments we saw the Bush admin- istration present to the court.” She adds: “Our role in the case clearly isn’t over.” —P.B.

22 NYU SCHOOL OF LAW Domestic Law Applicable to Extraordinary Renditions,” jointly executive’s detention power,” said Brennan Center Counsel Emily published by the CHRGJ and the Association of the Bar of the City Berman ’05. “But we are happy that Mr. al-Marri finally got his day of New York, Satterthwaite, the report’s co-author, stood behind in court.” The center has also filed amicus briefs on behalf of a -Ca Massachusetts Congressman Edward Markey as he introduced the nadian seeking damages after being extraordinarily rendered by Torture Outsourcing Prevention Act in February 2005. In a 2006 the U.S. government to Syria, where he was tortured, and a group report, “Irreversible Consequences,” principal co-authors Narula, of 17 Chinese Muslims held at Guantánamo Bay since 2003 who CHRGJ Research Director Jayne Huckerby, and International are seeking habeas relief. Human Rights Clinic students Adrian Friedman (LL.M. ’06) and In September 2008, Anthony Barkow, executive director of the Vrinda Grover (LL.M. ’06) criti- year-old Center for the Admin- cize authorities for mishandling “Terrorism, unfortunately, istration of Criminal Law, vis- race and religion in the war on is one of the challenges of our times, ited Guantánamo and attended terrorism. They argue that so- and the Law School has to be involved inmilitary tribunal proceedings as called “shoot to kill” protocols figuring out how we best respond while a volunteer observer for Human adopted by the world’s police preserving the rule of law.” Rights First. Noting allegations agencies to eliminate suspected Stephen Holmes, Walter E. Meyer Professor of Law of improper political influence terror bombers rely too heavily on prosecutors, restrictions on on stereotypes and lead to avoidable tragic mistakes, such as the public access to the proceedings, and problems with Arabic-Eng- London shooting of Jean Charles de Menezes, a Brazilian electri- lish interpretation, Barkow advocates a fact-based analysis of each cian. According to the report, “profiling sends the problematic mes- detainee case “with the hope that as many as possible should be sage that the security of some is worth more than the security of tried in the federal courts.” others; or worse, that human rights abuses against those who fit Barkow’s center has filed numerous amicus briefs on behalf of into this ill-defined category of ‘terrorist’ are a necessary precondi- criminal defendants treated unfairly by overly aggressive prosecu- tion to ensuring the security of the nation.” tors, says Barkow. In May, the Supreme Court unanimously agreed Just last year, CHRGJ Fellow Lama Fakih ’08 worked with Mar- with the center’s position supporting the petitioner in Abuelhawa v. tin Scheinin, U.N. special rapporteur on counterterrorism and United States, which concerned a man who used his cell phone to human rights, to develop policy initiatives regarding gender in buy a small amount of cocaine from another man whose telephone counterterrorism efforts. When the U.S. military detains Muslim was monitored by the FBI. Both men have Muslim surnames. The men, typically their family’s breadwinners, the impact on women buyer argued he had been wrongly convicted of a high-level felony and children can be devastating, said the Beirut-born Fakih, who given the fact that the law considers possession of drugs solely for studied Islamic law in Egypt as a Fulbright scholar. When mili- personal use a minor offense often addressed by court-ordered tary interrogators force Muslim men to don women’s clothing, she treatment and rehabilitation. added, the long-lasting effect is cultural humiliation. Each day’s headlines bring intricacy and change to the com- The ambiguity surrounding enemy combatants and detainees plicated and fast-moving field of Law and Security. But with has created plenty of opportunity for litigation, too. The Brennan its broad mix of faculty, administrators, and students taking Center for Justice was part of the legal team that represented Ali part in the debate, the NYU School of Law remains a relevant Saleh Kahlah al-Marri, a legal U.S. resident detained as an “enemy source of, and place to exchange, ideas. “We’re looking for a combatant” without charge in a South Carolina navy brig for nearly balance of scholarly deliberation and real-time analysis,” says six years. In December the U.S. Supreme Court granted certiorari Holmes. “Terrorism, unfortunately, is one of the challenges review, but in March before oral arguments were made al-Marri of our times, and the Law School has to be involved in figur- was indicted and transferred into the civilian criminal justice ing out how we best respond while preserving the rule of law.” system. The Supreme Court dismissed his habeas case as moot and vacated a lower federal court decision giving the president Paul Barrett is a journalist, an adjunct professor at the NYU School power to detain citizens and legal residents indefinitely. “We are of Law, and the author of American Islam: The Struggle for the Soul disappointed that the court did not firmly clarify the limits of the of a Religion (2007). Additional reporting by Thomas Adcock.

Terrorists wreak havoc in Mumbai, India, killing 173 and wounding 308. a

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the law schooL 2009 23 m a y r a p e t e r s -q u i n t e r o ’99, Program Officer, Migrant and Immigrant to detention and incarceration, that the criminal justice field has Rights, Human Rights Unit, Ford Foundation: Immigration enforcement already massaged? For some reason, the immigration system just issues have received unprecedented public attention recently. hasn’t been able to mine those creative solutions for more humane We’ve seen coverage in the mainstream media on whether local and also less costly alternatives. officials should enforce immigration law, workplace raids, deten- c r i s t i n a r o d r í g u e z , Professor of Law, NYU School of Law: In my tion conditions, and representation for immigrants. The new ad- “official capacity” as someone who is originally from south Texas, I ministration faces the task of providing day-to-day guidance to would reorient our approach to the border and border enforcement. government officials who administer the immigration laws and are Resource allocation is dramatically weighted in favor of border en- the center of our enforcement scheme. This roundtable will be an forcement, rather than enforcement in the interior. But much of opportunity to reflect on these issues from the different perspec- what is spent on the border represents a gigantic waste of money, tives around the table. A good place to start would be to ask each of because there’s very little return. I don’t mean there’s little return you: If you could change one thing about the current enforcement system, with respect to either deterring undocumented immigration or in what would it be? Out of ingrained deference to judicial authority, the number of arrests, but in terms of security, which is the way I’ll start with Judge Katzmann. that border enforcement is generally sold.

FOR MORE THAN A DECADE, THE U.S. HAS ASSUMED A TOUGH STANCE ON NONCITIZENS BY INCREASING ITS USE OF DETENTION, FLEXING ITS MUSCLES ON DEPORTATION, AND RAIDING WORK SITES. TEN ALUMNI AND FACULTY—LAWYERS AND JUDGES WHO HAVE FIRSTHAND EXPERIENCE WITH IMMIGRATION—DISCUSS THE ENFORCEMENT OF IMMIGRATION LAW AND THE COSTS AND IMPACT ON OUR NATIONAL SECURITY AND OUR SOCIETY.

AN NYU LAW ROUNDTABLE THE HARD LINE ON IMMIGRATION DISCUSSION

r o b e r t k a t z m a n n , Judge , U.S. Court of Appeals for the Second Circuit; The construction of the fence, in particular, is highly disruptive Adjunct Professor, NYU School of Law: I would try to facilitate effective to communities that are real binational communities, and that’s legal representation in the system. A system in which nationally a substantial loss. From a foreign affairs perspective, it’s exactly only 35 to 42 percent of immigrants have legal representation is the wrong way to set the agenda with Mexico, which should be a flawed. Given the high stakes for immigrants and their families, partner in trying to deal with broader immigration-related issues, the lack of representation and the problem of deficient representa- such as how to manage migration between the two countries and tion pose real challenges in terms of assuring fairness. reduce undocumented immigration. g r e g o r y c h e n ’97, Director for Legislative Affairs, Lutheran Immigration r a c h e l r o s e n b l o o m ’02, Assistant Professor, Northeastern University and Refugee Services: Lutheran Immigration and Refugee Services School of Law: I would agree with that point, and add that there’s a has a broad base of networks, people, and organizations providing significant waste of money in interior enforcement that we should services for immigrants. Its greatest concern is about the escalation be worried about as well. I don’t think we should see the border of detention and the resulting inhumane treatment of detainees. and the interior as pitted against one another, but rather as part of Recently, a Department of Homeland Security official testified the same, larger picture. that in fiscal year ’09, they anticipate 442,000 people will be held in All of which raises the question of prosecutorial discretion. the immigration detention system. That’s an astronomical increase Not everyone who is deportable should be deported. Before thou- in the past 10, 15 years. The budget allocation is over $1.5 billion for sands of dollars are spent on detaining and deporting someone, detention. There is this disproportionality. Why are we using pris- we need to ask: Is there a substantial federal interest in the re- onlike facilities for people who pose no threat to physical safety, no moval? In the final days of the Clinton administration, INS threat to national security, and also are likely to appear at immi- Commissioner Doris Meissner issued a memo on prosecutorial gration proceedings because they’ve got a family and a job? discretion that laid out a set of criteria for answering this ques- What strikes home the most is the fact that the Lutheran church tion: What are the person’s ties to the U.S.? Are there family mem- is a midwestern, moderate constituency, and they have come out bers depending on this person? If there is a criminal conviction, and said: “We’re shocked about this. We’re concerned about what how serious was the offense and how long ago did it occur? This we hear. Aren’t there alternatives?” Rule of law is very important to memo is unfortunately a dead letter these days. If the established the Lutheran constituency. What about using parole, alternatives criteria were being used, far fewer people would be in removal

24 NYU SCHOOL OF LAW proceedings, which means fewer people detained, fewer people or the goal at both DHS and DOJ is often “Let’s try to deport as in need of counsel, and fewer petitions for review taking up space many people as we can.” Numbers are the measure of success— on Judge Katzmann’s docket. more people detained, more people deported—and not necessarily a n d r e a g. b l a c k ’96, Network Coordinator, Detention Watch Network: proportionality or fairness or some other value. I’ve been thinking about this question of “if there were one thing…” I would love to see in both agencies a more reasonable approach What really can get at the core of creating change? to interpreting immigration statutes. We have a regime that sub- In my mind that one thing would be a cultural shift away from jects immigrants to some of the harshest consequences imagin- the criminalization of immigrants overall, looking at balanced en- able, including mandatory deportation and mandatory detention. forcement that upholds due process and human rights and at stra- On top of that, we have DHS looking for aggressive outlier argu- tegic priorities that keep our country safe. We’re seeing the creation ments to expand the intended reach of these laws. For example, of an underlying link between the immigration enforcement system they have argued that simple drug possession is really drug traf- and the criminal justice system. Immigrants are now the fastest ficking, which would result in mandatory deportation. And that growing population in our prison system. The U.S. is increasingly a drunk driving offense is a crime of violence. And that a mis- using our failed criminal justice system to imprison, detain, and demeanor offense is an aggravated felony. Taking the law to the

FOR MORE THAN A DECADE, THE U.S. HAS ASSUMED A TOUGH STANCE ON NONCITIZENS BY INCREASING ITS USE OF DETENTION, FLEXING ITS MUSCLES ON DEPORTATION, AND RAIDING WORK SITES. TEN ALUMNI AND FACULTY—LAWYERS AND JUDGES WHO HAVE FIRSTHAND EXPERIENCE WITH IMMIGRATION—DISCUSS THE ENFORCEMENT OF IMMIGRATION LAW AND THE COSTS AND IMPACT ON OUR NATIONAL SECURITY AND OUR SOCIETY.

AN NYU LAW ROUNDTABLE THE HARD LINE ON IMMIGRATION DISCUSSION

deport immigrants. So unless we target that underlying culture, it’s extreme, whether the language calls for it, whether Congress ac- going to be hard to have more than superficial changes. tually intended these consequences, is a big problem. Even Judge p h i l i p j. c o s t a ’92, Deputy Chief Counsel, U.S. Immigration and Cus- Posner once said that the only thing consistent about the govern- toms Enforcement, U.S. Department of Homeland Security:* I would like ment’s approach is that the immigrant always loses. to pick up on the issue of prosecutorial discretion. I get frustrated o m a r j a d w a t ’01, Staff Attorney, ACLU Immigrants’ Rights Project: when I hear attorneys say that ICE does not exercise prosecutorial If you’re not going to change any statutes, discretion is the key to discretion, because I know firsthand that it does so every day. getting the system that we have working better. But not necessarily I am responsible for new attorney training in my local office, just prosecutorial discretion in the classic sense of a prosecutor op- and every single attorney who joins our office receives a lengthy erating on a set of facts that’s before him and deciding, Is this a case lecture from me about prosecutorial discretion on his or her very that, according to some guidelines, makes sense to defer or not? first day. I explain that prosecutorial discretion is a key litigation The federal executive is, or should be, in charge of this whole priority. I make clear that I expect ICE attorneys to be the most pre- system, at least until a case goes up on appeal. So if, for example, pared attorneys in the courtroom, that I expect them to understand immigration judges are totally overloaded, that’s in part because the extraordinary stakes that are at issue for each applicant, and the federal government isn’t exercising its discretion overall in a that I expect them to understand that their job is not to win a case way that makes that system work, that makes it possible to allocate but rather to achieve the correct result. those resources the right way. You’ve got people at various points in I also chair a working group that recently established ICE’s first the system shoving cases into the funnel without regard to whether national trial advocacy training program. And at the close of each the funnel’s backed up or, realistically, how many cases is it reason- program, after spending a week teaching trial techniques to ICE at- able for us to put in, given the capacity we have? What’s a reason- torneys, I personally lead a discussion on prosecutorial discretion. able way to interpret the laws, given the facts on the ground? So ICE attorneys get the message very clearly that prosecutorial k a t z m a n n : Isn’t the statistic something like 1,500 cases per im- discretion is a key litigation priority and that they must exercise migration judge? Also, in terms of how much support that judge their authority responsibly. gets, there’s one law clerk for six immigration judges. It takes time b e n i t a j a i n ’03, Co-Director, Immigrant Defense Project: Andrea’s to reach the right decision. Especially in these cases, which are so comment about a cultural shift is incredibly important. The culture difficult and are so fact-intensive, if you don’t have the time and *mr. costa participated as an alumnus and not in his official capacity with the department of homeland security. THE LAW SCHOOL 2009 25 resources to develop the record and to think through the issues, r o s e n b l o o m : I recently read a statistic that an estimated five per- it’s very hard to secure justice. cent of the population of the United States is removable. If that is n a n c y m o r a w e t z ’81, Professor of Clinical Law, NYU School of Law: anywhere close to accurate, that’s a lot of people. I don’t think any Part of the problem is that it’s not prosecutors who are making of us would argue that the job of this agency is to remove five per- the decision to issue an NTA. A Notice to Appear, which starts cent of the population. the whole deportation process, is issued by a border patrol offi- President Obama has signaled that this administration is shift- cer, an immigration customs enforcement officer, or from some- ing away from the large workplace raids we saw during the Bush body having been identified just because they were arrested, even administration. That’s an important start. The question is, can the if the charges were dismissed. So cases are placed in the system culture of the agency change enough to extend that approach to by people who aren’t really held institutionally responsible for some tougher issues? For example, to say that ICE is no longer go- whether those are the right cases to be in the system, whether ing to sweep up permanent residents who end up in county jails those cases cause enormous cost to the system and to those for minor offenses. individuals. If somebody is arrested in a city jail, is identified and r o d r í g u e z : Is there something inherent in the culture of an en- placed in proceedings, that person might raise a defense that he or forcement agency, where numbers are important as benchmarks,

BLACK CHEN COSTA JADWAT JAIN

she is a citizen. During the months or years it takes to prove citizen- that leads in that direction? There’s a need for external mechanisms ship, he or she could be detained or shipped around the country. of supervision, like congressional oversight. We should consider What I would try to do is go back to a document called Opera- whether congressional oversight can be effective at shifting en- tion Endgame, which was announced in 2003. It was a blueprint forcement priorities, or if it’s even possible for something to come to literally “remove all removable aliens.” And it launched a whole from the top and change the culture of the whole agency. Or, do the series of projects that led to an internal culture at the agency of “If agencies just develop enforcement priorities of their own without you can find someone, and they’re removable, then put them in.” regard to direction they might or might not be getting from the po- Maybe if they can come up with a defense, they can persuade the litical process? The resetting of priorities thus goes back to whether immigration prosecutor that they have a good case. It’s quite true you can change the culture of the agency. that when people can show relief, in many cases the immigration I’m curious what those who deal with the agency on a more customs enforcement lawyers will waive appeal. But generally, regular basis think about the possibilities for that. they feel limited to where it’s clear the person has relief. So the m o r a w e t z : What happened with people with outstanding orders problem is up-front. Cristina raised the question, is this a border- of removal is a good example of the problem of turning to numbers. enforcement-versus-interior-enforcement question? What I would People then got tagged and called fugitives, which is not fair, since really hope is that we get beyond that zero-sum game concept in many people with outstanding orders don’t know that they have an which there has to be a shift and the agency has to show large num- outstanding order. Nonetheless, that was the stated priority. When bers—because if you ask for numbers, you’ll get numbers. performance standards were created geared to numbers, that pri- I would look for the Department of Homeland Security to offi- ority shifted to being basically whoever could be rounded up. We cially repudiate Operation Endgame. To say, that’s the enforcement represent such a person in our clinic who was simply living in an practices of the last administration. And that they are looking to apartment that was the subject of a raid. design enforcement at the border and away from the border that is It’s a lesson, because if you’re looking for numbers, you’re going thoughtful about whether it makes sense at the very beginning to to be making a lot of mistakes. There have been reported instances place somebody in proceedings. If somebody is going to be able to of citizens being placed in removal proceedings and sitting in de- adjust their status, but their number just hasn’t come up yet, why tention for a long time. I don’t walk around with my passport. We are you putting that person in proceedings? The person who makes are not a country that requires a national ID. that decision at the beginning can’t just have an institutional job j a i n : That is really instructive. Since 1997, more than one million that says, you find the people, and somebody later will figure out people who have convictions or some kind of interaction with law what we do with the people. They have to have some responsibil- enforcement have been deported. They’ve left behind more than ity at the beginning to be asking whether they’re finding the right two million spouses and children in the U.S. The stated reasons people in the first place. are national security and public safety, but people’s experiences

26 NYU SCHOOL OF LAW don’t bear that out. We see people being tagged for deportation— enforcement have galvanized a shift in attitudes and beliefs about through jails, when they apply for naturalization, when they return the fairness and justness of our laws and government practices. It’s from trips abroad—for convictions that may have happened years beginning to happen where people see the inhumanity of enforce- ago, and for which they’ve already served their time. People who ment actions. Last year, there was the largest raid ever, at a Postville, have really gotten their lives together or are trying to get their lives Iowa, facility. The Lutheran bishop from northeastern Iowa was born back together are suddenly and permanently ripped from their and raised in Postville. He spoke with personal conviction about families and communities. That’s where prosecutorial discretion, what had happened to his community of a few thousand. To have and the need to determine whether a situation actually merits en- 400 people suddenly gone has reverberations across the community. forcement action, again comes in. Deporting one million people Schools actually had to close down; teachers lost their jobs. with convictions does not necessarily mean that our communities Lutherans and everyday Americans were shocked by the fact are safer when families have been split apart and these same com- that they used black Suburbans and helicopters and all sorts of munities are disintegrating. high-tech weaponry when it was highly unlikely that anyone was b l a c k : I was reflecting on what Cristina was saying, about this is- armed in the factory. Many of the workers were unlikely to present sue of what we need outside the system. Outside accountability is a flight risk. Then the government charged them with aggravated

KATZMANN MORAWETZ PETERS-QUINTERO RODRÍGUEZ ROSENBLOOM

really critical, and we’ve been calling for not only codification of felony identify theft and used aggressive bargaining tactics, such the detention standards that are currently in place but an outside as exploding plea offers. Those detained had counsel that were oversight mechanism. Take the case of Sheriff Joe Arpaio in Ari- representing huge numbers of clients and had little time to pre- zona, who most recently paraded a group of shackled immigrants pare their cases. There’s been a culture of fear, especially post-9/11, down the road, to the horror of a lot of people. Actually his local that has enabled people to ferret out and identify anybody who immigration enforcement program is under the supervision of ICE. might be different. Until a shift in attitudes occurs, where that In October of last year, ICE reviewed the program and said that pervasive fear dies down, it’s going to be very hard in local com- they had no problems with it. Clearly there’s some internal guid- munities to have rational and fair policies and legal reform. ance that’s missing. We need to think very carefully about what j a d w a t : Part of what we need may be a culture shift, but part of this outside oversight should look like. it is also just a volume shift—getting politicians to understand, Maybe it’s a good time to talk about money interests too, be- which maybe they saw to some degree in the last elections, that cause of our economy. It’s not only the wastefulness. We know that what they’re getting in their in-boxes and on their phone lines there are many private-prison lobbyists on the Hill advocating for from these very well-organized restrictionists is not really repre- increased spending. But also, where is the money going in terms sentative of what people at large are thinking. of local and state agreements? These local law enforcement agree- c o s t a : I lend a different perspective because I’m hearing the ments are meant to be unfunded mandates, so a lot of communi- agency that I’m a part of described. The culture that many of you ties are actually suffering. However, the way these programs are are describing has nothing to do with the agency that I work for. At being sold, local communities are being told that there’s going to the heart of ICE’s mission is the protection of our communities by be money for their detention beds. For example, at another recent targeting national-security risks, dangerous criminal aliens, and hearing in Washington, a local sheriff in Maryland said that it costs aliens who have committed human rights atrocities, including him $7 a day to house and feed an immigration detainee, and he persecution, torture, and extrajudicial killing. gets $83 a day from the government. And then he said, “Oh, but Frankly, I’m taken aback at the notion that the jails are a bad there’s no incentive for me.” Seriously. place to look for litigation priorities. It strikes me that jails are j a i n : And the amount of money that’s spent in appealing immigra- actually a particularly good place to look. I appreciate that there tion judges’ grants of relief, in keeping people in detention, or in are difficult cases, and we may agree to disagree about what con- litigating through the federal courts is phenomenal. stitutes a “minor” crime. For example, in my judgment, someone c h e n : It is striking to see how faith leaders are responding to the im- who has engaged in DWI, which statistics reveal is often a recidi- migration debate. A lot of faith communities see rule of law as being vist offense, presents a real threat to the community. very important. But they are also seeing that punitive enforcement Further, I object to the notion that there is not a substantial of those laws is inhumane and morally wrong. The extreme cases of security payoff for ICE’s enforcement actions. The government

THE LAW SCHOOL 2009 27 doesn’t get extra points for removing somebody on a national se- really strong case, the government lawyers will often then say, curity-related charge if a simple visa-overstay charge works just as that’s enough, judge. We’re willing to take an order. We’re not go- well. Sometimes, what seems like an ordinary immigration charge ing to appeal. That’s a major form of discretion that goes on all the involves additional considerations. time. But the other forms, like, to drop the case, decide that the r o s e n b l o o m : No one would question the notion that preventing notice to appear was improvidently issued—my impression is that terrorism is a worthy goal. The problem lies in leaping from that that’s really hard, institutionally, for a lawyer to do, and that’s a lot to justify a broad range of enforcement actions that have noth- of work compared to going forward with the case. Are there things ing to do with terrorism. Deporting a former drug-user who has that could be done inside to make it more friendly to the exercises children depending on her is not going to make America a safer of discretion for the people who probably face a more crushing place for anyone, and it is going to destroy a family in the process. caseload than the immigration judges face? So-called “criminal aliens” are often simply ex-offenders who are c o s t a : Sometimes applicants or their attorneys will ask ICE for important and valued members of their family and community. the exercise of prosecutorial discretion. The applicant may have j a i n : Of people who have been deported because of convictions, no statutorily available relief. Nonetheless, there may be compel- at least 65 percent have been for nonviolent offenses. Perhaps 20 ling humanitarian considerations, and the applicant may ask ICE percent for violent offenses. They have included veterans that have to consider administratively closing or even terminating removal fought on behalf of the United States. Identifying an immigrant proceedings. Depending upon the circumstances, ICE may be au- who has a conviction does not automatically mean that you’re pro- thorized to do that, but it needs a whole host of information to be tecting a community and enhancing public safety. able to make an informed determination. As a result, applicants c o s t a : We’ve talked a little bit about older crimes. For those and their attorneys need to provide ICE counsel’s office with as of us who have lived through changes in the statutory much information as possible. I promise you, when someone scheme, we’ve seen people with brings that sort of request to ICE counsel’s office in New York, -ev old criminal offenses who ery single request gets a close look. were never put I want to emphasize that we understand the significance of into immigration these cases to the applicants. In a typical asylum case, for example,

proceedings but who the person sitting across from us is litigating issues relating to would have been eligible for his immediate liberty and potential return to a country where he relief if they had been put into proceed- may face economic deprivation, persecution, or even torture. The ings. Then suddenly the immigration laws change. stakes of these cases are extraordinary, even in the nondetained Now some of these same people travel abroad to visit family, and setting, particularly when you consider family reunification prin- when they show up at the airport upon their return, they have a ciples. Whether a claim is meritorious or nonmeritorious, a typi- problem. This resulted in a hailstorm of litigation, going all the cal applicant walks into court thinking, “Depending upon what way up to the Supreme Court. happens today, I may be able to see my wife or my husband or my j a i n : Nothing requires DHS to take the extreme positions on stat- children for the first time in five or six years.” I cannot imagine utory interpretation that it does. In case after case, the Supreme something that could be more important. Court keeps overturning the government, sometimes unanimously. p e t e r s -q u i n t e r o : Judge Katzmann, how do we increase adequate TheLopez opinion refuting the government’s position that simple and competent representation in the system? drug possessions are drug trafficking aggravated felonies, simply k a t z m a n n : Short of legislative solutions, one approach is to en- because a state labels them “felony,” reads like a grammar lesson gage the legal community. These are not easy cases. It’s not simply to the government. that a lawyer can go in without any training and do a competent You also mention that the law keeps changing. People who never job. What we have to do is to provide encouragement to lawyers imagined that they would have been deportable at the time they in the private bar to work with lawyers in the immigration bar. It pled guilty years ago all of a sudden are. That and the lack of counsel starts in law school. The immigration clinics can play a very criti- for most people makes it even more important for the government to cal role in interesting lawyers, even if those lawyers don’t go into interpret laws more reasonably and use prosecutorial discretion. immigration practice itself. And law firms need to devote more of m o r a w e t z : How people get into the system is probably the most their pro bono resources to immigration. important question, and that’s long before that case shows up in im- The state gives lawyers a monopoly—the legal system is essen- migration court. But it’s interesting to think about what happens in tially a monopoly of lawyers—and in light of that monopoly, there immigration court and what can be done to make that work better. surely is some reciprocal responsibility among the lawyers to serve Are there things from your perspective, Mr. Costa, that could those in need. The immigrant poor should be at the very top of the be done by people who care about the rights of immigrants to en- list. If you have more and more lawyers taking on these cases, they hance the ability to exercise discretion? will have a greater understanding more generally of the compli- My perspective is that certain kinds of discretion are easy. If cated issues associated with immigration. Their involvement will you are in the middle of a hearing and it’s clear the person has a enrich the public policy debate.

28 NYU SCHOOL OF LAW c h e n : Prior to coming to Lutheran Immigration and Refugee Ser- 287(g) officer would get, or, as is often the case when you have vices, I was director of policy at a refugee advocacy organization, some sort of immigration enforcement without that training, often but I also happened to run what, at the time, was the largest pro the way that gets implemented is that people of color and particu- bono law program for children in immigration proceedings. larly Latinos get stopped and run through the system. So you have Pro bono lawyers can be excellent, but as the solution to the all of the negative effects of profiling and of estranging the police huge caseload that you’re seeing in your courts and on your dock- from the community. ets, it’s not the answer. Pro bono lawyers generally are highly se- r o d r í g u e z : It is about setting priorities in two ways. One is the lective in the kinds of cases they are willing to take and also can’t extent to which using police in the enforcement of immigration take more than a few cases at a given time. Then also, for reasons of law can complement the setting of federal priorities, or whether geography, for reasons of timing, there’s going to be a large popula- it’s actually creating incoherence. tion of immigrants in proceedings, especially those detained, that In the second sense, it’s about priorities with respect to policing can’t be represented. At a fundamental level, there is not going to communities and advancing the public safety mission of law en- be any real basic way of replacing having a full-time practicing forcement. If these agreements do undermine the ability of police lawyer. So the answer has to involve some kind of paid-for counsel, to establish trust in places where they need trust, then they’re a maybe government paid-for counsel. problem. The potential erosion of trust is why a lot of police chiefs b l a c k : For example, what about the people where I used to work are opposed to them. in Eloy, Arizona, out in the middle of the desert? Currently there Because it’s a relatively new phenomenon, we have only are two thousand people detained. Right now, there are two staff strong intuitions about why it frustrates both sets of priorities, attorneys trying to perform legal orientation and consultation. It’s and the fear of racial profiling is obviously one. There’s a grow- definitely not representation. ing body of anecdotal evidence suggesting that that’s exactly It’s so hard to get access to counsel when people are detained how 287(g) authority is used. A study by the General Accounting thousands of miles away from their families, and shipped around Office just came out that is the most comprehensive look at how constantly. We have this system that actually moves people away the agreements from any access to counsel they may have. Then there are the are actually

conditions on top of that where the phones do not work consistently, operating in there are no legal materials in the library. This goes to detention practice. The main conditions. It’s all really interlinked. Can we look at a system where problem is the absence of alternatives to detention are really the norm, where there is access supervision; police officers are simply to counsel and access to pro bono services, and where if detention is being told to arrest illegal immigrants and are used at all, it’s used in those rare cases where it’s needed for public then engaging in unfettered decision-making about safety? It’s hard to look at one piece of the system without seeing the who that means they should arrest. impact of the overarching detention and deportation system. So it goes back to what we were talking about before in finding p e t e r s -q u i n t e r o : The issue of local enforcement has been in the mechanisms of oversight and accountability to make it work. Only news recently. Omar, you’ve worked on this issue. What is the prob- if you can do that does it make sense as a model. lem, if you see one? Is there room for state and local bodies to en- r o s e n b l o o m : Just a final thought to tie together two themes that force immigration law? have emerged. People need counsel, and maybe they even need j a d w a t : This comes up in several ways: 287(g) is the statutory pro- appointed counsel. That would be expensive. At the same time, gram that allows state and local police to enter into agreements with the agency is spending millions of dollars each year to detain and the federal government to do certain aspects of immigration en- deport people who are not a threat to the United States in any way. forcement. There’s also a whole bunch of other initiatives that seek So let’s save some money by scaling back these enforcement ac- to involve local law enforcement without a 287(g) agreement. Like, tions, and shift the dollars over to appointed counsel. That would linking up the jail computer systems with ICE’s computer system. take care of both problems together. One obvious problem with having state and local police in- p e t e r s -q u i n t e r o : That’s a great note to end on. I would just volved in enforcement is in terms of trying to get the federal gov- add, as someone who is not working directly on immigration ernment to intelligently prioritize and exercise discretion. That is enforcement, that I hope the issues discussed today get taken made infinitely more difficult when it’s not the federal government up by the wider immigrant rights community, and by legislators doing the initial thing that gets people into this process. They’re and policymakers who are supporting positive comprehensive cramming more people into the funnel with either no federal over- immigration reform. As we wait to see when and how Congress sight because it’s part of some informal program, or, in the 287(g) will take up immigration reform again, today’s discussion is an program, no use of the potential oversight that might be built into important reminder that a true commitment to creating a more those agreements. humane and just immigration system must include working to Another problem is that if you tell police that part of their job address the immigration enforcement issues raised here. Thank is to arrest illegal aliens, then, with the minimal training that a you all for your contributions.

THE LAW SCHOOL 2009 29 柯 恩

Jerome Cohen at his Cape Cod house, 2005. His Chinese name (above) means “beneficent.”

30 NYU SCHOOL OF LAW CH I NA’ S LEGAL LION It is one of the iconic images of the 20th century: President Richard Nixon steps off a plane in Beijing and shakes hands with China’s Prime Minister Zhou Enlai in 1972, ending de- cades of hostility and signaling the beginning of a U.S. rap- prochement with China. But less known is the role that Jerome A. Cohen, a China law scholar, played in this diplomatic coup. Almost four years earlier, just days after Nixon trusted emissary to hold secret and, if necessary, had won the presidential election, a small deniable meetings with Chinese officials. group of China experts from Harvard and Afterward, Cohen, chair of the China scholars MIT, including Cohen, delivered a confidential group, met occasionally with Kissinger at the memorandum to a Nixon foreign policy adviser White House to discuss implementing the named Henry Kissinger. The memo’s first memo, but Kissinger, a former colleague at recommendation was that the president move Harvard, “held his cards close,” says Cohen. So toward reconciliation with China by sending a Cohen was surprised, and elated, when Nixon

by pamela kruger portrait by joan lebold cohen

THE LAW SCHOOL 2009 31 announced his plans to visit China and disclosed Kissinger’s secret a m a s t e r n e g o t i a t o r meeting with Chinese officials. Watching the televised footage of With his full moustache, propensity for bow ties, and friendly, can- Nixon’s arrival in China, Cohen found himself near tears. “This do demeanor, Cohen has always stood out in China. But due to his was revolutionizing U.S.-China relations,” he says, “something I’d ability to read people and connect, regardless of their age, social been working toward for 12 years.” status, or nationality, he has managed to bridge the cultural divide Nixon’s trip, of course, not only marked the opening of U.S.- and broker solutions. China relations, it also set China on a path to becoming a world Everyone who knows Cohen remarks upon his graciousness economic power. And as China ascended, so did Cohen’s legal ca- and generosity, his consistent willingness to make introductions or reer; his specialty—Chinese legal studies—went from an obscure, give advice to people in the field. “He is such a prince,” says Sharon backwater academic discipline to a high-profile, high-stakes area Hom ’80, executive director of Human Rights in China, who recalls of expertise. By any standard, his career has been remarkably pro- how Cohen spent hours vetting the organization’s draft report on ductive and influential: Through his 17 years at Harvard Law, where China’s opaque state-secrets system. “Jerry always has time for peo- he founded the nation’s first East Asia legal studies program, his ple, not just famous people,” says Ira Belkin ’82, who runs the Ford nearly two decades as a deal-making partner at Paul, Weiss, Rif- Foundation’s Law and Rights program in China and still remembers kind, Wharton & Garrison, and his most recent years at NYU Law, attending an NYU Law event in Shanghai years ago and being im- which he joined in 1990, Cohen, 79, has had a significant impact pressed at how Cohen had a personal relationship with every stu- on legal affairs in East Asia, particularly in China. dent. Indeed, this knack for cultivating relationships, whether with As a human rights advocate, he has helped secure the release of Chinese bureaucrats, American politicians, human rights activists, several political prisoners in the region, such as Annette Lu, who or young law students, is a key factor in his influence. would become a vice president of Taiwan, and Kim Dae-jung, who would serve as president of South Korea and win the No- bel Peace Prize. As an attorney practicing

“If you look at the field of China law— now an enormous community— it’s kind of shaped like a pyramid,” says a former student. “And Jerry sits at the top.”

international business law, he achieved several firsts, including becoming the first Western lawyer to practice in Beijing under communist rule. Known as the “Godfather” of Chinese legal studies because Cohen always uses his relationship-building skills in service of he was a pioneer in the field and a mentor to so many, Cohen has his higher goal: pushing for a genuine rule of law in China. Cohen taught and inspired literally hundreds, many of them now leading has consistently supported China’s international ambitions, advo- scholars and policy makers, including William Alford, director of cating for normalization of relations in the 1970s, negotiating Chi- East Asian Legal Studies at Harvard, Ma Ying-jeou (LL.M. ’76), Tai- nese joint ventures for multinationals through the 1980s and 1990s, wan’s president, and Clark Randt Jr., the recent U.S. ambassador to and pushing for China’s admission to the World Trade Organiza- China, all of whom Cohen taught at Harvard. tion in 2001, because he believes that through international contacts, As a result of NYU’s LL.M. program, which annually draws some contracts, and cooperation, China will gradually adopt and follow 40 students from China and another dozen from Taiwan, as well as the rule of law. But Cohen also has been willing to point out when his frequent speaking and teaching engagements overseas, Cohen China falls short—and in recent years has adroitly used the media acolytes can be found in law firms, in law schools, and throughout to put pressure on the government. Whether pointing out corrup- the civil and criminal justice system in China and Taiwan, and he tion in China’s international arbitration body, as he did in 2005, or is a virtual celebrity in Chinese legal circles. “If you look at the field campaigning day-in, day-out for the protection of Chinese defense of China law—now an enormous community—it’s kind of shaped lawyers from government harassment and imprisonment, Cohen like a pyramid,” says Stephen Orlins, 59, a former Cohen student has often named names, publicly challenging the responsible gov- from Harvard and president of the National Committee on U.S.- ernment officials to do the right thing. China Relations. “People in their 20s are at the base. People like Quite remarkably, Cohen manages to still be seen as a “friend of me are in the second rung near the top. And Jerry sits at the top. China,” free to speak, lecture, and travel in the country, even while Jerry is the father of it all.” he has become one of the most vocal critics of human rights abuses

32 NYU SCHOOL OF LAW and corruption in China’s legal system. “I am walking a fine line,” And Cohen’s ability was obvious to all from a young age. After says Cohen. “Some people there don’t appreciate my criticism. But graduating Phi Beta Kappa from Yale in 1951 and spending a year I’ve got a long track record in China. People know that I’ve invested studying international relations on a Fulbright Scholarship in France, many years in improving relations with China.” he went to Yale Law School, where he served as editor-in-chief of the Many, such as Orlins, point to Cohen’s masterly way of framing Yale Law Journal and graduated number one in his class. He then his arguments to the Chinese. “He never lectures them on democracy clerked at the Supreme Court—first for Chief Justice Earl Warren in or some Western concept,” says Orlins. “He points to their laws and 1955, then for Associate Justice Felix Frankfurter the following year. talks about how they need to conform to them. There is a genius to Frankfurter, with his willingness to speak out, became a role model; what he does.” Chenguang Wang, former dean of China’s Tsinghua he also served as godfather to Cohen’s two eldest children, Peter, 52, Law School who also has been a Global Visiting Professor at NYU a Cambridge, Massachusetts, real estate attorney, and Seth, 50, a Law, agrees, adding, “I am really fascinated with how Jerry commu- New York City doctor. (Cohen’s youngest son, Ethan, 48, owns a New nicates. He is so skillful and knows exactly how to get his point across.” York City art gallery, the first in the U.S. to specialize in contempo- rary Chinese art.) After stints as an associ- ate at Covington & Burling, as an assistant U.S. attorney for the District of Columbia, and as a consultant to the U.S. Senate Committee on Foreign Relations, Cohen had the résumé, smarts, and connections for the kind of political career

a f a m i l y a l b u m Clockwise, from upper left: A young Jerome with his parents, Philip and Beatrice, and brother Burton, circa 1940; Jerome and Joan at a moon gate, a traditional feature of Chinese gardens, 1979; Joan and Jerome take their three sons to the Great Wall for the first time in 1972, just months after President Nixon’s momen- tous visit; the Cohens’ 1963 holiday card, from Jerome’s first Hong Kong sabbatical.

that would have made his parents proud. But he chose to teach law at the University of California, Berkeley. “I always wanted to be able to speak freely, and academic tenure pro- vided that,” he said. A year later, in 1960, the Rockefeller Foundation’s president, Dean Rusk, who f r o m n e w j e r s e y t o b e i j i n g had been assistant secretary of state for Far Eastern affairs during Cohen’s ascent to China law scholar was not something anyone in the Korean War, offered a four-year grant for a law professor at Berke- his family would have predicted. He grew up in Linden, New Jersey, a ley to study China. Frank Newman, the incoming dean, asked Cohen middle-class suburb of Newark. His father, a Republican lawyer, had to help find someone for the spot. Cohen spoke to several prospects served as city attorney but was frustrated from higher office due to but couldn’t persuade anybody to take up such an arcane discipline subsequent Democratic dominance during the Roosevelt years. His as Chinese legal studies. In the process of trying, though, Cohen says, mother, hoping Jerry would go into politics, once suggested he drop he persuaded himself. “This was a chance to do something distinc- his Jewish surname and run for office as “Jerome Alan.” But Cohen, tive. I wanted to be a pioneer.” always preternaturally confident, brushed off the idea. “Changing His wife, Joan, who had a B.A. in art history from Smith College my name seemed counter to the best American traditions,” he says. and was then an at-home mom of two (with a third son to be born

joan lebold cohen “I also believed that ability was more important than background.” in 1961), says she gave Cohen her blessing but told him, “You’re

THE LAW SCHOOL 2009 33 picking the one field where no firm would ever want to consult you.” Many of Cohen’s friends and colleagues “thought I must be having t o f u l l y u n d e r s t a n d c h i n a , c o h e n believes it is necessary to study neighboring countries a nervous breakdown,” says Cohen, noting China was then com- that share China’s Confucian-Buddhist heritage. So only pletely closed off from the West. His old mentor Justice Frankfurter months after visiting China for the first time in 1972, even wrote Cohen, warning him that he was “throwing away” all Cohen wangled a visa and became the first American his hard-earned knowledge of U.S. law. academic to visit North Korea, taking his family with him. Cohen’s faith—in himself, his new vocation—was not shaken, “I always believed that a lot of the American propaganda and in fact, as was his nature, he seemed to gain strength in the about North Korea was exaggerated,” says Cohen. face of opposition. After getting over Frankfurter’s barb, Cohen “Unfortunately, I learned it had a factual basis.” wrote him a note saying he understood Frankfurter’s reaction When the Cohens arrived in North Korea, they were because the retiring Berkeley dean—whom Frankfurter disliked squirreled away to a remote estate with armed guards intensely—had told Cohen the same thing. Frankfurter, Cohen and were only allowed to visit museums and other public says, then dashed off a handwritten letter: “Given the role China spots after they were emptied of North Kore- is destined to play in your lifetime and that of your children, you ans. “We were essentially under house arrest,” tell him to go to hell!” It was vintage Cohen: With his good-natured Cohen’s son, Ethan, then 11, remembers. (Since sense of humor and astute insight into people, he’d gotten exactly F Beijing was a main route to North Korea then, the response he’d wanted—and proven a point. E the family also visited China on that trip.) So, just after his 30th birthday, Cohen began studying Mandarin A It wasn’t until 1997 that Cohen was invited in the basement of his Berkeley house. “It was August 15, 1960, 9:00 T back to North Korea. He has since brought a.m.,” says Cohen, who has a razor-sharp memory for names, dates, S over a North Korean delegation to speak at and events. Joan, meanwhile, began taking a course in Chinese the Council on Foreign Relations, where he is studies at Berkeley, which would lead to her own career as a pho- I an adjunct senior fellow, and he—along with tographer and an art historian specializing in modern Chinese art. N NYU Law Professor Stanley Siegel—has taught (The couple would North Korean officials the basics of interna- collaborate on China T tional business law in Beijing. “I’ve always felt Today and Her An- cient Treasures, an H that we should bring North Korea into the “I am walking a fine E world, just as we did with China,” he says. illustrated book Cohen’s experience with South Korea, line,” Cohen says. aimed at newcom- T however, was even more dramatic, as he “Some people there ers to Chinese cul- W intervened in the Korean Central Intelligence ture. Chosen by the don’t appreciate my Book-of-the-Month O Agency’s (KCIA) audacious kidnapping of Kim Dae-jung, a friend of Cohen’s and a criticism. But I’ve Club as an alternate K South Korean activist who later became one got a long track selection, it was first published in 1974.) O of the country’s most revered presidents record in China.” and won the Nobel Peace Prize in 2000. In By 1963, Cohen, R near-fluent in Man­ E August 1973, Cohen received an urgent call from Kim’s U.S. aide, saying Kim had darin, was on sab- A been kidnapped in Tokyo by KCIA agents batical in Hong S and would be killed. Would he call President Kong, interviewing refugees from mainland China about legal Nixon’s aide Henry Kissinger for help? procedures used in criminal cases. The result was his first book, Cohen says he did, and that Kissinger The Criminal Process in the People’s Republic of China, 1949-1963, promised he would do everything he could. widely praised for detailing criminal procedure in China and an- A few hours later, Kim reportedly was alyzing its connection to Confucian and imperial Chinese tradi- on a boat, bound, blindfolded, with weights tions and social norms and practices. In 1964, he joined Harvard attached to his wrists, about to be dropped Law School and moved to Cambridge. into the sea to die, when suddenly he heard Like many Asia scholars in the 1960s, Cohen lectured, gave shouting and a mysterious aircraft overhead. Kim was interviews, and wrote articles opposing the reflexive anticom- subsequently released in Seoul. munism of the time. But unlike many of his fellow academics, Press reports credited then-U.S. Ambassador to South Cohen also had a gift for negotiation and saw an opening to bro- Korea Philip Habib for warning South Korea’s president ker a solution to a notorious Cold War case that had been a sore that he would face the U.S.’s wrath if Kim were killed. point in U.S.-China relations. In 1952, a Yale classmate of Cohen’s, John Downey, along with another American, Richard Fecteau, Kissinger hasn’t publicly discussed his role. Even Cohen had been captured and imprisoned by the Chinese government. isn’t sure what action Kissinger took, though he says Kim China had insisted that Downey and Fecteau were CIA agents later told a Korean magazine that the appeals to Kissinger on a secret mission to foment rebellion in China. The U.S. denied made by Cohen and Edwin Reischauer, a noted Harvard the charge, claiming they were Army civilian employees whose Asian studies scholar and former U.S. ambassador to flight went off course from South Korea. But Cohen remembered Japan, helped save his life. Indeed, the Kim Dae-jung attending a CIA recruiting session at Yale in early 1951, where a Presidential Library and Museum in Seoul plans to display CIA recruiter spoke vaguely of a possible mission in China. Co- Cohen’s recollections of his role. Kim died in August. hen decided not to sign up, but it was known that a few students, including Downey, did.

34 NYU SCHOOL OF LAW At a Yale reunion, Cohen’s classmates asked Cohen to work on Downey’s release from prison. In summer 1971, Co- hen appeared before the Senate Foreign Relations Commit- tee and wrote a New York Times op-ed, revealing what he knew about the Downey and Fecteau case and urging the U.S. government to come clean. (During that spring, he’d also floated this idea to Kissinger and Huang Hua, then China’s ambassador to Canada.) “I knew how much China resented the hypocrisy of the U.S.,” says Cohen. “I thought if I could get the U.S. to finally tell the truth, that would satisfy China and they’d release” Downey and Fecteau. In December 1971, Fecteau was released. Downey was released in March 1973, six weeks after Nixon, for the first time, publicly admitted Downey’s CIA affiliation.

f i n a l l y , a v i s i t t o t h e m a i n l a n d Although it is known that Kissinger discussed the Downey case during his secret talks with the Chinese during the summer of 1971, the extent of Cohen’s influence is unclear. Kissinger didn’t even acknowledge the existence of Cohen’s 1968 memorandum on China until the 1979 publication of his White House memoir. Even then, he downplayed the memo’s importance, suggesting that the China scholars didn’t understand all of the geopoliti- a d v e n t u r e s i n c h i n a cal subtleties. Cohen enjoys rare access during the early But for Cohen, days. From top: One of a few American getting credit was scholars allowed to travel to China in June never as impor- 1972, he meets Prime Minister Zhou Enlai; tant as getting ac- Cohen congratulates a Beijing Economic Commission official who has just completed cess: What he most Cohen’s business and contract law course wanted then was to in 1980; Cohen and law firm colleagues finally visit China meet in 1981 with Xiao Yang, center, the and learn the inner head of the Beijing Economic Commission. workings of the le- Xiao made Cohen a once-in-a-lifetime deal: gal system he’d been In exchange for teaching Xiao’s aides the law, Cohen would become the first Western studying from afar. attorney allowed to practice in Beijing. In May 1972, Cohen made his first visit to China, as part of a small delegation of the Federation of American Scientists. It was thrilling. “So few Americans were allowed to visit that Zhou Enlai personally approved each visa that year,” he says. Cohen and a few others had a four-hour dinner with Zhou, in which they discussed the possibility of academic exchanges. But Cohen knew that legal exchanges wouldn’t be imminent. Upon his return, he wrote in an essay, “The first thing to learn about legal education in China is that there isn’t any.” Their constitution, he noted, was mostly “an unenforceable collection of political slogans and prin- ciples.” Bookstores had no legal section. There were no law professors to meet—since the Cultural Revolution, they’d been sent to work on farms or shuttered at home. In part because of Watergate, the reconciliation pro- cess stalled. Cohen’s real adventures in China would not begin until Deng Xiaoping became China’s leader and President Jimmy Carter signaled his readiness to complete the process of normalization begun under Nixon. As usual, Cohen saw an opening and seized it, suggesting that Sena- tor Ted Kennedy, a champion of normalization, go with him to China to meet Deng. But when they arrived in Bei-

joan lebold cohen jing in late 1977, Deng was ill with the flu, and his aides told

THE LAW SCHOOL 2009 35 Cohen he didn’t want to set a precedent of meeting with individual and Cohen’s phone began ringing off the hook from Fortune 500 U.S. senators. Cohen remembers Kennedy was upset and warned companies interested in setting up joint ventures in China. Cohen, “I will consider this trip a failure if I don’t meet Deng.” Some of these calls, however, came as a direct result of Cohen’s Cohen swung into action. Knowing that he and Kennedy were gift for building relationships. A former Chinese tutor of his at Har- under constant surveillance, Cohen shrewdly staged some conversa- vard, for instance, put him in touch with Xiao Yang, who headed tions with Kennedy in his hotel suite in which Kennedy complained the Beijing Economic Commission. Xiao and Cohen worked out about the impact on U.S. and China negotiations if he, one of China’s a deal: In exchange for teaching 30 of Xiao’s commerce officials true friends, did not get to meet with Deng. Then Cohen called home basic contract and business law a few hours a week, Cohen would to Joan in Massachusetts. “I spoke—loud and slow—about all the receive permission to live and practice in Beijing, something no years I’d invested in getting Senator Kennedy on the right side of Western lawyer had done since the People’s Republic of China was China issues, and now Deng’s handlers were messing things up,” he established in 1949. says. The ploy worked; Deng had a 90-minute meeting with Senator Even Cohen’s first major client, General Motors, which wanted Kennedy, his family, and Cohen. (On January 1, 1979, the U.S. and to open up a $1 billion heavy-truck manufacturing plant in China, China officially established diplomatic relations.) came to him through an acquaintance he’d made. Bob Rothman,

n o w h e r e h a s c o h e n ’s i n f l u e n c e A been felt more acutely than in Taiwan. Taiwan’s current president, Ma Ying-jeou (LL.M. ’76), and the ) F country’s former vice president Annette Lu were T aiwan O Cohen’s students in the late 1970s. R In 1985, Lu, a leader in the democratic reform hina ( C movement, was in a Taiwanese prison, serving a 12- ublic of C

year sentence for sedition. At Cohen’s request, Ma, p E e then an aide to President Chiang Ching-Kuo, and I Cohen visited Lu. Shortly after, Lu was freed; she has N credited Cohen, who asked Ma to push for her re- lease, as well as the efforts of human rights groups. T Also in 1985, Cohen served as a pro bono repre- ffice of the President, R A sentative of the widow of Henry Liu, a Taiwanese- O I American writer murdered after sharply criticizing Taiwan’s one-family rule. After a Taipei district W court convicted reputed gangsters of the mur- A der and gave them life sentences, Cohen publicly N dismissed that trial as “a well-rehearsed perfor- mance,” designed to hide the government’s role. During a second trial before a higher court (life sentences in Taiwan are automatically reviewed), Cohen was permitted to cross-examine the de- fendants and the implicated military officials. The three defendants’ sentences were upheld, and Tai- wan’s military intelligence chief was later convicted for his role in the murder. Under pressure from the

U.S., Taiwan lifted martial law in 1987. joan lebold cohen

a n e w e r a o f u.s.- c h i n a r e l a t i o n s a GM attorney, had heard Cohen lecture at the University of Michi- While few China experts have met both Deng and Zhou, as gan while an undergraduate majoring in Chinese in the late 1960s. Cohen has, what established Cohen as a China insider were the He then wrote Cohen for career advice. Cohen wrote back, advising years he spent as a deal-making attorney in the country. “I don’t him to apply to law school and sending him several publications to hang around with the Chinese leadership. They think I am not a help Rothman with a paper he was writing about Chinese marriage person who is entirely reliable,” Cohen says, explaining he never law. Rothman never forgot it. tried to cultivate relationships with the top leaders, fearing it might “I was so impressed that he’d bent over backwards for some kid hamstring his ability to speak freely. he didn’t know,” says Rothman. Though the company never got When Cohen tells the story of how he became the first Western further than a memorandum of understanding on that plant, GM lawyer to practice in Beijing, he notes he happened to be in Hong retained Cohen as an adviser off and on for nearly a decade. Kong on a sabbatical in January 1979, with a sideline consulting at Living at the Beijing Hotel, Joan and Jerome found themselves Coudert Brothers, a New York law firm trying to expand its pres- under constant surveillance. Their office and home phones were ence in Asia. Deng had just announced a raft of economic and legal tapped, their rooms bugged. Visitors to their hotel suite were of- reforms that were opening China to foreign trade and investment, ten interrogated on the way in—and on the way out. The couple,

36 NYU SCHOOL OF LAW however, made a decision not to be intimidated. “We knew that at an “internal document,” restricted and illegal to show to foreigners. any point, we could be asked to leave. We wouldn’t know why or “You wouldn’t know if the instructions required the result they were when it might occur, so we just went on with our lives,” says Joan. advocating, or if the document even existed,” Cohen says, adding In 1981, with his leave at Harvard up, Cohen decided to resign he supported China’s entry into the WTO, knowing that that would from Harvard and join the New York firm Paul, Weiss. “I just couldn’t lead China to agree to conform to international standards, includ- leave China,” Cohen recalls. “I felt this was an historic moment, and ing doing away with the use of “internal documents.” if I went back to Harvard, I’d have to ask my former students in prac- tice what is really going on, instead of being the person leading the a n a d v o c a t e f o r t h e r u l e o f l a w charge.” (Joan’s career, teaching and writing about contemporary On June 4, 1989, China’s army crushed the student protest movement Chinese art, was flourishing, too. She would later publish The New centered in Tiananmen Square, and deal-making ground to a halt. Chinese Painting 1949−1986, as well as other books.) Paul, Weiss closed its Hong Kong office. Drawn to the NYU School Spending much of the year in Hong Kong (with a small apart- of Law’s growing global emphasis, Cohen joined the faculty in 1990, ment in New York and a summer house in Cape Cod), Cohen de- while staying engaged at Paul, Weiss until his 2000 retirement. voted the next few years to making deals and matching wits with At NYU Law, he worked to build up the school’s Asia legal stud- ies program, recruiting Frank Upham, a former student and an expert in Japanese law, as well as bringing over numerous visiting scholars and professors from East Asia. One of Cohen’s signature More recently, Cohen’s advocacy of the Rule of Law has courses became Legal Problems of Doing Business with China and sometimes put him at odds with officials from both the ruling East Asia; drawing on Cohen’s unique experiences, the course also and opposition parties, and even the Ma administration. Ma has included his frontline view of how Chinese business disputes was elected president in March 2008 and chairman of the can turn ugly. ruling Kuomintang party in July 2009. After China established capital markets in the early 1990s, Last November, Taiwan’s past president (and Ma’s the Chinese had more opportunities to accumulate wealth, but political foe) Chen Shui-bian was charged with crimes that Cohen says the allegedly netted him and his family millions. While Cohen system of guanxi— applauded the arrest, saying it showed that Taiwan would “connections,” or uphold the law, he later criticized the the old boys’ net- government’s handling of the case. In China, Cohen’s work—often meant t a i w a n i n s i d e r First, Cohen condemned as unfair Cohen visits President Ma views carry great that local authori- the switch of the case from a three- in his office in May 2008, weight. “Jerry is ties would some- days after Ma’s inaugura- judge court that released Chen with- times collude with, tion. Widely known as Ma’s out bail, pending prosecution, to a the guardian of the or against, Chinese former teacher, as well as court that kept him detained for many conscience of the business execu- a legal advocate, Cohen months, before and during the trial. is often sought out by the intellectual,” says a tives embroiled in Taiwanese press. Then, Cohen criticized the “increas- disputes. ingly disturbing circus atmosphere,” Shanghai attorney. In the mid-1990s, citing reports that at a dinner at- an American invest- tended by the minister of justice and others in the legal elite, ment firm brought prosecutors performed a skit mocking Chen. Cohen called on Cohen in as a legal Ma to take swift action to ensure Chen’s right to a fair trial. adviser after a Chinese executive involved in its joint venture was Through a spokesman, Ma responded that he would not kidnapped and illegally detained by local authorities; Cohen says intervene, though he “hopes that the judiciary will behave in the officials were looking to prove corruption charges leveled by a way that does not induce improper political reactions on jealous ex-employees. Cohen met with local prosecutors and went the part of the public.” At press time, Chen’s trial was still over with them “line by line” China’s then-recently amended crim- underway. He has denied all charges. inal procedure law, including the provision allowing the right to counsel. “The prosecutor looked at me and said, ‘Our job is to get corrupt people! We don’t have to pay any attention to this proce- dure!’” says Cohen, who then appealed to the national prosecutors’ Chinese officials, many of them party functionaries with no le- office to investigate—to no avail. gal experience. “At first, I would go to meetings and people would The local authorities typically have the last word in such dis- just stare at us, blank faced. They’d never seen a Westerner before. putes. For despite Americans’ impression that China’s leadership They didn’t know if they could trust us,” he says. He learned that it rules from Beijing with an iron fist, Cohen says the provinces helped if he could explain his positions using “a few old ideologi- and local governmental institutions often function as quasi-in- cal maxims,” such as Deng’s saying, “Speak truth to facts.” He also dependent “feudal baronies,” in part because of the system of found that if he could “say that it was good for foreign investment, local protectionism. and say it with a straight face,” his suggestions would often be As a result of such cases, since 1999, Cohen has focused on re- adopted. “Often these slogans were useful tools, especially when form of the criminal justice system—what he calls the “weakest dealing with people who weren’t lawyers but were guided by [Com- link” in China’s legal system. Even when Chinese officials do follow munist Party] clichés,” he says. the existing rules, police still are permitted by law to detain sus- A favorite Chinese negotiating tactic, Cohen says, would be to pects without approval of an outside agency, and suspects have no insist that they couldn’t agree to a clause because of a regulation, right to silence. Vaguely worded criminal laws against “endanger- but if you asked for a copy, the Chinese would claim it was nei bu, ing state security” and “inciting subversion” enable the regime to

THE LAW SCHOOL 2009 37 impose harsh sentences whenever it desires. Amnesty International, In fact, his views carry weight with the Chinese legal establish- in fact, calls China the world’s “top executioner,” estimating some ment. “Jerry is the guardian of the conscience of the intellectual,” 1,700 death penalty executions, though probably many more, each says Henry Chen (LL.M. ’03), a partner at MWE China Law Offices year. China classifies the exact number as a state secret. in Shanghai, pointing to Cohen’s criticisms of the China Interna- Cohen began working as a legal adviser on several key human tional Economic and Trade Arbitration Commission (CIETAC), rights cases in China. One of them involved Yongyi Song, a Dickin- China’s powerful international commercial arbitration body. In a son College librarian and China scholar researching the Cultural speech at a 2004 legal conference in Xiamen and a 2005 article for Revolution who was arrested by secret police in Beijing in August the Hong Kong–based Far Eastern Economic Review, Cohen—the 2000 and held in prison on charges of “purchasing intelligence and first foreigner to advocate before CIETAC in 1985—called out the exporting it to a foreign country.” (Song said he bought old newspa- commission for corruption, citing specific instances, and he said pers, books, and Red Guard wall posters from the late 1960s.) he’d advise clients to stay away from the commission, even though Working pro bono for Song’s wife and Dickinson College, Cohen he was one of only about 100 foreigners appointed as CIETAC ar- arranged for a Chinese lawyer to represent Song. Then, he mas- bitrators. Soon after, CIETAC adopted some of the reforms Cohen terminded a public relations suggested, but Cohen learned campaign, enlisting the sup- he would not be reappointed to port of Senator Arlen Specter, the body. (At a 2007 arbitration as well as launching a peti- conference in New York, Cohen tion calling for Song’s release, says, CIETAC’s new leader pub- which garnered 176 signatures licly vowed Cohen would be re- from China scholars around appointed. “I am still waiting,” the world. Less than a month Cohen says.) after Cohen joined the case, Such retribution has been Song was released in January rare, and if he is worried about 2001. “If you see Jerry, please losing the right to travel, teach, tell him, ‘Thank you, again,’” says Song, now a research librarian at California State University in Los Angeles. a f r i e n d t o m a n y More recently, though, From top: Cohen visits Chinese China has been less willing “barefoot lawyer” Chen Guangcheng in his rural village home in 2003; to bend. Since 2005, Cohen Cohen and his former student Clark has crusaded for the release Randt Jr., then U.S. ambassador to of Chen Guangcheng, a blind China, socialize with their families at human rights defender placed Randt’s Beijing residence in 2002. under house arrest and then imprisoned after filing a law- suit on behalf of thousands of Chinese women who un- and speak in China, he isn’t derwent forced abortions and showing it. The Law School’s U.S.- sterilizations. In 2003, Cohen Asia Law Institute, established in met Chen, known as a “bare- 2006 by Cohen and Upham, con- foot lawyer” because he is self- tinues to promote legal reform. taught in the law and provides With the help of senior research free legal counsel to peasants, fellows Margaret Lewis ’03 and and Cohen became an ardent Daniel Ping Yu, as well as others, champion of his work. After the institute has brought over meeting Chen through Cohen, Chinese judges, lawyers, pros- Chenguang Wang, Tsinghua ecutors, and academics to study Law School’s former dean, says he instituted a program for Tsing­ such hot-button issues as procedural safeguards in death penalty hua law students to spend their summers training other “barefoot appeals. Writing a twice-monthly column for the Hong Kong–based lawyers” in rural communities in China. South China Morning Post, Cohen also keeps the spotlight on legal But in 2005, Chen was placed under house arrest; the next year, abuses, such as the case of Gao Zhisheng, a missing Chinese hu- he was tried and convicted of trumped-up charges—property de- man rights lawyer who was last seen in the custody of State Security struction and “interfering with public order”—and sentenced to agents in February. four years in prison. Cohen has been writing and speaking out Despite the recent spate of human rights abuses in China, Co- about the case ever since, even in China. hen has no thoughts of retiring and remains optimistic that China At a 2007 legal conference in Beijing, he held up a T- will create a genuine rule of law. “Seeing the changes I’ve shirt reading “Free the blind man, Chen Guangcheng” see more seen in China over the last 40 years, I know that it is pos- and spoke about the case. “I wanted to make the people at photos at sible,” he says. “And what better use for my life? I’ve en- the conference feel guilty,” he explains. “There are crimi- law.nyu.edu/ gaged in meaningful work, and I am having an impact.” nal justice specialists in China who don’t know what’s go- magazine

ing on in their own country.” Pamela Kruger is a New Jersey-based writer and editor. joan lebold cohen

38 NYU SCHOOL OF LAW faculty focus Time & space To t h i n k

Announcing the Straus Institute for the Advanced Study of Law & Justice and the Tikvah Center for Law & Jewish Civilization, and their fellows.

a historic 1830s brick townhouse at 22 Washington Square North has become the newest locus of intellectual activity at the NYU School of Law. Two centers, both based in the same newly renovated landmark building, have been launched simultaneously: the Straus Insti- tute for the Advanced Study of Law & Justice, and the Tikvah Center for Law & Jewish Civilization. Directed by University Professor Joseph Weiler, who is also Joseph Straus Professor of Law, the Straus Institute offers generous fellowships to top scholars from diverse fields, with the intent of creating an intellectual haven for free interac- tion among multidisciplinary thinkers while re- taining a broad focus on issues of law and justice. It is an academic format embodied by a group of institutes of advanced study, the most famous of which are located in Berlin, at Stanford University, and near Princeton University (the latter served as Albert Einstein’s academic home, where he pursued a unified field theory in physics during the last two decades of his life). The Straus Insti- tute will support high-level research and scholar- ship without requiring teaching commitments of its fellows. Two-thirds of each year’s fellows will pursue scholarship related to an annual theme; in 2009-10, the topic will be the emerging legal field of international governance. The new institute was funded by Daniel Straus ’81, a member of the Law School’s board of trust- ees, and his wife, Joyce Straus. “In a way, it’s the ultimate ivory tower,” Weiler said. “You’re telling people, ‘Come. Spend a year here. Think.’ It’s not an immediate action or reaction kind of thing. But it’s fundamental deep thinking about serious social issues.” Throughout the year, forums, col- loquia, and seminars will allow Straus Fellows to engage with the Law School community. Like the Straus Institute, the Tikvah Center, directed by Gruss Professor of Law Moshe Hal- bertal and Weiler, will host eminent scholars. The foundational premise of the center is that the study of Jewish law can profit immensely from insights gained from general jurispru- dence, and that Jewish law and Jewish civiliza- tion can provide illuminating perspectives on law and legal issues of true academic and social significance. The Tikvah Center will showcase

THE LAWAUTUMN SCHOOL 2009 39 fellows’ scholarship through forums and an annual conference. recent books: Embryo: A Defense of Human Life (2008) and Body/ Beginning in 2010, the center will facilitate a Master of Studies Self Dualism in Contemporary Ethics and Politics (2008). in Law program focused on law and Jewish civilization; students Drawing upon sociological, historical, and philosophical sources, George will not need a prior law degree. An undergraduate outreach pro- will work on a book presenting a natural law argument for marriage as gram will feature courses taught in NYU’s College of Arts and Sci- the lifelong conjugal union of man and woman as husband and wife. In ence by instructors affiliated with the center. The Tikvah Center addition, he will answer critics’ arguments against this understanding of is made possible by the Tikvah Fund, a private foundation that marriage, including those by proponents of same-sex and polyamorous supports Jewish intellectual life. marriage, and show that marriage, soundly understood, is a great good for individuals, spouses, children, and society.

STRAUS Fellows m o s h e i d e l is Max Cooper Professor At-Large in Jewish Thought at the Hebrew University of Jerusalem and a senior researcher at the m a r t a c a r t a b i a is a professor of Shalom Hartman Institute. He received the constitutional law at the University of 1999 Israel Prize for Jewish Thought and the Milano-Bicocca Faculty of Law. She received 2002 Emmet Prize, and has been a member her Ph.D. in Law from the European Uni- of the Israeli Academy since 2006. Among versity Institute in Florence, Italy, and was his publications are Kabbalah: New Per- a clerk in the Italian Constitutional Court spectives (1988) and Ben: Sonship and Jewish from 1993 to 1996. Her most recent publica- Mysticism (2007). Idel is both a Straus and Tikvah Fellow. tions include I Diritti in Azione (2007) and Idel distinguishes between three major modes of thinking in Judaism: Europe and Rights: Taking Dialogue Seri- the biblical, the rabbinic, and the speculative. He will concentrate ously,” in the European Constitutional Law Review (2009). his inquiries on the dynamics of the concatenation between these In recent years, legal changes affecting some of the most crucial sectors modes, emphasizing the intellectual superstructures that were added of social life have occurred in national and international courts. Many to legalistic structures, especially by thinkers who were both legalistic “new fundamental rights” have been created, covering a wide range of figures and kabbalists or philosophers. His research will explore the subjects, from environmental emergency to immigration law to the role of thoughts of Joseph Karo as well as examine the ideas in the Sefer religion in the public sphere. The recognition of new rights has significant ha-Qanah, a Byzantine 14th-century unsigned kabbalistic commentary consequences on the use of different standards of review and burdens of on the commandments. proof. By analyzing various judicial decisions, Cartabia aims to discover the conceptual, legal, and procedural matrix of the new rights. c a r o l r o s e is Ashby Lohse Chair in Water and Natural Resource Law at the m e i r d a n -c o h e n is Milo Reese Rob- University of Arizona Rogers College of bins Chair in Legal Ethics and an affiliate of Law and the Gordon Bradford Tweedy the Department of Philosophy at the Uni- Professor Emeritus of Law and Organiza- versity of California, Berkeley. Dan-Cohen tion and Professorial Lecturer in Law at received his LL.B. from Hebrew University Yale Law School. Rose received an M.A. and clerked for the Supreme Court of Israel. in political science from the University of He received an LL.M. and J.S.D. from Yale Chicago, a Ph.D. in history from Cornell Law School. Dan-Cohen has written Harm- University, and a J.D. from the University of Chicago School of ful Thoughts: Essays on Law, Self, and Moral- Law. Her publications include Perspectives on Property Law (2002) ity (2002) and Rights, Persons, and Organizations: A Legal Theory and Property and Persuasion: Essays on the History, Theory and for Bureaucratic Society (1986). Rhetoric of Ownership (1994). Dan-Cohen’s research draws on a tradition claiming that human beings Rose, with contributions from Yale Law professor Richard Brooks, will are self-creating: the self is the largely unintended by-product of human research a book on racially restrictive covenants, their history, and what practices, including law and morality. The recognition that we are the they tell us about the relationships between social and legal norms. She products as well as the authors of our norms complicates our normative will also continue her research on the intersection of property rights, agenda. In devising behavior-guiding norms we must explore not only environmental law, and development. their effects on what we do but also on who we are: what subjects will emerge from the activities generated by a particular set of norms? Thematic And what considerations ought to guide this constructive aspect of our normative engagements? g r á i n n e d e b ú r c a is a profes- sor of law at Fordham Law School. She was r o b e r t g e o r g e is McCormick Pro- previously a professor of E.U. Law at the fessor of Jurisprudence and director of European University Institute. De Búrca the James Madison Program in American co-edited Oxford Studies in European Law Ideals and Institutions at Princeton Uni- and co-wrote E.U. Law, which is currently versity. He has served on the President’s in its fourth edition. Council on Bioethics and as a presidential De Búrca will explore the ways the European appointee to the U.S. Commission on Civil project of integration-through-law has changed Rights. George was a judicial fellow at the over time and examine the model of transnational governance developed

U.S. Supreme Court. He is co-author of two by the European Union. The key role of the European Court of Justice architectural rendering: thomas schaller w.

40 NYU SCHOOL OF LAW has changed in important ways. De Búrca will examine how the external j a n k l a b b e r s is a professor of inter­ dimension of E.U. governance has intensified as the E.U.’s interest in national organizations law at Helsinki playing a more significant global role has grown. The ambiguous identity University and director of the Academy of of the E.U. as an international actor, the place of law, and the relationship Finland Centre of Excellence in Global Gov- between political and judicial activity in shaping different aspects of this ernance Research. His main publications in- identity will also come into play. clude The Concept of Treaty in International Law (1996), An Introduction to International a n d r e w h u r r e l l is Montague Institutional Law (2002), and Treaty Conflict Burton Professor of International Rela- and the European Union (2008). tions and Fellow, Balliol College, Oxford Klabbers focuses on the problem of how to control the exercise of public University. His book On Global Order: power in international affairs. He aspires to develop a “constitutional- Power, Values and the Constitution of In- ist” approach to public authority in global affairs that complements legal ternational Society (2007) won the 2009 thought with virtue ethics and the character traits of those who exercise International Studies Association Prize public power. He cites Martti Koskenniemi’s “constitutionalism as mind- for Best Book in the field of international set,” Lon Fuller’s “internal morality of law,” and Onora O’Neill’s approach relations; and he has co-edited Inequality, of integrating principles with virtue as precedents. Globalization and World Politics (1999) and Order and Justice in International Relations (2003). d a v i d k r e t z m e r is a professor Hurrell will focus on emerging powers and global governance, using emeritus of international law at Hebrew as examples two countries, Brazil and India, and three regimes: the University of Jerusalem and a professor of World Trade Organization, nuclear proliferation, and climate change. law at the Transitional Justice Institute of The project will be informed by a broad historical examination of the the University of Ulster. His books include processes by which Western ideas have been transposed into differ- The Occupation of Justice: The Supreme ent national and regional contexts. He will examine and evaluate the Court of Israel and the Occupied Territories sorts of international society norms and global governance practices (2002), The Concept of Human Dignity in that have been, or might be, pressed both by emerging powers and Human Rights Discourse (co-editor, 2002), other social forces. and The Legal Status of the Arabs in Israel (2002). Kretzmer, in collaboration with Eckart Klein of Potsdam University, r o b e r t k e o h a n e is a professor of will be working on a critical study of the U.N. Human Rights Commit- international affairs at Princeton Univer- tee. The two will review the development of the committee’s work sity. He has written After Hegemony: Coop- and evaluate its functions and role in the international monitoring eration and Discord in the World Political and protection of human rights. Economy (1984) and Power and Governance in a Partially Globalized World (2002). He d a r y l l e v i n s o n is Fessenden Pro- won the 1989 Grawemeyer Award for Ideas fessor at Harvard Law School, where he Improving World Order and the 2005 Jo- teaches and writes primarily about con- han Skytte Prize in Political Science. stitutional law and theory. He is a faculty Keohane’s scholarly research has focused on international regimes fellow of the Harvard Project on Justice, that regulate activities like world trade, accounting standards, and Welfare, and Economics, and he won the arms control. He has explored how our existing knowledge of the ways 2008 Sachs-Freund Teaching Award at institutions operate effectively should influence the way designers of Harvard Law School. such institutions structure them. This topic will intersect with his work Levinson will explore the relationship between on accountability, legitimacy, and democracy in global governance. international and constitutional law. Held up to the benchmark of do- mestic law, international law is commonly perceived as a distinctively b e n e d i c t k i n g s b u r y is Murry dubious form of law. Constitutional law is seldom subject to similar and Ida Becker Professor of Law, director doubts, though the features of international law that lead to questions of the Institute for International Law and about its legitimacy are shared by constitutional law. International Justice (IILJ), and director of the Program and constitutional law’s differences from ordinary domestic law follow in the History and Theory of International from the distinctive aspiration of public law regimes to constrain the Law at the NYU School of Law. He co-di- behavior of state institutions, and the difficulty they face in not being rects the IILJ’s Global Administrative Law able to rely on these same state institutions for implementation and Research Project, a pioneering approach to enforcement. Levinson will explore these difficulties and the resources issues of accountability, transparency, par- available to overcome them. ticipation, and review in global governance. Kingsbury will focus on developing and applying­ a theoretical account of g i a n l u i g i p a l o m b e l l a is a pro- the public law that should apply to global governance entities outside the fessor of legal philosophy at the Univer- state. This builds on his work with Richard Stewart on global administra- sity of Parma. He received his Ph.D. at the tive law. He will also research a second project concerning the production, Scuola Superiore of Pisa and has been Se- use, and significance of indicators, particular quantitative ordinal rankings, nior Professorial Fellow at the European as a technology of global governance. He will consider who participates Union Institute. He has authored several in or should influence the production and use of particular indicators and books, including L'autorità dei diritti (2002) how this power should be channeled and controlled. and Dopo la certezza (2006). Recently, he

THE LAW SCHOOL 2009 41 published “The Rule of Law, Democracy and Interna- Tikvah Fellows tional Law” and Ratio Juris (2007), and co-edited Re- locating the Rule of Law (2009). y i s h a i b e e r is a professor at the Hebrew Uni- Palombella’s work will concern the rule of law as equilibrium versity of Jerusalem Faculty of Law, specializing in between law-as-justice and law-as-power. He will explore the taxation, and a major general in the Israel Defense extent to which international rule of law, considered through Force, currently serving as a corps commander. He global governance, provides for a noninstrumental and is a former president of the Israeli Military Court of autonomous­ normativity irreducible to regulatory functions Appeals. Beer has an M.A. from the London School of and teleology, how the public legality sphere is framed, and Economics and a Ph.D. from Hebrew University. whether it should embody governance practices. s a u l b e r m a n is an associate professor of Jew- b e t h s i m m o n s is Clar- ish studies at the Stern College for Women at Yeshiva ence Dillon Professor of Inter- University and an adjunct professor of law at Colum- national Affairs and director bia University School of Law. Rabbi Berman received of the Weatherhead Center for an M.H.L. from Yeshiva University, an M.A. in politi- International Affairs at Har- cal science from the University of California, Berkeley, vard University. Her 2009 book, and a J.D. from the NYU School of Law. He is a con- Mobilizing for Human Rights: tributor to the Encyclopedia Judaica. International Law in Domes- tic Politics, provides quanti- b e t h b e r k o w i t z is an associate professor tative and qualitative evidence that the ratification of Talmud and Rabbinics at the Jewish Theological of several human rights treaties is associated Seminary. She earned her Ph.D. from Columbia Uni- with improvements in rights practices in countries versity and has held postdoctoral fellowships in Yale around the world. University’s Program in Judaic Studies and the Uni- The first of Simmons’s two research projects will look at versity of Pennsylvania’s Center for Advanced Judaic laws, processes, and institutions that have developed Studies. Her book Execution and Invention: Death over the last two decades relating to the international Penalty Discourse in Early Rabbinic and Christian arbitration of investment disputes between foreign multi- Cultures (2006) won the Baron Prize for First Book in national firms and host governments. One of the goals will Jewish Studies. be to assess the extent to which international arbitration is perceived as effective and legitimate. Simmons will also j a m e s k u g e l is the director of the Institute be launching a project on international cooperation to for the History of the Jewish Bible and chairman of address transnational crime. the Bible Department at Bar Ilan University. His nu- merous books include The Bible As It Was(1997), The r i c h a r d s t e w a r t is a Ladder of Jacob (2006), and How to Read the Bible: University Professor at New A Guide to Scripture, Then and Now (2007). York University and direc- tor of the Hauser Global Law a v i t a l m a r g a l i t is a professor of property School Program and the Frank law and the sociology of law at Bar Ilan University J. Guarini Center on Environ- Faculty of Law. Her research focuses on law and rec- mental and Land Use Law at onciliation, the social and cultural aspects of property the NYU School of Law. Stew- relationships, and the legal history of the kibbutz. art’s scholarship and teaching focus on environmental law and policy and adminis- a d i e l s c h r e m e r is an associate professor in trative law and regulation, including global adminis- the department of Jewish history and director of the trative law and climate change regulation and finance. Halpern Center for the Study of Jewish Self-Percep- Stewart served as assistant attorney general for envi- tion at Bar-Ilan University. He is a fellow at the Sha- ronment and natural resources at the U.S. Department lom Hartman Institute in Jerusalem. Schremer is a of Justice, where he led the prosecution of Exxon for the recipient of the Urbach Prize from the Jewish Me- Exxon Valdez oil spill. He was formerly chairman and morial Foundation and the World Union for Jewish currently serves as advisory trustee of the Environmen- Studies. His publications include Male and Female He tal Defense Fund. Created Them: Jewish Marriage in Late Second Temple, Stewart will be conducting research for a book on global Mishnah and Talmud Periods (2003), and Brothers administrative law. The book will include an overview of GAL Estranged: Heresy, Christianity, and Jewish Identity in development in response to the rise of global regulatory gov- Late Antiquity (2009). ernance; an examination of GAL mechanisms of transparency, participation, reason-giving, and review; the adoption and a h a r o n s h e m e s h is an associate professor role of mechanisms and norms in various global administra- in the department of Talmud, Bar-Ilan University. tive bodies; and conceptual and normative foundations of He has published widely on the development of GAL in relation to regulatory administrative efficacy, rights Jewish law, including Punishments and Sins (2003) protection, global rule of law, global and domestic democracy, and Halakhah in the Making: From Qumran to and global constitutionalism. the Rabbis (2009).

42 NYU SCHOOL OF LAW Faculty Focus

Remembering Thomas Franck | 44 Election Night in the Obama Campaign | 45 Inaugural Lectures | 46 Honoring Andreas Lowenfeld | 48 Faculty Awards | 49 Meet the New and Visiting Faculty | 52 New Works by Cynthia Estlund, Cristina Rodríguez, Jeremy Waldron | 64 Good Reads | 75

Thomas Franck, Murry and Ida Becker Professor of Law Emeritus, spoke movingly at an April tribute for his longtime colleague, Andreas Lowenfeld, Herbert and Rose Rubin Professor of International Law Emeri- tus. A towering figure in international law and author of more than 30 books, Franck passed away in May. after 9/11, when he courageously voiced support for law and multilateral coopera- Thomas Franck, 1931-2009 tion when few, particularly in our govern- Colleagues and his longtime assistant remember a beloved ment, were inclined to listen. and distinguished professor on the faculty since 1960. When I became president of ASIL, there was no doubt whose example I would seek efore i entered the legal acad-­ tribute to Tom’s response to why “powerful to follow. I tried to emulate Tom’s wit—as emy, I knew Tom Franck only as nations obey powerless rules” in what was when he reimagined the society 100 years the éminence grise of public inter- then his latest book, The Power of Legiti- hence as a wholly owned subsidiary of the B national law. He was thoroughly macy Among Nations. Chinese Society of International Law. I intimidating, and not only because he Over the years Tom became a friend, but sought to make an esoteric, technical field wore bow ties. No one else managed to be he never ceased to intimidate me by virtue accessible and to cross political and legal editor in chief of the leading peer-reviewed of his achievements. In addition to produc- (and not just disciplinary) divides, as he journal in the field while still producing ing, on average, one book every 17.8 months did. To this day, his is the fellow émigré’s pathbreaking books at breakneck speed. for 43 years, Tom became the confidant of voice I hear when I teach a class, comment In 1991 I attended a summer workshop governments and secretaries general. He on a colleague’s work, give students advice, for young international law and interna- pushed the American Society of Interna- or try to make someone understand what tional relations teachers. Tom’s model of tional Law to deepen its commitment to the law means and why it matters. engaged advocacy for ordering the world scholarship (eventually he became ASIL We all need someone like Tom to make on the basis of the rule of law so thor- president), and he mentored hundreds of us do our best and to teach us how to face oughly captivated our interdisciplinary students, many of whom became leading life’s challenges with equanimity, cour- group that at our closing dance we impro- lights in practice, government, or academe. age, and poise. He died as he lived. In his vised a new step, the “compliance pull,” in Of course, Tom came into his own shortly last weeks he was engaged in planning for ▷

rofessor Franck was more n one of his last publications, Tom writes of the begin- P than my boss for 44 years; I ning of his career as a research assistant to the legend- he was a part of my family and ary international law professor Louis Sohn. Tom was struck my friend. Working with him was by the collection of giraffes that Sohn kept in his office a joy and a learning experience. and home to remind him that it was possible to keep one’s I fondly remember being in- head in the clouds while keeping one’s feet firmly planted vited with my husband to accom- on the ground. I think that also describes Tom perfectly. pany Tom to the University of Brit- We were friends, to some extent rivals, and on most ish Columbia when he received issues, we thought alike. Interestingly enough, we differed several times on issues of U.S. constitutional law. To take his LL.D. So that we could see just one instance, at the time that the U.S. government the beautiful city of Vancouver, wanted to get out of the Mutual Defense Treaty with the where he grew up, Tom borrowed Republic of China (Taiwan), Tom and I were both asked to a friend’s car and spent two days testify before the Senate Foreign Relations Committee on showing us the sights. Sherwin whether it was the president or the Senate that had the and I also travelled to The Hague, authority to terminate a treaty. Tom argued that since the 1 where I spent two weeks working Senate had given its advice and consent to making with Tom on his Chad v. Libya case a treaty, it had to give its advice and consent to un- before the International Court of making or withdrawing from it. I said the president Justice. The Hague is where Tom makes treaties, and so the president must be able introduced us to Indonesian food. to unmake them. Government lawyers faced with Wonderful memories! such a question too often look first to the answer Tom took tremendous pride in desired, then develop an argument to support it. For Tom it was not only possible but fundamentally the achievements of his students. ethical to address the question without regard to He was excited to hear when one 2 how one felt about Taiwan or the Defense Treaty. was accepted to a clerkship, pur- Tom Franck will be best remembered for his seminal work at sued an advanced degree, landed the frontier of law and philosophy—explorations of legitimacy, a prestigious job in government fairness, impartiality, proportionality, and the use and abuse of or a faculty appointment, or force. But like the giraffe in his mentor’s study, he could plant his when one was honored with the feet firmly on the ground as well. Nobel Peace Prize. He felt the — Andreas Lowenfeld, Herbert and Rose Rubin pride of a father. I admired most Professor of International Law Emeritus how Tom extended himself on behalf of his students. I will surely miss Tom, but I indelible impressions Thomas M. Franck; 1 at the United Nations around 1981 with former student Mohamed ElBaradei (LL.M. ’71, J.S.D. ’74), far left, will always have a smile on my and Vladislav Tikhomirov, both of whom worked for Franck when he was the face when thinking of him. director of research for UNITAR. ElBaradei won the 2005 Nobel Peace Prize; — Shelley Fenchel 2 with Fenchel flanking the 2001–02 Junior Fellows of the Center for International Studies; 3 with Dorsen, his colleague of 48 years.

44 NYU SCHOOL OF LAW faculty focus next semester’s U.N. class, assisting yet another government before the World Court, and giving talks on his latest tour An Inside View on History de force (an article that uses proportion- During the primaries and the general election It was obvious they had internalized the ality to examine everything from trade to season, professors Samuel Issacharoff and campaign’s codes: no drama, stay in your human rights). Just days before he passed Richard Pildes worked as part of the Obama own lanes, calm professionalism, and no away, he dragged himself from his sick- campaign’s legal team on voting and elec- leaks. Working within such a culture was bed to join in a tribute to his retiring col- tion issues. As a professor at the University a pleasure and made our work as smooth league Andreas Lowenfeld. In a gesture of Chicago Law School, Obama taught from as possible—despite physical quarters that that typifies his irrepressible efforts to Issacharoff, Pildes, and Pamela Karlan’s 1998 consisted of a small room with five thrown- bridge academe and politics, he used that casebook, The Law of Democracy, and had together card tables for 15 people in a occasion to remind us, movingly, of the as met with Pildes to discuss ideas during its building with concrete floors that quickly yet unfulfilled dreams of those who seek creation. Issacharoff began his legal career covered our clothes with dust. to use law to achieve a more just world. by being part of a successful lawsuit Looking at Harold Koh, the Obama ad- that eventually led to the election of ministration’s nominee to be Secretary Mike Espy, the first African American of State Clinton’s top lawyer, he asked congressman from Mississippi in the whether it was “too late” to achieve that 20th century. After the historic 2008 world. Koh responded by saying that it election, the two wrote a letter to the was not. It was to be Tom’s last message Law School community on their ex- to those with power. periences, excerpted below. —José Alvarez, Herbert and Rose Rubin Professor of International Law n election day and the days leading up to it, we were in the “boiler room” at Watching the inauguration in Tishman Auditorium om Franck’s exceptional contributions O campaign headquarters in to international law—as scholar, teacher, T Chicago, where we worked to monitor voting We are all fortunate there was no legal mentor, advocate, and judge—have been issues that arose around the country and to confrontation that rose to the level of the widely and justly recognized. Tom also de- respond to any systemic problems that might 2000 election. But there was a great deal serves to be honored for his powerful influ- require legal intervention or a response to of legal activity that mostly flew below the ence on the NYU School of Law. legal intervention initiated by others. radar. There were cases brought by the po- From the time I met him, soon after my appointment to the faculty, he was One striking aspect of this experience litical parties or outside groups on election a key participant in the long process of was how well-organized the Obama cam- day and the days right before in Ohio, Indi- transforming NYU from a good regional paign was. It would be hard to imagine a ana, Virginia, New Hampshire, Pennsylva- law school to the world-class institution it more sophisticated and well-run structure nia, and New Jersey (the latter concerning is today. He demanded quality in his own for oversight of these issues. Without giv- election procedures in New Mexico). And of work, and he had high expectations for his ing away any secrets about exactly how course, on election day we had to approach colleagues. Thus, Tom was the obvious per- this was done, we can say that we were every potential issue as if the election’s out- son to present the paper at the first faculty aware of every potential problem at poll- come could turn on it. workshop, which younger members of the ing places throughout the battleground Being in Chicago’s Grant Park on elec- faculty instituted in the early 1960s. And, states. This awareness ranged from minor tion night to witness Mr. Obama’s victory among many other activities, he served with distinction on the committee that details, such as polling places that ran out address was the most moving experience formulated the plan for what became the of pens, to more significant ones, such as of our professional lives. Hauser Global Law School Program. challenges to the eligibility of individual In short, Tom was for the Law School what voters to vote. Some of these issues tested in baseball is called an impact player—he the commitment of citizens, as with the brought luster to us all through intellect, long lines in Virginia. Some had the qual- character, and dedication. He cannot be ity of bizarre melodrama, as with the poll- replaced. ing sites in Washington State that ran out of — Norman Dorsen, Frederick I. and provisional ballots in English and tried Grace A. Stokes Professor of Law to make do with the ones printed in Chinese. Through it all there was the captivating commitment to demo- cratic values that filled even a room of tired and strained lawyers with ad- miration and respect. The professionalism of the cam- paign’s entire culture, from top to bottom, was also impressive. We were at the top of a pyramid of information coming in, much of it mediated by 3 campaign workers, often in their 20s. Law as an Economic Development Tool Davis promotes the role of lawyers in his inaugural lecture as Beller Family Professor of Law.

n “law, lawyers, and global devel- opment: Can Lawyers Change the World?” Kevin Davis posed the ques- I tion of whether lawyers can change the world by promoting economic develop- ment in poor countries. “I meant to specify ‘for the better,’” he said. “This didn’t occur to me until after the brochures went out.” Referring to a letter to the editor published a few days before in the Wall Street Journal that read, in part, “America’s disease is too many lawyers,” Davis said, “It’s clearly not self-evident that lawyers can change the Davis and Gary A. Beller ’63 (LL.M. ’71) world for the better.” Davis refuted claims that lawyers serve change, he turned to another broad issue: might have different objectives; a viable mainly to redistribute wealth rather than how to determine the best way to imple- substitute for a particular reform might al- create it, to the detriment of economic de- ment change. Davis began by rejecting “the ready be in place; and the value of a given velopment, pointing to economic studies universalist approach that there’s just one reform might hinge on complementary fac- indicating that countries with solid legal set of legal reforms that will make a differ- tors in a specific legal system. institutions have better economic growth ence” across a range of countries, voicing Davis cited several examples related and economic outcomes. three main objections to that approach: It to his objections, such as a recent move in Having addressed the question of ignores the fact that different people have English-speaking Caribbean countries to whether law has the potential to effect different values, and different legal systems abolish the court-of-highest-appeal status ▷

This public ignominy was profoundly hurtful to at least two people, both of Defending Strauss whom were moved to write in Strauss’s In his inaugural lecture as Lloyd C. Nelson Professor of post­humous defense. One was Strauss’s International Law, Howse says the philosopher was no neocon. daughter, Jenny Strauss Clay, a philosophy professor at the University of Virginia; the n may 2003, a month after the u.s. ering and disseminating much of the prewar other was Robert Howse, a politically left- had successfully toppled Saddam intelligence that was then proving to have leaning lawyer, philosopher, former diplo- Hussein, it still could not produce been inaccurate. These strategists, who were mat, and leading expert on international I proof of either key casus belli that had said to believe that “deception is the norm in trade regulation. In 2008, Howse joined the prompted it to do so: Saddam’s weapons of political life,” identified themselves as dis- faculty of the NYU School of Law as the first mass destruction or his links to al Qaeda. ciples of the University of Chicago classicist holder of its newly endowed Lloyd C. Nel- That month Seymour Hersh wrote an influ- and political philosopher Leo Strauss. son Professorship in International Law. For ential New Yorker magazine article entitled Thus it was that a humble German-Jew- the chair’s October 2008 inaugural lecture, “Selective Intelligence.” It described a self- ish academic who emigrated to the U.S. in Howse delivered “Man of Peace: Rehearing identified “cabal” of neoconservative policy 1938 and died in 1973 became tarred with the Case Against Leo Strauss.” wonks in the Bush administration, led by responsibility for the blunders (or worse) The notion that Strauss espoused a deputy defense secretary Paul Wolfowitz, of the Iraq war, and his professed followers might-makes-right, realpolitik approach who had played an important role in gath- became known as the “Leo-cons.” to international affairs arose in part from an essay he wrote in The City and Man on Thucydides’ account of the Peloponnesian War. Strauss taught primarily by com- menting on other writers, often engaging in hypothetical dialogues with that author or even with characters from that author’s work. As a result, interpreting precisely which strains of argument Strauss is en- dorsing is not always easy. The predominant view of Thucydides at the time Strauss was writing, Howse says, was that Thucydides saw “international Lloyd Nelson’s widow, Ann, and Howse relations [as] a matter of power, and that ▷

46 NYU SCHOOL OF LAW faculty focus of the London-based Privy Council, whose universalism?” Davis asked. He admitted continuing jurisdiction is a throwback to that, in light of his claim that “the right an- Choi and Kahan: British colonial days. Appeals would go swer in any given situation would depend instead to the islands’ own national su- on the context, depend on local conditions… Favorite Authors preme courts or to the young Caribbean most of us in this room have relatively lit- once again, articles by stephen choi, Court of Justice. Despite the pragmatism tle to offer, at least in our capacity as law- Murray and Kathleen Bring Professor of and the benefits of the status quo—Davis yers, to the poor countries of the world…. Law, and Marcel Kahan, George T. Lowy noted that the Privy Council is “one of the We don’t know these different systems.” Professor of Law, are among Corporate premier judicial institutions in the world,” What lawyers can do, Davis said, is sup- Practice Commentator’s top 10 corporate and its operating costs are covered by the port local decision-making about legal re- and securities arti- U.K. government—Caribbean nations are form by helping those who have access to cles of 2008, chosen expressing a different set of values, indicat- crucial information and an understanding in a poll of corporate ing the difficulty of imposing universalist of local values. Outside lawyers can help law professors. legal reform. “It’s about more than the eco- ensure that local parties are acting in good From among 450 nomics,” Davis said. “It’s about nationalism, faith, for instance, or share expertise on published pieces, self-respect, and national pride—and those the effective drafting of legal agreements. the poll elicited values matter, too.” “It’s important to not forget the possibility praise for “The Mar- Choi Another example concerned the U.S. of acting one case at a time, one client at a ket Penalty for Mu- Agency for International Development, time on the litigation front, or just encour- tual Fund Scandals” which managed to dramatically reduce aging your own clients in the transactional by Choi and Kahan the length of time needed to start a busi- setting to do some good and to take into (Boston University ness in Afghanistan. But the agency found account these broader interests,” he said, Law Review); “On that in the aftermath of its intervention “all adding, “I am skeptical of the claim that Beyond CalPERS: the delays, all the corruption” had shifted we can change the world at a stroke, just by Survey Evidence on from the registration process to the licens- drafting a set of laws and then having them the Developing Role ing phase, severely limiting the positive adopted universally. But if the claim is that of Public Pension Kahan impact of the reform. “So what are the we can change things a little bit at a time, Funds in Corporate practical implications of all this if we reject then I’m still relatively optimistic.” Governance” by Choi and Jill Fisch (Vander- bilt Law Review); and “The Hanging Chads of Corporate Voting” by Kahan and Edward justice and law had little if any effective Strauss certainly understood that the “nor- Rock (Georgetown Law Journal). meaningful role.” According to Howse, how- mal principles and constraints” of a liberal Over the 15-year history of the poll, Ka- ever, this is neither a correct interpretation society “might need to be lessened [to de- han has written or co-written more win- of Thucydides nor of Strauss. On the contrary, fend itself] in extreme situations,” Howse ning articles than any other author, with Howse argued in his lecture, “Strauss’s es- says. Nevertheless, Howse continues, “he a total of 11. “In terms of what accounts for say deals extensively with international law: did not favor removing those constraints.” my articles getting recognition, one factor treaties, arbitration, customary law, sacral Strauss also recognized that distinguish- is that many are on topics that are of inter- law.… International law and peace treaties ing between the circumstances that justify est to other academics in the field, which [are depicted as having been] essential to the such extraordinary deviations from the makes it more likely that people read them,” development of Greek civilization.” norm and those that don’t cannot be ac- he said. Running a close second, Choi has a In the essay, Strauss also discusses the complished by reliance on “hard and fast total of nine top-10 finishes. Other NYU Law circumstances in which deceit and con- rules.” In the end, Howse maintains that professors have also been recognized for cealment may become necessary tactics distinguishing between the two always their scholarship, including William Allen, for survival when a democratic society is remained crucial for Strauss, something Nusbaum Professor of Law and Business; defending itself against an evil aggressor. he contends that the so-called Leo-cons Jennifer Arlen, Norma Z. Paige Professor In all of his teachings, Howse says, Strauss either failed to understand or chose to of Law; and Geoffrey Miller, Stuyvesant P. insisted on facing the “hard dilemmas” that disregard. Roger Parloff Comfort Professor of Law. liberal societies face, but he did so with the goal of “understanding, strengthening, and protecting the just and liberal society.” In In Memory of Michael Schwind contrast, he argues, neoconservatives were hijacking Strauss’s teachings in an ef- Professor of Law Emeritus Michael Schwind teacher; he retired in 1994. He taught courses in comparative civil law, conflicts fort “to delegitimize” liberal society itself. passed away on September 15, 2008 at age 85. An expert in the field of compara- of law, and Roman law. He also served as For Howse, the key to Strauss’s perspective tive civil law, Schwind was born in Austria a member of the board of directors and can be found in his book Natural Right and and grew up in Ecuador, where he earned officer at the American Foreign Law As- History, where Strauss writes that “the ob- a law degree in Quito before moving to sociation. Schwind’s close friend and jective discrimination between extreme ac- New York. Here, he earned an LL.M. in Law School colleague Milton Schwartz tions which were just and extreme actions 1953 and an additional bachelor of laws said, “He was beloved by his students which were unjust is one of the noblest du- in 1957, both from the NYU School of and appreciated as well by his faculty ties of the historian.” Law. Schwind joined the faculty in 1964, colleagues for his knowledge, insights, Having watched Germany’s Weimar quickly establishing himself as a devoted humanity, and wit.” state collapse and be succeeded by Nazism,

THE LAW SCHOOL 2009 47 Professional accomplishment, how- ever, “doesn’t begin to tell you about Andy A Tribute to Lowenfeld the man—the people he’s influenced, the hristopher borgen ’95, a former focused on key areas of his scholarly im- scholars he’s mentored, the people he has student of Herbert and Rose Rubin pact: public international law, trade and enriched,” said Silberman as she intro- Professor of International Law economic law, private international law, duced Lowenfeld. Thomas Franck and Har- C Emeritus Andreas Lowenfeld, shall and international arbitration. old Koh, among many others, added their always remember the Alamo. Lowenfeld’s academic service as a own praises. In 1999, mentor and student were re- world-renowned scholar and a much- Franck, Murry and Ida Becker Professor united at a judicial conference in San Anto- beloved teacher followed a lively career of Law Emeritus, who passed away in May, nio. They set off together to visit the former that began in the 1960s as a lawyer at the said Lowenfeld’s work has rendered “sense Spanish mission where Davy Crockett and U.S. Department of State under presidents and order to the world of conceptual confu- his comrades were killed in 1836 during the John F. Kennedy and Lyndon Johnson. Lo- sion that has always marked great convul- most famous battle of the Texas War of Inde- wenfeld provided strategic counsel to those sions in the ordering of civilizations: the sort pendence from Mexico. “Andy had us poring presidents during the Cuban Missile Crisis; of thing that follows the dying of the light, over historical documents, such as treaties the Nuclear Test Ban Treaty; the so-called the dusk of rationality. He was able to bring that clarity of his thinking to a real trifecta: to the Law School, to the U.S. courts, and even to the world of private commer- cial transactions—a whole new field aborning.” Koh, dean of Yale Law School, took time out from preparing for confirmation hearings in Washington, D.C., 2 on his nomination to become legal adviser to the State De- partment, to stop by and say of his mentor, “He taught me how to be a teacher, and a champion of reasonable- ness. And finally, how to be a problem solver—how to speak 3 4 1 across ideological lines in this very troubled world.” Michael Mattler ’95, mi- nority chief counsel to the U.S. Senate Committee on Foreign Relations, sent a letter to be read aloud: “What I remem- ber and love most is Professor Lowenfeld’s infectious enthu- siasm for his subject, and his 5 6 7 8 students.… The international the ties that bind 1 Lowenfeld, who has been a distinguished member of the faculty since 1967; 2 with Lee Marks, senior counsel litigation seminar [Silber- of Greenberg Traurig; 3 Lowenfeld’s son, Julian ’90; 4 Harold Koh; 5 with tribute organizer Linda Silberman; 6 NYU President John Sexton; 7 the late Thomas Franck with Dean Richard Revesz; 8 longtime colleague Norman Dorsen. man and Lowenfeld] taught was among the best courses and land deeds,” rather than the popular “Chicken War,” in which the U.S. and the I took while in law school, and helped me exhibits reenacting the battle, said Bor- European Common Market sparred over on a professional course that has included gen. Now a professor at St. John’s University poultry tariffs; and the U.S. invasion of the work on litigation before U.S. courts un- School of Law, Borgen said his visit to a tour- Dominican Republic. As a prolific scholar— der the Foreign Sovereign Immunities Act ist trap was enriched by the historical inves- Lowenfeld’s “selected” writings, accord- and before international tribunals includ- tigations and became a valuable lesson: A ing to a program distributed at the tribute ing the International Court of Justice, the good educator sees what others do not. event, number 14 books and 43 law review Iran-U.S. Claims Tribunal, and the United Borgen is hardly alone in testifying to the articles—he has lectured practically every- Nations Compensation Commission.” In a benefits of knowing Lowenfeld, who attains where, notably at the Hague Academy in later interview, he added, “One can never emeritus status this fall after 42 years on 1979 with a series of talks he called the “Pub- fully repay what one gets from mentors such the faculty. Lowenfeld was given a special lic Law Tabu,” in which he proposed criteria as Andy Lowenfeld. All we can do, those of tribute in April at a three-day symposium for a global community largely free of strict us who were his students, is go out into the organized by his colleague Linda Silber- legal rules and based instead upon what he world and put the lessons we’ve learned to man, Martin Lipton Professor of Law, that termed “reasonableness, not certainty.” good use.” Thomas Adcock

48 NYU SCHOOL OF LAW faculty focus Making a Law Class of a Fine-Feathered Story rofessor of law katrina wyman but Wyman decided to give it a complete picked up the New York Times structural overhaul for Fall 2008. She con- Sunday Book Review in February tacted experts, most of them directly in- P of last year without any particular volved in the story documented in Scarlet academic intentions. The cover story that Macaw, to see if they’d be willing to lecture week was a review of Bruce Barcott’s The to the class. “They were quite interested in Last Flight of the Scarlet Macaw, coming to talk about their in- the nonfiction account of an volvement,” Wyman said. She American expatriate’s unsuc- even managed to secure the cessful attempt to prevent participation of the author. his experience with the class, referring to construction of a dam in Belize Barcott talked with Wyman the students as “wonderful.” “They were that would wipe out the habi- and her students via a confer- very engaged,” he said, “and asked smart, tat of the endangered scarlet ence call from Seattle. Nearly informed questions.” macaw. “After I read the book,” every class meeting was aug- Students, too, appreciated the experi- Wyman recalled, “I realized mented with a guest lecturer, ence. “I thought it actually worked very that it raises a lot of interest- including representatives from well,” said Maron Greenleaf ’10. Rather ing legal questions.” Enough legal ques- the Inter-American Development Bank, than focus on one theoretical topic, stu- tions, it proved, to become the focus of her the Natural Resources Defense Council, dents were instead invited to see this one semester-long Practice of Public Interest and the Conservation Strategy Fund, all of particular case from many different an- Environmental Law course. whom had a direct role in aiding or end- gles and to place their legal knowledge in This class—designed for a group of stu- ing the dam construction at the heart of the a real-world context. “Using the one book dent fellows who had spent the previous book. Dr. Joel Cohen—a Rockefeller Uni- provided a lot of coherence,” said Greenleaf. summer doing environmental law work for versity professor who was not directly in- Wyman plans to repeat the class in the fu- NGOs or government agencies—had been volved in the case but offered his expertise ture—but with different books. She is, after taught at the Law School for several years, in population biology to the class—lauded all, inclined to innovation.

Anatomy of a Financial Meltdown scholar of financial institutions, but welcome decision to open up the first course materials and conducted research Geoffrey Miller, Stuyvesant Comfort three sessions to the Law School commu- and wrote papers on such topics as housing A Professor of Law and director of the nity. These three-hour classes in January finance, banks, credit markets, insurance Center for the Study of Central Banks and each focused on a particular aspect of the and securities, the effect of the crisis on Financial Institutions, naturally wanted to crisis. The first class examined prior finan- Main Street, and the international dimen- investigate the origins of the current global cial crises to gain historical background sions of the crisis. economic recession. Miller thought law stu- and appreciation for the scope of the di- Miller said one of the biggest challenges dents might share his interest, so he created saster. The second, co-taught with Gerald in creating this course was compiling ma- The Crisis of 2008 seminar. “Registration Rosenfeld, co-director of the Mitchell Ja- terials on what he called “a moving target.” closed in about 20 minutes,” Miller said. cobson Leadership Program Relying heavily on news ac- “There is a tremendous demand for knowl- in Law and Business, looked at counts and government sta- edge about how this crisis happened.” the “subprime mortgage mess” tistics, “I had to make it up out Miller came to the conclusion that the of 2007: how it happened, what of whole cloth,” he said. The stock h crisis was foreseeable. He likens the current could have prevented it, and classes made extensive use of global recession to the Challenger disaster its consequences on the global multimedia materials, includ- of 1986, in which the space shuttle exploded economy. The third class, also ing news items in audio and oice / Punc h shortly after takeoff due to faulty seals on with Rosenfeld, looked into the visual formats and hundreds

er’s c the booster engines. “The design flaw made credit crunch of 2008 and the of PowerPoint slides created ph what happened inevitable, but no one saw it “dramatic events that followed,” by Miller. But the effort was at the time,” he said. “In this case, the chal- including the near-failure of Bear Stearns, worth it: “This is the most significant eco- otogra h lenge for law- and policy-makers who did the bankruptcy of Lehman Brothers, and nomic downturn since the Great Depres- not predict what would inevitably happen the scramble for survival among large sion,” Miller said. “Fundamental damage is how to take effective action to deal with multi­national companies like Citicorp, AIG, has been done to the credit and securities the disaster and prevent further economic and General Motors. markets. We face a very long recovery from artin Harvey / P disasters in the future.” After the first three open classes, the the big bubble bursting. It is not going to be In response to the overwhelming inter- course became a seminar for the 28 regis- fast. We are all going to be living with this

macaw: M est in the course, Miller made the unusual tered students, who delved deeper into the for a long time.”

THE LAW SCHOOL 2009 49 unanimous selection of estlund Laurels and Accolades Cynthia Estlund, Catherine A. Rein Pro- fessor of Law, won the Samuel M. Kaynard For their dedication, body of work, or influence, NYU School Award for Excellence in the Fields of Labor of Law faculty are acclaimed by their peers and students. & Employment Law from the Hofstra Labor & Employment Law Journal. Editor-in-Chief forum for adler’s work ble for landmark initiatives in developing Alexander Leonard reported that the jour- Professor Amy Adler’s scholarship on methods for the humanistic training of nal’s executive board was unanimous in its child pornography law was the subject of lawyers. The IALMH committee is of the selection, and he an April interdisciplinary forum, “Spec- view that Professor Amsterdam is the pri- said that Estlund tacles of Childhood: Law, Child Pornogra- mary world figure in the pursuit of justice is “recognized by phy, and Sex Panic,” co-sponsored by the in cases involving capital punishment.” every author who Center for the Study of Gender and Sexu- Amsterdam, who currently teaches the publishes with us. ality, the NYU Postdoctoral Program in Capital Defender Clinic and famously won Her body of schol- Psychotherapy and Psychoanalysis, the Furman v. Georgia, the 1972 Supreme Court arship is extensive Psychoanalytic Psychotherapy Study Cen- case that for four years ended capital pun- and puts issues of ter, and Studies in Gender and Sexuality. ishment in the United States, also won the importance in labor The centerpiece of the forum was a talk 2008 Frederick Douglass Human Rights and employment given by Adler in which she explored the Award from the law in frequently possibility that the expansion of child Southern Center read and respected publications that are pornography law for Human Rights. read by scholars and practitioners outside may unwittingly The award, given of our field. She is a pleasure to work with… reinforce the very to individuals who [and] selflessly guided us when we were cre- problem it fights: have shown “bril- ating our symposium this year.” The award the sexualization liance and tenac- honors the memory of Kaynard ’42, a major of children in our ity in the defense figure in labor and employment law who culture. of human rights,” worked to increase recognition of the field. After tracing was presented to the evolution of Amsterdam last fox honored twice child pornography October. Lisa Kung ’97, SCHR’s director, On June 18, Eleanor Fox ’61, Walter J. Deren- law, Adler decon- called Amsterdam “the most brilliant le- berg Professor of Trade Regulation, was structed the troubling significance of a gal mind in the modern fight against capi- presented with the 10th annual Antitrust recurring, pseudo-law enforcement, Date- tal punishment.” Achievement Award by the American An- line NBC project, “To Catch a Predator,” in titrust Institute, an independent, non- which correspondent Chris Hansen con- davis, a powerful educator profit think tank advocating the increased fronts would-be “online predators,” who National Jurist has named Peggy Cooper role of competition. AAI President Albert have engaged in sexually explicit chats with Davis, John S.R. Shad Professor of Law- Foer called Fox “one of the most important a decoy who has pretended to be a minor. yering and Ethics and the director of the figures in the field of international anti- Hansen reads the explicit exchanges aloud Lawyering Program, one of the three most trust.” Fox served on camera “until the predator literally begs influential people in legal education, de- as a committee for mercy,” Adler said. “The show continu- fined as “people who have influenced legal and commission ally restages the spectacle of the sexual education in a way that continues to benefit member on anti- child that it seeks to condemn.... Now the current and future law students.” trust and interna- pedophile’s fantasy is mainstream enter- Under Davis’s leadership, the Lawyer- tional competition tainment, packaged for sweeps week.” ing Program provides first-year students matters during the the opportunity to execute a legal strat- Carter and Clinton two awards for amsterdam egy by drafting administrations; University Professor Anthony Amsterdam documents, in- has advised the received the Yves Pélicier Award, for his vi- terviewing wit- European Union tal contributions to the field of law and men- nesses and clients, and countries as far-flung as Indonesia, tal health, from the International Academy and engaging in Russia, and South Africa; and was the first of Law and Mental Health on June 28. The negotiation, me- female vice chair of the American Bar As- IALMH draws from law, the health profes- diation, and liti- sociation’s Antitrust Section. sions, the social sciences, and the humani- gation. “We need Another feather was added to her cap ties to address issues at the intersection of to spend more last March, when Fox received an honorary law and mental health. “Professor Anthony time developing doctorate from the University of Paris–Dau- Amsterdam has achieved international ac- the many kinds of phine. Fox was honored for her work on is- claim for his persistent efforts in utilizing skills and intelligences for necessary prac- sues of global governance and competition constitutional law to protect the rights of tice,” Davis told the magazine. “And I’m of law. After the degree was conferred, she de- incarcerated persons,” said David Weisstub, the belief that professional education has livered a lecture, “Global Legal Norms and honorary lifetime president of IALMH. “As to become multidisciplinary and multifac- Efficiency and Justice in the World: The Soft a professor of law, he has been responsi- eted to keep up.” Underbelly of Global Convergence.”

50 NYU SCHOOL OF LAW faculty focus satterthwaite at the fore three win teaching awards The Women’s Association of Law at Pace Law Stephen Choi, Murray and Kathleen Bring School named Margaret Satterthwaite ’99 Professor of Law, Samuel Issacharoff, Bon- its 2009 Pioneer of Justice and Equality for nie and Richard Reiss Professor of Con- Women and the Law. Associate professor of stitutional Law, and Nancy Morawetz ’81, clinical law and faculty director of the Cen- professor of clinical law, were honored with ter for Human Rights and Global Justice, as the Albert Podell Distinguished Teaching well as faculty director of the Root-Tilden- Awards at the Law School’s end-of-year- Kern Program, Satterthwaite was honored dinner. Established in 2007 by Podell ’76, for helping to “bring women closer to equal- the awards recognize the outstanding ity in society and achievements of faculty in the classroom. the law.” She joins The students who nominated their Amato and Dorsen the company of instructors for the honor were effusive. previous winners Thomas Fritzsche ’09 said that Morawetz, Hauser Catherine Mac- who leads the Im- Kinnon of the Uni- migrant Rights versity of Michigan Clinic, is “always Program Honors Law School and attuned to the Congresswoman strategic concerns Its Founding Nita Lowey. At the that are relevant ceremony Satter- to the work done Director thwaite, whose work has taken her to Ni- in her clinic.... She At its annual dinner last February, the geria, Northern Ireland, and Yemen, spoke manages to simul- Hauser Global Law School Program about her experiences as the only woman taneously lend her honored its first director, Norman on a team of human rights investigators at students her wis- Dorsen, Frederick I. and Grace A. the Haitian National Truth Commission. dom and support Stokes Professor of Law. Dean Richard “There’s no single path to social change,” while allowing us Revesz, Hauser Foundation President Rita Hauser, and current Hauser Chair Satterthwaite told the audience. “Each of us to work through and Faculty Director Richard Stewart must choose our own path and embrace our difficult questions on our own.” all gave remarks praising Dorsen’s gifts as a part of the larger struggle.” achievements for the Hauser program, Calling Issa- including his work as founding edito- charoff “the con- weiler on church and state rial director of I•CON, NYU’s journal of In January, Joseph Weiler, University Pro- summate 1L law international constitutional law. fessor and Joseph Straus Professor of Law, professor,” Nis- From 1976 to 1991, Dorsen served as hanth Chari ’10 gave a presentation at a forum called “The president of the American Civil Liber- said that he “found American Model of Church-State Relations.” ties Union. In recognition of this work, a way to make President Bill Clinton awarded him the The international conference was held in Civil Procedure... Eleanor Roosevelt Human Rights Award honor of the 25th anniversary of formal not only interest- in 2000 for “using the power of law to diplomatic rela- ing but fun. He uphold civil rights at home and human tions between the had a very subtle dignity around the world.” Dorsen also United States and sits on the Council on Foreign Relations way of presenting the Vatican. In- and is a fellow of the American Acad- what seemed to be vited by Mary Ann emy of Arts and Sciences. a straightforward Glendon, then-U.S. The night’s featured speaker, issue and peeling Ambassador to the Hauser Distinguished Global Visi- back layers to re- tor and former prime minister of Italy Holy See, Weiler veal the complexity.” Citing Issacharoff’s Giuliano Amato, discussed the con- joined other dis- real-world experience, Chari added that tinuing spread of constitutionalism in tinguished con- “his anecdotes from his work on the famous an increasingly globalized world. He stitutional law asbestos class action cases gave us deeper commended Dorsen for his efforts to experts at the American Academy in Rome insights than a textbook ever could.” this end: “Norman has been one of the for a roundtable discussion comparing “Professor Choi is able to take securities most generous and effective promot- ers of [constitutionalism],” Amato said, church-state relations in much of Europe regulation...and make it come alive,” said “and this, Norman, is why you have our and the United States. Weiler spoke about Julie Chen ’09. “His mastery of the securi- admiration and our gratitude.” To con- the perdurable connection between cul- ties area of law is evident, but his ability to clude the evening, Dorsen himself gave tural identity and religious history; where explain a byzantine code with humor, ease, a short and endearingly modest ad- the U.S. strives for a secular approach, Eu- and the greatest clarity puts him in a class of dress thanking his family, mentors, and ropean countries have done less to separate his own. His pedagological approach dem- those who helped to build the Hauser religion from law and culture: “The Irish onstrates that he values the uniqueness of program. He shared his delight at being without the Holy Trinity and the British each student. Choi is not only brilliant, he’s able to “bask in the opportunity to be without ‘God Save the Queen’ lose a crucial an incredible teacher and a wonderful hu- here at the NYU School of Law.” part of what defines them as a nation.” man being.”

THE LAW SCHOOL 2009 51 of the tribunals to create a credible, viable body of international criminal law capable Meron on International of being applied by courts of law.” The international criminal courts can- Criminal Justice not do the judicial work alone, Meron said: “The tribunals, despite their precedent-set- udge theodor meron of the inter- said. Despite successful prosecutions, in- ting importance, will never have sufficient national Criminal Tribunal for the ternational judicial bodies are in a deli- material and political support to prosecute J Former Yugoslavia (ICTY) made a case cate position. “The tribunals are entirely more than just a few of the many interna- for the importance of his dependent on the good will tional crimes that take place. National domain in his February lecture, of nation-states,” Meron said, courts will have to carry the burden of try- “International Criminal Justice: adding, “Recent successes can- ing most international crimes.” Of the U.S. Does It Work?” sponsored by not hide the fact that the tribu- in particular, Meron was optimistic about the Institute for International nals remain extraordinarily its potential to prosecute international Law and Justice. dependent on actors outside crimes, citing Barack Obama’s disavowal Meron, Charles L. Denison their control to execute war- of torture and the decision to close Guan- Professor of Law Emeritus and rants, save for the few individ- tánamo. Even before the new administra- Judicial Fellow, observed that uals who turn themselves in tion took power, Meron said, the U.S. had as recently as 20 years ago, in- voluntarily.” Another problem been “doing a reasonable job of prosecuting ternational criminal courts were virtually is lack of participation in these institutions; rank-and-file members of its military who nonexistent. But in the early 1990s a series 70 percent of the world’s population does commit international crimes, though not in of horrific acts, particularly ethnic cleans- not live in an ICC member state. prosecuting higher-ranking individuals.... ing in the former Yugoslavia, brought the Despite these challenges, he said, in- I believe this record will improve.” need for international criminal proceed- ternational criminal tribunals have done If the world has not reached the end of ings to the fore, and the ICTY was estab- much to define how international criminal the path to justice, Meron concluded, at lished. The International Criminal Tribunal justice looks in practice. “There is a world least it is on the right track: “In record time, for Rwanda followed soon after, and the of difference between the rudimentary international criminal justice has emerged Special Court for Sierra Leone and the due-process norms of Nuremberg and the as a key advancement in the long fight to International Criminal Court (ICC) were meticulous attention to due process in the end impunity, enforce accountability, and formed in the ensuing decade. tribunals.... It took the development of rules establish international rule of law. This These new international criminal courts of procedure and evidence and the vital ju- is an achievement that humanity can be have faced daunting obstacles, Meron dicial gloss provided by the jurisprudence proud of.”

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Will52 NYU SCHOOL OF LAW Power faculty focus Alvarez is working on a book tentatively New Faculty titled The Once and Future Foreign Invest- ment Regime, which stems from a series of lectures he gave this past summer at The Hague Academy of International Law. The book will explore the nearly 3,000 bilateral and regional investment treaties that gov- ern the rights of foreign investors and that, Alvarez argues, help drive economic global- ization. “There’s a perception that the inter- José Alvarez pled thinker who has inspired the younger national investment regime is tilted in favor generation”—including Drumbl, who is 40. of rich, capital-exporting states and their herbert and rose rubin Alvarez insists that his goal is more than investors,” he says. He will explore whether professor of international law “just bomb-throwing.” As a Cuban immi- the regime needs significant reform. International law scholar José Alvarez is grant, he says, “a certain part of me wants In Cuba, Alvarez’s parents, José, now 94, known to ruffle feathers. Giving a keynote to welcome the outsider.” As ASIL president, and Maria, now deceased, worked side-by- speech that became “Torturing the Law” he translated his newsletter columns into side at a popular tamale stand in their tiny in the Case Western Reserve Journal of In- Spanish, and reached out to counterpart town of Punta Brava. After fleeing Castro ternational Law (2006), he was one of the societies around the world. He takes pains in 1961 with a hundred-dollar bill tucked first academics to suggest that the Bush ad- to ensure that international law is ac- into the elder José’s shoe and another $100 ministration probably violated the lawyers’ cessible to all. He and Reed, for ex- sewn into Maria’s purse strap, the family code of professional responsibility post-9/11. ample, boiled down the basics of moved to the Bronx in 1962, and then Delivering his lecture “The Schizophrenias their field to a primer that - Al Miami in 1966. As a preteen in Florida, of R2P” at The Hague in 2007, he questioned varez has used to introduce Alvarez embarked on a lifelong mis- whether the sacred cow of many NGOs— the field to practicing lawyers sion to “catch up” to his peers: “I was the so-called “responsibility to protect” and even inmates at a New York driven to succeed.” He wrote for the principle—could be misused to violate the maximum security prison. high school newspaper, win- rights of states and their peoples. In his best-known ning a prestigious journal- Yet he still took his colleagues by sur- work, International ism award. He took the prise when, while giving an address as Organizations few A.P. courses offered president of the American Society of Inter- as Law-makers in his public school and national Law in March 2007, he handed out (2005), Alvarez entered Harvard in 1973. a pamphlet called “International Law: 50 examines the “I was this straight-laced Ways It Harms Our Lives,” complete with growing role of Cuban kid” living in items like No. 36: Failing to Prevent Geno- international a co-ed residential cide. “A number of people were affronted. organizations house with upperclass- A number of people loved it. But nobody in influencing men. “Pot was flowing forgot it,” recalls Lucy Reed, current presi- state and indi- through the corridors; dent of ASIL. vidual behavior. everyone was having Sitting at his kitchen table in Westchester, The book analyzes sex, and their politics laughing heartily at his antic—the booklet organizations as were to the left of Che was a parody of a more earnest one done by disparate as the Guevara,” he jokes. an ASIL committee the year before—Alva- International Postal Graduating in 1977 rez says: “International lawyers tend to be Union and the U.N. with a major in social stud- very certain of their moral virtue. We need Security Council and is ies, he won a Rotary Schol- to avoid hubris. It’s important to be aware acclaimed for combining arship to Oxford, where he of the pitfalls, the way international law can insight of the organiza- earned a second B.A. in ju- empower the powerful.” tions’ day-to-day practice risprudence. Returning to Alvarez, 54, who writes extensively with theory and a dose of the U.S., he received his J.D. about public international law and foreign criticism. “This book is a from Harvard Law School investment law, is moving downtown from treasure trove that shows in 1981 and practiced law at Columbia Law School, where he was direc- how the law matters to a D.C. firm and at the State tor of the Center on Global Legal Problems. people in politics, and how Department. He joined the He’s a member of the Council on Foreign politics impinge upon the faculties of law at George Relations and was an attorney adviser at text that lawyers dream up,” Washington University and the U.S. Department of State, where he as- says Thomas Weiss, direc- the University of Michigan sisted on arbitrations before the Iran-U.S. tor of the Ralph Bunche before heading to Columbia Claims Tribunal. “He cares about the differ- Institute for International in 1999. ence international law makes for ordinary Studies at the CUNY Grad- As a visiting professor in people,” says Mark Drumbl of Washington uate Center. “Alvarez moves 2008-09, he was drawn to and Lee University School of Law. “He’s an effortlessly between politics the depth of NYU’s extremely courageous scholar, a princi- and the law.” international law

THE LAW SCHOOL 2009 53 faculty and the preponderance of activities. interested in what he’s doing, and can really diamonds, he says. But copying technology “At NYU, I can walk in, turn on the lights, and geek out about it,” adds Erin Simon ’09, who is becoming increasingly quick and cheap. everything is there,” he says. When his son took his Intellectual Property and Global- “We can no longer rely on nature to enforce Gabriel finishes high school next year, Alva- ization seminar last fall when Beebe was a the conditions of rarity,” he explains, “so rez and his wife, Susan, an appellate litigator, visiting professor. we’ve got to enforce those conditions our- plan to move into the city to feed their pas- Beebe doesn’t like to cold-call on stu- selves, and we’re doing so through intellec- sion for theater and film—particularly black dents, yet “he gets people to participate tual property law.” comedies: “I’m inspired by people who force without putting them on the spot,” says Growing up, Beebe and his sister, Brooke, us to look at the world a bit askew.” Matthew Turk ’10. “It’s not easy to get the moved frequently to wherever their archi- right dynamic in a 20-person seminar,” tect dad, Red, was needed to build a city’s Turk adds, “but he struck the right balance transit system. Their mom, Nancy, now de- Barton Beebe between encouraging discussion and pre- ceased, was a public school special educa- professor of law senting information.” tion teacher. Beebe spent his middle school Nix the bookshelves; pump up the tech bud- Beebe’s work is known for its versatility. years in Houston, where football was the get. That’s what Barton Beebe requested “Barton’s scholarship shows extraordinary rage, and hated every minute of it. “When for his new Vanderbilt Hall office. All that range, from high theory to detailed empiri- everyone was cheering for the football team Beebe really needs to feel at home are two cal work that challenges some well-settled and I couldn’t care less, I felt a real sense of 30-inch monitors and a computer pow- assumptions, particularly regarding fair estrangement,” says Beebe, who was a de- erful enough to handle his high-tech use,” says intellectual property pro- bater. “It wasn’t my world.” needs. “I do everything as paperless fessor Jane Ginsburg of Columbia The family moved to Oakland, Califor- as possible,” says Beebe, who plans Law School. In “An Empirical Study nia, during Beebe’s first year of high school, to bring just one box of files when he of U.S. Copyright Fair Use Opin- and life turned around. He fell in love with leaves Benjamin N. Cardozo School ions, 1978-2005” (Pennsylvania the city’s natural beauty and the intellec- of Law to join the NYU School of Law Law Review, 2008), for example, he tual atmosphere of his small private school. in September. A trademark, copyright, delved beyond headline cases, Despite taking some ribbing about his Lone and intellectual property law reading 306 opinions Star twang, Beebe thrived, since debate was scholar, he’s convinced that three times each to de- as cool there as football had been in Texas. technology has taken soci- termine which factors Beebe then went to the University of ety to the point where the actually drove judi- Chicago, soaking in the intellectual rigor intangible is more valuable cial outcomes. “Cod- of the school’s core curriculum, which fo- than the tangible: “I have ing the opinions took cuses on the so-called “great books” of the my library in a hard drive forever,” Beebe says. Western canon. Graduating in 1992 with a rather than in some giant But colleagues say B.A. in literature, he won a German schol- wall of books.” the results were arship, followed by a Whiting Fellowship in Ninety percent of ev- worth the effort. the Humanities while doing graduate work erything he’s read since “It’s the most re- at Princeton University. he started teaching is freshing and in- In 1998, he earned his Ph.D. in literature, ensconced on his Tab- formative fair use but had become dismayed by the impact let PC—a laptop with an article I’ve ever read,” literary theory was having on the academy: interactive touch screen. says Pamela Samuel- “There was a lot of sophistry and theoretical “It’s a lot easier than re- son of the University jargon.” By comparison, he says, “law seemed membering where I filed a of California, Berkeley, so much more worldly, and I was attracted to sheet of paper,” he says. He School of Law. The con- the rigorous, pragmatic nature of legal think- uses two external hard drives, ventional wisdom is that ing.” His debating skills made for a smooth one off-site backup server, and the commercial nature of a transition to Yale Law School, and his liter- a desktop computer fueling reputed fair user would un- ary studies naturally led him to copyright two hard drives that are mirror dermine a fair use defense, law. He earned his J.D. in 2001, and started copies of each other. His system she explains. “Beebe shows teaching at Cardozo after a federal clerkship automatically backs up his work that isn’t so.” and a stint at Debevoise & Plimpton. every three to four hours, creat- In a completely different When Beebe visited the Law School, he ing four to five copies. “If you go vein, Beebe’s forthcoming liked what he saw. “It’s like a cruise ship,” paperless, you’ve got to have that article “Intellectual Prop- bustling with activities, he says. “There’s mentality,” he says. erty Law and the Sumptu- something on Lido Deck 3 and something Beebe, 39, named Cardozo’s ary Code” (Harvard Law else in the Venetian Room on 4. You just Best Professor in 2007, is beloved Review, 2010) explores the can’t keep up.” by his students, who see him as an use of intellectual property Beebe is married to Amrit Singh, an eccentrically humorous intellectual law to suppress the social ACLU attorney. They live uptown with their with a well-coiffed plume of hair—“a and cultural implications rescue dog, Biba, bicycle together in Cen- theorist in a sea of practitioners,” of copying technology. tral Park, and travel twice a year to India— says Cardozo alumnus Jacob Much of our consumer cul- Tablet PC in hand. Says Beebe: “I can work Wentworth, who took three of ture is based on the con- in Central Park, along the Hudson, or in a Beebe’s courses. “He’s really sumption of rarities such as garden in Delhi.”

54 NYU SCHOOL OF LAW faculty focus Epstein can debate any topic with seat to blurt out answers, often lost his Richard Epstein ease because his arguments have homework, and wasn’t a particularly visiting professor of law a common denominator: classi- good test-taker. “I had a bunch of A classical libertarian arguing against cal liberalism. “I’m working off a teachers who prophesied an ugly universal health care, Richard Epstein strong, central theorem,” he says. end to my academic career,” he re- was clearly at a disadvantage when he took In a nutshell: He believes in in- calls. That didn’t stop him from get- the podium in April 2008 to debate Ameri- dividual freedom, but not ting into Columbia College. As cans’ right to health care. He was in Mas- unconstrained by the a student during the height sachusetts, the only state that requires rights of others, and in of the turbulent 1960s, Ep- health coverage, and participating in a limited government stein stood apart from the forum sponsored by PBS. He faced Judy­ with an eye toward protests. “I’ve always been Ann Bigby, an advocate of the state’s near- the common good. a contrarian intellectual, universal coverage plan and the secretary In his best-known and when I see lots of peo- of health. “It was the worst possible setting work, Takings: Pri- ple out there chanting and for him,” says one of his opponents, Regina vate Property and screaming, my first reac- Herzlinger of Harvard Business School. the Power of Emi- tion is that they’ve got to Rarely coy, Epstein began by declaring nent Domain (1985), be wrong,” he says. that Wal-Mart could provide health cover- which has been He graduated in 1964, age better than Massachusetts could. Then cited in four U.S. Su- earning a Kellett Fellow- in a move Herzlinger called “Kissinger- preme Court cases, ship to study at Oxford. esque,” Epstein distanced himself from his he doesn’t come down The English curriculum teammate, who was presenting a distaste- against eminent domain was oriented toward ful argument, and reached across the aisle per se, but argues that the private law, so he found to her. “It took him about five minutes to government should be himself immersed in realign three of the four debaters,” she says. required to provide the work by judges with Afterward, Epstein was “surrounded by same protections as any classical libertarian people who may not have liked what he had private entity in a prop- leanings. He received to say but were dazzled by his brilliance.” erty dispute. “He, more than his B.A. in jurisprudence Epstein’s debating skills are legendary, any other scholar, has had an in 1966, then entered Yale as is almost everything about the man. It’s impact on reopening issues Law School, earning his been said that taking notes in his class is about property rights that have LL.B. in 1968. like trying to fill a Dixie cup with water been neglected for decades in During the next four from Niagara Falls. “Richard speaks with- the constitutional literature,” years he taught law at the out breathing, and in perfect paragraphs,” says Vanderbilt law professor University of Southern says Samuel Issacharoff, Bonnie and Rich- James Ely. Epstein is currently California and met his ard Reiss Professor of Constitutional Law. working on a book that ana- wife, Eileen, a profes- During the timed closing remarks in Bos- lyzes the Constitution through sional fundraiser. They ton, Epstein got in 35 percent more words libertarian eyes. The Tulsa Law have three children. At than did his opponent (218 words per min- Review, which traditionally the University of Chi- ute versus 161). honors constitutional scholars, cago, Epstein headed It seems he knows something about ev- dedicated its 2008 symposium to the John M. Olin Pro- erything, and his reach extends beyond the Epstein’s complete works. gram in Law and academy to newspaper op-eds, podcasts, Predictably, Epstein opposes Economics, and and even YouTube videos. He’s written most of the positions of his one-time in 2001 served as in- and edited 22 books on diverse subjects. At colleague President Barack Obama. He does terim dean when his predecessor left un- the University of Chicago, he has taught 27 support the president’s call to safeguard ha- expectedly. “He filled the gap selflessly. different courses—including Roman law— beas corpus rights and close Guantánamo People thought of him as a steady rock,” since 1972. Epstein, who has been an annual Bay, while reserving his highest compli- says Chicago colleague Douglas Baird. visiting professor at the NYU School of Law ment for Obama’s skill in another arena al- In 2005, Epstein began splitting his year since 2005, plans to follow suit when he per- together: the basketball court. “He’s a great between Chicago and New York. “This is a manently joins the faculty in 2010. “What- player, but not the equal of Arne Duncan, faculty that is convivial and highly profes- ever they ask is what I teach,” Epstein says. his education secretary,” says Epstein, who sional,” he says. “I like the culture.” His “That’s always been my rule.” played with those two plus First Brother- appointment allows him to keep his con- He trains students to speak off-the- in-Law Craig Robinson at a party for Marty nection with the Hoover Institution at Stan- cuff—a practice that can fell even the Nesbitt, Obama’s campaign treasurer. ford University, where he has been a fellow ablest. He calls on a student closest to the Epstein was raised with his two sisters since 2000, and spoil his granddaughter, aisle, then moves rapidly down the row, get- in what he calls “a perfectly conventional Bella. In his leisure time he plays basketball ting through half the class in an hour. “He’s Brooklyn home.” His father, Bernard, was and does crossword puzzles. With typical intimidating at first, but he’s not trying to a radiologist, and his mother, Catherine, humility, he notes, “I have progressed from embarrass you,” says Michael Schachter ’10, “a basic New Deal liberal,” ran Bernard’s rank amateur to respectable mediocrity, who nearly blacked out once when Epstein office. Epstein did well in school, but was and sometimes surprise myself by finish- worked his way toward him in Contracts. not a model student. He bounced out of his ing a Saturday New York Times puzzle.”

THE LAW SCHOOL 2009 55 interpretation and uses insights from so- gardener was routinely detained by the po- Ryan Goodman ciology to frame the argument differently. lice, and that black families were separated. anne and joel ehrenkranz “He takes his scholarship somewhere that “We had people working in our home while professor of law you wouldn’t expect,” says Mindy Roseman, their children were elsewhere. It shook me His gentle voice doesn’t dominate a panel academic director of the human rights up,” he recalls. “It left an impression. I felt discussion, yet he’s the one to further the program at Harvard. One such example a sense of responsibility for correcting the debate. He won three best-paper prizes is “How to Influence States: Socialization imbalances of the world.” at Yale Law School but forgot to mention and International Human Rights Law” In 1979, his dad, Basil, then an executive that on his résumé. At Harvard Law School, (Duke Law Journal, 2004). Conventional at General Electric, and his mom, Carol-Lee, where he has been since 2002, he asked a wisdom in human rights scholarship pos- a ceramicist, left much of their wealth be- student to co-teach a workshop, whereas tulates that countries are either coerced hind to emigrate to the U.S. “They left out “most would say, ‘I’ll teach; you’ll be my or persuaded to abide by particular hu- of a sense of justice,” he says. “They didn’t T.A.,” recalls Andrew Woods, now a Hauser man rights laws. Goodman and co-author want their children [him and older sister Doctoral Researcher, visiting from Cam- Jinks, however, use existing sociological Tanya] growing up with the negative and bridge University. And of the twenty-some empirical studies to set forth a third rea- perverse influences of apartheid.” articles and books that public international son—acculturation. That is, states tend to They settled in Birmingham, Alabama, scholar Ryan Goodman, just 39, has already emulate their peers. “By identifying this where, ironically, Goodman witnessed published, half are co-authored. mechanism of acculturation, we can bet- forms of racism “disturbingly reminiscent The word “ego” isn’t part of Goodman’s ter design human rights treaties to pro- of South Africa,” he says. He rejected the vocabulary. “He’s very unpompous, if you mote good practices,” says Goodman. He Southern customs of ballroom dancing and will, which is not an attribute that’s in great and Jinks are expanding this theme into a debutante cotillions, but joined his high supply. He’s just interested in the scholar- book, Socializing States: Promoting Human school’s debate team, ran track, and played ship,” says George Downs, professor of Rights through International Law. soccer and football. With a debate scholar- politics at NYU. “He’s more comfortable Goodman’s passion for international law ship to the University of Texas, he placed spreading the credit around,” says frequent and human rights issues was born during second in the national championship. co-author Derek Jinks of the University of his privileged upbringing in apartheid-era Graduating in 1993 with a B.A. in govern- Texas at Austin School of Law. “It isn’t about South Africa. When the Soweto uprising be- ment and philosophy, as well as a growing garnering attention for himself. He’s all gan in June 1976, he was just six years old. interest in human rights, Goodman worked about making the world better.” “We were pulled out of school, and I remem- at a grassroots development organization A one-time debater and an interdisci- ber seeing tanks rolling down the street,” in India. There he realized that he lacked plinary scholar who holds a Ph.D. in so- he says. He recalls that his family’s black the skills needed to effect social change, ciology as well as a J.D., both from Yale, so he entered Yale, earning his J.D. in 1999 Goodman specializes in human rights law and his Ph.D. in 2001. Throughout his stud- as well as humanitarian law, and was direc- ies, he continued advocacy work in India as tor of the Human Rights Program at Har- well as South Africa, and interned at the In- vard, beginning in 2006. “He’s had a lot of ternational Criminal Tribunal for the For- influence. His scholarship has informed a mer Yugoslavia. lot of brief-writing in court,” says Harvard Goodman had considered remaining colleague Jack Landman Goldsmith. The single, fearing that “marriage would take U.S. Supreme Court heavily relied on Good- time away from promoting human rights,” man’s amicus brief in Hamdan v. Rumsfeld says Jinks. But then he met Melissa when it overturned the government’s sys- Bender, 36, an infectious-disease re- tem of military commissions in 2006. searcher. They married in 2006 and He built bridges at Harvard between had Ella, now two years old. the law school and the John F. Kennedy The depth of the NYU Law faculty School of Government, and intends to do in Goodman’s area of expertise was the same at NYU, cross-listing his classes a big draw. “Many places engage in with the departments of sociology and superlatives,” he says. “But in terms political science. of intellectual activity in international “Ryan Goodman is a leader among an law, NYU is unbeatable.” He will jump exciting new generation of scholars who right in alongside Philip Alston as co- combine cutting-edge social science Ph.D. chair and faculty director of the Center work with deep expertise in international for Human Rights and Global Justice. law,” says Benedict Kingsbury, Murry and Goodman is also looking forward Ida Becker Professor of Law. “His intel- to moving with his family to New York. lectual range makes him an exception- “Ella feeds off the energy of the city, like ally perceptive and constructive critic we do.” His wife was born and raised on the work of his academic colleagues, in Manhattan. And an added perk: and a wonderful adviser to students.” Goodman can attend meetings at the By all accounts, Goodman is a U.N., where they know not to under- painstakingly careful and rigorous estimate the might—in Goodman’s case scholar who is attentive to prior intellectual—of those who speak softly.

56 NYU SCHOOL OF LAW faculty focus of MIT Sloan School of Management. Her on melting and quasicrystals; particles, as Katherine Strandburg article “Users as Innovators: Implications in the paper on Brazil nuts; or people, as in professor of law for Patent Doctrine” (University of Colorado my studies of scientific collaboration.” She didn’t successfully crash-land a plane Law Review, 2008) “is the first by any legal Strandburg inherited her talent for or seize the political spotlight, but Kather- scholar that analyzes the significant im- science from her dad, Donald, 79, ine Strandburg nonetheless got her prover- plications of widespread user innova- who taught physics at San Jose bial 15 minutes of fame—via cans of mixed tion for patent doctrine.” State University. She acquired nuts. In 1987, while doing postdoctoral work In that piece, Strandburg chal- her commitment to social is- in physics at Carnegie-Mellon University, lenges today’s predominant sues from her mom, Patri- Strandburg and her colleagues figured out patent law doctrine, the seller cia, 78, a one-time English why Brazil nuts usually make their way to innovator paradigm, which as- teacher, who involved her the top of the can, despite being heavier. sumes that inventors are moti- three kids in volunteer “Our explanation was very simple,” says vated by profit that can best activities like working the one-time physicist, who used computer be assured through patent at a summer camp for simulation to explore the question. Each protection. This paradigm, prisoners’ children. In time the nuts bounce upward, more small however, does not take law school, Strandburg spaces than large ones open up beneath into account that new helped to reunite a four- them. Over time, the peanuts fall to the bot- products or processes year-old girl from Hon- tom because they have more places to go, are often invented by duras with her mother, a pushing the Brazil nuts to the top. The team the users themselves, political refugee. was besieged with media requests. e.g., cyclists, snowboard- Both parents came from Few physicists get into the New York ers, and even research sci- blue-collar families, but Times, and fewer still are women—only entists, who benefit simply let Strandburg know she eight percent of all physics doctorates were by using their own inven- could be whatever she earned by women when Strandburg re- tions. “So if people are in- set her mind to—which ceived hers from Cornell University in 1984. venting for reasons that don’t changed daily in high She’d built a solid reputation with the Con- need a carrot,” says Strand- school. “One day I wanted densed Matter Theory Group at Chicago’s burg, “then maybe we should to do math, the next I’d be Argonne National Laboratory, publishing have exceptions to the way studying the classics,” she numerous scientific papers on phase transi- patent law is enforced.” recalls. The only constant tions—points at which the type of ordering In “Freedom of Associa- was science; she graduated within a physical system changes—such as tion in a Networked World: with a B.S. in physics from melting. So leaving the lofty world of physics First Amendment Regulation Stanford in 1979. in 1992 to start anew was a particularly gutsy of Relational Surveillance” A visiting professor in move. But she realized the aspect of physics (Boston College Law Review, 2007-08, Strandburg co- she relished most was analytical problem 2008), Strandburg explores pri- taught the Colloquium on solving, and the problems that intrigued vacy protections in our digital Innovation Policy. “She her most were social issues. Strandburg also world. Current legal doctrines impressed everyone with loves a challenge—she’s a second-degree guard the content of phone or her enthusiasm and com- black belt in Seido Karate. Internet communication but mitment to intellectual She entered law school at age 35. After do little to prevent government life,” says her co-teacher, earning her J.D. in 1995 from the University from tracking our networks of Rochelle Dreyfuss, Pau- of Chicago Law School, she went to Jenner & contacts. At a time in which line Newman Professor Block, where she worked on patent and con- more and more people asso- of Law. “She brings a tract cases in which the underlying dispute ciate digitally, courts need to unique interdisciplinary involved technologies such as telephone consider First Amendment perspective that adds to billing systems and automobile diagnostic freedom of association pro- the way we think of in- equipment. But in 2002 she switched gears tections in regulating rela- tellectual property.” again and moved into academia, teaching tional surveillance. The move to NYU brings her closer to at DePaul University College of Law until With co-authors Michael Madison her daughters from her former marriage, leaving to join NYU Law. and Brett Frischmann, Strandburg is also Danielle, 23, who lives in the city, and Ari- “Kathy is universally loved and re- working on “Constructing Commons in ana, 20, who is a student at Swarthmore spected,” says DePaul law professor Ro- the Cultural Environment,” which builds College near Philadelphia. Once Strand- berta Kwall. “She’s intellectually curious. on “Users as Innovators” by proposing a burg settles into her new life in New York, We have wonderful discussions about law, theoretical approach to studying institu- she plans to throw her annual holiday religion, and our daughters. She’s not just tions for collaborative innovation, such party, to which she and her partner of 16 a one-dimensional thinker.” as Wikipedia and open-source software. years, Wai-Kwong Kwok, an experimental Strandburg will teach intellectual prop- Says Strandburg, “My career in both law scientist at Argonne, invite lawyer, scien- erty and law related to technology and and physics is characterized by an inter- tist, and karate-enthusiast friends. They innovation. “She is one of the best-appreci- est in the way that large-scale, apparently sing songs and munch on home-baked ated legal scholars in the field of innovation coordinated phenomena emerge from the cookies and, of course, some mixed nuts. research,” says economist Eric Von Hippel ground up—be it atoms, as in my studies All profiles written by Jennifer S. Frey

THE LAW SCHOOL 2009 57 The Village Vanguard The five new faculty profiled in the preceding pages join an ensemble of 27 top and rising scholars who have come to the NYU School of Law since 2002. These 32 professors can riff expertly in the areas of constitutional, criminal, tax, corporate, labor, torts, human rights, national security, immigration, international, innovation and environmental law as well as Hebrew law and legal philosophy.

oren bar-gill lily batchelder stephen choi

jennifer arlen ’86 rachel barkow kevin davis

john ferejohn roderick hills jr. daniel hulsebosch

cynthia estlund moshe halbertal robert howse samuel issacharoff

mitchell kane florencia marotta-wurgler ’01 smita narula

deborah malamud troy mckenzie ’00 arthur miller samuel rascoff

cristina rodríguez samuel scheffler jeremy waldron kenji yoshino

margaret satterthwaite ’99 catherine sharkey katrina wyman faculty focus est or Best Interest?” Yale Law Journal Visiting Faculty (2005); The Origins of Adversary Criminal Trial (2003) Education: LL.B., Harvard University; LL.B. and Ph.D., University of Cambridge Related experience: Uniform Law Com- missioner, Connecticut; Principal drafter, Uniform Prudent Investor Act (1994); Member, drafting committees for Uniform Trust Act (2000) and Uniform jonathan baker Liability,” in Prosecutors in the Board- Principal and Income Act (1997) Position: Professor of Law, room: Using Criminal Law to Regulate Awards: 2006 Coif Award for outstanding Washington College of Law Corporate Conduct (2009); “The Upside of American book on law for The Origins of When: Spring 2010 Overbreadth,” NYU Law Review (2008); Adversary Criminal Trial Course: “Criminal Procedure Within the Firm,” Antitrust Law Stanford Law Review (2007) ian haney lópez Representative Education: J.D., New York University Position: John H. Boalt Professor of publications: Clerkship: Judge Jack B. Weinstein of Law, University of California, Berkeley, Co-author, the U.S. District Court for the Eastern School of Law “Reinvigorating District of New York When: Fall 2009 Horizontal Merger Courses: Color- Enforcement,” annette gordon-reed blindness; De- in Where the Chicago School Overshot Position: Professor of Law, bating Race and the Mark (2008); “Beyond Schumpeter New York Law School American Law vs. Arrow: How Antitrust Fosters Inno- When: Spring 2010 Research: Re- vation,” Antitrust Law Journal (2007); Courses: Ameri- actionary color- “Competition Policy as a Political Bar- can Legal His- blindness on the gain,” Antitrust Law Journal (2006); “The tory in the Early Supreme Court—the contemporary use Case for Antitrust Enforcement,” Journal Republic Semi- of colorblindness to impede rather of Economic Perspectives (2003); “Mav- nar; Professional than promote racial equity ericks, Mergers, and Exclusion: Proving Responsibility and Representative publications: “A Nation Coordinated Competitive Effects Under the Regulation of of Minorities: Race, Ethnicity, and Reac- the Antitrust Laws,” NYU Law Review Lawyers tionary Colorblindness,” Stanford Law (2002); co-author, “Empirical Methods in Representative publications: The Hem- Review (2007); Racism on Trial: The Chi- Antitrust Litigation: Review and Critique,” ingses of Monticello: An American Family cano Fight for Justice (2003); “Institutional American Law & Economics Review (1999) (2008); editor, Race on Trial: Law and Racism: Judicial Conduct and a New Education: J.D., Harvard Law School; Justice in American History (2002); Theory of Racial Discrimination,” Ph.D. in economics, Stanford University Thomas Jefferson and Sally Hemings: Yale Law Journal (2000); White by Law: Related experience: Director, Bureau of An American Controversy (1997) The Legal Construction of Race (1996) Economics, Federal Trade Commission; Awards: 2009 Pulitzer Prize for The Education: J.D., Harvard Law School; Senior Economist, President’s Council of Hemingses of Monticello M.P.A., Princeton University; M.A. in Economic Advisers; Special Assistant to Education: J.D., Harvard Law School history, Washington University the Deputy Assistant Attorney General for Clerkship: Judge Harry Pregerson of the Economics, Antitrust Division, Depart- john langbein U.S. Court of Appeals for the Ninth Circuit ment of Justice; Visitor, European Com- Position: Sterling Professor of Law mission Competition Directorate-General and Legal History, Yale Law School erin murphy When: Spring 2010 Position: Assistant Professor of Law, samuel buell ’92 Course: Trusts University of California, Berkeley, Position: Associate Professor of Law, and Estates: School of Law Washington University School of Law Family Wealth When: Fall 2009 When: Spring 2010 Transmission Courses: Crimi- Course: Representative nal Law; Criminal Criminal Law publications: Procedure: Inves- Research: Criminal Co-author, History tigations; Criminal and civil regulation of the Common Procedure: Adjudi- of economic Law: The Development of Anglo-American cation; Crime and behaviors; legal Legal Institutions (2009); “Trust Law as Technology construction of Regulatory Law: The Unum Provident Representative publications: “Manufac- mental states; Scandal and Judicial Review of Benefit turing Crime: Process, Pretext and Crimi- enforcement institutions Denials Under ERISA,” Northwestern Uni- nal Justice,” Georgetown Law Journal Representative publications: “Potentially versity Law Review (2007); “Questioning (2009); “Paradigms of Restraint,” Duke Perverse Effects of Corporate Civil the Trust-Law Duty of Loyalty: Sole Inter- Law Journal (2008); “The New Forensics:

THE LAW SCHOOL 2009 59 Criminal Justice, False Certainty, and katharina pistor Procedure Seminar; Criminal Procedure: the Second Generation of Scientific Position: Michael I. Sovern Professor Investigations; Evidence Evidence,” California Law Review (2007) of Law, Columbia Law School Research: A comparative study of under- Education: J.D., Harvard Law School When: Fall 2009 cover policing in the United States, Italy, Clerkship: Judge Merrick B. Garland of Courses: Global Germany, and France; comparative re- the U.S. Court of Appeals for the District Financial Mar- search about intelligence-gathering in of Columbia Circuit ket Governance immigrant com- Seminar; Law and munities in the richard nagareda Development United States Position: Professor of Law, Research: and France Vanderbilt University Law School Comparative law Representative When: Fall 2009 and institutional publications: Course: Complex development, with special emphasis on “Do Rules of Evi- Litigation corporate governance and financial dence Apply (Only) Research: Class market development in the Courtroom? actions; mass torts; Representative publications: Co-author, Deceptive Interrogation in the United interaction of liti- Law and Capitalism: What Corporate States and Germany,” Oxford Journal gation and regula- Crises Reveal About Legal Systems and of Legal Studies (2008); “The Place of tory systems Economic Development Around the World Covert Policing in Democratic Societies: Representative (2008); co-author, “Trade, Law, and Prod- A Comparative Study of the United States publications: “Class Certification in uct Complexity,” Review of Economics and Germany,” American Journal of the Age of Aggregate Proof,” NYU Law and Statistics (2006) Comparative Law (2007) Review (2009); “Aggregate Litigation Education: LL.M., University of London; Education: J.D., University of Chicago Across the Atlantic and the Future of M.P.A., Harvard University; J.S.D., Univer- Clerkship: Judge Douglas H. Ginsburg American Exceptionalism,” Vanderbilt sity of Munich; J.D., University of Freiburg of the U.S. Court of Appeals for the Law Review (2009); Mass Torts in a District of Columbia Circuit World of Settlement (2007) roberta romano Related experience: Assistant U.S. Attor- Education: J.D., University of Chicago Position: Oscar M. Ruebhausen Professor ney, Northern District of Illinois (Chicago) Law School of Law and Director, Center for the Study and District of Massachusetts (Boston) Clerkship: Judge Douglas H. Ginsburg of Corporate Law, Yale Law School of the U.S. Court of Appeals for the When: Spring 2010 alan schwartz District of Columbia Circuit Course: Position: Sterling Professor of Law and Related experience: Office of Legal Corporations Professor of Management, Yale University Counsel, U.S. Department of Justice Research: Regula- When: Fall 2009 tion of financial Courses: Contracts; jide nzelibe instruments and Bankruptcy; Position: Professor of Law, securities markets; Commercial Law; Northwestern University Law School corporate gover- Mergers and When: Fall 2009 nance; state Acquisitions Course: Contracts competition for corporate charters Research: Research: Inter- Representative publications: “Does Contracts; bank- national trade; the Sarbanes-Oxley Act Have a Future?” ruptcy; mergers international Yale Journal on Regulation (2009); co- and acquisitions; behavioral economics business transac- author, “The Promise and Peril of Corpo- Representative publications: Co-author, tions; international rate Governance Indices,” Columbia Law “Market Damages, Efficient Contracting, law; foreign Review (2008); “The Sarbanes-Oxley Act and the Economic Waste Fallacy,” Colum- relations law and the Making of Quack Corporate Gov- bia Law Review (2008); “How Much Irratio- Representative publications: Co-author, ernance,” Yale Law Journal (2005); The nality Does the Market Permit?” Journal of “Complementary Constraints: Separation Advantage of Competitive Federalism for Legal Studies (2008); co-author, Payment of Powers, Rational Voting, and Consti- Securities Regulation (2002); The Genius Systems and Credit Instruments (2007) tutional Design,” Harvard Law Review of American Corporate Law (1993) Education: LL.B., Yale Law School (2009); “The Case Against Reforming Education: J.D., Yale Law School; M.A. the WTO Enforcement Mechanism,” in history, University of Chicago david walker University of Illinois Law Review (2008); Clerkships: Judge Jon O. Newman Position: Professor of Law, “Are Congressionally Authorized Wars of the U.S. Court of Appeals for the Boston University School of Law Perverse?” Stanford Law Review (2007) Second Circuit When: Fall 2009 Education: J.D., Yale Law School; M.P.A., Course: Income Taxation Princeton University jacqueline ross Research: Corporate law; taxation; execu- Clerkship: Judge Stephen F. Williams of Position: Professor of Law, tive compensation; law and economics the U.S. Court of Appeals for the District University of Illinois College of Law Representative publications: Co-au- of Columbia Circuit When: 2009-10 thor, “Book/Tax Conformity and Equity Courses: Comparative Criminal Compensation,” Tax Law Review (2009);

60 NYU SCHOOL OF LAW faculty focus “Financial Accounting and Corporate Justice,” Minnesota Law Review (2009); geoffrey stone Behavior,” Washington and Lee Law co-author, “Bargaining and Opinion As- Position: Edward H. Levi Distinguished Review (2007); “Unpacking Backdating: signment on the U.S. Supreme Court,” Service Professor of Law, University of Economic Analysis Journal of Law, Economics, & Organiza- Chicago Law School and Observations tion (2007); Veto Bargaining: Presidents When: Fall 2009 on the Stock and the Politics of Negative Power (2000) Courses: Constitutional Decision- Option Scandal,” Education: M.P.A. and Ph.D. in public making Seminar; First Amendment Boston University affairs, Princeton University Rights of Expression and Association Law Review (2007) Research: Consti- Education: J.D., robert rabin tutional law Harvard University Position: A. Calder Mackay Professor Representative Clerkship: Judge of Law, Stanford Law School publications: War Karen Nelson Moore of the U.S. Court of When: 2009-10 and Liberty: An Appeals for the Sixth Circuit Courses: Torts; American Dilemma: Protection of 1790 to the Present tobias wolff Personality; Toxic (2007); Top Secret: Position: Professor of Law, Harms Seminar When Our Govern- University of Pennsylvania Law School Research: Tort law; ment Keeps Us in the Dark (2007); Perilous When: Spring 2010 health and safety Times: Free Speech in Wartime from the Course: Conflict regulation Sedition Act of 1798 to the War on Terror- of Laws Representative ism (2004) Research: publications: “Tobacco Control Strategies: Awards: Robert F. Kennedy Book Award Civil procedure; Past Efficacy and Future Promise,” and Los Angeles Times Book Prize for complex litigation; Loyola of Los Angeles Law Review (2008); Perilous Times conflict of laws; co-author, Tort Law and Alternatives: Education: J.D., University of Chicago Law constitutional Cases and Materials (2006); “The Renais- School law; First Amend- sance of Accident Law Plans Revisited,” Clerkships: Justice William J. Brennan Jr. ment; law and sexuality Maryland Law Review (2005); co-editor, of the U.S. Supreme Court; Judge J. Skelly Representative publications: “Federal Torts Stories (2003) Wright of the U.S. Court of Appeals for the Jurisdiction and Due Process in the Era of Education: J.D. and Ph.D. in political District of Columbia Circuit the Nationwide Class Action,” University science, Northwestern University of Pennsylvania Law Review (2008); “Pre- Related experience: Senior Environ- Judicial Fellow clusion in Class Action Litigation,” Colum- mental Fellow, U.S. Environmental bia Law Review (2005); “Interest Analysis Protection Agency albert rosenblatt in Interjurisdictional Marriage Disputes,” Position: Counsel, McCabe & Mack, University of Pennsylvania Law Review daniel rubinfeld Poughkeepsie, (2005); “Political Representation and Position: Robert L. Bridges Professor New York Accountability Under Don’t Ask, Don’t of Law and Professor of Economics, When: 2009-10 Tell,” Iowa Law Review (2004) University of California, Berkeley Course: State Education: J.D., Yale Law School When: Fall 2009 Courts and Ap- Clerkships: Judge Betty Binns Fletcher Courses: Antitrust pellate Advocacy and Judge William A. Norris of the U.S. Law and Econom- Seminar Court of Appeals for the Ninth Circuit ics Seminar; Quan- Judicial appoint- titative Methods in ments: Justice, Multi-Year Law Seminar New York State Supreme Court; Chief Research: Anti- Administrative Judge, State of New York; Visiting Faculty trust; economic Judge, New York State Court of Appeals; analysis of legal Associate Justice, Second Department charles cameron process; political economy of federalism of the Appellate Division of the New Position: Professor of Politics and Representative publications: Co-author, York State Supreme Court; County Judge, Public Affairs, Princeton University Microeconomics (2009); co-author, “Em- Dutchess County, New York When: 2009-10 pirical Study of the Civil Justice System,” in Representative publications: Editor, Course: Political Handbook of Law and Economics (volume The Judges of the New York Court of Environment of 1, 2007); “3M’s Bundling Rebates: An Eco- Appeals: A Biographical History (2007); the Law nomic Perspective,” University of Chicago issue co-editor, New York State Bar Research: Political Law Review (2005); co-author, Econometric Journal (1993, 1994, 1997, 2001); New institutions and Models and Economic Forecasts (2002) York’s New Drug Laws and Sentencing policymaking Education: Ph.D. in economics, Massa- Statutes (1973) Representative chusetts Institute of Technology Education: J.D., Harvard Law School publications: Related experience: Deputy Assistant “Changing Supreme Court Policy Through Attorney General, Antitrust Division, Appointments: The Impact of a New U.S. Department of Justice

THE LAW SCHOOL 2009 61 fabrizio cafaggi Representative publications: The European Global Visiting Position: Professor of Comparative Civil Code: The Way Forward (2008); The Professors of Law Law, European University Institute, Law of Contract Florence, Italy (2008); Employment fareda banda When: Fall 2009 Law (2003); Regulat- Position: Reader in the Laws of Africa, Courses: Trans- ing Contracts (1999); University of London, School of Oriental national Regula- Justice in Dismissal: and African Studies tion; Private Law The Law of Termina- When: Fall 2009 in Europe and the tion of Employment Courses: Human U.S.: Convergence (1992); Marxism and Rights of Women; or Divergence Law (1982) Law and Society Research: Com- Education: M.A. and B.C.L., University of in Africa parative private law; European private Oxford; LL.M., Harvard Law School Research: Human law; private regulation and multilevel rights of women; governance graeme cooper family law; law and Representative publications: Co-editor, Position: Professor of Taxation Law, Uni- society in Africa Making European Private Law: Gover- versity of Sydney Representative publications: Women, nance Design (2008); co-editor, Legal When: Spring 2010 Law and Human Rights: An African Orderings and Economic Institutions Courses: Theory Perspective (2005); consultancy reports (2007); editor, Reframing Self-Regulation and Design of for the Lord Chancellor’s Department on in European Private Law (2006); editor, Value Added Tax; why women and ethnic minorities are The Institutional Framework of European Tax Treaties underrepresented in the ranks of Queens Private Law (2006) Research: Cor- Counsel (co-author), for the Minority Education: J.D., University of Rome; porate taxation; Rights Group on gender and indigeneity Ph.D. in law, University of Pisa, Italy comparative tax (co-author), and for the United Nations on law; taxation in developing countries; laws that discriminate against women seung wha chang consumption taxes; tax policy Education: B.L. and LL.B., University Position: Professor of Law, Representative publications: Co-author, of Zimbabwe Faculty of Law; D.Phil., Seoul National University Income Taxation: Commentary and University of Oxford Faculty of Law When: Spring 2010 Materials (2009); Executing an Income Course: WTO: Core Tax (2008) eyal benvenisti Issues and Dispute Education: LL.B. and LL.M., University Position: Anny and Paul Yanowicz Development of Sydney; LL.M., University of Illinois; Professor of Human Rights, Tel Aviv Research: Inter- J.S.D., Columbia Law School University Faculty of Law national trade; When: Fall 2009 competition law; niva elkin-koren Courses: Law and international Position: Professor of Law, University Global Gover- arbitration of Haifa Faculty of Law; Director, Haifa nance; Legal Re- Representative publications: “WTO for Center of Law & Technology straints on the Trade and Development Post-Doha,” Jour- When: Spring 2010 War on Terrorism nal of International Economic Law (2007); Course: Copyright Research: Con- “Taming Unilateralism Under the Trading Law in the Digital stitutional law; System,” Georgetown Journal of Law and Era international law; Policy in International Business (2000) Research: Book human rights and administrative law Education: LL.B. and LL.M., Seoul in progress on the Representative publications: Co-editor, National University; LL.M. and S.J.D., evolving structures The Impact of International Law on Inter- Harvard Law School of governances in national Cooperation: Theoretical Perspec- Related experience: Arbitration Panelist, social networks; le- tives (2004); co-editor, The Welfare State, World Trade Organization; Judge, Seoul gal institutions that facilitate private and Globalization, and International Law District Court; Arbitrator, ICC Interna- public control over the production and (2004); Sharing Transboundary Resources: tional Court of Arbitration and London dissemination of information International Law and Optimal Resource Court of International Arbitration Representative publications: Co-author, Use (2002) Law practice: Counsel, Covington & The Limits of Analysis: Law and Econom- Education: LL.B., Hebrew University of Burling, Washington, D.C. ics of Intellectual Property in the Digital Jerusalem Faculty of Law; LL.M. and Age (forthcoming, 2009); co-editor, Law J.S.D., Yale Law School hugh collins and Information Technology (forthcom- Clerkship: Justice M. Ben-Porat of the Position: Professor of English Law, ing, 2009); Intellectual Property in the Supreme Court of Israel London School of Economics Information Age (2004); co-author, Law, When: Spring 2010 Economics and Cyberspace: The Effects of Course: Human Rights in the Workplace Cyberspace on the Economic Analysis of Research: Labor law; contract law; Law (2004); co-editor, The Commodifica- legal theory tion of Information (2002)

62 NYU SCHOOL OF LAW faculty focus Education: LL.B., Tel Aviv University Research: Comparative constitutional law ALI/UNIDROIT Principles of Transna- School of Law; LL.M., Harvard Law and institutions; extrajudicial (political, tional Civil Procedure (2006); co-author, School; J.S.D., Stanford Law School economic) origins and consequences of German Civil Justice (2004) the global expansion of constitutionalism Education: Dr. iur. and Dr. habil., franco ferrari and judicial review University of Tübingen (Germany) Position: Professor of International Law, Representative Related experience: Judge, State Court of University of Verona Faculty of Law publications: Com- Appeal, Baden-Württemberg, Germany When: Spring 2010 parative Matters: Courses: Interna- Legal Studies for the alan tan tional Commercial 21st Century (forth- Position: Associate Professor and Vice Sales; Comparative coming, 2010); Dean, National University of Singapore Law of Contracts Sacred Judgments: Law School Research: Interna- The Challenge of When: Fall 2009 tional commercial Constitutional Theocracy (forthcoming, Course: Global law; conflict of 2010); Towards Juristocracy: The Origins Aviation Law and laws; comparative and Consequences of the New Constitu- Policy law; international commercial arbitration tionalism (2004) Research: Aviation Representative publications: Vendita in- Education: LL.B. and M.A. in political law; maritime law; ternazionale di beni mobili: Formazione del science, Tel Aviv University; Ph.D. in environmental law contratto (2006); co-editor, Ein neues Inter- political science, Yale University Representative nationales Vertragsrecht für Europa (2007); publication: Vessel- co-editor, The Draft UNCITRAL Digest and pratap bhanu mehta Source Marine Pollution: The Law and Beyond: Cases, Analysis and Unresolved Position: President, Center for Policy Politics of International Regulation (2006) Issues in the U.N. Sales Convention (2003) Research, New Delhi Education: LL.B., National University Education: J.D., University of Bologna; When: Fall 2009 of Singapore; LL.M. and J.S.D., LL.M., University of Augsburg Course: Com- Yale Law School Related experience: Legal Officer, United parative Law and Clerkship: Supreme Court of Singapore Nations Office of Legal Affairs, Interna- Religion tional Trade Law Branch Research: Political theory; constitu- gérard hertig tional law; society Position: Professor of Law and and politics in Economics, Swiss Federal Institute of India; governance Technology Zürich and political economy; international When: Spring 2010 affairs Courses: Compara- Representative publications: “The Rise tive Corporate Gov- of Judicial Sovereignty,” Journal of Democ- ernance; Banking racy (2007); co-editor, Public Institutions Regulation and in India: Performance and Design (2005); Supervision The Burden of Democracy (2003) Research: Law Education: B.A. in philosophy, politics, Get it all online and economics, and economics, University of Oxford; with a focus on corporate governance Ph.D. in politics, Princeton University and banking Related experience: Member-Convenor, Representative publications: Co-author, Prime Minister of India’s National law.nyu.edu The Anatomy of Corporate Law: A Com- Knowledge Commission parative and Functional Approach (2004); co-editor, European Economic and Busi- rolf stürner ness Law: Legal and Economic Analyses on Position: Professor of Law and Director, Integration and Harmonization (1996) Institute for German and Comparative Education: Lic.iur. and Dr.iur., University Civil Procedure, University of Freiburg, News in Brief of Geneva Faculty of Law; M.C.J., Univer- Germany sity of Texas School of Law When: Spring 2010 Upcoming Events Course: Com- Press Highlights ran hirschl parative Civil Position: Professor of Political Science Procedure Areas of Focus and Law, and Canada Research Chair Research: Compar- in Constitutionalism, Democracy, and ative and national Video Development, University of Toronto civil procedure; Audio When: Spring 2010 insolvency and real Course: Comparative Constitutional property law; law of financial products Podcasts Law and Politics Representative publications: Co-reporter, THE LAW SCHOOL 2009 63 wage fell by 2.3 percent for workers in the Faculty Scholarship bottom 10 percent of the labor market, while rising by 33 percent for workers in the top five percent, and by much more for the top one percent. In part, these disparities reflect the growing gulf between the top and the bot- tom of the wage scale within companies. For example, the ratio between CEO pay and average employee pay in the same company grew from 24-to-1 in 1979 to 262- to-1 in 2005. That growing disparity is es- Corporate Self- pecially striking given the extent to which firms during this same period contracted out much of their lowest-wage work to out- Regulation and the side firms. The disparity between CEO pay and employee pay has skyrocketed even though much of the bottom of the wage Low-Wage Workplace scale within large companies has effec- As large companies increasingly rely on outsourcing, tively been lopped off their payrolls. That fact reminds us that growing wage especially for less-skilled labor, cynthia estlund disparities between poor and rich wage argues they should not escape the responsibility of earners reflect not only disparities within companies but also disparities between ensuring lawful wages and working conditions. big, rich companies and smaller, less profit- able companies. Within many Fortune 500 companies, core employees enjoy generous pay and benefits, sophisticated human re- sources policies, family-friendly practices, and enviable amenities. Top firms compete to be “employers of choice” for workers with scarce skills. We need only think of the Googleplex, where apparently champagne flows from the drinking fountains. At the bottom of the labor market—at the bottom of large company hierarchies and among smaller, poorer firms—are the working poor and near-poor: janitors and housekeepers, hotel and restaurant work- ers, garment manufacturing workers, food processing workers, retail sales clerks, call center operators, and hospital orderlies. Pay scales are too low—even when they are lawful—to lift these workers’ families out of poverty. But in many of these low-wage jobs, labor standards laws are broken daily. Wage and overtime violations, and in many sectors health and safety violations, are rampant. Some low-wage work is virtually unregulated—paid in cash and without regard to minimum wage and overtime requirements and state-mandated payroll taxes. Even among reputable employers, one conomic inequality is grow- sought to impress upon voters with his “Two finds illegal cost-cutting practices like de- ing in the United States. From Americas” pitch, the rich have gotten much manding unpaid off-the-clock work, shav- 1979 to 2005, the real family richer, while the poor and near-poor are ing time off time sheets, and misclassifying income of the poorest 20 per- working harder to stay in the same place. employees as independent contractors to cent of American households Economic inequality is reflected, and avoid employment laws. Among advanced E rose less than one percent, while largely created, in the labor market, and economies, the U.S. has an unusually large that of the richest 20 percent rose by 49 per- in the huge disparity in wages and work- low-wage sector, and within that, an unusu- cent, and that of the richest one percent ing conditions between the top and the ally large informal economy in which labor more than doubled. As John Edwards once bottom. From 1979 to 2005, the real hourly standards are essentially unregulated.

64 NYU SCHOOL OF LAW faculty focus Interestingly, many low-wage workers and the growing migration of poor work- global economy, and cannot keep up with supply labor to big Fortune 500 firms. Some ers to richer countries, swells the supply of the increasingly complex and footloose or- do so directly, like sales associates at Wal- unskilled labor in the rich world. Together, ganizations and networks through which Mart or Target, or chicken processors at these economic dynamics create both in- goods and services are produced and dis- Tyson Foods; others do so through contrac- centives and opportunities to reduce labor tributed. Yet there is also a recognition that tors, like the folks who mop the floors and costs and violate labor standards; they push those organizations and networks them- take out the trash at Fortune 500 headquar- employers to compete by reducing wages, selves have prodigious internal regulatory ters. So the tale of “Two Americas” ends up and they make it easier to do so by giving resources—in the aggregate, far more than looking a bit like Upstairs, Downstairs, the employers greater access to cheaper labor governments have. Many scholars and poli- British television drama from the 1970s de- both domestically and abroad. cymakers have concluded that law can ef- picting the lives of servants and their up- In the U.S., the downward pressure on fectively regulate complex organizations in stairs masters in a large townhouse in early wages and labor standards often outweighs modern society only by shaping those orga- 20th-century London. We will return to the the pressure to comply with legal standards. nizations’ own processes of self-regulation fact that many among the working poor are Especially for employers at the bottom of and inducing organizations to internalize working for the rich who are getting richer. the labor market, enforcement is rare and public values. Back in the New Deal, Congress at- its consequences are either manageable or Law often promotes self-regulation not tacked the problem of low-wage work with escapable; they may rationally decide to by mandating it but by rewarding it: A firm a two-pronged strategy: The National Labor Relations Act gave workers the freedom to make common cause and form unions to Can the law be deployed to induce firms bargain collectively with employers; and the Fair Labor Standards Act established a to extend their self-regulatory systems to nationwide floor on wages, an overtime pre- mium for excess work hours, and a ban on include the labor practices of low-wage most child labor. Those twin commitments contractors that supply essential services? to industrial democracy through collective bargaining and to decent minimum wages and working conditions set the template for ignore legal constraints. That puts more that maintains what the law regards as ef- modern labor and employment laws. competitive pressure on law-abiding em- fective self-regulatory systems may qualify Since then, labor law’s system of in- ployers to follow suit. for a less adversarial or less punitive regime. dustrial democracy has faltered badly, To be sure, a serious public commitment So, for example, under the federal criminal and union membership in the private to enforcing labor standards may entail law that governs corporations, organiza- sector has fallen below eight percent. On tradeoffs—some lost jobs or higher prices tions with effective compliance programs the other hand, employment mandates (though economists debate whether and to can get a reduced sentence or leniency at have proliferated. We have laws regulat- what degree that is true). Still, the place to the charging phase if criminal wrongdoing ing wages and hours, health and safety, consider those tradeoffs is in setting the le- nonetheless occurs inside the organiza- pensions and benefits, family and medi- gal standards themselves. Once having done tion. Similarly, under Title VII, if an em- cal leave, and discrimination. What these so, it is corrosive and counterproductive to ployer maintains policies and complaint laws amount to is a societal guarantee of fail to enforce those standards and to let law- processes that are reasonably calculated decent work: decent wages and working breakers undercut law-abiding employers. to prevent and remedy discrimination and conditions, and protections against some So more public enforcement is necessary. harassment, it may avoid liability for pu- forms of employer abuse. But there will never be enough inspectors nitive damages and for some harassment Unfortunately, society has not made for the government to do it alone. (And for claims altogether. In various settings, the good on that guarantee. For even if mini- marginal, fly-by-night employers, litigation law uses the prospect of official carrots and mum labor standards were adequate in is even less of a threat than is government sticks to induce firms to undertake the proj- principle, they are widely underenforced, enforcement.) The challenge for policymak- ect of ensuring compliance with societal even ignored, at the bottom of the labor ers and advocates is to figure out how to le- norms. The extent of corporate resources market. Workers are largely responsible verage limited regulatory resources, public that go into compliance programs at major for enforcing their own legal rights at and private, into a viable system for improv- companies is impressive, and is crucial to work, and unorganized low-wage workers, ing labor standards and enforcing employee the law’s ability to effectively regulate com- who enjoy neither collective representa- rights in the workplaces and jobs in which plex organizations in modern society. tion nor individual bargaining power, are they are most degraded and threatened. Yet a system that rewards self-regulation unable to do so. That challenge is emblematic of challenges with lower penalties and less scrutiny is Obviously, downward pressure on faced by modern regulation generally. vulnerable to cheating. It risks putting foxes wages and labor standards has economic The problem of securing corporate in charge of the chicken coops—or maybe roots. Transnational mobility of goods compliance with public norms is not lim- the chicken processing plants. Consider and services subjects domestic produc- ited to the low-wage workplace or to em- Tyson Foods, Inc., which touts its Team ers to competition from low-wage regions. ployment law, and it is not limited to the Member Bill of Rights, including the right Transnational mobility of capital allows in- United States. Across the world, there is a to a safe workplace, but whose employees vestors to seek profits globally, which pres- growing conviction that traditional “com- suffer high rates of injury on its speedy sures firms to keep profit margins high and mand-and-control” regulation is losing poultry processing lines. If public agencies costs low. Transnational mobility of labor, its grip in a technologically supercharged rely heavily on corporate self-regulation to

THE LAW SCHOOL 2009 65 secure compliance, how do they avoid being hoodwinked by “cosmetic compliance”? I argue in a forthcoming book that it is essential to build safeguards against cos- metic compliance into firms’ self-regula- tory systems; that one crucial safeguard is effective institutional participation by stakeholder beneficiaries; and that, in the case of labor and employment laws, that requires collective employee rep- resentation. So when courts and regula- tors hold out regulatory concessions—a less adversarial enforcement track, leni- ency in charging, immunity from puni- tive damages, or the like—to firms that maintain effective internal compliance systems, one of the elements of efficacy they should demand is effective employee participation. A system of well-regulated self-regulation in which employees have an independent voice can better ad- vance public goals than traditional com- corporate compliance programs to include a social cost but as a benefit, for it strength- mand-and-control regulation alone. It contractors’ compliance. ens the legal floor that supports individual is a strategy for inducing large, brand- Even without a threat of legal liability, and collective efforts by workers at the conscious firms to live up to their legal ob- some big multinational firms have begun bottom of the labor market to bargain for ligations and their public commitments to to do this in response to the risk of “social better wages and working conditions. employee welfare and social responsibility, liability” for scandalously poor labor con- So it is often feasible and cost-effective even for their lowest-paid workers. ditions in overseas factories where their to hold user firms liable for the labor vio- But what about the marginal firms with goods are produced. For example, Nike lations of their contractors. Moreover, it is little or no reputation or capital, in which has developed increasingly sophisticated fair to do so because user firms both ben- employee rights and labor standards are of- methods of monitoring and improving efit economically from and predictably con- ten the most degraded? Far from investing labor standards for 800,000 workers in its tribute to the erosion of labor standards by in corporate compliance or self-regulation, global supply chains. their growing practice of contracting out, many of those firms operate as virtual out- Unfortunately, some supply-chain mon- or outsourcing, low-skill, labor-intensive laws, beyond the sight and reach of regula- itoring programs appear better designed to parts of their business. tors. Is the idea of regulated self-regulation fend off public criticism than to improve In the parlance of the theory of the firm, destined to leave behind that large segment labor standards; the risk of “cosmetic companies have been “making” less and of the low-wage workforce? Or can the law compliance” and the need for an effective “buying” more, particularly when it comes be deployed to induce major firms to extend employee voice apply here, too. Moreover, to discrete labor-intensive tasks that re-

their self-regulatory systems to include the these programs are concentrated in sec- quire little capital or specialized skill. They d. e labor practices of low-wage contractors that tors like apparel, footwear, and toys that do so to reduce costs. Where do the cost rv supply their essential labor needs? In many are sensitive to organized consumer out- savings come from? hts Rese

of these cases, the law can, should, and ar- rage, for that is about the only leverage First, outsourcing cuts workers off from ig

guably does do just that. advocates have in the global supply-chain the higher wages and benefits that often ll R Let us begin with the question of fea- context. But at least in the domestic con- prevail within the user employer’s work- . A com sibility. In recent decades, employers at text, the law can supply more concrete in- force. The informal dynamics of internal k. an the top of these contracting ladders have centives for firms to monitor their suppliers labor markets tend to compress wage differ- b

developed extraordinary internal regula- and contractors. entials, and to push up wages at the bottom toon r tory resources—not only sophisticated in- Monitoring is not costless. But the cost of the internal market above what the rel- om ca ternal corporate compliance systems, but of firms’ monitoring their own contrac- evant skills may fetch on the external labor r also elaborate systems for monitoring the tors’ labor practices is likely to be much market. Those dynamics may be formalized r f chte quality of the goods or services their con- lower than the cost of effective public en- by a collective bargaining agreement, and i tractors provide. To be sure, these two sys- forcement; and the more a firm is already are reinforced by federal tax laws that dis- tems of control may currently be lodged in monitoring contractors’ operations in the courage firms from discriminating against scha R different parts of the corporate hierarchy. interest of quality, speed, and reliabil- lower-paid employees in benefits such as on 1989 Mi To the extent user firms are held liable for ity of production, the less it should cost health insurance and pensions. Outsourc- i contractors’ labor and employment viola- to extend monitoring to include wages ing low-skilled work allows a firm to escape ollect

tions, they would have to link the two sys- and working conditions. The biggest cost these constraints and to fill its labor needs r C e tems—to extend oversight of contractors to user firms is likely to be the increased at the lowest wages that the external mar- rk o to monitor not only the quality of goods contract price to cover wages and work- ket will bear. There is nothing illegal in that, ew Y and services but also the conditions under ing conditions that meet minimum legal though it contributes to falling wages at the he N

which they are produced, and to extend standards; but that must be counted not as bottom of the labor market. © T

66 NYU SCHOOL OF LAW faculty focus Other aspects of outsourcing predict- The original meaning and purpose of do if we want to live in a humane and co- ably promote illegal labor practices. Out- the phrase “suffer or permit to work” has hesive democratic society, is to improve the sourcing puts contractors into a literal been exhaustively documented by legal conditions that prevail at the bottom of the bidding war; when labor costs make up the scholars, but it has not quite won the day economy, and to ensure that full-time work lion’s share of their costs, contractors com- in court. Many courts seem convinced that secures the material makings of a decent pete by pressing down wages to whatever Congress could not have meant to deprive life. One constructive step in that direction the market (and the regulatory regime) employers of the ability to structure their is to ensure that the firms at the top of the will allow. Moreover, these contractors contracting arrangements however they heap—those that are reaping the greatest pose a chronic regulatory challenge; with wish to compete effectively. That assump- profits from globalization—take responsi- little capital or reputation at stake, they fly tion is half right and half wrong: Congress bility for securing decent and lawful wages below the regulatory radar, and may be did not prohibit any contracting-out ar- and working conditions for the workers who judgment-proof or prone to disappear in rangements, but it did seek to eliminate supply them with essential labor inputs. case of enforcement. And because immi- employers’ ability to use them in a way that gration laws are also underenforced in this fostered substandard labor conditions and cynthia estlund, Catherine A. Rein Pro- sector, low-wage contractors can and do undercut responsible employers. fessor of Law, is a leading scholar of labor rely heavily on undocumented immigrant It may be an uphill battle to restore the and employment law and has written workers who are particularly unlikely to original meaning of “employ” under the extensively on the relationship between the complain about substandard wages or FLSA. But it is a battle worth fighting— workplace and democracy. Estlund prac- working conditions. perhaps on legislative terrain rather than ticed labor law before teaching at the Uni- The upshot is that many low-skill jobs in the courts—by policymakers and advo- versity of Texas at Austin School of Law and that used to be performed within large, cates seeking to improve enforcement of la- Columbia Law School. Her recent work fo- integrated firms are now often performed bor standards in low-wage labor markets. cuses on the crisis of workplace governance within a more thoroughly low-wage envi- Economic inequality may continue to due to the decline of collective bargaining ronment by contractors who are in a race grow as those with capital and scarce skills and the shortcomings of both regulation to the bottom of the wage scale and are be- continue to take the lion’s share of the social and litigation. This excerpt is from a lecture yond the gaze of the public and regulators. product in a globalized economy. Even in a she gave as a Higgins Distinguished Visitor The practice of contracting out work un- political climate that is more worker-friendly at Lewis and Clark Law School, and was der these circumstances puts downward and readier to regulate the excesses of the published as “Who Mops the Floors at the pressure on wages and labor standards financial titans, it is unlikely that we will Fortune 500? Corporate Self-Regulation that is predictable and profitable, if not seriously curb the ability of the rich to get and the Low-Wage Workplace” in the Fall intentional. That is the basic logic of hold- richer. What we can do, and what we must 2008 Lewis and Clark Law Review. ing those at the top accountable for the il- legalities that flourish at the bottom of the labor market. In fact, the most important law in the low-wage landscape, the Fair Labor Stan- dards Act (FLSA) of 1938, aimed to do just that. New Deal reformers were familiar with the practice of contracting out labor- You intensive parts of a business to small, mini- mally capitalized contractors to cut labor costs. The so-called “sweating system” was especially common in garment manufac- empower turing. It was precisely to reach through those contracting arrangements that Con- gress, following a pattern set by child labor laws, defined the term “employ” in the FLSA today’s to include “to suffer or permit to work.” Under that broad standard, the user employer was responsible for wage and overtime violations if the work was an in- students. . . tegral part of its business, and if the em- ployer had the means to learn that the work was being done and the economic “I received PILC grant funding my first summer power to prevent it. The goal behind this allowing me to go to San Francisco and work with broad standard of employer liability was to Legal Services for Children. I was working directly eliminate substandard wages and working with the clients every day in a way that was really conditions, to eliminate the competitive exciting—and very different from what I’d been advantage of employers who used these doing in the classroom all year.” contracting arrangements to lower labor andrea l. nieves ’10 costs, and to protect responsible employ- ers from that unfair competition.

THE LAW SCHOOL 2009 67 by the Supreme Court in 1889: Immigration control is the exclusive responsibility of the The Significance of federal government. Scholars who have addressed this ten- sion between state practice and the exclusiv- the Local in ity principle largely have focused on whether the national government or the states are better at protecting immigrants’ interests— Immigration Regulation empirical claims for which the evidence is mixed. Missing from the discussion is a cristina rodríguez examines how active participation functional account that explains why state by states and localities in managing migration justifies a and local measures have arisen with in- reconsideration of the federal exclusivity principle. creasing frequency over the past five to 10 years, and how this reality should shape our conceptual and doctrinal understandings of immigration regulation. I provide that missing functional account and argue that the federal government, the states, and lo- calities form part of an integrated regulatory structure that helps the country as a whole manage the social and cultural change that immigration inevitably produces. The pri- mary function states and localities play in this structure is to integrate immigrants, le- gal and illegal alike, into the body politic. The federal exclusivity principle, on its surface, is consistent with the proposition that states help immigrants integrate. But I demonstrate that the integration challenge sometimes requires states and localities to take steps that resemble immigration con- trols. In fact, the process of immigrant inte- gration sometimes depends on states and localities adopting positions in tension with federal immigration policy, particularly in relation to unlawful immigration. Manag- ing migration writ large depends on policy experimentation that sometimes produces contradictory results. In fact, the evidence of this policy experimentation helps to un- dermine the federal exclusivity principle as a doctrinal matter. Federal exclusivity was neither a matter of original practice, nor is it specified in the Constitution. Rather, the concept of exclusive federal control emerged he processes of global inte- immigration in some capacity were intro- through Supreme Court doctrine for func- gration are changing how govern- duced in state legislatures across the country, tional reasons: the perceived need to have ments do business. Nowhere is and nearly 200 of those bills became law. a single sovereign manage foreign affairs. this change more apparent than States always have been active in immi- Even if those functional concerns were valid in the mechanisms lawmakers gration regulation, of course. In the early when declared, their foundations have since T at every level of government are republic, state inspection laws and the im- eroded, and federal exclusivity has become employing to respond to the ways in which position of duties on migrants’ entrance a formal doctrine without strong constitu- immigration is reshaping American soci- functioned as immigration law. In the 20th tional or practical justification. ety. Among the notable regulatory trends century, states made occasional attempts to Abandoning federal exclusivity does not of recent years is the rise of state and local restrict immigrant access to public benefits mean that the federal government should efforts designed to control immigrant and crack down on employers who hired not exercise strong leadership. Under a movement, define immigrant access to unauthorized workers. But the upward functional analysis, efficiency and coher- government, and regulate the practices of trend in sub-federal immigration regula- ence require federal control over the formal those with whom immigrants associate in tion in the 21st century has been dramatic. admissions and removal processes. Strong the private sphere, namely employers and More important, the current activity, de- federal leadership also may be necessary landlords. In the first six months of 2007 spite having historical antecedents, is in sig- to prevent states and localities from impos- alone, more than 1,400 bills addressing nificant tension with a doctrine articulated ing certain externalities on their neighbors.

68 NYU SCHOOL OF LAW faculty focus What is more, some state and local immigra- population. Finally, migrants are bypass- The continued mobilization of the exclu- tion-related activity may come into conflict ing traditional urban centers and gateway sivity principle demonstrates that lawyers with generally applicable federal (and state) states, heading for destinations—namely and legal scholars have only just begun to constitutional and civil rights protections, in the Southeast—whose experience cop- discuss what Saskia Sassen identifies, in and I do not suggest relaxing these limita- ing with linguistic and cultural diversity is Territory, Authority, Rights, as the globaliza- tions. But the functional account I provide virtually nonexistent. tion processes that “take place deep inside should occasion some shifts in the doctrine State and local lawmakers are respond- territories and institutional domains that governing preemption, primarily by leading ing to shifting demography by attempting have largely been constructed in national courts to assess potential conflicts between to exert control over immigrant move- terms.” In what follows, I focus briefly on federal and state law without giving extra ment in extraordinarily varied ways, par- two examples of state and local divergence weight to an overriding national interest ticularly when it comes to how best to deal to illustrate these conclusions: the adoption in immigration regulation. Even more im- with the reality of unauthorized immigra- of noncooperation policies and in-state tu- portant, my functional account should give tion. Whereas some actors have sought to ition benefits for unauthorized students. rise to new lawmaking norms based on anti- abate immigration by assisting federal For decades, major cities and a few small preemption presumptions. enforcement efforts and penalizing em- towns have adopted so-called sanctuary In addition to changing the terms of ployers and landlords who associate with laws, or statutes, resolutions, and execu- the immigration debate, the integrated unlawful immigrants, others have decided tive orders that limit the ability of local and system I describe highlights several cru- to learn to live with the new demography. state authorities to cooperate with federal cial features of federalism generally. It re- These lawmakers have taken bold steps to officials in the enforcement of immigration veals the vital sorting function federalism integrate even unauthorized immigrants, laws. The sanctuary movement took shape performs—a function crucial to managing through policies such as issuing identifica- in the 1980s, when churches and other pri- demographic change in a country as large tion cards, making in-state college tuition vate organizations began providing safe and diverse as the United States. Relatedly, available, declaring cities to be sanctuar- havens for nationals of El Salvador and my account demonstrates how federalism ies from immigration enforcement, and Guatemala, who had fled brutal civil wars can be leveraged to manage the effects of setting up centers where day laborers can and were thought to have been denied asy- globalization and economic interdepen- gather to find employment. lum wrongfully. Cities and states supported dence, highlighting that federalism serves This appearance of divergent state these efforts with resolutions declaring that as a crucial mechanism for shaping and and local measures is not simply a symp- such asylum seekers need not fear arrest in managing national identity. In the end, tom of the federal government’s failures. their jurisdictions. the story I tell reveals why our understand- Instead, it reflects the unsuitability of a In some quarters, these laws evolved into ing of the allocation of powers within the strictly federal response to immigration. general ordinances that prohibited local federal system must be responsive to the arrangements that the various levels of government have devised to manage the challenges that cross their jurisdictions. “At the Furman Center for Real Estate and Urban Policy, we studied zoning regulations. When you states and localities as look at them in a vacuum, you think, ‘This makes agents of integration sense,’ and then, if you actually step outside the The federal exclusivity principle is embod- office and walk around, you can see the documents ied in the Supreme Court’s strong state- springing to life.” ira j. klein ’10 ment in De Canas v. Bica that the “[p]ower to regulate immigration is unquestionably alyssa mack ’11 exclusively a federal power,” and that ex- clusive federal control over immigration “has become about as firmly imbedded in the legislative and judicial tissues of our body politic as any aspect of our govern- . . . for ment.” But lawmakers today face three trends, each of which is contributing to the de facto demise of this principle. First, since 1990, immigrants have been arriving in record numbers, primarily from Asia tomorrow’s and Latin America. The country is in the midst of a demographic reordering similar in scope to the heavy Italian and Eastern European influx from 1890 to 1920. Second, world. the Pew Hispanic Center has estimated that, in 2006, approximately 11.5 million of these Please make a gift to the annual fund immigrants were unauthorized—a factor (212) 998-6061 law.nyu.edu that contributes to the intensity of current debate, even as an economic downturn has led to a decline in the unauthorized

THE LAW SCHOOL 2009 69 law enforcement from conveying informa- tion about individuals’ immigration status to federal officials. Eventually, cities with no ties to the original sanctuary movement began passing similar generalist resolutions prohibiting information disclosure by pub- lic authorities. Many of these resolutions served as direct responses to the federal gov- ernment’s expanding efforts to enlist state and local police voluntarily in the enforce- ment of immigration laws in the years after the attacks of September 11, 2001. In 1996, in the midst of these develop- ments, Congress passed two provisions that prohibited local governments from prevent- ing their employees from voluntarily con- veying information regarding immigration status to federal authorities. The enforce- ment issue thus highlights the tension be- tween federal, state, and local approaches to managing migration. On the one hand, localities that have adopted sanctuary laws have sought to define for themselves the pa- rameters of their law enforcement authority and the duties of their workforce, particu- larly of those civil servants who perform health and safety functions. On the other hand, the federal government has sought to remove state and local obstacles to its im- migration enforcement and information- gathering goals. Each entity has clearly legitimate objectives that are nonetheless difficult to reconcile. “What’s our immigration policy?” The sanctuary phenomenon under- scores the complex dynamic presented had passed laws that permitted unau- and political integration. As the Urban In- by immigration enforcement, especially thorized students to pay in-state tuition stitute estimated in 2003, approximately when understood in contrast to the will- at public colleges, including major immi- 65,000 unauthorized students graduate ingness of some police departments to en- grant-receiving states such as Texas, Cali- from American high schools each year. As ter into 287(g) agreements with the federal fornia, New York, and Illinois, as well as the American Association for State Colleges government, deputizing state and local of- Utah and Nebraska. A federal law adopted and Universities has observed, a large por- d. e ficials to enforce federal immigration laws in 1996, however, provides that unauthor- tion of these students are likely to remain v

directly. The cities that have passed sanc- ized immigrations “shall not be eligible on in the United States, and so it is in the fiscal eser

tuary laws are motivated by at least three the basis of residence within a State for any and economic interests of states to enable hts R concerns. First, the laws reflect localities’ postsecondary education benefit unless a unauthorized immigrants to acquire some ll Rig desire to reduce immigrant suspicion of citizen or national of the United States is post-secondary education. In addition, m. A the police and to ensure that immigrant eligible for such a benefit.” And yet, most many states acknowledge that the parents co k.

communities cooperate with law enforce- of the states that offer in-state tuition ben- of unauthorized students pay taxes to the an b ment. Second, the anti-information shar- efits have taken this step since 1996—if not state, justifying extension of the benefit on ing laws reflect the determination that outright defying the federal government, fairness grounds. ensuring effective delivery of services then at least rejecting Congress’s conclu- But embedded within this pragmatism m cartoon requires promoting trust in government sion that unauthorized immigrants’ ac- are also judgments about how adult ille- er fro b generally. Finally, woven into these policy cess to public benefits should be limited. gal immigrants differ from their children, e

objectives are political judgments that re- The tuition-benefit states have negotiated including in their moral stature. In-state ert W b flect broader ideological conflict. The non- around section 505 by conditioning the tuition states have concluded that un- o cooperation laws suggest a general desire benefit not on residency, but on school at- authorized students who have attended n 1997 R to make government institutions accessi- tendance in the state. state high schools are unlikely to return to io ble to all people, regardless of legal status, This ongoing debate powerfully under- their countries of national origin and that ct by reducing the perception among immi- scores that communities reach different unauthorized students, by virtue of their grants that interaction with public officials conclusions on whether and how to in- education in the public schools, have been always raises the specter of deportation. corporate unauthorized immigrants. This assimilated into American life. Many states The in-state tuition issue presents a divergence can be explained by the mutu- also, likely, have concluded that it is illib-

similar dynamic. By 2007, at least 10 states ally reinforcing imperatives of economic eral to permit the condition of illegality and © The New Yorker Colle

70 NYU SCHOOL OF LAW faculty focus associated disabilities to be passed from reflects what Roderick Hills describes as directly involved in setting labor admissions parents to children, or that we should pre- the proper understanding of federalism, standards, for example, by providing their vent the emergence of the inherited castes according to which “the benefits of feder- relative preferences and expertise directly that would result from the failure to break alism…rest on how the federal and state to an administrative policy process coordi- the chain of illegality. governments interact, not in how they act nated by the federal government. in isolation from each other.” reimagining the federal-state- Instead of jumping to preempt or oc- conclusion local relationship cupy territory, Congress should adopt a Controlling who crosses its borders is an The question now becomes how to reformu- presumption against preemption. Whereas act of self-definition and security promo- late the constitutional doctrines and law- such a presumption is arguably inappropri- tion for a nation-state, and so immigration making presumptions that structure the ate when applied by courts because it favors is a federal issue. Managing migration re- immigration debate to accommodate how the state interest over the federal, it would quires uniform rules governing who may states and localities themselves have been be appropriate for Congress to think twice enter and who forfeits the right to remain, adjusting to a changed world. My answer before preempting state laws. Congress to promote administrative efficiency and is that we must develop presumptions that should refrain not only from preempting sustain an integrated national economy. simultaneously facilitate power sharing by state actions in areas that might seem to be But immigration regulation is not a zero- different levels of government and toler- in tension with federal objectives, but also sum game. Questions of who should belong ate tension between federal objectives and from requiring state and local officials to to a political community, and who should state and local interests. In short, our con- participate in immigration enforcement be allowed to cross borders, are also global ceptions of preemption should respond to activities, either directly (which would and local in scope. To emphasize the roles the rise of de facto power sharing between raise commandeering issues) or indirectly, being played by states and localities in the federal government and state and local through Spending Clause–type incentives. regulating immigration is not to suggest entities through a “normalization” of the The presumption should have particular that national sovereignty is a mirage, that immigration power. Perhaps more impor- purchase when measures through which national citizenship is no longer relevant, tant, the regime I describe should lead state states and localities are working to secure or that the national is disappearing in the and federal lawmakers to employ anti-pre- the trust and integration of immigrant face of the global. Rather, global forces, as emption presumptions in their immigra- communities are at issue. exemplified by the migration of people tion-related decision-making. Congress also should actively promote across borders, are putting pressure on the Courts must first jettison the obfuscat- cooperative activity between state and lo- national in ways that require disaggregated ing overlay of the exclusivity principle and cal officials and the federal government. decision-making. Though conceptions of treat immigration regulation as subject to Cooperation can provide states with an national citizenship provide us with a vo- the standard Supremacy Clause preemp- avenue to deal directly with the conse- cabulary for understanding the effects of tion inquiry. There is no reason to fear that quences of immigration, while providing a immigration, the middling structures of abandoning exclusivity will compromise form of federal supervision to ensure that a the nation-state cannot capture the diverse federal power over immigration; general, state’s action is not motivated by animus, or forms of membership needed to assimilate albeit contested, doctrines exist to manage does not impose unwarranted externalities the effects of global trends—particularly the federal-state relationship. Abandoning on other states. The cooperation I envision effects that come in human form, with exclusivity instead would bring precision could take several forms. First, Congress families. The center of gravity in the immi- to the doctrinal assessment of state and lo- could expressly authorize states to adopt gration context has shifted, revealing that cal immigration regulations. In fact, courts, measures that state officials might other- the level of government we might choose to without saying so, have moved in this direc- wise worry are outside their power or that deal with certain issues is historically and tion, making exclusivity more bark than bite. are politically unpalatable without some politically contingent. It is time we adapt Courts often begin their analysis with strong cover from Congress, as with the DREAM to the contingencies of today and rethink statements of exclusivity but then strike Act—a bill that would enable unauthor- immigration federalism. down state laws on a conflict-preemption ized high school students to attend college basis. The fact that the federal government or enlist in the military and acquire legal Professor of Law cristina rodríguez is has regulated so comprehensively in the status. Similarly, Congress could devolve interested in the effects of immigration on immigration field means that a statutory authority to states to exercise decision- society and culture, as well as in the legal basis for preemption is not difficult to find, making capacity in areas that might other- and political strategies different societies and so few, if any, litigation outcomes hinge wise be off-limits under current law, as in adopt to absorb immigrant populations. on a constitutional holding. That said, the state implementation of federally funded She is a non-resident fellow of the Migra- exclusivity principle does still lead federal programs such as Medicaid. The touch- tion Policy Institute, a term member courts to put a thumb on the scale in favor stone for congressional policymaking in of the Council on Foreign Relations, and of the federal government when a statutory this area should be not whether Congress is a co-convener of the NYU-Columbia preemption issue is not straightforward—a authorizing states and localities to do posi- Working Group on Latin American practice I contend should be rethought. tive or negative things vis-à-vis immigrants, Migration. She joined the NYU School of The more significant shift I advocate but whether the policy enhances or shuts Law faculty in 2004. This excerpt is from is a conceptual one that would support down state decision-making capacity and an article with the same title that was a framework for congressional decision- balances the competing goals of the system. published in the February 2008 issue of the making that emphasizes two strategies: In its most productive form, cooperation Michigan Law Review. It is part of a series congressional restraint and cooperative would involve enlisting the states in immi- exploring the constitutional and statutory federalism. This conceptual aspiration gration-related policy. States could become laws governing immigration.

THE LAW SCHOOL 2009 71 prominent has been the incarceration of hundreds of detainees by the United States The Concept and at Guantánamo Bay in Cuba. A few days after the publication of the editorial on Russia that I mentioned, the Financial Times’s editorial the Rule of Law board thundered again: “Military tribunals are not the way: Guantánamo is beyond the jeremy waldron notes that a deeper exploration of the Rule of Law and should be shut.” idea of law leads to a richer understanding of the Rule Thousands of other examples could be cited. The Rule of Law is invoked whenever of Law as encompassing procedural and institutional we criticize governments that are trying elements, aspects that legal philosophers often neglect. to get their way by arbitrary and oppres- sive action or by short-circuiting the pro- cedures laid down in a country’s laws or constitution. Interfering with the courts, jailing someone without legal justifica- tion, detaining people without due process, manipulating the constitution for partisan advantage—all these actions are seen as abuses of the Rule of Law.

the rule of law is a multifaceted ideal, but most conceptions give central place to a requirement that people in posi- tions of authority should exercise their power within a constraining framework of public norms rather than on the basis of their own preferences or their own ideology. Beyond this, many conceptions of the Rule of Law place great emphasis on legal certainty, predictability, and settlement, on the reliable character of its adminis- tration by the state. Citizens—it is said— need predictability in the conduct of their lives and businesses. There may be no getting away from legal constraint in the circumstances of modern life, but freedom is served nevertheless if people know in advance how the law will oper- ate and how they have to act if they are to avoid its having a detrimental impact on their affairs. As Friedrich Hayek argued in The Constitution of Liberty, knowing how the law will operate enables one to plan he rule of law is one of the the streets and hundreds of them were around its requirements. And knowing most important political ideals beaten and arrested. that one can count on its protecting cer- of our time. Open any newspaper ■ A February 2008 Financial Times edito- tain personal property rights enables each and you will see the Rule of Law rial lamented that the “[a]bsence of the Rule citizen to know what he can rely on in his cited and deployed as a bench- of Law undermines Russia’s economy.” It dealings with other people and the state. T mark of political legitimacy. Here associated the absence of the Rule of Law The Rule of Law is violated, on this account, are a few examples, plucked at random from with the irregularity of the Putin regime’s when the norms that are applied by offi- the world’s press: proceedings against Mikhail Khodork- cials do not correspond to the norms that ■ As a November 2007 New York Times ovsky. But the newspaper also insisted have been made public to the citizens, or editorial states, when President Mushar- more generally that a prosperous market when officials act on the basis of their own aff of Pakistan fired the chief justice of the economy cannot flourish without the Rule discretion rather than rules laid down in Supreme Court of Pakistan and had him of Law. “Investment dries up as Rule of Law advance. If actions of this sort become en- placed under house arrest, Musharaff’s seeps away in Russia,” was the headline of demic, then not only are people’s expecta- actions were seen around the world as a a March 2005 article. tions disappointed, but increasingly they crisis of the Rule of Law. Law societies and ■ All sorts of practices and policies associ- will find themselves unable to form any bar associations all over the world pro- ated with the war on terrorism have been expectations at all, and the horizons of tested and, in Pakistan itself, thousands evaluated and found wanting against their planning and their economic activ- of judges and lawyers demonstrated in the criterion of the Rule of Law. The most ity will shrink accordingly.

72 NYU SCHOOL OF LAW faculty focus A conception of the Rule of Law like the one I have just outlined emphasizes the virtues that Lon Fuller talked about in his 1964 book The Morality of Law: the prominence of general norms as a basis of governance; the clarity, publicity, stabil- ity, consistency, and prospectivity of those norms; and congruence between laws on the books and the way in which public or- der is actually administered. On Fuller’s account the Rule of Law does not require anything substantive: For example, it does not require that we have any partic- ular liberty. All it requires is that the state should do whatever it wants to do in an orderly way, giving us plenty of advance notice by publicizing the general rules on which its actions will be based and not ar- bitrarily departing from those rules even when it seems politically advantageous to do so. Requirements of this sort are described sometimes as procedural, but I think that is a misdescription. They are formal and structural in their character: They emphasize the forms of governance and the formal qualities (like generality, clarity, and prospectivity) that are sup- “But how do you know for sure you’ve got power unless you abuse it?” posed to characterize the norms on which state action is based. tension with the ideal of formal predict- much more than clarity, prospectivity, and There is, however, a separate current of ability. The procedural side of the Rule of determinacy. They are worried about the thought in the Rule-of-Law tradition that Law requires public institutions to spon- independence of the Pakistani courts and does emphasize procedural issues. The sor and facilitate formal argumentation about the due process rights of detainees in Rule of Law is not just about general rules; in public settings. But argument can be the war on terror. it is about their impartial administration. unsettling, and the procedures we cher- A procedural understanding of the Rule of ish often have the effect of undermining by picking up on this procedural and Law does not just require that officials ap- the predictability that is emphasized in institutional element, the popular percep- ply the rules as they are set out; it requires the formal side of the ideal. By empha- tion is sensitive to an aspect of law that le- that they apply them with all the care and sizing the legal process rather than the gal philosophers often neglect, but which attention to fairness that are signaled by determinate norms that are supposed to needs to be understood as a key aspect ideals such as “natural justice” and “pro- emerge from that process, the procedural of the concern for human dignity in our cedural due process.” So, for example, if aspect of the Rule of Law seems to place system of government. Laws are not just eserved. s R

t someone is accused of violating the rules, a premium on values that are somewhat norms that are issued, identified, and en- igh they should have an opportunity to re- different from those emphasized in the forced. They are administered through ll R quest a hearing, make an argument, and formalist picture. Instead of the certainty courts, which are institutions of a par- . A m o confront the evidence against them be- that makes private freedom possible, the ticular kind. They settle disputes about c k. n fore any sanction is applied. The Rule of procedural aspects of the Rule of Law the application of norms through the me- ba n Law is violated when the institutions that seem to value opportunities for people to dium of hearings, i.e., formal events that oo t are supposed to embody these procedural demonstrate that the rules are not quite are tightly structured procedurally so an ar safeguards are undermined or interfered what we thought, or that they do not apply impartial authority can determine the le- m c with. In this way the Rule of Law has be- to certain situations in the straightforward gal rights and responsibilities of particular

koff fro come associated with political ideals such manner we might have imagined. parties fairly and effectively after hearing n as the separation of powers and the inde- If you were to ask which current of evidence and argument from both sides. t Ma pendence of the judiciary. thought is more influential in legal philos- True, in general jurisprudence (the study ober

R For the most part, these two currents ophy, most scholars would say it is the first of law as such), our concept of a court and a of thought sit comfortably together. They one, organized around the determinacy hearing is necessarily rather abstract. But n 1992 io complement each other: It is no good hav- of legal norms. But it is striking that in the it is not just the concept of a law-enforce- ct ing clear general public norms if they are popular examples I gave at the beginning ment agency. It would be quite wrong, even not properly administered, and it is no of this essay, the second current tends to be in general jurisprudence, to abstract from good having fair procedures if the rules emphasized. When people say that the Rule the elements of process, presentation, for- keep changing or if, eventually, they of Law is threatened on the streets of Islam- mality, impartiality, and argument. These are ignored. But there are aspects of the abad or in the cages at Guantánamo, it is ideas embody a deep and important sense

© The New Yorker Colle Rule of Law’s procedural side that are in the procedural elements they have in mind associated foundationally with the idea of

THE LAW SCHOOL 2009 73 a legal system, that law is a mode of gov- as bearers of individual reason and intel- the role of rules rather than standards, erning people that treats them with respect, ligence. Once again, the theme of dignity literal meanings rather than systemic as though they had a view or perspective is important. The law treats the individu- inferences, direct applications rather than of their own to present on the application als whose lives it governs as thinkers who arguments, and ex ante clarity rather than of the norm to their conduct and situation. can grasp and grapple with the rationale labored interpretation. Conceptions of Applying a norm to a human individual is of that governance and relate it in complex this kind are very popular, and it is nat- not like deciding what to do about a rabid but intelligible ways to their own view of ural to think that the Rule of Law must animal or a dilapidated house. It involves the relation between their actions and condemn the uncertainty that arises out paying attention to a point of view and re- purposes and the actions and purposes of law’s argumentative character. specting the personality of the entity one is of the state. However, no analytic theory of what law dealing with. None of this is present in the The price of this respect, however, is a is and what distinguishes legal systems dominant positivist jurisprudence; all of it, certain diminution in law’s certainty. Oc- from other systems of governance can af- I submit, should be regarded as an essential casionally an argument will be made, by ford to ignore the procedural and argu- aspect of our working conception of law. counsel or by a judge, to the effect that mentative aspect of our legal practice. The the impact of the law on a particular type fallacy of modern positivism, it seems to it is also, i think, a defining charac- of event or transaction should be treated me, is its exclusive emphasis on the com- teristic of law that the arguments that law as embodied in some proposition, even mand-and-control aspect of law, without frames and facilitates are often reflexive in though that proposition has not been ex- any essential reference to the culture of character, i.e., arguments about law itself. plicitly adopted in legislative form or ex- argument that it frames, sponsors, and in- Let me explain. plicitly articulated (until this moment) stitutionalizes. The institutionalized recog- Law presents itself to its subjects as by a court. The claim may be that since nition of a distinctive set of norms may be something that one can make sense of. I the proposition can be inferred, argu- an important feature. But at least as impor- do not just mean that one can make sense mentatively, from the mass of existing tant is what we do in law with the norms of each measure, as one might do on the legal materials, it, too, should be accorded that we identify. We don’t just obey them or apply the sanctions that they ordain; we argue over them adversarially, we use our When people say that the Rule of Law sense of what is at stake in their application to license a continual process of argument is threatened in Islamabad or at back and forth, and we engage in elaborate interpretive exercises about what it means Guantánamo, it is the procedural elements to apply them faithfully as a system to the they have in mind much more than clarity, cases that come before us. In positivist jurisprudence, argumenta- prospectivity, and determinacy. tive indeterminacy is treated as an occa- sional aberration, arising when the open texture of language collides unfortunately basis of a statement of legislative purpose. the authority of law. It is a characteristic with the unforeseen character of certain I mean that one can try to make sense of feature of legal systems that they set up “hard cases.” And when this indeterminacy the “big picture,” understanding how the institutions—courts—that are required crops up, the idea is that we should put an regulation of one set of activities relates to listen to submissions along these lines. end to it as quickly as possible—if neces- rationally to the regulation of another. The They are not just arguments about what sary, by empowering the judge to settle the norms that are administered in our courts the law ought to be—made, as it were, in a law in some quasi-legislative manner. But may seem like just one damned command sort of lobbying mode. They are arguments as Ronald Dworkin argues in Law’s Empire, after another, but in fact they convey an as- of reason presenting competing accounts any such account radically underestimates piration to systematicity. Though legislation of what the law is. Inevitably, of course, the the point that argumentation (about what and precedents add to law in a piecemeal arguments are controversial: One party this or that provision means, or what the way, lawyers and judges characteristically will say that such-and-such a proposition effect is of this or that array of precedents) try to see the law as a whole; they try to see cannot be inferred from the law as it is; is business as usual in law. some sort of coherence or system, integrat- the other party will respond that it can be Equally, I don’t think that a concep- ing particular items into a structure that so inferred if only we credit the law with tion of the Rule of Law that sidelines the makes intellectual sense. This is the stuff more coherence than people have tended importance of argumentation can re- of codification and Restatements, but it is to credit it with in the past. And so the de- ally do justice to the value we place on also a resource for ordinary parties. People, termination of whether such a proposition government’s treating ordinary citizens when confronted with law’s particular de- has legal authority may often be a matter with respect as active centers of intelli- mands, can take advantage of this aspira- of contestation. gence. The traditional demand for clarity tion to systematicity in framing their own and predictability is made in the name arguments—by inviting the tribunal to see i have said that most scholarly of individual freedom—the freedom of how the position they are putting forward conceptions of the Rule of Law emphasize the Hayekian individual in charge of his fits generally into a certain conception of the importance of determinacy and settle- own destiny, who needs to know where he the logic and spirit of the law. ment. For them, the essence of the Rule stands. But with the best will in the world, In this way, law pays respect to the of Law is people knowing exactly where and the most determinate-seeming law, people who live under it, conceiving them they stand. Accordingly, they highlight circumstances and interactions can be

74 NYU SCHOOL OF LAW faculty focus

treacherous. From time to time, the Securities Regulation: Hayekian individual will find himself Good Reads The Essentials. Frederick, charged or accused of some delict or vi- MD: Wolters Kluwer Law olation, or his business will be subject— & Business, 2008 (with Adam Pritchard). as he sees it, unjustly or irregularly—to some detrimental rule. Some such cases Dorsen, Norman may be clear, but others may be matters A History of the Arthur Garfield of dispute. Hays Civil Liberties Program, 1958-2008. New York: New York It seems to me that an individual who University School of Law, 2008 values his freedom enough to demand Publications by the full-time Making Our Clients’ Stories (with Helen Hershkoff, Sylvia the sort of calculability that the Hayekian faculty from January 1, 2008 Heard. Washington, D.C.: Law, Gabrielle Prisco, and image of freedom under law is supposed through December 31, 2008. Administrative Office of the Kathryn Sabbeth). to cater to, is not someone whom we can United States Courts, 2008 Dworkin, Ronald imagine always tamely accepting a charge books (with Philip N. Meyer). The Supreme Court Phalanx: or a determination that he has done some- Arlen, Jennifer The Court’s New Right-Wing thing wrong. He will have a point of view on Alston, Philip Editor. Experimental Law Bloc. New York: New York the matter, and he will seek an opportunity Editor. Human Rights, and Economics. Northampton, Review of Books, 2008. to bring that to bear when it is a question of Intervention and the Use of MA: Edward Elgar, 2008 Estreicher, Samuel applying a rule to his case. When he brings Force. New York: Oxford (with Eric Talley). Cases and Materials on University Press, 2008 his point of view to bear, we can imagine Bell, Derrick Employment Discrimination (with Euan Macdonald). his plaintiff or his prosecutor responding Race, Racism, and American and Employment Law. 3rd edition. St. Paul: with a point of view whose complexity and Amsterdam, Anthony Law. 6th edition. New York: Trial Manual for Defense Thomson/West, 2008 tendentiousness matches his own. And so Aspen Publishers, 2008. Attorneys in Juvenile Court. (with Michael Harper). it begins: legal argumentation and the fa- Choi, Stephen 2nd edition. Philadelphia: Employment Law. New York: cilities that law’s procedures make for the ALI-ABA, 2008 (with Securities Regulation: Cases and Analysis. 2nd edition. New Foundation Press, 2008 formal airing of these arguments. Martin Guggenheim (with Gillian Lester). Courts, hearings and arguments—those and Randy Hertz). York: Foundation Press, 2008 (with Adam Pritchard). aspects of law are not optional extras; they are integral parts of how law works, and they are indispensable to the package of law’s respect for human agency. To say $750 Billion Misspent? that we should value aspects of governance that promote the clarity and determinacy Getting More from Tax Incentives of rules for the sake of individual freedom, by lily l. batchelder, austin nichols, and eric toder but not the opportunities for argumenta- Urban Institute Press, forthcoming, 2009 tion that a free and self-possessed individ- ual is likely to demand, is to slice in half, to The U.S. federal government spent about $750 billion on income tax breaks truncate, what the Rule of Law rests upon: for certain individual behavior in 2007—more than the cost of all domestic respect for the freedom and dignity of each discretionary spending. This means that we vastly misconceive of the size of government when we ignore these tax provisions. person as an active intelligence. The federal income tax is a powerful vehicle to enact and administer social policy. But only certain kinds of tax incentives make sense. Many existing incentives are inferior University Professor jeremy waldron is to regulation, direct spending, or ‘nudges.’ When tax incentives are a good idea, a refundable a leading scholar of legal and political credit is almost always the most cost-effective way of promoting social goals. But very philosophy. He has written and published few are structured in this way. extensively on jurisprudence and political This book offers a framework for when and how we should offer tax incentives, theory, exploring theories of rights, consti- and applies it to six major areas: work by low-income parents, higher education, home- tutionalism, the Rule of Law, democracy, ownership, charitable contributions, retirement saving, and health insurance. In doing so, property, torture, security, and homeless- it offers suggestions for how to redesign these tax incentives so that they are more ness, as well as historical political theory. cost-effective—and which ones we should scrap. In the coming years, we face deficits of unprecedented proportions. We He gave the 1996 Seeley Lectures at Cam- cannot rely solely on new taxes and raising marginal rates. We need to consider bridge University, the 1999 Carlyle Lectures whether the government we have is focused in the right places, including both at Oxford University, the Spring 2000 the direct subsidies that we count as government spending, and the tax incen- University Lecture at Columbia University, tives that we do not. the 2004 Wesson Lectures at Stanford Uni- versity, and the 2007 Storrs Lectures at Yale federal direct spending v. individual tax incentives, 2007 Law School. In 1998 he was elected to the selected individual tax incentives $750 billion American Academy of Arts and Sciences. Waldron delivered the University of Geor- non-defense discretionary spending $517 billion gia School of Law’s 103rd Sibley Lecture on social security $589 billion March 5, 2008. This extract is from the lec- medicaid and medicare $573 billion ture, which was published in the December defense $570 billion 2008 Georgia Law Review.

THE LAW SCHOOL 2009 75 Global Issues in Lowenfeld, Andreas Employment Law. St. Paul: International Economic The Will of the People Thomson/West, 2008 Law. 2nd edition. New York: by barry friedman (with Miriam Cherry). Oxford University Press, Farrar, Straus & Giroux, 2009 2008. Franck, Thomas Foreign Relations and Merry, Sally The Court will get ahead of the American National Security Law: Gender Violence: A Cultural people on some issues, like the death Book Cover Cases, Materials, and Perspective. Malden, MA: penalty, or perhaps school desegrega- Art TK Simulations. 3rd edition. Wiley-Blackwell, 2008. tion itself. On others, such as gay rights, St. Paul: Thomson/West, it will lag behind. But over time, with what is admittedly Miller, Arthur 2008 (with Michael Glennon great public discussion, but little in the way of serious Civil Procedure: Cases and Sean Murphy). overt attacks on judicial power, the Court and the pub- and Materials. Revised 9th lic will come into basic alliance with one another. Law and Practice of the edition. St. Paul: Thomson/ In the course of acting thus the Supreme Court United Nations: Documents West, 2008 (with Jack Frie- has made itself one of the most popular institutions in and Commentary. New York: denthal, Helen Hershkoff, Oxford University Press, and John Sexton). American democracy. The Justices regularly outpoll the 2008 (with Simon Chester- Congress and often even the President in terms of public support or confidence. man and David Malone). Miller, Geoffrey When the Supreme Court decided the contested presidential election of 2000 in Banking Law and Regula- Bush v. Gore, many saw this as a low point for the Justices. Yet, prior to the decision over Geistfeld, Mark tion. 4th edition. New York: 60 percent of the country said it was the Court’s job to resolve the matter—compared to Tort Law: The Essentials. Aspen Publishers, 2008 only 17 percent for Congress! And within a year of the decision in Bush v. Gore the Court New York: Aspen (with Richard Scott Carnell again was running at high levels of support among Republicans and Democrats alike. Publishers, 2008. and Jonathan Macey). These facts profoundly call into question the image of the Supreme Court as an Gillette, Clayton Nelson, William institution that runs contrary to the popular will. In the modern era the supposed Sales Law: Domestic and The Common Law in tension between popular opinion and judicial review seems to have evaporated.... International. 2nd edition. Colonial America: The Ches- The ultimate question, of course, is whether this is a good thing.... New York: Foundation Press, apeake and New England, The short answer...rests in distinguishing the passing fancy of the American people 2008 (with Steven Walt). 1607-1660. New York: Oxford from their considered judgment. Judicial review would indeed be a puzzling addition to Gilligan, Carol University Press, 2008. the American system of government if all the Supreme Court did was mirror transient Kyra: A Novel. New York: Fighting for the City: A public opinion. The value of judicial review in the modern era is that it does something Random House, 2008. History of the New York City more than that. It serves as a catalyst for the American people to debate as a polity The Deepening Darkness: Corporation Counsel. New some of the most difficult and fundamental issues that confront them. It forces the Loss, Patriarchy, and De- York: New York Law Journal American people to work to reach answers to these questions, to find solutions—often mocracy’s Future. New York: Press, 2008. compromises—that obtain broad and lasting support. And it is only when the people Cambridge University Press, Reid, John have done so that the Court tends to come into line with public opinion. 2008 (with David Richards). Legislating the Courts: This, then, is the function of judicial review in the modern era: to Judicial Dependence in Early serve as a catalyst, to force public debate, and ultimately to ratify the Guggenheim, Martin American people’s own views about the meaning of their Constitution. Trial Manual for Defense National New Hampshire. Attorneys in Juvenile Court. DeKalb: Northern Illinois 2nd edition. Philadelphia: University Press, 2008. ALI-ABA, 2008 (with Revesz, Richard Schenk, Deborah chapters and Reporter. Extrajudicial, Anthony Amsterdam Environmental Law and Ethical Problems in Federal supplements Summary or Arbitrary Ex- and Randy Hertz). Tax Practice. 4th edition. ecutions to the U.N. Human Policy: Problems, Cases Allen, William New York: Aspen Publishers, Rights Council. U.N. Doc. Hershkoff, Helen and Readings. New York: “Overview of Process 2008 (with Diane Ring and A/HRC/8/3 and A/HRC/8/3/ Civil Procedure: Cases Foundation Press, 2008. Issues in Going Private Bernard Wolfman). Add. 1 (2008). and Materials. Revised Retaking Rationality: Transaction,” in Going 9th edition. St. Paul: How Cost-Benefit Analysis Shaviro, Daniel Private: Doing It Right, 2008. Reporter. Follow-up to Country Recommendations Thomson/West, 2008 (with Can Better Protect the En- Editor. Institutional Foun- Francis Aquila and Nancy on Nigeria and Sri Lanka. Jack Friedenthal, Arthur vironment and Our Health. dations of Public Finance: Wojtas, editors. New York: U.N. Doc. A/HRC/8/3/ Miller, and John Sexton). New York: Oxford University Economic and Legal Perspec- Practising Law Institute, Add. 3 (2008). Press, 2008 (with Michael tives. Cambridge, MA: 2008 (with Paul Rowe). Hertz, Randy Livermore). Harvard University Press, “Putting Economic, Social, Trial Manual for Defense Alston, Philip 2008 (with Alan Auerbach). and Cultural Rights Back Reporter. Extrajudicial, Attorneys in Juvenile Court. Richards, David on the Agenda of the United Summary or Arbitrary Ex- 2nd edition. Philadel- The Deepening Darkness: Thompson, Anthony States,” in The Future of ecutions in Brazil. U.N. Doc. phia: ALI-ABA, 2008 (with Loss, Patriarchy, and De- Releasing Prisoners, Human Rights: U.S. Policy Anthony Amsterdam and mocracy’s Future. New York: Redeeming Communities: A/HRC/11/2 (2008). for a New Era. William Martin Guggenheim). Cambridge University Press, Reentry, Race and Politics. Reporter. Extrajudicial, Schulz, editor. Philadelphia: 2008 (with Carol Gilligan). New York: New York Issacharoff, Samuel Summary or Arbitrary University of Pennsylvania University Press, 2008. Civil Procedure. 2nd edition. Sexton, John Executions in the Philippines. Press, 2008. New York: Foundation Civil Procedure: Cases Waldron, Jeremy U.N. Doc. A/HRC/8/3/ “Sovereignty, Human Rights, Press, 2008. and Materials. Revised 9th Editor. Toleration and its Add. 2 (2008). Security: Armed Intervention edition. St. Paul: Thomson/ Limits (Nomos XLVIII). and the Foundational Prob- Jamieson, Dale Reporter. Extrajudicial, West, 2008 (with Jack Frie- New York: New York Uni- lems of International Law,” in Ethics and the Environment: Summary or Arbitrary denthal, Helen Hershkoff, versity Press, 2008 (with Human Rights, Intervention An Introduction. New York: Executions to the U.N. and Arthur Miller). Melissa Williams). and the Use of Force. Philip Cambridge University General Assembly. U.N. Doc. A/63/313 (2008). Alston and Euan Macdonald, Press, 2008. editors. New York: Oxford University Press, 2008. 76 NYU SCHOOL OF LAW

faculty focus

Arlen, Jennifer “Competition Law,” in Inter- Guggenheim, Martin Howse, Robert Kumm, Mattias “Experimental Law and national Economic Law. 2nd “Lassiter v. Department of “Democracy without “History as an Argument? Economics,” in Experimen- edition. Andreas Lowenfeld, Social Services,” in Encyclo- Sovereignty: The Global The Public Role of History in tal Law and Economics. editor. New York: Oxford pedia of the Supreme Court Vocation of Political Ethics,” Transnational Europe,” in Jennifer Arlen and Eric Tal- University Press, 2008. of the United States. David in The Shifting Allocation “Schmerzliche Erfahrungen ley, editors. Northampton, “The Efficiency Paradox,” Tanenhaus, editor. New of Authority in Interna- der Vergangenheit” und der MA: Edward Elgar, 2008. in How the Chicago School York: MacMillan/Gale, 2008. tional Law: Considering Prozess der Konstitutional- Sovereignty, Supremacy and isierung Europas. Christian Caldwell, Paulette Overshot the Mark: The Effect “Moore v. City of East Cleve- Subsidiarity. Tomer Broude Jörges, Matthias Mahlmann, “Intersectional Bias and of Conservative Economic land,” in Encyclopedia of the and Yuval Shany, editors. and Ulrich Preuß, editors. the Courts: The Story of Analysis on U.S. Antitrust. Supreme Court of the United Oxford: Hart, 2008. Wiesbaden: Verlag für Soz- Rogers v. American Airlines,” Robert Pitofsky, editor. States. David Tanenhaus, ialwissenschaften, 2008. in Race Law Stories. Devon New York: Oxford University editor. New York: “Sovereignty, Lost and Carbado and Rachel Moran, Press, 2008. MacMillan/Gale, 2008. Found,” in Redefining Meron, Theodor Sovereignty in International editors. New York: Founda- “The Market Power Element “Santosky v. Kramer,” in A Life of Learning. New Economic Law. Wenhua tion Press, 2008. of Abuse of Dominance: Encyclopedia of the Supreme York: American Council Shan, Penelope Simons, and Parallels and Differences in Court of the United States. of Learned Societies, 2008 Chase, Oscar Dalvinder Singh, editors. Attitudes—US and EU,” in David Tanenhaus, editor. (with Pauline Yu). “ADR and the Culture of Liti- Oxford: Hart, 2008. gation in the United States European Competition Law New York: MacMillan/ Miller, Arthur of America,” in ADR & the Annual 2007: A Reformed Gale, 2008. “The Use and Abuse of Teaching Manual. Civil Approach to Article 82 EC. International Law in WTO Law. 22nd edition. Hunting- “Stanley v. Illinois,” in Procedure: Cases and Clause-Dieter Ehlermann Trade/Environment Litiga- ton, NY: American Arbitra- Encyclopedia of the Supreme Materials. 2008 revised 9th and Mel Marquis, editors. tion,” in The WTO: Gover- tion Association, 2008. Court of the United States. edition. St. Paul: Thomson/ Oxford: Hart, 2008. nance, Dispute Settlement David Tanenhaus, editor. West, 2008 (with Jack Frie- Choi, Stephen and Developing Countries. Franck, Thomas New York: MacMillan/ denthal, Helen Hershkoff, Securities Regulation: Victoria Donaldson, Merit “The Centripede and the Gale, 2008. and John Sexton). Statutory Supplement, 2008 Janow, and Alan Yanovich, Centrifuge: Principles edition. New York: Founda- Hershkoff, Helen editors. Huntington, NY: 2008 Civil Procedure for the Centralisation tion Press, 2008 (with Teaching Manual. Civil Juris Publishing, 2008. Supplement: For Use with and Decentralisation of Adam Pritchard). Procedure: Cases and All Pleading and Procedure Governance,” in The Shifting Issacharoff, Samuel Materials. 2008 revised 9th Casebooks. St. Paul: Thom- Cunningham, Noël Allocation of Authority in In- The Law of Democracy. edition. St. Paul: Thomson/ son/West, 2008 (with Jack Learning the Logic of ternational Law: Consider- 2008 Supplement. New York: West, 2008 (with Jack Frie- Friedenthal, Helen Hersh- Subchapter K. St. Paul: ing Sovereignty, Supremacy, Foundation Press, 2008 denthal, Arthur Miller, and koff, and John Sexton). Thomson/West, 2008 and Subsidiarity. Tomer (with Pamela Karlan and John Sexton). (with Laura Cunningham). Broude and Yuval Shany, Richard Pildes). Miller, Geoffrey editors. Oxford: Hart, 2008. 2008 Civil Procedure Banking Law and Regulation. Dreyfuss, Rochelle Reporter. Principles of Supplement: For Use with 4th edition. 2008 Statutory “Reconciling Trademark “Does the UN Need a the Law of Aggregate Litiga- All Pleading and Procedure and Case Supplement. Rights and Expressive Val- Secretary or a General?” in tion, Tentative Draft No. 1. Casebooks. St. Paul: Thom- Austin: Wolters Kluwer ues: How to Stop Worrying The United Nations Studies Philadelphia: American Law son/West, 2008 (with Jack Law & Business, 2008 (with and Learn to Love Ambigu- Number 9: Challenges to the Institute, 2008. Friedenthal, Arthur Miller, Richard Scott Carnell and ity,” in Trademark Law and Institution of the UN Charter. and John Sexton). Kingsbury, Benedict Jonathan Macey). Theory: A Handbook of Con- New York: Japan Associa- “Global Administrative Law: temporary Research. Graeme tion for the United Nations “Transforming Legal Banking Law and Regula- Implications for National Dinwoodie and Mark Janis, Studies, 2008 (with Simon Theory in the Light of tion: Teacher’s Manual. 4th Courts,” in Seeing the World editors. Northampton, Chesterman). Practice: The Judicial edition. Austin: Wolters Klu- MA: Edward Elgar, 2008. Application of Social and Whole: Essays in Honor of wer Law & Business, 2008 Garland, David Economic Rights to Private Sir Kenneth Keith. Claudia (with Richard Scott Carnell Reporter. Intellectual “Die Kultur der Kontrolle Orderings,” in Courting So- Geiringer and Dean Knight, and Jonathan Macey). Property Principles Govern- nach dem 11 September cial Justice: Judicial Enforce- editors. Wellington, NZ: Vic- ing Jurisdiction, Choice “Credit Risk Transfer, Hedge 2001,” in Kultur der ment of Social and Economic toria University Press, 2008. of Law, and Judgments in Funds, and the Supply of Kontrolle. Frankfurt: Rights in the Developing Transnational Disputes. “‘Indigenous Peoples’ Liquidity,” in Law and Campus Verlag, 2008. World. Daniel Brinks and Philadelphia: American Law in International Law: Economics of Risk in Finance. Varun Gauri, editors. Institute, 2008. Gillers, Stephen A Constructivist Approach Peter Nobel and Marina Regulation of Lawyers: New York: Cambridge to the Asian Controversy,” Gets, editors. Zurich: Estreicher, Samuel Statutes and Standards. University Press, 2008. in The Concept of Indigenous Schultess, 2008. Employment Discrimina- Austin, TX: Aspen Law & Hertz, Randy Peoples in Asia. Christian tion and Employment Law: Erni, editor. Copenhagen: Morawetz, Nancy Business, 2008 (with Federal Habeas Corpus Statutory Supplement. St. International Work Group “U.S. Supreme Court-Savvy Andrew Perlman and Practice and Procedure. Paul: Thomson/West, 2008 for Indigenous Affairs, 2008. Practice,” in Immigration Roy Simon). 2008 Supplement. Albany: (with Michael Harper). and Nationality Law Hand- Gillette, Clayton Lexis Nexis, 2008 (with Kornhauser, Lewis book. Washington, D.C.: Fox, Eleanor Municipal Debt Finance James Liebman). “A Common Law Code American Immigration “Antitrust, Economic Law: Theory and Practice. Holmes, Stephen in a Federal System,” Lawyers Association, 2008. Development and Poverty: in Bicentenaire du Code 2008 Supplement. New York: “Conclusion,” in Security v. The Other Path,” in The de Commerce 1807-2007. Aspen Publishers, 2008 Liberty: Conflicts Between Effects of Anti-Competitive Association du bicentenaire (with Robert Amdursky). Civil Liberties and National Business Practices on du Code de Commerce. Security in American History. Developing Countries and Paris: Dalloz, 2008. Daniel Farber, editor. New Their Development Prospects. York: Russell Sage Founda- George Lipimile and Hassan tion, 2008. Qaqaya, editors. New York: UNCTAD, 2008. THE LAW SCHOOL 2009 77 Narula, Smita Sexton, John “Hart and the Principles of “Neighborhood Effects of Dreyfuss, Rochelle “The Story of Narmada Teaching Manual. Civil Legality,” in The Legacy of Concentrated Mortgage “In Search of Institutional Bachao Andolan: Hu- Procedure: Cases and H.L.A. Hart: Legal, Political Foreclosures,” 17 Journal Identity: The Federal Circuit man Rights in the Global Materials. 2008 revised 9th and Moral Philosophy. Ben of Housing Economics 306 Comes of Age,” 23 Berkeley Economy and the Struggle edition. St. Paul: Thomson/ Colburn, Claire Grant, and (2008) (with Ingrid Gould Technology Law Journal against the World Bank,” in West, 2008 (with Jack Frie- Matthew Kramer, editors. Ellen and Jenny Schuetz). 787 (2008). Human Rights Advocacy Sto- denthal, Helen Hershkoff, New York: Oxford University Bell, Derrick “Nonobviousness: A Com- ries. Douglas Ford, Deena and Arthur Miller). Press, 2008. “Ledbetter v. Goodyear ment on Three Learned Hurwitz, and Margaret 2008 Civil Procedure “Hobbes on Public Worship,” Tire & Rubber Co.,” 23 Touro Papers,” 12 Lewis & Clark Satterthwaite, editors. Supplement: For Use with in Toleration and its Limits Law Review 843 (2008). Law Review 431 (2008). New York: Foundation All Pleading and Procedure (Nomos XLVIII). New York: “Racial Equality: Progres- Estlund, Cynthia Press, 2008. Casebooks. St. Paul: Thom- New York University Press, sives’ Passion for the Unat- “Who Mops the Floors at Pildes, Richard son/West, 2008 (with Jack 2008 (with Melissa tainable,” 94 Virginia Law the Fortune 500? Corporate “Ethnic Identity and the Friedenthal, Helen Hersh- Williams). Review 495 (2008). Self-Regulation and the koff, and Arthur Miller). Design of Democratic Insti- Weiler, Joseph “Racism as the Ultimate Low-Wage Workplace,” 12 tutions: A Dynamic Perspec- Sharkey, Catherine “Measures Affecting the Deception,” 86 North Caro- Lewis & Clark Law Review tive,” in Constitutionalism in “Crossing the Punitive- Cross-Border Supply of lina Law Review 621 (2008). 671 (2008). Divided Societies: Integra- Compensatory Divide,” Gambling and Betting Ser- Fox, Eleanor tion or Accommodation? in Civil Juries and Civil vices,” in WTO Case Law of “What’s Diversity Got to Do “An Anti-Monopoly Law for Sujit Choudhry, editor. New Justice: Psychological and 2004-5: Legal and Economic with It?” 6 Seattle Journal for China—Scaling the Walls York: Oxford University Legal Perspectives. Brian Analysis. Henrik Horn and Social Justice 527 (2008). of Government Restraints,” Press, 2008. Bornstein, Robert Schopp, Petros Mavroidis, editors. Bruner, Jerome 75 Antitrust Law Journal The Law of Democracy. 2008 Richard Wiener, and Steven Cambridge: Cambridge “Culture and Mind: Their 173 (2008). Supplement. New York: Willborn, editors. New University Press, 2008 Fruitful Incommensurabil- Foundation Press, 2008 York: Springer, 2008. (with Douglas Irwin). ity,” 36 Ethos 29 (2008). “The Law and Economics of (with Samuel Issacharoff Resale Price Maintenance: Shaviro, Daniel and Pamela Karlan). Burns, Sarah A Comparative Perspec- “Disclosure and Civil Penalty “Thinking about Fairness & tive,” 4 Concurrences (2008) “The Legal Structure of Rules in the U. S. Legal articles Achieving Balance in Me- (with Philippe Nasse, Lucas Democracy,” in The Oxford Response to Corporate Tax Adler, Barry diation,” 35 Fordham Urban Peeperkorn, Anne Perrot, Handbook of Law and Poli- Shelters,” in Tax and Corpo- “Efficient Breach Theory Law Journal 39 (2008). and JérÔme Philippe). tics. R. Daniel Kelemen and rate Governance. Wolfgang through the Looking Glass,” Keith Whittington, editors. Schön, editor. New York: 83 New York University Law Choi, Stephen “Microsoft (EC) and Duty to New York: Oxford University Springer, 2008. Review 1679 (2008). “Bias in Judicial Citations: Deal: Exceptionality and Press, 2008. A Window into the Behavior the Transatlantic Divide,” “Simplifying Assumptions: Alston, Philip of Judges,” 37 Journal of 4 (1) Competition Policy Revesz, Richard How Might the Politics of “The Competence of the UN Legal Studies 87 (2008) (with International 25 (2008). Environmental Law and Consumption Tax Reform Human-Rights Council and G. Mitu Gulati). Policy: Statutory and Regu- Affect (Impair) the End Its Special Procedures in Franck, Thomas latory Supplement, 2008- Product?” in Fundamental Relation to Armed Conflicts: “On Beyond Calpers: Survey “On Proportionality of 2009. New York: Foundation Tax Reform: Issues, Choices, Extrajudicial Executions Evidence on the Develop- Counter-Measures in Inter- Press, 2008. and Implications. John Dia- in the ‘War on Terror,’” 19 ing Role of Public Pen- national Law,” 102 American mond and George Zodrow, sion Funds in Corporate Journal of International Satterthwaite, Margaret European Journal of Interna- editors. Cambridge, MA: tional Law 183 (2008) (with Governance,” 61 Vanderbilt Law 715 (2008). On the Record: U.S. MIT Press, 2008. William Abresch and Jason Law Review 315 (2008) (with Disclosures on Rendition, Friedman, Barry Morgan-Foster). Jill Fisch). Secret Detention, and Coer- Stewart, Richard “On the Capacity of the “Trading Votes for Reason- cive Interrogation. New York: Administrative Law and Bar-Gill, Oren Roberts Court to Generate ing: Covering in Judicial NYU School of Law, Center Regulatory Policy 2008 “The Behavioral Economics Consequential Precedent,” Opinions,” 81 Southern for Human Rights and Supplement. New York: As- of Consumer Contracts,” 92 86 North Carolina Law California Law Review 735 Global Justice, 2008 (with pen Publishers, 2008 (with Minnesota Law Review 749 Review 1299 (2008) (with Lee (2008) (with G. Mitu Gulati). Jayne Huckerby). Stephen Breyer, Matthew (2008). Epstein and Nancy Staudt). Spitzer, and Cass Sunstein). Wòch nan Soley: The “Making Credit Safer,” 157 Cunningham, Noël “On the Relationship Denial of the Right to Water Tyler, Tom University of Pennsylvania “The Carried Interest Contro- Between Ideological Homo- in Haiti. New York: NYU “Self-Regulatory Approaches Law Review 1 (2008) (with versy: Let’s Not Get Carried geneity and Consequential School of Law, Center for to White-Collar Crime: The Elizabeth Warren). Away,” 61 Tax Law Review Constitutional Decisions,” Human Rights and Global Importance of Legitimacy 121 (2008) (with Mitchell 10 Pennsylvania Journal Barkow, Rachel Justice; RFK Memorial and Procedural Justice,” in Engler). of Constitutional Law 361 “The Ascent of the Adminis- Center for Human Rights; The Criminology of White- (2008) (with Lee Epstein and trative State and the Demise Davis, Kevin Partners in Health; and Collar Crime. Sally Simpson Nancy Staudt). of Mercy,” 121 Harvard Law “The Relationship between Zanmi Lasante, 2008. and David Weisburd, editors. Review 1332 (2008). Law and Development: Garland, David New York: Springer, 2008. Schenk, Deborah Optimists versus Skeptics,” “Disciplining Criminology?” Been, Vicki Federal Taxation of S Corpo- Waldron, Jeremy 56 American Journal of 46 International Annals of “The Effect of Community rations. 2008 Supplement. “Do Judges Reason Comparative Law 895 (2008) Criminology 19 (2008). Gardens on Neighboring New York: Law Journal Morally?” in Expounding (with Michael Trebilcock). Property Values,” 36 Real “On the Concept of Moral Seminars Press, 2008. the Constitution: Essays in Estate Economics 241 (2008) Davis, Peggy Panic,” 4 Crime, Media, Constitutional Theory. (with Ioan Voicu). “Slay the Three-Headed Culture 9 (2008). Grant Huscroft, editor. Demon!” 43 Harvard Civil New York: Cambridge Rights-Civil Liberties Law University Press, 2008. Review 619 (2008).

78 NYU SCHOOL OF LAW faculty focus

Geistfeld, Mark Issacharoff, Samuel Kingsbury, Benedict Merry, Sally Narula, Smita “Punitive Damages, Retribu- “Class Action Settlements “Preface: Studying the “Anthropology and Ameri- “Equal by Law, Unequal by tion, and Due Process,” 81 under Attack,” 156 Univer- Armed Activities Decision,” can Colonialism,” 1 North Caste: The ‘Untouchable’ Southern California Law sity of Pennsylvania Law 40 New York University American Dialogue 7 (2008). Condition in Critical Race Review 263 (2008). Review 1649 (2008) (with Journal of International Perspective,” 26 Wisconsin Miller, Geoffrey Richard Nagareda). Law & Politics 1 (2008) International Law Journal Gillers, Stephen “Arbitration’s Summer Sol- (with Joseph Weiler). 255 (2008). “The ‘Charles Stimson’ “Democracy and Collective diers: An Empirical Study of Rule and Three Other Pro- Decisionmaking,” 6 Interna- Kornhauser, Lewis Arbitration Clauses in Con- Nelson, William posals to Protect Lawyers tional Journal of Constitu- “Aggregate Rationality in sumer and Non-Consumer “Summary Judgment and the from Lawyers,” 36 Hofstra tional Law 231 (2008). Adjudication and Legisla- Contracts,” 41 University Progressive Constitution,” Law Review 323 (2007; “Meriwether Lewis, the Air tion,” 7 Politics, Philosophy of Michigan Journal of Law 93 Iowa Law Review 1653 appeared in 2008). Force, and the Surge: The and Economics 5 (2008). Reform 871 (2008) (with (2008). Theodore Eisenberg and “Virtual Clients: An Idea Problem of Constitutional Kumm, Mattias Persico, Nicola Emily Sherwin). in Search of a Theory (With Settlement,” 12 Lewis & “Why Europeans Will Not “The Hit Rates Test for Limits),” Tabor Lecture. 42 Clark Law Review 649 (2008). Embrace Constitutional Morawetz, Nancy Racial Bias in Motor- Valparaiso University Law Jacobs, James Patriotism,” 6 International “Rethinking Drug Inadmis- Vehicle Searches,” 25 Review 797 (2008). “The Expanding Scope, Use, Journal of Constitutional sibility,” 50 William & Mary Justice Quarterly 37 (2008) Gillette, Clayton and Availability of Criminal Law 117 (2008). Law Review 163 (2008). (with Petra Todd). “Can Public Debt Enhance Records,” 11 NYU Journal of Law, Sylvia Murphy, Liam Rodríguez, Cristina Democracy?” 50 William & Legislation and Public Policy “Human Papillomavirus “Better to See Law This Way,” “Against Individualized Mary Law Review 937 (2008). 177 (2008) (with Tamara Vaccination, Private Choice, 83 New York University Law Consideration,” 83 Indiana Crepet). “Law School Faculty as and Public Health,” 41 UC Review 1088 (2008). Law Journal 1405 (2008). “Major ‘Minor’ Progress Davis Law Review 1731 Free Agents,” 17 Journal of Nagel, Thomas “The Citizenship Paradox in under the Third Pillar: (2008). Contemporary Legal Issues “Public Education and a Transnational Age,” 106 EU Institution Building in 213 (2008). Marotta-Wurgler, Florencia Intelligent Design,” 36 Michigan Law Review 1111 the Sharing of Criminal “Uniformity and “Competition and the Philosophy & Public Affairs (2008). Record Information,” 8 Diversity in Payment Quality of Standard Form 187 (2008). Chicago-Kent Journal of “From Litigation, Legisla- Systems,” 83 Chicago-Kent Contracts: The Case of Soft- International & Compara- tion,” 117 Yale Law Journal Law Review 499 (2008) ware License Agreements,” tive Law 1 (2008) (with 1132 (2008). (with Steven Walt). 5 Journal of Empirical Legal Dimitra Blitsa). Studies 447 (2008). Hills, Roderick Jamieson, Dale “The Art of Land Assembly,” “The Philosophers’ Sympo- 121 Harvard Law Review 1465 sium on Climate Change,” (2008) (with Michael Heller). 34 Critical Inquiry 612 (2008). Howse, Robert “The Post-Kyoto Climate: Human Rights “Are EU Trade Sanctions on A Gloomy Forecast,” 20 Burma Compatible with Georgetown International Advocacy Stories WTO Law?” 29 Michigan Environmental Law Review edited by margaret l. satterthwaite and Journal of International 537 (2008). Law 165 (2008). deena r. hurwitz with doug ford “The Rights of Animals and Foundation Press, 2009 “European Community— the Demands of Nature,” 17 Sugar: Cross-Subsidization Environmental Values 181 On the second night of his imprison- and the World Trade Or- (2008). ment in Afghanistan, Khaled El-Masri ganization,” 7 World Trade was interrogated by four masked men. Kahan, Marcel Review 149 (2008) (with One of the men asked him if he knew Bernard Hoekman). “The Hanging Chads of Corporate Voting,” 96 where he was. He replied, ‘Yes, I know, I’m in Kabul.’ “The End of the Globalization Georgetown Law Review 1227 The man then replied, ‘It’s a country without laws. Debate: A Review Essay,” 121 (2008) (with Edward Rock); And nobody knows that you are here. Do you know Harvard Law Review 1528 reprinted, 50 Corporate what that means?’... (2008). Practice Commentator 531 As much as any area of the law, human rights involves narratives—the stories “European Communities— (2008). of individuals, groups, and movements of people—who engage in different ways Customs Classification of with strategies, institutions, and legal frameworks that we refer to as international “Hedge Fund Activism: Frozen Boneless Chicken human rights. But perhaps more than many other fields of law, human rights norms The Case For Non-Inter- Cuts,” 7 World Trade Review vention,” 33 Administrative and standards develop as much through individual and collective vision and action 9 (2008) (with Henrik Horn). & Regulatory Law News 6 in the world as through cases before courts and tribunals. By making real the stories “Human Rights, Interna- (2008) (with Edward Rock). of collective action behind human rights advocacy, developing norms, and enforce- tional Economic Law ment mechanisms, Human Rights Advocacy Stories illustrates the dynamic interactions Kane, Mitchell and Constitutional Justice: between advocacy and legal doctrine. “Corporate Taxation and A Reply,” 19 European The chapters in this volume tell the stories of individuals and groups whose International Charter Journal of International bodies, minds, lives, identities, communities, and cultures are threat- Competition,” 106 Michigan Law 945 (2008). ened at the hands of governments, corporations, armed groups, or Law Review 1229 (2008) communities. They are the stories of people who are brave, desperate, (with Edward Rock). determined, or just angry enough to stand up against those abuses.

THE LAW SCHOOL 2009 79 “Latinos and Immigrants,” Stewart, Richard “Positivism and Legality: Dworkin, Ronald “Rights, States, and Empires,” Symposium: Latino Civic “The Breaking the Logjam Hart’s Equivocal Response “Commentary,” in An Ameri- 65 William & Mary Quarterly Participation. 11 Harvard Project,” 17 New York to Fuller,” 83 New York can Index of the Hidden and 363 (2008). Latino Law Review 247 University Environmental University Law Review Unfamiliar, by Taryn Simon. Kane, Mitchell (2008). Law Journal 1 (2008) (with 1135 (2008). Göttingen: Steidl, 2008. “Decoupling?” 93 Carol Casazza Herman, “The Significance of the Weiler, Joseph “Why It Was a Great Victory,” Virginia Law Review in David Schoenbrod, and Local in Immigration Regu- “Measures Affecting the 55 (13) New York Review of Brief 235 (2008). Katrina Wyman). lation,” 106 Michigan Law Cross-Border Supply of Books 18 (Aug. 14, 2008). Merry, Sally Review 567 (2008). “States (and Cities) as Actors Gambling and Betting Estreicher, Samuel Book Review. “Law and in Global Climate Regula- Services (DS 285),” 7 World Scheffler, Samuel “Arbitration-Pact Relevance Disorder in the Postcolony. tion: Unitary vs. Plural Trade Review 71 (2008) “Cosmopolitanism, Justice to Nonsignatories Nar- Jean Comaroff and John L. Architectures,” 50 Arizona (with Douglas Irwin). and Institutions,” 137 rowed,” New York Law Law Review 681 (2008). Comaroff, editors.” 42Law & Daedalus 68 (2008). “Preface: Studying the Journal (Nov. 13, 2008) Society Review 683 (2008). “U.S. Nuclear Waste Law Armed Activities Decision,” (with Steven Bennett). Schulhofer, Stephen “Commentary on Reviews of and Policy: Fixing a Bank- 40 New York University “Prosecuting Suspected “Confidentiality of Arbitra- ‘Human Rights and Gender rupt System,” 17 New York Journal of International Law Terrorists: The Role of the tion Proceedings,” New York Violence,’” 110 American University Environmental & Politics (Special Issue) Civilian Courts,” 2 Advance: Law Journal (Aug. 13, 2008) Anthropologist 520 (2008). Law Journal 783 (2008). 1 (2008) (with Benedict The Journal of the ACS Issues (with Steven Bennett). Kingsbury). Shaviro, Daniel Groups 63 (2008). Tyler, Tom “Election of Remedies “Why the BEIT Proposal “Legitimacy and Coopera- Wyman, Katrina “Toward a Just and Provisions and Retaliation Shouldn’t Be Discounted,” tion: Why Do People Help “The Breaking the Logjam Rational Body of Substan- Claims,” New York Law 118 Tax Notes 1048 the Police Fight Crime in Project,” 17 New York Uni- tive Criminal Law,” 5 Journal (Sept. 8, 2008) (with (March 3, 2008). Their Communities?” 6 Ohio versity Environmental Law Ohio State Journal of Joseph Bernasky). State Journal of Criminal Journal 1 (2008) (with Carol Criminal Law 367 (2008). Smith, Anna Deavere Law 231 (2008) (with Casazza Herman, David “Free with Registration: “Foreword,” in Ailey Sharkey, Catherine Jeffrey Fagan). Schoenbrod, and Richard Signal of Greater Judicial Ascending: A Portrait in Review of Arbitration “CAFA Settlement Notice “Procedural Justice in Nego- Stewart). Motion, by Andrew Eccles. Provision: Optimal Regula- Awards?” New York Law tiation: Procedural Fairness, “Is There a Moral Justifica- San Francisco: Chronicle tory Policy?” 156 University Journal (Oct. 22, 2008) (with Outcome Acceptance, and tion for Redressing Histori- Books, 2008. of Pennsylvania Law Review Joseph Bernasky). Integrative Potential,” 33 cal Injustices?” 61 Vanderbilt Stevenson, Bryan 1971 (2008). “Parties Can’t Modify FAA Law & Social Inquiry 473 Law Review 127 (2008). “Foreword,” in On Crimes “The Fraud Caveat to Agency (2008) (with Rebecca Standards for Judicial Re- “The Property Rights and Punishments and Other Preemption,” 102 Northwest- Hollander-Blumoff). view,” New York Law Journal Challenge in Marine Writings. Cesare Beccaria, ern University Law Review (April 15, 2008) (with Steven “The Psychology of En- Fisheries,” 50 Arizona editor. New York: Oxford 841 (2008). Bennett). franchisement: Engaging Law Review 511 (2008). University Press, 2008. “Products Liability and Fostering Inclusion of “Primary Jurisdiction of “Rethinking the ESA to Upham, Frank Preemption: An Institu- Members through Voting State Administrative Agen- Reflect Human Dominion Book Review. “Mark D. West, tional Approach,” 76 and Decision-Making cies,” New York Law Journal over Nature,” 17 New York Secrets, Sex, and Spectacle: George Washington Law Procedures,” 64 Journal of (July 8, 2008) (with Steven University Environmental The Rules of Scandal in Review 449 (2008). Social Issues 447 (2008) (with Bennett). Law Journal 490 (2008). Japan and the United States.” Celia Gonzalez). “What Riegel Portends for First, Harry 34 Journal of Japanese Yoshino, Kenji FDA Preemption of State “Using Empirical Research to “Bring Back Antitrust,” Studies 539 (2008). “Tribe,” 42 Tulsa Law Law Products Liability Design Government Citizen 286 (21) The Nation 7 Review 961 (2008). Waldron, Jeremy Claims,” 102 Northwestern Participation Processes: (June 2, 2008). “Free Speech & the University Law Review A Case Study of Citizens’ Gillers, Stephen Menace of Hysteria,” 55 (9) Colloquy 415 (2008). Roles in Environmental “Bar None: In the Global Law New York Review of Books Compliance and Enforce- miscellaneous Silberman, Linda Era, Local Admission is an 40 (May 29, 2008). ment,” 57 University of “Rethinking Rules of Conflict Adler, Barry Outmoded Way to Regulate Kansas Law Review 1 (2008) “Parliamentary Reckless- of Laws in Marriage and “Detroit: Chapter 11 Is Not Lawyers,” American Lawyer (with David Markell). ness: Why We Need to Divorce in the United States: the Answer,” Business Week 85 (Oct. 2008). Legislate More Carefully,” What Can We Learn from Waldron, Jeremy 28 (Dec. 29, 2008). “The Torture Memos,” 2008 (11) New Zealand Law Europe?” 82 Tulane Univer- “Books in Review: Philip Bruner, Jerome 286 (16) The Nation 6 Journal 458 (2008). sity Law Review 1999 (2008). Pettit, Made with Words: “Cultivating the Possible: (April 28, 2008). Hobbes on Language, Mind Book Review. “When “The Role of Choice of Law in A Tribute to Harry Judge,” and Politics,” 36 Political Holmes, Stephen Is It Right to Invade? National Class Actions,” 156 34 Oxford Review of Theory 883 (2008). “Free-Marketeering: Naomi Thinking Politically, by University of Pennsylvania Education 297 (2008). Klein, The Shock Doctrine,” Michael Walzer.” 55 (3) Law Review 2001 (2008). “The Concept and the Rule Cohen, Jerome 30 (9) London Review of New York Review of Books of Law,” 43 Georgia Law “Some Judgments on Judg- “Hu Jia in China’s Legal Books 7 (May 8, 2008). 30 (March 6, 2008). Review 1 (2008). ments: A View from America. Labyrinth,” 171 (4) Far Hulsebosch, Daniel Yoshino, Kenji Graveson Lecture,” 19 King’s “Lucky in Your Judge,” 9 Eastern Economic Review 43 “The Declaration’s Domestic “Letter to President-Elect Law Journal 235 (2008). Theoretical Inquiries in (2008) (with Eva Pils). International Effects,” 65 Obama,” 1021 The Advocate Law 185 (2008). William & Mary Quarterly (Dec. 16, 2008).

354 (2008).

80 NYU SCHOOL OF LAW Student Spotlight

Annual Survey Honors Patricia Wald | 82 Karabell ’09 Waxes Supreme | 82 Justice Alito Swings by Moot Court | 83 Fritzsche ’09 Racks Up Honors | 84 Law School Reorients Orientation | 84 NYU Law Wins Deans’ Cup | 89 Students Reenact Yasui Trial | 91

Schoolchildren in Kumba, Cameroon, surround David Kienzler ’10 after performing a song thanking him for his work in their community. The Public Interest Law Center funded Kienzler’s 1L summer human rights internship at the Global Conscience Initiative. Read about his compelling experience on page 85.

THE LAW SCHOOL 2009 81 Judge Edwards recollected circuit bench conferences when “you always want to Lauding an Illustrious Career hear what Judge Wald has to say because she clears your head and improves your from the Factory to the Bench understanding, and maybe she’ll be funny Annual Survey is dedicated to the Honorable Patricia Wald. as well.” Estlund, Catherine A. Rein Profes- sor of Law, praised Wald for her “refusal to n the summer of 1948, before lose sight of the concerns of ordinary peo- entering Yale Law School with the ple” who are affected by broad theories intent of becoming a labor attorney, of law settled in appellate decisions. And I Patricia McGowan hit the bricks with Morawetz, professor of clinical law, cited her uncle and grandfather—in picket-line her mentor as a “role model for women solidarity with a United Auto Workers clerks,” on and off the judicial clock. strike—at a ball bearing factory in gritty “One night, we all went to a bar and taught Torrington, Connecticut, where she worked her to play Pac-Man,” Morawetz disclosed. as a “greaser.” “The judge went incognito—as ‘Marge.’” This was before McGowan earned her In an interview prior to the ceremony, J.D., married lawyer Robert Wald, and, Wald remembered that summer of ’48, and much to the consternation of religious the woman she holds responsible for her conservatives in Congress who labeled success—her mother, Margaret O’Keefe her an “instrument of the Devil,” became McGowan, who, when her husband disap- the Honorable Patricia M. Wald—and now peared during the Great Depression, raised former chief judge of the U.S. Court of Ap- of American Law to Judge Wald. She was their child alone, determined that a girl could peals for the District of Columbia Circuit; lauded by fellow D.C. Circuit judge Harry go far from the mill town of her birth. former associate judge for the International T. Edwards, professors and former clerks Indeed, following a postgraduation Criminal Tribunal for the Former Yugo- Cynthia Estlund and Nancy Morawetz ’81, clerkship in New York, she wound up in slavia; mother of five, grandmother of 10; and former colleagues Kelly Askin, senior Washington, D.C., due to her husband’s and, in frigid Iowa during the presidential legal officer at the Open Society Justice U.S. Navy assignment. The federal govern- caucus season, a heavily bundled, 79-year- Initiative, and David Tolbert, senior fellow ment was “in the throes of loyalty hearings” old canvasser schlepping door-to-door in at the Jennings Randolph Fellowship Pro- that year, Wald explained. Accordingly, she the cause of Barack Obama. gram of the United States Institute of Peace. dropped labor law to sign on at a firm that For her numerous accomplishments, All spoke of light-hearted and even comic defended victims of Senator Joseph McCar- as well as persistent good humor, student moments that leavened what they called an thy, the notorious red-baiter and blacklist editors dedicated the 2009 Annual Survey “inspired and inspiring” career. bully. The firm was, she said, “a more ap- propriate place to work” in 1952. She left practice to raise her children. Watching from the Wings When, in the 1960s, Wald returned to law as a female lawyer 10 years out of the game, While many students were in class on March 30, Jacob Karabell ’09 the available opportunities led her into was at the U.S. Supreme Court watching Samuel Issacharoff, Bon- part-time criminal justice work, which nie and Richard Reiss Professor of Constitutional Law, deliver an oral argument that Karabell helped him prepare in Travelers Indem- included children’s rights—a pursuit that nity v. Bailey and the consolidated case Common Law Settlement later prompted opposition from religious Counsel v. Bailey. zealots during congressional hearings The case involves the long-running asbestos litigation. After on her appointment to the D.C. Circuit by Travelers and other insurers contributed to a $2.8 billion settlement President Jimmy Carter. “The stance of fund in exchange for immunity from the bankruptcy court from fu- some evangelical and conservative groups ture claims, plaintiffs’ lawyers found other grounds to sue. Following mediation, Travelers was that families should make all impor- then funded a $500 million trust in return for clarification that it would be immune from tant decisions about the child,” Wald ex- future claims. Plaintiffs not part of the new settlement objected, and the U.S. Court of plained, adding that lawyers like her, bent Appeals for the Second Circuit agreed, finding that the bankruptcy court did not have the on children’s health and drug education, power to immunize Travelers from other claims. The Supreme Court granted review. “constituted an unjustified intrusion into Karabell, now an associate at Covington & Burling in Washington, D.C., began assist- the sanctity of family life.” ing Issacharoff, who represents the plaintiffs against Travelers, in January. He reviewed To be accused of complicity with Lucifer Supreme Court and circuit case law, legislative history, and scholarship. Students from the Supreme Court Litigation Clinic also assisted with the brief, and that clinic and its director, in congressional hearings, said Wald dur- Samuel Estreicher, Dwight D. Opperman Professor of Law, were co-counsel on the brief. ing her short thank-you address, was “par- Once the brief was submitted, Karabell helped Issacharoff prepare for oral argument ticularly galling since my five kids had to sit by researching potential questions from the bench. Justice Souter asked whether subject- stoically through the entire harangue.” matter jurisdiction ever can be challenged collaterally if it is not contested in the first Afterward, however, a reporter asked proceeding. Issacharoff relied on Karabell’s research to answer that the Court had never one of her sons for his reaction. The son squarely addressed the issue. “I had run through the argument a million times in my head. made his mother proud by saying, “Well, As a result, it was fascinating to watch everything unfold several rows in front of me.” she burns the lamb chops, but otherwise she’s O.K.” Thomas Adcock

82 NYU SCHOOL OF LAW student spotlight A Moot Court of the Highest Order Justice Samuel Alito presides over the 37th Annual Marden Competition.

othing gives a mock supreme reading of her Miranda rights. She also as- Court hearing a frisson of verisi- serted that the Constitution’s ex post facto N militude like the presence of an clause had been violated when the dis- actual Supreme Court justice. On April 8, trict court judge looked to a newer version a standing-room-only crowd witnessed of the federal sentencing guidelines that Justice Samuel A. Alito Jr. and U.S. Court recommended a longer sentence, rather of Appeals judges Michael W. McConnell than the guidelines in place at the time of of the Tenth Circuit and Diana Gribbon Salt’s offense. Motz of the Fourth Circuit presiding over These were thorny questions that, as Mc- the 37th annual Orison S. Marden Moot Connell pointed out, were “pitched at pres- Court Competition. sure points within the Supreme Court’s In the fictitious case Veruca Salt v. jurisprudence.” Both the petitioner’s counsel, United States, created by Roxana Labatt ’10 Daniel Weinstein ’09 and Vikram Kumar ’10, and the respondent’s coun- sel, Matthew Lafargue ’10 and Beth George ’10, faced a barrage of challenging queries from the panel of judges. Kumar tackled the Lafargue question of the sentencing guidelines for the defense. a TV show?” Kumar answered, “Because the Pointing out that a district guidelines serve as the initial benchmark as court can impose a sen- per this court’s holding in [Calder v. Bull], tence of its choosing, Alito and when that benchmark moves in a way Motz, Alito, and McConnell asked, “Why does it make that disadvantages a defendant, a signifi- a difference whether the cant risk of harsher punishment is created, and Kate Corbett Malloy ’10, the petitioner judge imposes an above-guidelines sen- and the ex post facto clause is violated.” appealed her conviction for attempting to tence based on new information that is con- On the government’s side, Lafargue smuggle piñatas filled with oxycodone into tained in an amendment to the guidelines made a forceful argument that Salt’s the country. She argued that the govern- that is inapplicable to this case, as opposed Miranda rights were not triggered prior ment had violated her Fifth Amendment to similar information that is brought to the to her being taken into custody. “I’m not rights by introducing as evidence of guilt judge’s attention in any other form—in a law sure that this doesn’t undermine Miranda Salt’s silence prior to her arrest and the review article, in a newspaper editorial, on altogether,” Motz said. “If we should hold your way here, don’t we encourage police officers to just keep defendants in their car over by the side of the road until they do say something incriminating, or, if they keep silent, we use that against them, too?” Laf- argue answered, “The petitioner’s concern about the delay of Miranda warnings is un- founded, simply because the right doesn’t trigger at the point at which Miranda is ac- tually read; the right triggers at the point at which Miranda should have been read.” After a brief deliberation, the judges named Lafargue as Best Oralist. But Alito gave high praise to each of the counsel for their preparation and poise: “We were harder on you than we generally are on lawyers who appear before us in regular arguing the finer points of immigration law The fourth Immigration Law Moot Court Competition, cases. We wanted to give you a workout, organized by co-editors Laura Ginsberg Abelson ’09 and Allison Wesley ’09 and Moot Court Board and I think we did. I can’t tell you how many Chairperson Melissa Gerecci ’09, welcomed teams from 13 law schools last February. U.S. Court of Appeals judges D. Brooks Smith for the Third Circuit and Carlos Lucero for the Tenth Circuit and Judge arguments that I delivered as a lawyer John Gleeson of the U.S. District Court for the Eastern District of New York presided over the final when I staggered out of the courtroom after arguments, declaring Georgetown University Law Center the winner over Brooklyn Law School. the performance. None of you should feel that way.” Atticus Gannaway

THE LAW SCHOOL 2009 83 The Fruits of His Labors Fritzsche wins Pro Bono Publico and Skadden Fellowship. ith his face hidden behind a ers often falsify the number of hours that mop of curly hair, a beard, and a you worked so that it looks like you were W pair of wire-rim glasses, Thomas paid the minimum wage,” he said, add- Fritzsche ’09 shies away from talking about ing that protesting to supervisors was dif- himself. But once the topic shifts to immi- ficult. And he now has a clearer grasp of grant and labor advocacy, the words spill how workers understand their rights and out in torrents. For the past eight years, how these rights are enforced. In 2007, Fritzsche has worked zealously on behalf of Fritzsche was contacted by the Coali- migrant and immigrant workers. Last year tion of Immokalee Workers, which has New Fellowships he was awarded the Pro Bono pioneered farmworker rights Publico by the Public Service by persuading large-volume Meet two inaugural fellows co-sponsored Law Network, and he is now a tomato purchasers to make by NYU Law and prestigious employers: Skadden Fellow working for the direct payments to pickers to Sonia Lin ’08 Southern Poverty Law Center’s improve their wages. The co- Outten & Golden Fellow Immigrant Justice Project. alition wanted his help to cre- A Root-Tilden-Kern Scholar, Lin helped Fritzsche discovered the ate an organization to help it draft a petition to the Department of issue that would become his gain allies among consumers Homeland Security to promulgate immi- passion almost by accident. “I and organizations promoting grant detention regulations while a stu- was just looking for a summer organic, sustainable, and lo- dent in the Immigrant Rights Clinic. Last job that involved social justice cally grown food. In 2008 he year, she clerked for Judge Denny Chin and that would allow me to practice my achieved this goal, co-founding Just Har- of the Southern District of New York. Spanish,” he said. So the summer after his vest from Field to Fork. It was this endeavor, Outten & Golden, a plaintiff-side em- ployment law firm, introduced this one- sophomore year at Amherst College he re- supported by letters from two dozen stu- year fellowship in collaboration with the turned to his native Maine to intern at the dents and faculty, that won over the Public Public Interest Law Center to provide a Maine Department of Labor’s Division Service Law Network award committee. recent alumnus with hands-on experi- of Migrant and Immigrant Services. The With a full-tuition scholarship from the ence in employment and labor matters. experience so intrigued him that he con- Bickel & Brewer Latino Institute for Human tinued to pursue internships and jobs for Rights, Fritzsche has oriented his stud- Suzanna Publicker ’09 organizations including the Maine Migrant ies at NYU Law toward immigrant rights. NYU-NYPD Fellow Health Program, the Service Employees Through the Immigrant Rights Clinic taught The executive editor of the Journal of Leg- International Union, and the National Day by Professor Nancy Morawetz ’81, he has co- islation and Public Policy, Publicker held Laborer Organizing Network. written appellate briefs, conducted deposi- clinical internships in the Medical-Legal Going a step beyond his job require- tions, and represented a worker in federal Advocacy Clinic and the Prosecution ments, Fritzsche has experienced first- district court litigation against his former Clinic in the Southern District of New hand the life of a migrant farmer. He took employer. “Tom is full of initiative,” raved York. She worked for the New York Police Department in 2007 and for the Special a leave of absence from his job as an organ- Professor Cristina Rodríguez, faculty direc- Federal Litigation Unit of the New York izer with SEIU in 2005 to join two migrant tor of the Bickel & Brewer scholars program. City Law Department last summer. farm crews, spending more than three “His seriousness of purpose and his generos- She will work at the NYPD under the months picking apples and blueberries. ity as a human being are an inspiration to supervision of the deputy commissioner He gained tremendous insight. “Grow- everyone he encounters.” for legal matters and also with officials in the Intelligence Division, Counterter- rorism Bureau, Detective Division, Orga- nized Crime Control Division, and other Coif Honors Public Servant units. The one-year fellowship carries Upon his honorary induction into the Order of the Coif, former U.S. a stipend of $75,000 and guaranteed placement in the Special Federal Litiga- Congressman Frank Guarini ’50 (LL.M. ’55) spoke to the student in- tion Unit of the New York City Law De- ductees who are in the top 10 percent of their class and will graduate partment. The fellowship is funded by a magna cum laude. He stressed the importance of determination and grant from the Police Foundation. diversity: “I had a curiosity to see the world,” he said. “I was able to “There are few institutions that have learn from everybody who came from a different culture.” been more vital and successful in pre- Guarini is a World War II veteran of the U.S. Navy who has had an illustrious four- serving the well-being and security of decade-long career in public service. He was elected to the New Jersey State Senate New Yorkers than the NYPD, especially in 1965. Starting in 1979, Guarini served seven consecutive terms in the U.S. House of in the post-9/11 era,” said Dean Richard Representatives, representing the now defunct Fourteenth Congressional District in New Revesz. “We are pleased to partner with Jersey, where he sponsored the state’s first air and water pollution regulations. Recently, the NYPD on this initiative, enabling some of our most talented lawyers to the Frank J. Guarini Center for Environmental and Land Use Law was named for him. serve this important public institution.” From 1994 to 1996 he was the U.S. Representative in the United Nations General Assembly, appointed by President Clinton.

84 NYU SCHOOL OF LAW Italy Greece Turkey Morocco Canary Islands Tunisia Syria Western student spotlight Sahara Algeria Iraq Iran Cameroon or Bust Libya Mauritania David Kienzler ’10 arrived in an African backwater Egypt Mali as a summer intern and left as chief of Kwa-Kwa. Senegal Gambia Saudi Arabia Guinea Bissau council’s counsel Kienzler and other interns of the Niger Global Conscience Initiative meet with the village council of Barombi Mbo to prepare for conflict media- Sierra Leonetion training. Below, Kienzler is next to Elvis Tawe, a Chad Cameroonian science teacher andBenin GCI volunteer. Eritrea Cote Togo Sudan Liberia D'Ivoire Nigeria Yemen Ghana Djibouti Central African Cameroon Republic Equatorial Guinea Ethiopia Sao Tome & Principe

Gabon Congo Somalia at by the chief state prosecutor for meddling Uganda Kenya in his allegedly corrupt affairs, and a heck Dem. Rep. of Congo Rwanda of a lot better than doc review. At the end Burundi of the summer they even performed a song about Chief Dave and GCI as a thank-you Tanzania for all our work. So. The whole chief thing. Partway Angola through the summer, GCI did workshops on conflict mediation for the councils of a Malawi Comoros number of surrounding villages. During a Zambia admit i wondered if spending on the local people. Everyone I met was mock workshop in the office I was cast as a my 1L summer in Cameroon was really amazing—just hardworking and intelligent chief and I played it up. I chose Kwa-Kwa be- Zimbabwe Mozambique such a good idea. Most of my friends and friendly. They seemed to be inspired cause frankly, it had the coolest name, Namibiaand Madagascar were eagerly anticipating a summer by the fact that someone from America I spent all day in character, demanding to Botswana I 0 of high wages and ridiculous perks with- cared enough to come help out. And since be referred to as Chief. My native cowork- 1000 Miles out ever having to leave the city. But looking “Whiteman” is still a pretty big novelty0 ers couldn’t stop laughing, so the title stuck. 1000 KM Swaziland back on it, I think I won. I ended the sum- there, I was a major celebrity. I got a taste And being in a small town, pretty soon I mer of 2008 crowned the Honorable Chief of what life must be like all couldn’t walk down the street Lesotho Dave of Kwa-Kwa; all they got were some the time for Brad Pitt. People I without people calling out, South Africa free Yankees tickets. didn’t know always wanted to “Chief of Kwa-Kwa!” Eventually Cameroon has twice topped Transpar- talk or share “a bottle.” I was the village council of Kwa-Kwa ency International’s list of the most corrupt a guest of honor at a wedding, came in for its training and governments, and the backwater village of a funeral celebration, and a (much to my relief) found it hi- Kumba is infamous even in Cameroon as baby shower, despite the fact larious too. So as part of the big the place officials go if they want a - Mer that I hadn’t met the hosts till I GCI festivity celebrating the cedes. I interned at Global Conscience arrived. I was kind of uncom- end of the interns’ time there, I Initiative, a tiny domestic human rights fortable at first—I mean, all I’d was officially crowned the Hon- nongovernmental organization in Kumba. really done was to be Ameri- orable Chief of Kwa-Kwa. I even I spent the summer in an office that lacked can—but it seemed to genu- got a chief’s hat! They walked running water, consistent electricity, and inely matter that I was there trying to help, me through the ceremony, explaining the Internet access, dealing with everything so I threw myself into it and the community significance of each part, and then enu- from fighting for prisoner’s rights and bail loved it even more. merated my powers and duties. If anyone petitions to the day-to-day problems of peo- Pretty soon I was eating porcupine and touches my hat they have to give me a goat, ple suffering under Cameroon’s extremely fried termites in a three-sided shack that which is pretty sweet. On the other hand, I corrupt ruling regime. Additionally we co- functioned as the local bar, huddled around now also need to get 15 wives, which might ordinated efforts between NGOs and local a candle listening to the Euro Cup Final. be tricky given my current level of debt and barristers, started a human rights radio (The whole town’s power was out. Again.) inability to get a date. hour, and argued (futilely, in general) with Or I was showing off my sweet dance I have been assured that my position is all manner of government officials. moves. Inexplicably, the townspeople being maintained till I return. I confess it I’d be lying if I said I, or any of the other found this hysterical. has not been easy readjusting to a world handful of internationals, achieved any At work it was almost impossible to come where I am not celebrated; attempts to get substantial successes in our legal battles. and go without having to stop and play with my classmates to call me Chief have not met But whether our bail appeals and rights the local kids who hung out around the of- with much success. But I guess there’s al- conferences made a difference with the fice. We’d run around; they’d beat me up. It ways my 2L summer, which I’ll be spending government, our presence had an impact was a nice change of pace after being yelled in South Africa. Cape Town, here I come!

THE LAW SCHOOL 2009 85 a chance to see it from a lot of different perspectives, to be consistent with NYU’s advantages and uniqueness.” The previous day of orientation had in- troduced students to Kelo through a moot court. Dennis Jacobs ’73, chief judge of the U.S. Court of Appeals for the Second Cir- cuit, and Barbara S. Jones and Victor Mar- rero, both U.S. District Court judges for the Southern District of New York, heard the ar- guments. Richard Epstein, James Parker Hall Distinguished Service Professor of Law at the University of Chicago, who in 2010 will join the faculty of NYU Law, presented an impassioned plea for the petitioner, calling New London’s development plan “a giant intellectual and planning fiasco.” Jane Gordon, New York City’s senior counsel in the Office of the Corporation Counsel, vig- orously argued that economic development is a public purpose and therefore the Fifth Amendment clause on public use—“…nor shall private property be taken for public Kick-Starting Student Life use without just compensation”—applied. An actual verdict wasn’t rendered, since Faculty, alumni, and 2Ls introduce the Law School, the three judges may hear eminent domain the Village, and the city to the incoming class of 2011. cases in the course of their real-life judi- cial duties, but they did share their general s roderick hills, william t. with what is going to happen when they hit thoughts. Jacobs discussed the difficul- Comfort III Professor of Law, the classroom,” said Friedman. ties of deciding cases based on conflicting revved up for a mock class analyz- This year’s orientation was built around values, as well as the importance of side- A ing the 2005 case Kelo v. City of Kelo, chosen because the case touches stepping compelling but essentially extra- New London, incoming law student Giulia on many first-year curriculum teaching neous material in order to focus on the key Previti ’11 quietly confessed she was excited points and is recent enough that students elements. Jones explained the differences but apprehensive about the coming year. may remember its newspaper headlines. between higher and lower courts, noting, “You don’t know how the classes will work (The case involves a lawsuit by Susette for instance, that higher courts look at and what to expect,” she said. Kelo, whose New London, Connecticut, the broad principles of a case while lower It was Day Three of orientation for the home was condemned to be razed for an courts concentrate on scrutinizing the Class of 2011. Roaming the stage of Vander- office park under the right of eminent do- minute facts. bilt Hall, Hills was energetically demon- main.) “We take the case almost from cra- The students had already had some strating the Socratic method of teaching as dle to grave to illustrate some of the stages hands-on experience in scrutinizing min- he and six 2Ls dissected the definition of that law students would experience,” ex- ute facts on the first day of orientation. The “eminent domain” and how it could be ap- plained Friedman. “We tried to give them occasion was a scavenger hunt designed to plied. “If people don’t ask questions, I will call on them,” he warned. Then, turning to one student, he rapped out, “What’s wrong with this argument, Ms. Goldman? You have 30 seconds.” If the prospect of undergoing Professor Hills’s catechism at first seemed terrifying to Previti and her 447 fellow first-year stu- schedule MONDAY, AUGUST dents, most said his obvious goodwill and sense of humor left them reassured. “He 8:30 – 9:30 a.m. 25, 2008

Breakfast showed that you need to be prepared but he Greenberg Lounge,inBrief VH 9:45 – 10:00 a.m.  will help you along,” said Josh Levy ’11. Vice Meeting RichardRevesz, Dean and Lawrence King Professor of Law Tishman Auditorium,theF ir s t VH Dean Barry Friedman couldn’t be more Chair  pleased with this answer. The architect of 10:00 – 11:30 a.m. 6:00 – 7:30 p.m.

Expert Going J.D. orientation, he deliberately ditched the SamuelIssacharoff, Bonnie and Richard Reiss Professor Presiding to TishmanTestimony* Auditorium, VH Tishman Auditorium,Court* VH of Constitutional Law  Hon.DennisJacobs  of Appeals for the Second Circuit traditional combination of speeches and CindyEstlund, Catherine A. Rein Professor of Law ’73, Chief Judge United States Court Hon.BarbaraS.Jones, District Judge United States District social events for a more dynamic, heuristic Court Southern District of New York outward bound, in downtown manhattan  Students broke into teams to explore the city through a challenging 11:30 a.m. – 6:00 p.m. Hon.VictorMarrerro, District Judge United States District model. “We decided to focus on a very sub- Court Southern District of New York urban scavenger hunt. Instead of collecting items, however, the teams had to complete a set of tasks and take Trial Brief the Assigned Case Preparation (Various Locations) Arguing stantive orientation that acquaints students photographic evidence of their accomplishments, such as getting behind the wheel of a cab. Big Apple Bucks Lunch  for JaneL.GordontheEsq.,City Senior Counsel Admissions Check-in Corporation Counsel, City of New York (from 12:30 Attend ITS Training– 2:30 p.m. by in Section Golding below Lounge) Arguing 86 NYU SCHOOL OF LAW Dinner on your own for RichardEpstein,the JamesPetitioner Parker Hall Distinguished Service Professor of Law, University of Chicago Visiting Professor of Law, NYU School of Law 12:30 – 4:00

mp . . Getting 7:45 – 10:00 p.m. Connected: ITS Training Sections1&2  Sections3&4 Lipton Hall, DH Deliberating 12:30 – 1:30 p.m. Section5 Come meet the presiding judges and litigants after Court 1:45 – 2:45 p.m. Greenberg Lounge,with VH is adjourned. Be certain to deliberate with NYU alumniT h e 3:00 – 4:00 p.m. Bar who will also join us at this reception. 

*Bring paper and awriting utensil! student spotlight LL.M. Orientation

Masters of the Universe  This fall, the Law School welcomed 414 lawyers seeking LL.M. degrees, with another 54 matriculating at the NYU@NUS Singapore program. The Office of Graduate Affairs introduced them to life in the big city with a double- decker bus tour, sunset cruise around Manhattan, and later, a spring break trip to Washington, D.C. For academic grounding, LL.M. candidates took a mandatory, one- week Introduction to U.S. Law course taught by Mary Holland, Caren Myers Morrison, and Irene Ayers of the Graduate Legal Skills Program. The vast majority of LL.M. students are from civil law jurisdictions in Asia, Europe, and Latin America. As com- mon law often applies in international contracts, an understanding of U.S. common law is an advantage for lawyers who work on international transactions. “If you have a degree from France, Argentina, or Kazakhstan, you may find it difficult to rise to the top in a global law firm,” says Holland. “An LL.M. from NYU evens the playing field.”

introduce them to Greenwich Village, the with the judges, professors, and law law school is our social role,” he noted. Law School’s history, and their classmates, school alumni in the elegant setting of “We’re supposed to be advisers and tell our part of the orientation’s goal of building Gotham Hall. Inviting alumni to partici- clients what they should do to bring their esprit de corps. “The great thing about ori- pate in orientation was new this year but affairs into legal concordance.” entation is meeting people,” said Previti. is something Friedman intends to repeat. As everyone drifted off to pick up their “Having a sense of community helps a lot in “They’re an outstanding resource that we box lunches and picnic with their section’s decreasing your apprehension.” can and should call on more,” he said. faculty, the mood among the first-year stu- There were plenty of people to The orientation also showcased the dents was considerably more relaxed than meet. After moot court, stu- depth and breadth of the Law School’s it had been the day before. So far, students dents mingled faculty. Professor Hills’s mock class was fol- noted, NYU was living up to its reputation lowed by a postmortem panel discussion for being collegial and collaborative. “The with Law School faculty that demonstrated professors don’t have that Paper Chase at- “how the law operates in many different titude of drilling you into submission,” said dimensions,” said Friedman. Professor Eric McLaughlin ’11. “People seem more Daniel Hulsebosch took a historical view cooperative and less cutthroat than other of eminent domain clauses. Vicki Been ’83, places. There’s a sense that everyone wants schedule MONDAY, AUGUST Boxer Family Professor of Law, who teaches to work hard but isn’t obsessed.” 8:30 – 9:30 a.m. 25, 2008 classes on property law and is director of the If there’s one lesson Friedman wanted

Breakfast Greenberg Lounge,inBrief VH Furman Center for Real Estate and Ur- students to take away from orientation, 9:45 – 10:00 a.m.  ban Policy, talked about how public it’s precisely that: “There are tough schools Meeting RichardRevesz, Dean and Lawrence King Professor of Law Tishman Auditorium,theF ir s t VH Chair policies affect private neighborhoods and friendly schools. We’re both really  10:00 – 11:30 a.m. 6:00 – 7:30 p.m. and communities in very real and profound tough and really friendly.” Orientation,

Expert Going SamuelIssacharoff, Bonnie and Richard Reiss Professor Presiding to ways. Burt Neuborne, Inez Milholland he added, should help students to start TishmanTestimony* Auditorium, VH Tishman Auditorium,Court* VH of Constitutional Law  Hon.DennisJacobs  of Appeals for the Second Circuit CindyEstlund, Catherine A. Rein Professor of Law ’73, Chief Judge United States Court Professor of Civil Liberties and an active law school at NYU “comfortable in the Hon.BarbaraS.Jones, District Judge United States District Court Southern District of New York litigator, examined Kelo from a practitio- classroom, familiar with people around 11:30 a.m. – 6:00 p.m. Hon.VictorMarrerro, District Judge United States District Court Southern District of New York ner’s perspective. “Something that often them, and happy to be in New York City.” Trial Brief the Assigned Case Preparation (Various Locations) Arguing Big Apple Bucks Lunch  for gets lost in the intellectual feast that is Catherine Fredman JaneL.GordontheEsq.,City Senior Counsel Admissions Check-in Corporation Counsel, City of New York (from 12:30 Attend ITS Training– 2:30 p.m. by in Section Golding below Lounge) Arguing Dinner on your own THE LAW SCHOOL 2009 87 for RichardEpstein,the JamesPetitioner Parker Hall Distinguished Service Professor of Law, University of Chicago Visiting Professor of Law, NYU School of Law 12:30 – 4:00 mp . .

Getting 7:45 – 10:00 p.m. Connected: ITS Training Sections1&2  Sections3&4 Lipton Hall, DH Deliberating 12:30 – 1:30 p.m. Section5 Come meet the presiding judges and litigants after Court 1:45 – 2:45 p.m. Greenberg Lounge,with VH is adjourned. Be certain to deliberate with NYU alumniT h e 3:00 – 4:00 p.m. Bar who will also join us at this reception. 

*Bring paper and awriting utensil! L AW Y U Life as a Law School Musical N he nyu law revue, the annual student-produced sendup of the Law T School, celebrated its 35th anniver- 10012 sary last March with the 2009 installment, NYU Law, 10012. Parodying popular mov- ies and TV shows with high-school themes, including Beverly Hills, 90210, Gossip Girl, Clueless, and The Breakfast Club, this year’s show gave its participants ample opportu- nity to explore student angst and insecuri- ties. NYU Law, 10012, which told the story of five 1Ls battling an evil plot by a heavily fictionalized Vice Dean Barry Friedman, featured a cast of 28 performing more than a dozen songs adapted from pop hits like “Footloose” and “Thriller.” The elaborate nature of this year’s Law Revue was in stark contrast to the inaug- ural 1974 production, which was staged vir- tually singlehandedly by Elliot Polebaum ’77 and adapted from the previous year’s Har- vard Law School Parody. The next year, Jeffrey professors played themselves more fre- nocturnal rehearsals during his three years L. Schwartz ’76 wrote a wholly original quently than has been the case in recent of involvement with NYU Law’s theatrical full-length operetta, Bye Bye Bobby, or The years: “We tried to give the faculty an easy- institution: “They’d last until well into the Law School Gets a New Dean, influenced to-sing ‘chorus’-type song in each, which night. Then a core group of us would head by the retirement of then-dean Robert they of course butchered.” out for supper. Or was it breakfast? Either McKay. The production, directed by Jef- Another Law Revue alumnus, David way, I felt a sense of camaraderie that has frey Aker ’76, featured future Metropoli- Newman ’84, fondly recalled his Tootsie- seldom been repeated.” Those times, he tan Opera tenor Peter Kazaras ’77. In the inspired drag number in the show The said, were “some of the happiest moments early Law Revue shows, Schwartz recalled, Partners of Penzance, as well as the many that I’ve lived.” Deans’ Cup Sold! The 15th annual Public In- terest Law Center Auction raised $90,000 in a chal- lenging economy by fea- turing an eclectic array of items, including NAS- CAR Sprint Cup Series tickets (sold for $750) and a 1988 Jaguar XJS convertible (earning a tidy $6,000). Daniel Marx ’10 bid $300 to challenge Dean Rich- ard Revesz to a best- of-three match of Wii Tennis. While the dean lost, two games to one, NYU Law students won, a three-point retort Determined to avenge last year’s blowout, the Violets pulled off a victory over Columbia at the eighth annual Deans’ Cup. NYU held on to a narrow 56–53 victory, their fifth since the as the event raised co-ed student charity games began. The Law School missed a sweep, however, as its uptown rival won the money to fund 10-minute halftime faculty game. The April event raised a cool $47,100, to be evenly split between the law summer public ser- schools. The Deans’ Cup, the largest student-run law school event in the country, has raised more than $500,000 since 2002 to fund public interest summer internships and other programs at both schools. vice internships.

88 NYU SCHOOL OF LAW L AW Y U student spotlight N Modernizing the Financial Regulatory Structure Symposia: From Page to Stage Journal of Law & Business Tort Law in the Shadow of Preemption Stuyvesant P. Comfort Professor of Law Annual Survey of American Law Geoffrey Miller asked two overarching ques- 10012 tions of the financial crisis: “How did we get any important questions regard- here?” and “Where are we going?” Univer- ing preemption and tort law are glossed sity of Texas School of Law professor Henry M over by courts that view the issues nar- Hu pointed to changes in basic elements rowly, said Judge Guido Calabresi of the U.S. Court of financial system design, specifically the of Appeals for the Second Circuit in his keynote debt decoupling phenomenon that pits speech. Among them: Should decision-making the economic interests of creditors against be national and centralized, or local and diffuse? debtors. “Our debt governance paradigm as- Are incentives preferable to regulations? Who sets sumes that shareholders and creditors hold minimum standards of behavior, and how? bundled packages of rights and obligations,” Calabresi explored the nuances, weighing the said Hu. “Financial innovation,” namely positives and negatives. For instance, local deci- securitization, “has rendered these foun- Calabresi with Survey editor sion making allows for the existence of opposing dational assumptions obsolete.” Thomas David Lawrence ’09. values within the same system, perhaps allowing Baxter, general counsel and executive vice the predominant set of values to win over time. president of the Federal Reserve Bank of However, this would lead to inconsistent valuation of many things, even of life itself. “We New York, contended, however, that the often act as if different values are not important. We have not had a national tort law in the minatiae of regulatory structure matter United States, and that’s interesting. In this sense the United States is much more divided less than the quality of human regulators: in values than Europe is.” “Far more important [than structure] are Yet in certain ways, centralized dictates concerning tort law might be detrimental: “If the people entrusted with supervision.” the government, at its highest levels, sets total standards, it says who is worth living and Of greatest concern to all is the popular who is worth dying, what is worth doing to save lives and what is not, and that’s a danger- cost of the regulatory response. “The war on ous position to put the state in symbolically.” The state, Calabresi said, can set minimum regulation is over. The Fed has won,” said standards: “‘You must do at least this much, but more should be done.’…Of course, the Richard Kim, partner at Wachtell, Lipton, other side is that if you use an incentive system, you come mighty close to pricing lives.” Rosen & Katz. “What we’re seeing now is With few clear directives from Congress, Calabresi said, “Shouldn’t we at least ask that these benefits are coming at a great how...these decisions can be better made? If Congress is no good at it, believe me, courts price... [growing] worse each day.” are lousy. State courts, elected as they are in most places? Federal courts, picked as we are? God help us....If we don’t think seriously about this, then the whole nature of the The Unknown Justice Thomas society that we have all grown up in...will cease to be in ways which might surprise us, not Journal of Law and Liberty just in torts but in the system as a whole.” Supreme Court Justice Clarence Thomas has been on the court for 18 years, but his work remains underexamined. The jour- The New Regulatory Climate: Greenhouse The Normalizing of Adjudication in Complex nal editors invited former clerks to fill the Gas Regulation in the Obama Administration International Governance Regimes void; they depicted a dogged, scholarly Environmental Law Journal Journal of International Law and Politics judge with firm humanitarian interests Environmental Law Society In his keynote address, Judge Bruno and strict constitutional loyalty. “It was The Regional Greenhouse Gas Initiative, Simma of the International Court of Jus- our suspicion that Thomas’s jurisprudence operating in 10 states, is the only emis- tice noted that 10 years ago the explosion was richer and more nuanced than he has sions cap-and-trade program currently of international courts and tribunals cre- been given credit for by popular and legal functioning in the United States. As other ated a great deal of concern within the in- commentators,” said Daniel Meyler ’09, the regional groups plan for similar programs, ternational academic community over the journal’s editor-in-chief. “We hoped to... the risk of “patchwork regulation” due to possibility of conflicting jurisprudence. engender thoughtful response.” variations in regional and state regulations Disunity of international judicial bodies Professor Nicole Garnett of Notre Dame grows. One of the major roadblocks ahead might threaten the legitimacy of these in- Law School tackled the perception that for the Obama administration concerning ternational institutions, charged in some Thomas’s opposition to affirmative action is emissions will be incorporating existing cases with the responsibility of prosecut- elitist. Garnett insisted that Thomas know- programs into new legislation. ing crimes of genocide and war crimes or ingly distrusts and resents elite efforts to ex- New York Law School professor David adjudicating disputes between sovereign periment with the disadvantaged.“It never Schoenbrod stressed that utility and energy nations over state borders or the use of ceases to amaze me that the courts are so groups must be involved in the process. He force. Judge Simma argued, however, that willing to assume that anything that is pre- also explained that current conventional the present state of affairs in international dominantly black must be inferior,” Garnett pollutant regulations in the Clean Air Act law has not lead to conflicting jurispru- read from Thomas’sMissouri v. Jenkins opin- must be changed and related to greenhouse dence among international courts and that, ion. “This position appears to rest upon the gas regulation, to create a system where in fact, judges go to great lengths to avoid idea that any school that is black is inferior, caps for each are linked and ever decreas- conflict and to engage in an international and that blacks cannot succeed without the ing as technology and efficiency improve. legal discourse. benefit of the company of whites.”

THE LAW SCHOOL 2009 89 Fall Ball

october 29, 2008 Spring Fling

march 11, 2009

Barristers’ Ball

marchmay 12, 112009, 2009

90 NYU SCHOOL OF LAW student spotlight Natural Versus Human Rights A Historic Trial he n y u j o u r n a l o f l a w & l i b e r t y contrary, because rights exist in a state of held its fourth annual Friedrich von nature and are insecure, lacking a common Revisited T Hayek Lecture in Law. In “Natural means of impartial adjudication and en- Instead of a speech, the 10th Annual Ko- Rights and the Ninth Amendment: How forcement, people enter into a social com- rematsu Lecture featured law students Does Lockean Legal Theory Assist in pact, such as the Constitution, in which they and members of the Asian American Interpretation?,” Judge Michael McConnell relinquish many of their natural rights in Bar Association of New York reenacting of the U.S. Court of Appeals for the 10th return for more secure protections of those “The Trial of Minoru Yasui: The Admin- Circuit, an expert in con- that they retain. For exam- istration of Justice in a Time of War.” In stitutional history and law ple, McConnell said that ac- 1942, Japanese American lawyer Yasui and religion, discussed how cording to Locke, we give up challenged a military-ordered 8:00 p.m. the language of the Ninth our natural right to use pri- curfew imposed on all West Coast resi- Amendment, which provides vate violence to punish ag- dents of Japanese descent. Three months after Yasui intention- that the naming of certain gressors, thus giving the state ally broke the curfew, he appeared be- rights in the Constitution a monopoly on the legitimate fore Judge James Alger Fee in Portland, does not take away from the use of force for punishment. Oregon. Yasui argued that the curfew people rights that are not McConnell said the Su- was unconstitutional because it applied named, can be understood preme Court has never to those of Japanese extraction regard- only against the backdrop defined what the Ninth less of citizenship but only to non-cit- of philosopher John Locke’s Amendment means, but he izen residents of German and Italian natural rights theory. McConnell said that offered a possibility: “That the rights re- origin. Indeed, Fee ruled that the curfew Locke taught us that we all have natural tained by the people are indeed individual was unconstitutional when applied to rights, rights that human beings have in a natural rights, but that they enjoy precisely American citizens, but then determined that Yasui had forfeited his citizenship state of nature before the creation of civil or the same status and are protected in the because he had worked for the Japa- political society. same way that they were before the Bill of nese consulate—even though Yasui had But McConnell said that natural rights Rights was added to the Constitution. They resigned the day after Pearl Harbor. Fee are not the same as human rights, those are not relinquished, denied, or disparaged, handed down the maximum sentence: a rights that must always and everywhere but neither do they become constitutional $5,000 fine and one year in jail. be respected by civil governments. On the rights. They do not become trumps.” Yasui spent nine months in solitary confinement in a small, windowless cell until the U.S. Supreme Court reversed Fee’s ruling. But it was a Pyrrhic victory: A Post-Victory Reality Check While the Court asserted that Yasui had not renounced his citizenship, it also Despite Colombia’s landmark 2006 deci- end up in the courts when their appeals stated that the curfew could be applied sion to allow abortion under certain cir- within the medical system are denied. This to citizens. Yasui was sent to Minidoka cumstances, women still face roadblocks is of particular concern to Roa as a number Relocation Center in Idaho until 1944. to lawfully terminate their pregnancies. of Colombian judges have refused to rule Four decades later his conviction was va- Monica Roa (LL.M. ’03), who argued the on these cases, citing their “conscientious cated by Oregon’s federal district court. Colombian constitutional case, objection” to abortion. Judge Denny Chin of the Southern described her fight to fully en- Roa described how her District of New York, who presided over force the ruling and uphold organization planned to United States v. Bernard L. Madoff, was women’s rights at the 15th an- file disciplinary complaints the principal author of the script used nual Rose Sheinberg Lecture. against judges who claim in the enactment. He said that “many of “When we won, it was the conscientious objection sta- the issues in Yasui still reverberate to- beginning of a bigger struggle,” tus when handling abortion day.” In fact, Korematsu v. United States, said Roa, the program director cases. WLW is also helping the most notorious of the Japanese of Women’s Link Worldwide, to educate medical profes- American internment cases, has never a human and gender rights sionals about the importance been overturned. Attorney organization based in Ma- of women’s mental health Vincent Chang called drid and Bogotá. According and social welfare, another Korematsu “part of a to Roa, pregnancies resulting consideration for legal continuum of American from rape—grounds for legal abortion— abortion in Colombia. WLW is working history that spans from can be particularly difficult for women with experts in public health to devise the Alien and Sedition to end easily: A number of polls have re- a list of questions that could be used to Acts at the turn of the vealed that many Colombian medical diagnose a pregnancy’s risk to a woman’s 19th century to Abraham professionals do not feel comfortable ap- physical and psychological well-being. Lincoln’s suspension of proving an abortion based on a woman’s Despite her landmark legal victory, Roa habeas corpus during claim that a pregnancy was the result of urged caution before turning to the courts the Civil War, and a rape. A small percentage of the women to make change happen. “You cannot take now the Patriot Act who find themselves unable to obtain an our solution as always go to the courts. and Guantánamo.” abortion, despite meeting the legal criteria, That’s not our lesson.” Judge Denny Chin he ’o8 election has proved Student Scholarship a high-water mark for demo- cratic politics. For the first time in the nation’s history, an African American has been T elected president. Moreover, voters turned out in record numbers in both the party primaries and the general elec- tion, including young, African American, and first-time voters. The right to vote is looking strong, but what of the right to assemble? The Demo- The Neglected cratic Party’s National Convention in Bos- ton in 2004 was a low point for the right of assembly. The City of Boston divided space Right of Assembly near the convention center into two areas: one where gatherings and demonstrations would be permitted, and one where they would not. The city supplemented this scheme by creating a “designated demon- stration zone,” a confined area under rail- road tracks, demarcated in some places by a chain-link fence and barbed wire. Ac- cording to the district court reviewing the constitutionality of the plan, the overall impression the zone created was that of an internment camp. Discouragingly for the right of assembly, the federal courts upheld Boston’s scheme on appeal. St. Paul and Denver did not cage dem- onstrators to the same degree at the 2008 conventions, and Barack Obama accepted both the Democratic Party’s nomination and his elected office in open-air settings before assemblies in the tens of thousands. Nevertheless, American cities—including those hosting the recent conventions— continue to rely on the same regulatory and legal framework that led to Boston’s 2004 debacle. The results are similarly complex divisions of space and time that ensure protests are undertaken at a “safe distance” tabatha abu el-haj from official audiences. The article considers the history that has led to our acceptance of extensive legal reg- Tabatha Abu El-Haj noticed something pe- philosophy from Haverford College in 1994. ulation of public demonstrations—focusing culiar in the protests leading up to the 2003 She earned a joint J.D./Ph.D. in Law and on changes in both our regulatory practices invasion of Iraq; unlike protestors in other Society in 2008 from New York University. with respect to public assemblies and our parts of the world, American activists readily Abu El-Haj also received an LL.M. from understanding of the constitutional right of accepted the limitations placed on them by Georgetown University Law Center in June peaceable assembly. It shows, among other state authorities. With few exceptions, police 2008. In 2005, she clerked for Judge Harry things, that the 19th-century right to assem- lines remained uncrossed and pre-approved T. Edwards of the U.S. Court of Appeals ble on the streets without needing to ask per- march routes were scrupulously followed. for the District of Columbia Circuit. She is mission was replaced, in the 20th century, Abu El-Haj wondered whether such restric- Assistant Professor of Law at Drexel Uni- with a right to assemble on the streets so long tions on public assembly, and the public’s versity Earle Mack School of Law, and stud- as one obtains a permit (if required), abides willingness to tolerate them, were always a ies the overlap between law and political by the conditions of the permit issued, and part of American society. Her research led to practice, especially in areas where politics is peaceable. The definition of “peaceable,” “The Neglected Right of Assembly,” an article extend beyond the purely electoral realm. moreover, was itself narrowed: Even where published in the February 2009 UCLA Law As this paper documents, the American ex- no permits are required, an assembly may be Review that is extracted below. perience of politics evolves over time, and dispersed for obstructing, or potentially ob- Abu El-Haj graduated Phi Beta Kappa Abu El-Haj looks to shed light on the causes structing, traffic (including pedestrian traf- and magna cum laude with a major in behind and the effects of these changes. fic). The new constitutional understanding

92 NYU SCHOOL OF LAW student spotlight did come with one important safeguard: Understandings of the right of assem- by state courts. Once judicial attitudes One is entitled not to have permission to bly reinforced this degree of access. Gov- shifted, the new regulatory regime was assemble on the streets denied arbitrarily, ernment interference with peaceful public established despite some continued po- capriciously, or based on viewpoint. Never- gatherings was understood to violate the litical debate. theless, through this change we replaced the right of assembly. An Englishman’s right of The result was a narrowing of the sub- notion that the state can interfere only with assembly, as adopted by Americans, was un- stance of the right of peaceable assembly. gatherings that actually disturb the peace or derstood to extend to the “peaceable.” Thus, Moreover, the state’s enhanced regulatory create a public nuisance with a legal regime the government was considered justified in oversight came with an enhanced ability in which the state regulates all public assem- restricting public assemblies only when they to shape the practice of public assembly in blies, including those that are anticipated to created public disorder, on the theory that ways that undermined its meaningfulness be both peaceful and not inconvenient, in only then were such gatherings beyond the for participants and its effectiveness as a advance through permits. protection of the constitutional right. check against government. Large gatherings on public streets were As such, initial efforts by municipali- Today, both the requirement that citi- central to the democratic politics that ties to regulate gatherings in public places zens must ask for permission prior to as- emerged after the country’s founding. For through permits were highly controver- sembling for political purposes and the the first century of our nation’s history, sial. In fact, all but one of the state supreme conditions that the government may place elections—themselves often public cele- courts to review the first municipal ordi- on such assemblies can be used to under- brations—were part of an array of political nances requiring a permit to lawfully gather mine the effectiveness of public assembly practices, which included public meetings, on the streets found them void. These courts as a mechanism to influence and check rep- petitions, local and national festive holidays, balked at the suggestion that general per- resentative institutions. The very require- and even juries and mobs. These practices mit requirements were reasonable efforts ment of a permit creates a delay between provided opportunities for citizens (ordinary to regulate street gatherings, emphasizing the event triggering the desire to assemble and elite, enfranchised and disenfranchised) that the ordinances infringed upon impor- and the assembling. Moreover, conditions to participate in politics. Many of these op- tant democratic and constitutional tradi- can and have been used to distance assem- portunities took place in public places, in- tions of assembling. The Supreme Court of blies from their target audiences through cluding public streets and squares. Kansas’s outrage in the 1888 case Anderson space and time. The examples are abundant. In Cent- v. City of Wellington is typical: Less appreciated, however, is the way reville, Maryland, in the midst of the crisis This ordinance prevents any number of that the very need to ask permission as well over the Alien and Sedition acts, Repub- the people of the state attached to one of as the conditions placed on permits issued licans gathered for an open-air assembly, the several political parties from march- undermine the meaningfulness of political militia maneuvers, and an open-air feast at ing together, with their party banners assemblies for participants. Through the which they toasted Jefferson and the Dec- and inspiring music, up and down the former the people are rendered supplicant. laration of Independence, thereby taking principal streets, without the written While deprived of an actual (as opposed to consent of some municipal officer. The a jab at the Federalist administration. In virtual) audience, or forced to remain sta- Masonic and Odd Fellows’ organiza- Hackensack, New Jersey, people gathered to tions must first obtain consent before tionary, assemblies become a performatory affirm their sympathies to the French Revo- their charitable steps desecrate the sa- ritual that bears little resemblance to the lution and, by implication, their opposition cred streets. Even the Sunday-school people outdoors as the agents and masters to the Federalist government. Such street children cannot assemble at some cen- of American democracy. The lack of sponta- politics persisted well into the 1800s, and tral point in the city and keep step to the neity and the forced ritualization of contem- by the mid-19th century, workers, racial mi- music of the band as they march to the porary assemblies is the symptom of these norities, and social movements all used city grove, without permission first had and tendencies of contemporary regulation. obtained. The Grand Army of the Repub- streets to further their political goals. Courts and academic commentators to- lic must be preceded in its march by the Such gatherings were, moreover, often written consent of his honor the mayor, day fail to appreciate the significance both spontaneous or organized quickly. Per- or march without drums or fife, shouts or of the right of assembly itself and of the mits were not required through most of the songs. It prevents a public address upon changes made to it. Major treatises on con- 19th century. As late as 1881, San Francisco, any subject being made on the streets. stitutional and First Amendment law barely Chicago, Detroit, St. Paul, and Denver had It prevents an unusual congregation of mention the right of assembly. When they do, no permit requirements for assemblies in people on the streets under any circum- they do not question the Court’s decision to their streets. While 19th-century cities were stances without permission. consider it a mere facet of free expression. both congested and capable of regulating The risks of disorder and of interfering The right of assembly protected social through permits, the law interfered only with the rights of others to pass were not and political practices central to democratic with public assemblies that became dis- considered sufficiently serious to justify government, not individual expression. It orderly. Legal regulation of gatherings on the ordinances. protected the people and their aspirations public streets and squares was limited to After the U.S. Supreme Court’s decision for collective public deliberation and ac- the criminal law. That is, the law intervened in Davis v. Massachusetts (1897), the tide tion on issues of public importance. It also only after the fact if a gathering could be turned for litigation against permit re- safeguarded a mechanism to influence charged with unlawful assembly, riot, or quirements. The Court upheld municipal and check government in particular cir- breach of the peace. Citizens were not re- authority to prohibit speech and assem- cumstances. By emphasizing the political quired to ask permission prior to exercising bly on city property, and hence to allow it origins and collective functions of the right their right of assembly, and the government only with advance permission. After Da- to assembly, this article begins to rectify the was not considered entitled to regulate in vis, around the country, permit require- errors and omissions in the current under- anticipation of possible disorder. ments for public assembly were accepted standing of this important right.

THE LAW SCHOOL 2009 93 with sufficient flexibility to meet standards without disrupting economies of scale can Federal Preemption in largely avoid externalizing costs to out-of- state consumers, and that states often also have to consider, at least indirectly, the in- Environmental Law terests of out-of-state producers when issu- ing regulations. state environmental regulation States have developed innovative environ- mental policies. Every state has now taken some action to address climate change, adopting strategies ranging from targeted measures to increase energy efficiency and promote alternative energy to far broader proposals to cap greenhouse gas emissions across entire state economies. California has also led an effort to regu- late greenhouse gas emissions from motor vehicles, relying on its unique authority under the Clean Air Act. The act preempts states from enforcing their own motor ve- hicle emissions standards, but makes an exception for California, which may peti- tion the administrator of the Environmen- tal Protection Agency for a preemption waiver. In 2002, California’s legislature passed the nation’s first law to regulate mo- tor vehicle greenhouse gas emissions, and the California Air Resources Board subse- quently promulgated regulations in 2004 establishing specific greenhouse gas reduc- tion standards. While other states cannot adopt their own emissions standards, they brian burgess can opt-in to California’s program, and 16 states chose to do so to regulate greenhouse gases. Before California’s emissions regula- Brian Burgess ’09 worked as a research assis- tates have exhibited leader- tions can become effective, the EPA must tant to both Dean Richard Revesz and Vice ship in environmental policy, approve California’s waiver petition. In De- Dean Barry Friedman. Those experiences addressing issues of national and cember 2007, the EPA denied California’s piqued his interest in the issue of environ- global scope. But this leader­ship waiver petition, the first time it had done mental federalism, and it wasn’t long before is threatened by federal ceiling so in decades. The Obama administration Burgess was producing his own scholarship S preemption that prevents states immediately decided to review this deter- on the topic. The following extract is from from adopting regulations that exceed mination, and the new EPA administrator is “Limiting Preemption in Environmental federal standards. widely expected to grant California’s peti- Law: An Analysis of the Cost-Externalization Environmental law scholars argue that tion after completing formal reconsidera- Argument and California Assembly Bill 1493,” federal ceiling preemption has pernicious tion. The Obama administration has also published in the April 2009 issue of the NYU effects. These scholars fail, however, to -ad announced an agreement to increase fed- Law Review. It won the Judge Rose L. & Her- equately address the risk that states may eral fuel economy standards, harmonizing bert Rubin Law Review Prize for most out- adopt tough environmental regulations them with California’s stricter standards. standing Law Review note in international, because they can externalize costs to other As exemplified by the initial denial of commercial or public law. states, which may allow large pro-regulatory California’s waiver petition, federal ceiling A Connecticut native, Burgess graduated states like California to effectively dictate preemption in environmental law threatens summa cum laude and Phi Beta Kappa from suboptimally stringent national standards. state regulatory activity. It has expanded in Dartmouth College in 2005 with a degree in This note addresses this pro-ceiling pre- environmental law as the result of broad in- philosophy. At NYU Law, he served as senior emption cost-externalization argument terpretations of existing statutes by courts articles editor of the NYU Law Review. He is and contends its application is limited. It and agencies as well as the enactment of currently clerking for Judge Guido Calabresi does so through a case study of California’s new legislation by Congress. Moreover, even of the U.S. Court of Appeals for the Second regulations of greenhouse gas emissions presuming the Democratic Congress and Circuit, and next year he will clerk for Judge from motor vehicles that the Bush admin- presidential administration will be more David Tatel of the U.S. Court of Appeals for istration preempted. The note argues that interested in preserving the states’ ability to the District of Columbia Circuit. regulations that provide manufacturers adopt stringent environmental regulations,

94 NYU SCHOOL OF LAW student spotlight questions about the proper scope of federal costs it imposes to producers beyond its leading automobile manufacturers have at ceiling preemption are sure to arise. For in- borders seems exaggerated. least some vehicle models in their fleet that stance, business leaders have argued that could comply with California’s standards. preemptive federal policies are necessary california assembly bill 1493 The car industry has actually recognized to address climate change, while state lead- California’s regulations under A.B. 1493 the possibility that California’s regulations ers have supported federal action but have limiting tailpipe emission of greenhouse could be satisfied by adjusting in-state sales. lobbied against federal ceiling preemption. gases grew out of the state’s preexisting In Green Mountain Chrysler Plymouth Dodge Properly analyzing such questions requires Low Emission Vehicle Program (LEV). Fol- Jeep v. Crombie (2007)—a case brought in precision about the tradeoffs involved in ei- lowing the model of prior LEV regulations, federal district court by members of the car ther permitting or preempting state environ- A.B. 1493 set emissions standards for two industry to enjoin on preemption grounds mental policies. different vehicle categories for new cars Vermont’s adoption of California’s stan- sold within the state (determined by vehi- dards—a General Motors executive direc- cost externalization cle weight) based on grams of carbon diox- tor testified that the company might have to Federal ceiling preemption has costs, but it ide emitted per mile driven, calculated on gradually restrict products offered in juris- may be justified when state regulation exter- nalizes costs. Cost externalization—an inev- itable byproduct of a nation divided into 50 The fact that California’s regulations may geographic zones—refers to instances when states and their residents do not bear the full affect Michigan’s economy…is not sufficent cost of the regulations they pass, because significant costs are borne by out-of-state to justify federal ceiling preemption. consumers and producers. It distorts the incentives of state governments and regu- a fleet-average basis. The regulations do not dictions like Vermont that adopted the more lators, leading them to enact stringent envi- directly impose fuel economy standards— stringent emissions regulations. While ronmental regulations to gain benefits like and indeed, legally they may not under the this prediction was offered as an argument environmental protection for their constitu- federal Energy Policy and Conservation against the state regulations, the case for ents at the expense of others. Federal ceiling Act—but the majority of emissions reduc- preemption is thin when states primarily preemption is proffered as a solution to this tions are accomplished through enhanced restrict the consumption options of their problem, as it allows the federal government fuel economy, and greenhouse gas emis- own constituents. If state residents become to consider and balance all of the costs and sions standards can be converted to ap- dissatisfied with their consumer options, or benefits of regulation. proximate miles-per-gallon requirements. if they come to believe the regulations are A principled argument against the use of When the regulations were passed, 2009 ineffective, they can pressure government federal ceiling preemption in environmen- model-year cars were to require a one- to officials to change them. tal law must therefore address whether and two-percent emission reduction; ultimately, Commentators have also suggested that when state environmental regulations exter- 2016 model-year cars were to meet emis- California’s greenhouse gas regulations nalize costs. Proponents of the extensive use sions reductions of up to 30 percent. would negatively affect out-of-state pro- of federal ceiling preemption suggest state As discussed above, in 2007 the EPA ad- ducers. It is reasonable to presume that the regulations may often externalize costs, par- ministrator denied California’s Clean Air Act regulations would impose initial additional ticularly when states regulate products with waiver. Assuming, reasonably, that it was costs on the already struggling car industry, national markets and economies of scale in within the administrator’s legal discretion though the regulations might also benefit production. California’s regulation of motor to either grant or deny the waiver, what is the the industry in the long term. In any case, vehicle emissions is referenced as a para- better policy? The answer ultimately turns the fact that California’s regulations may digm example. These regulations, the argu- on the issue of cost externalization. In other affect Michigan’s economy does not estab- ment goes, may externalize costs to both words, do California’s greenhouse gas emis- lish that the regulations are suboptimally out-of-state consumers and out-of-state pro- sions regulations allow it, as a single large stringent, and it is not sufficient to justify ducers. Consumers are affected if the regu- state, to impose substantial costs beyond its federal ceiling preemption. The key issue lations increase the cost of motor vehicles in borders to consumers and producers, and is whether stringent regulations result from their state, either by affecting economies of effectively dictate national policy? cost externalization, or whether state regu- scale and increasing marginal production Looking first at the regulation’s poten- lators and politicians consider the interests costs, or by forcing manufacturers to adapt tial impact on out-of-state consumers, the of other states. To this end, the argument vehicles to meet more expensive California vehicle emissions standards’ reliance on that California voters have little incentive standards nationally. Producers and their fleet-wide averages—rather than mandates to protect Michigan’s interests is appealing workers may be affected if California’s reg- per vehicle—may allow manufacturers to in the abstract, but the case is overstated. ulations make automobiles more expensive, meet California standards without having First, California voters do bear some of which could decrease sales, reduce profits, to make modifications across product lines, the costs of their more stringent vehicle and affect employment rates. minimizing the impact on out-of-state emissions regulations, in the form of in- This note’s case study of California’s consumers. Manufacturers do not have to creased prices and possibly reduced con- regulations suggests that these fears may build new “California cars.” Instead, they sumer options. If producers can pass on be overblown. California’s regulations are can alter the mix of car models sold in a ju- their increased production costs to con- designed in a way that minimizes disrup- risdiction. Even for 2009 model-year cars— sumers within the jurisdiction, then the tion to economies of scale, and the argu- the first model year for which California’s cost of the regulation will be at least partly ment that the state is insulated from the regulations were scheduled to apply—most internalized. Second, the notion of a

THE LAW SCHOOL 2009 95 complete “free lunch” for legislators is rather idealized. Out-of-state interests Two More NYU Scholars Receive Honors often lobby state governments, and they atthew lawrence ’09 was Vinay Harpalani ’09 was selected may have the support of in-state groups the winner of the Barry Gold Student Scholar at a conference hosted by with whom their interests align, such as Memorial Health Law Student Latino and Latina Legal Critical Theory, in car dealerships supporting automobile M Writing Competition, which rec- Seattle. Harpalani’s paper, “Formal, Ma- manufacturers. Additionally, the line be- ognizes J.D. work that analyzes a New York terial, and Symbolic Modes of Racializa- tween in-state and out-of-state interests is or federal health law issue tion: Examining South Asian blurred due to the dispersed ownership of and its impact on New York Americans’ Access to ‘White- large public companies like General Mo- State law or the state regula- ness,’” examines South Asian tors and Ford Motor Company. tory environment. In his paper, Americans to explore the con- “Contractual Alternatives to cept of whiteness as a form conclusion Malpractice Liability in New of capital sought by various Despite broad suggestions to the contrary, York: Are Voluntary Excul­ groups. “The conference was the scope of cost externalization for partic- patory Agreements Enforce­ an incredible experience ular state environmental regulations may able?,” Lawrence explores and opportunity,” Harpalani Lawrence turn out to be fairly minimal. As the magni- agreements in which patients said. “The entire LatCrit com- tude of any regulatory cost externalization waive malpractice rights munity not only embraced decreases, it becomes increasingly doubt- in exchange for a lower fee. me, but treated me like a ful that federal ceiling preemption is desir- The note was published in keynote speaker.” able in light of the benefits of state-based the winter issue of the NYS Harpalani, who holds a environmental regulation, including the Bar Association Health Law Ph.D. in education from the value of tailoring standards to local pref- Journal. “I owe a great deal of University of Pennsylvania, erences and conditions, the importance gratitude to the Law School gratefully acknowledged the of state-level experiment for technology community, which is tremen- guidance of Professors Pau- development, and the value of decentral- dously supportive of student Harpalani lette Caldwell and Cristina ized democratic decision-making. Policy writing,” Lawrence said. He Rodríguez. The two “have makers should therefore look closely at the singled out Sylvia Law, Elizabeth K. Dollard been my academic mentors at NYU,” he realities of cost externalization before de- Professor of Law, Medicine, and Psychiatry, said. “Working with them has allowed me termining whether federal ceiling preemp- from whom he took a health law class, for to better understand how law develops in tion is appropriate. advising him. the social and political context.”

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96 NYU SCHOOL OF LAW Around the Law School

O’Connor on Judicial Independence | 98 Holbrooke Blasts U.S. on Afghanistan | 98 Brown, Albright Promote Multilateralism | 99 Prosecutors Debate Discretion | 100 HUD Secretary Reveals Big Policy Plans | 101 Four Questions for Marsha Berzon | 102 Law Professors Go Global | 104 A Hip-Hop Theory of Justice | 106 Milgram Plays Up Public Service | 107

U.S. Secretary for Housing and Urban Development Shaun Donovan was the keynote speaker last Febru- ary at the Furman Center for Real Estate and Urban Policy’s conference, “A Crisis is a Terrible Things to Waste: Transforming America’s Housing Policy.” U.S. with the more than 700,000 federal agency proceedings conducted by statu- Appointing Judges to tory judges who do not enjoy the life ten- ure of their counterparts. Various interest groups, Resnik said, work to influence the Keep Them Impartial selection of administrative law judges: “The challenge is how to build a culture of commitment to independent judges.” The vast majority of state-court judges, who handle more than 98 percent of litiga- tion proceedings, are elected, and in the 2008 contests, candidates spent $17 million on television ads alone, said Bert Branden- burg, director of the Justice at Stake Cam- paign. Playing several of the mudslinging commercials for the audience, he called such ads “the equivalent of what french fries are to nutrition in terms of the ability to make an informed choice.” Finally, Viet Dinh, a Georgetown law Resnik, O’Connor, Dinh, Greenhouse, and Brandenburg professor and former assistant attorney general in the second Bush administration, t a november panel discussion campaigns.” (In June, the U.S. Supreme discussed which forms of criticism directed on judicial independence, Sandra Court ordered West Virginia’s chief justice toward the judiciary were valid, and which Day O’Connor described the to recuse himself from a case involving a were simply attacks. “Our job is to help our A unusual jurisprudence of Roy Bean, coal company whose chief executive gave judges make sure that we are indeed a gov- a justice of the peace in the late 1800s who $3 million to the judge’s campaign.) ernment of laws and not of men,” said Dinh. held court in a West Texas saloon with signs Other judiciary experts agreed with “Obviously one cannot exclude public criti- advertising both law west of the Pecos and O’Connor in the discussion, cosponsored cism of judges altogether. Rather, one wants cold beer. Bean, she said, expected the by the American Academy of Arts and Sci- to channel constructive criticism into im- people in his saloon-cum-court to buy ences and Georgetown University Law proving the work of judges.” drinks during recesses or risk being held Center and moderated by journalist Linda O’Connor observed that the Framers in contempt. The tables are turned today, Greenhouse. Professor Judith Resnik ’75 provided for judicial appointments rather O’Connor implied, as judges are “elected of Yale Law School gave a crash course in than elections, which did not come about in partisan campaigns that have become the evolution of the judiciary as its image until Andrew Jackson’s presidency. “The increasingly expensive and unwieldy and shifted from state servants who had to be judicial branch is a critically important s nasty. It’s difficult to believe that judges can kept honest to independent actors conduct- branch,” said O’Connor, “and we want to w remain neutral when they have to so often ing transparent public proceedings. have all of our courts staffed by judges who think about the popularity of their opin- Resnik contrasted the roughly 100,000 are decent and honorable and who do a

ions and who it was that donated to their annual federal court proceedings in the pretty good job.” Wendy Barro Holbrooke Blasts Missteps in Afghanistan n a bold and forceful speech last surgency adviser to General David Petraeus, October, former U.N. Ambassador discussed topics such as counterinsurgency, I Richard Holbrooke forecast that the rule of law, and the drug trade. forgotten war in Afghanistan, now in its A former assistant secretary of state to eighth year, would eventually be the lon- Bill Clinton who negotiated the 1995 Day- gest in American history, surpassing even ton Accords that ended the war in Bosnia, Vietnam. “Success, however you define it, is Holbrooke would be appointed President not going to come easily,” he said in the key- Obama’s special representative to Afghan- note address for “Afghanistan Today: Drugs, istan and Pakistan a few months after this Detention, and Counterinsurgency,” a con- speech. Saying he was relating his own ference hosted by the Center on Law and personal views, not those of the Obama Security and the New America Foundation. campaign, Holbrooke offered a blistering Following an overview of the current critique of U.S. missteps in Afghanistan state of Afghanistan, participants includ- that he said had led to the resurgence of ing Afghan Ambassador to Canada Omar the Taliban, an increase in violence, and re- Samad, Lieutenant General David Barno, cord-high levels of illegal drug production. and David Kilcullen, a senior counterin- He was direct in where he laid the blame,

98 NYU SCHOOL OF LAW around the law school Professor and John Edward Sexton Profes- sor of Law, asked the speakers what financial Bringing the Whole and political mechanisms will get develop- ing countries on the path to participating in and developing sustainable economies. World in Concert Brown responded that there should be ritish prime minister gordon deal with Central and Eastern European two priorities for the climate conference in Brown, former U.S. Secretary of State banks. “Now global leaders recognize the Copenhagen that would occur in Decem- Madeleine Albright, and need to cooperate and see ber: getting all countries to accept inter- B former Chairman of the the solution doesn’t just lie in mediate, rather than long-term, deadline Board of Governors of the U.S. their country,” he said. targets for compliance in areas such as Federal Reserve Paul Volcker The other speakers acknowl- reducing carbon emissions, and having a stressed the importance of the edged that multilateralism may financing mechanism available to commit participation of many coun- be difficult but is necessary. funds over a longer period of time. “The big tries in a multilateral approach “London and New York are not cost will be if we don’t do anything,” Vol- to tackle the world’s most the only financial centers in cker said. “The cheapest thing we can do is pressing problems, including Albright the world,” Volcker said. “Get- to undertake some of these costs now.” the global financial crisis, cli- ting a consensus to move to- The event was part of the UK/US Study mate change, terrorist threats, gether is important. This can’t Group, created by Brown to advise him in- and poverty. “I believe that be done alone.” formally on the role of British and American the world must come together Albright, who joked she was universities in the context of this century to deal with problems that we known as Multilateral Mad- of change. NYU President and Benjamin know exist, but problems that I eleine at the U.N., said she was F. Butler Professor of Law John Sexton believe are soluble,” Brown said glad the Obama administra- thanked Brown for creating the group, of in a March conversation at NYU tion has abandoned the “War which NYU is a member. called “A New Multilateralism on Terror” phrase. “The people for the 21st Century.” Brown who attacked us on 9/11 and in The prime minister said London and Mumbai are mur- “We have lacked a the economy could double in derers,” she said. “They want grand strategy to the next 20 years if individual to be known as warriors, but describe what we’re countries restructure their they are murderers. We want to banking systems, have a set of find a different way to deal with trying to do in this policies addressing impaired this; assertive multilateralism particular period [in assets, and create standards of is basically working together Iraq and Afghanistan], conduct governing areas such on this problem.” as executive compensation. Referring to climate change and it has made it He also suggested that coun- Volcker and the enormous amount of difficult for the people tries must agree about the in- money that must be invested that are fighting the war jection of resources into the economy and in the next 10 to 12 years to avoid the most that funds need to be made available to serious risks, Richard Stewart, University at the lowest level to understand where we’re headed, why saying to the assembled counterterrorism Afghanistan’s economy is overhauled with experts, military advisers, journalists, and irrigation projects, new roads, and the dis- we’re headed there, and Mideast scholars, “There is more expertise tribution of seeds and fertilizer, he said. how we’re headed to about Afghanistan in this room” than there Holbrooke endorsed the need for more get the job done.” was in the “entire Bush administration.” U.S. and NATO troops to counter an in- Besides singling out the decision by creasingly powerful Taliban. But he cau- former Defense Secretary Donald Rums- tioned that a military response must be feld to withdraw troops from Afghanistan, carefully calibrated to avoid triggering a Holbrooke condemned the U.S.-led drug backlash of xenophobia. And he said that eradication program, which he called “the Americans must understand that reengage- single worst American foreign-assistance ment in Afghanistan would be a long and program I have seen. costly project but necessary to counter al “This not only is a waste of money, but it Qaeda’s spread. “The Bush administra- Retired U.S. Army General actually helps the enemy,” he argued. “It’s tion did not level with the American public John Abizaid, a recruiting tool for the Taliban…. What about the long-term nature of this war, and former commander of the they’re really doing is helping one drug the next American president must,” he said. U.S. Central Command, at the guy against another in a local competi- “If it matters to us, we have to hunker down April 24 Center on Law and Security tion for market share.” Drug eradication for the long haul.” Given Holbrooke’s cur- conference, “Today’s Military: will succeed only if drug lords, rather than rent status, he now can position the United Its Challenges, Missions, and Future.” small farmers, are targeted—and only if States to see this war through.

THE LAW SCHOOL 2009 99 Regarding deferred prosecution agree- ments, Jennifer Arlen ’86, Norma Z. Paige Judgment by Prosecutors? Professor of Law, said it was important for The Center on the Administration of Criminal Law convenes prosecutors to focus less on the direct regu- lation of the compliance program set out by top litigators to discuss the power of discretion. an agreement and more on using the threat ith more than 90 percent of corporate malfeasance that contributed of prosecution to compel firms to cooper- criminal cases ending in plea to the current global economic crisis, made ate in bringing wrongdoers to justice. “Indi- bargaining or charge bargaining the theme of the center’s May 8 inaugural vidual liability is vitally important, and it’s W rather than going to trial, pros- conference, “Regulation by Prosecutors,” the only way you can truly deter corporate ecutors wield enormous power as adjudi- particularly timely. crime,” Arlen said. “People who do wrongs cators in the criminal justice system. The Recalling the period when the pursuit must think they will go to jail and be se- NYU School of Law’s new Center on the of white-collar crime had seemed to peak, verely punished, and prosecutors can only Administration of Criminal Law, headed by keynote speaker James Comey said, “The do that if they focus the full weight of that Anthony Barkow, a former federal prosecutor, public storm of the Enron era, that period threat on cooperation and self-reporting.” Mary Jo White spoke to both sides of these cases. As a partner at Debevoise & Plimpton, she defends clients from white-collar criminal charges; when she was U.S. attorney for the Southern District of New York—the only woman who has ever held that position—she won convictions against Bank- ers Trust Company and Republic New York Secu-

Samuel Buell ’92, Kate Stith, Brandon Garrett, rities Corporation. White Mary Jo White, Theodore Wells Jr., and Mark Schonfeld James Comey argued that while it can be a necessary tool in cer- and Professor Rachel Barkow, is the only of 2001 to 2004 or 2005, was a mere breeze tain instances, corporate criminal liability center of its kind to focus on prosecutorial compared to the gale in which white-collar is sometimes overused. “I think prosecu- power and discretion, advocating good gov- prosecutors and defense lawyers and all the tors are at their best when they prosecute or ernment practices in criminal matters. rest of us now live.” A former U.S. deputy they don’t,” she said, “and if you stray very far In its first year, the center saw the rea- attorney general under John Ashcroft and from there, you’re on a very slippery slope.” soning of its first amicus brief, on behalf Alberto Gonzales, chair of President George Expressing deep reservations about al- of the defendant in Abuelhawa v. United W. Bush’s Corporate Fraud Task Force, and lowing the prosecutor to decide whether States, echoed in the U.S. Supreme Court’s former U.S. attorney for the Southern Dis- a company has breached a deferred pros- ruling on the case. The Court decided that trict of New York, Comey over- ecution agreement, Richard a person committing the misdemeanor of saw the prosecution of Martha Epstein, who will join the fac- buying drugs for personal use could not Stewart and other high-profile ulty of the NYU School of Law also be charged, along with the seller, with defendants at WorldCom, Adel- beginning in 2010, explained, the felony of using a cell phone to facilitate phia, and ImClone. “They’re going to decide whether a drug sale. Executive Director Anthony As a prosecutor of corporate or not you’ve been in breach of Barkow has filed amicus briefs in a num- crimes, Comey was faced with that agreement when they can ber of other cases and also observed the a thorny question: “Once we’ve throw the sword of Damocles on Guantánamo military commission pro- made the cases against the Anthony Barkow you. What that does subtly is it ceedings. Faculty Director Rachel Barkow bad guys, what do we do with takes the prosecutorial function has published several recent articles on the place; what do we do with the corpora- and makes it into an adjudicative function.” prosecutors and sentencing, including one tion?” And what about the good guys? The Epstein shared Arlen’s preference to focus on on reconceptualizing clemency that fore- collateral damage involved in the potential individual prosecutions. shadows the center’s plans to enter into and failure of a company occupied his thoughts The biggest risk of prosecutorial discre- reinvigorate the policy debate on pardons when making a decision. Sometimes, he tion was summed up by Paul, Weiss, Rif- and commutations. The center has also filed said, prosecutors can best meet their goals kind, Wharton & Garrison partner and comments with the U.S. Sentencing Com- through deferred prosecution agreements white-collar criminal defense lawyer Theo- mission about forecasting the various costs and non-prosecution agreements, in which dore Wells Jr., who, citing an example of the of pending federal criminal legislation. the prosecutor agrees not to go after a cor- immense power prosecutors hold, equated The ongoing increase in prosecutorial poration in exchange for concessions from a corporate indictment with a death pen- adjudication, coupled with the govern- the entity such as fines, monitoring, and alty threat: “There’s not a lot of checks and ment’s and the public’s keen interest in the changes in the firm’s structure. balances going on.” Atticus Gannaway

100 NYU SCHOOL OF LAW around the law school Center’s conference also featured addresses as well as roundtable and panel discussions Furman Center Goes by economists, bankers, scholars, and pol- icy makers. A talk about mortgage-backed securities (MBS) included Joseph Tracy, Inside the Housing Crisis executive vice president of the Federal HUD Secretary Donovan announces big policy plans. Reserve Bank of New York; Austan Gools- bee, member of the Council of Economic nly three weeks after shaun Donovan’s speech—in which he also Advisers and staff director of the Obama Donovan was sworn in as the 15th revealed his long-term goals for HUD— administration’s Economic Recovery Ad- U.S. Secretary of Housing and Urban generated a flurry of news coverage from visory Board; Lawrence White, Arthur O Development, he came to Vanderbilt outlets such as CNBC, the New York Times, E. Imperatore Professor of Economics at Hall to deliver a major policy address outlin- and the Wall Street Journal. Many report- NYU; and Lewis Ranieri, chairman of Ran- ing the Obama administration’s ambitious ers noted Donovan’s announcement that ieri Partners, a private investment advisory plans for responding to the housing crisis. HUD would, for the first time, focus on sus- firm. Described as an inventor of MBS, Ra- “It’s a little early for me to be speaking tainability issues, striving to make public nieri introduced himself as “Dr. Franken- out,” acknowledged Donovan, the keynote housing a model of energy efficiency. Resi- stein” and engaged in a spirited discussion speaker at the Furman Center for Real Es- dential housing accounts for 28 percent of with the panelists on how MBS—initially a tate and Urban Policy’s February housing greenhouse gas emissions in the United boon to homeownership—became a curse, policy conference. “No speechwriter, no as- States, and as many as one in 10 households causing the housing bubble that wreaked sistant secretary. It’s a little bit of a risk for resides in buildings that are in some way havoc on the U.S. economy. Some of the me, doing this today.” But, he added, NYU was “the only place” he’d want to give his first policy speech. In fact, Donovan has a long-standing re- lationship with the Furman Center, a joint research center of the Law School and the Robert F. Wagner Graduate School of Pub- lic Service. After serving as a deputy assis- tant secretary for HUD during the Clinton administration, Donovan was a Furman Center visiting fellow in 2001-02, studying ways to preserve federally assisted housing. Subsequently, as New York City Housing Preservation and Development commis- sioner, he relied on Furman Center research about the New York City real estate market to inform policy decisions. More recently, center co-director Ingrid Gould Ellen, as- Ellen, Donovan, Been, and Judith Rodin, president of the Rockefeller Foundation, a conference co-host sociate professor of public policy and urban planning at the Wagner School, served dur- connected to HUD, Donovan said: “We can panelists argued that to avoid future sub- ing the Obama transition as a member of catalyze an enormous change in the way prime messes, mortgage originators should HUD’s agency review team, and remained that housing gets built and renovated.” He be required to “have skin in the game” and a policy adviser for a few months after the announced the creation of the Office of Sus- retain some of the risk of loan defaults. inauguration while Secretary Donovan put tainability, to be run by Ron Sims, Wash- Each session was designed to generate his team in place. ington State’s King County executive. Sims candid discussion about the challenges and Donovan began his speech at the Furman has a national reputation for his environ- opportunities of the current crisis, and to Center’s conference, “A Crisis Is a Terrible mental stewardship and was unanimously end with specific policy recommendations Thing to Waste: Transforming America’s confirmed as deputy secretary of HUD by for moving forward. At press time, the cen- Housing Policy,” by citing “terrifying” sta- the U.S. Senate in May. ter was working on a summary white paper tistics: 2.2 million foreclosures in 2008, Also noteworthy was Donovan’s pledge to deliver to the Obama administration. and in December alone 45 percent of home to make fair housing part of HUD’s mission. “The conference helped the Furman sales were foreclosures or short sales. A 2007 Furman Center analysis found that Center move outside of its sometimes New Donovan then vowed that one of HUD’s the 10 New York City neighborhoods with York–centric research to more explicitly en- top priorities would be to step up the the highest rates of subprime mortgages gage in federal policy debates,” said Vicki loan modification process. (A few days had black and Hispanic majorities, while Been ’83, director of the Furman Center later, President Obama announced an the 10 areas with the lowest rates were com- and Boxer Family Professor of Law, a few aggressive plan to help up to nine mil- posed largely of non-Hispanic whites. “We months after the event concluded. “The lion homeowners by providing billions have to ensure we never again have target- center has remained a critical part of this in funds to Fannie Mae and Freddie ing of communities,” he said. discussion and will continue to take on re- Mac and offering financial incentives for Funded by the Rockefeller Foundation search with national policy implications.” lenders to reduce mortgage rates.) and the MacArthur Foundation, the Furman Pamela Kruger

THE LAW SCHOOL 2009 101 Senate. Since ascending to the bench, she has written opinions for cases involving Four Questions for... alleged negligence by the Immigration udge marsha berzon of the u.s. Supreme Court. Her winning performance and Naturalization Service, California’s Court of Appeals for the Ninth Circuit in the 1991 Supreme Court case Automobile “three strikes” law, the Family and Medical J has not spent much time contemplating Workers v. Johnson Controls, Inc., in which Leave Act (FMLA), and the City of Tucson’s glass ceilings; instead, she has blazed Berzon submitted that women could not refusal to fund a religious group’s use of a trails for women in law. Berzon served as be removed from jobs that their employ- public park. associate general counsel to the AFL-CIO ers considered hazardous to children the Berzon began her legal career as a clerk to Judge James R. Browning of the U.S. Court of Appeals for the Ninth Circuit. Even then, she was something of a pioneer as the uncommon clerk with a young child. Appropriately enough, Berzon eventually had a hand in the formulation of the FMLA (1993). She delivered the 2008 James Madi- son Lecture, “Securing Fragile Foundations: Affirmative Constitutional Adjudication in Federal Courts,” at NYU last November, following in the footsteps of notable jurists such as U.S. Supreme Court Justice William J. Brennan Jr.; as it happens, Berzon was Brennan’s first female clerk. The implica- tions of this distinction seemed like a good starting point for a brief Q&A with the Law School magazine.

You are still in the minority as a woman erzon speaking with Norman Dorsen and other members of the NYU Law faculty on a federal appeals court bench. Why is that? It has mostly to do with the trajectory while pursuing a private labor-law practice workers might conceive, later resulted in of women going to law school. I graduated at the San Francisco firm she cofounded, the rare compliment of a letter of support from Boalt in 1973, and at my 30th reunion now named Altshuler Berzon. for her Ninth Circuit nomination from the I asked some of my classmates how many During her years as a practicing at- opposing counsel in that case. Neverthe- women were in our law school class. The torney, Berzon specialized in labor, em- less, Berzon’s nomination by President Bill men all said 50 percent, and the women ployment, and First Amendment law as Clinton languished in committee for more all said 10 percent. The actual number was well as women’s rights and federalism, than two years; she was finally confirmed 20 to 25 percent. So I would say that there and argued four cases before the U.S. in March 2000 by a recalcitrant Republican weren’t 50 percent of women in law school ▷

Accountability and Argentina’s Dirty Wars As chief justice of the Supreme Court of and tortured by the Argentine government, Acknowledging that some see these ac- Argentina, Ricardo Luis Lorenzetti is at the asked about the “right to truth” established tions as retroactive applications of the law center of efforts to redress the human rights by the courts in the 1990s regarding the and argue that they hinder reconciliation, abuses in his country’s dark past. A guest of fates of disappeared persons. Lorenzetti advocated justice. the Law School’s Center for Human Rights Lorenzetti described a se- That kind of justice, he said, and Global Justice last November, Loren- ries of landmark rulings that requires the will of the other zetti described how his court has brought to brushed aside claims of statu- government branches and of justice the perpetrators of Argentina’s Dirty tory limitations on Dirty War society, and a supportive in- War, the period from the mid-1970s to the atrocities and that held un- ternational community. “The early 1980s when thousands were unjustly constitutional certain amnesty importance of these pro- arrested, tortured, killed, and “disappeared” laws and pardons protecting cesses does not lie only in by the country’s military dictatorship. offenders. These decisions the punishment of the people Juan Méndez, president of the Interna- have allowed prosecutions held responsible, but in the tional Center for Transitional Justice, co- to be brought against former future,” said Lorenzetti. “The host of the event, pointed out that Argenti- police officers, military officials, and even assurance that there can be no law or par- na’s Supreme Court has only recently won a a priest. The priest, a Buenos Aires police don for those who commit acts of political public perception of independence and im- chaplain, heard the confessions of prisoners persecution, and that sooner or later they partiality, due partly to court appointments in secret detention centers and then violat- will be subjected to judicial process, is a made by former President Néstor Kirchner. ed the sacrament of confession by passing strong institutional incentive to prevent Méndez, who himself had been arrested those confidences to torturers. state terrorism.”

102 NYU SCHOOL OF LAW around the law school until about 15 years after I went to law school; that group should be hitting eligi- A Cautionary Stance bility for judgeships now.

What remain the toughest issues for women on Genomics and Race in the law? Obviously there are major issues atricia king, carmack waterhouse about working for firms and juggling a fam- Professor of Law, Medicine, Ethics, ily life. People always ask me how I did it, P and Public Policy at Georgetown and I say, first, that I have amnesia, so I University Law Center, was candid about don’t know. Second, I always in some sense her bioethical concerns when she deliv- worked for myself. I had cases and clients ered the 2008 Dorothy Nelkin Lecture, “A and responsibilities, but I didn’t have to Dangerous Crossroad: Race, Genomics, have face time for anybody. Every so often and Medicine,” last October. I would declare a sabbatical for myself and King, a member of the Ethical, Legal, take off a month or two, and people in big and Social Implications Working Group firms don’t get to do that. of the National Institutes of Health’s (NIH) human genome center, said she harbored As someone who spent many years argu- reservations about the trend toward mi- ing union-related cases, what do you see as nority inclusion in NIH research, because the role of unions in 21st-century labor law? it introduced potentially distorting racial Much of what I argued were cases brought considerations to the scientific process. “In by labor unions that weren’t really labor the past, genetic frames, genetic models, ge- cases, and labor unions will be doing a lot netic information had been used in ways to of that not only in the legal field but else- suggest that there was a biological basis for where, trying to support workers in general race,” said King. “And we knew that there built on the idea that there must be some- as a way of helping themselves. was more attention paid to these genetic thing to difference, and the way we should explanations than there were to the social try to explain that difference is by reference What kinds of changes, subtle or not, do you and cultural and economic factors that also to the concept of race, a concept that is am- think will emerge in the judiciary during the helped explain health and disease.” biguous and tends to cover many issues presidency of a lawyer, especially one who As King had predicted, the Human Ge- without adequate explanation.” taught constitutional law? I certainly hope nome Project, begun in 1990, eventually be- King acknowledges that the accumu- President Obama will really put effort into gan to study human variation. In hindsight, lation of data is itself not the problem, but judicial selection. There was a tendency in she said, “despite the essential finding of she remains troubled by how the data is the Clinton administration to put this at the the Human Genome Project that humans interpreted: “While we know that most of bottom of the list of things they cared about. are more alike than different, that there is the health disparities I’m concerned with My own experience was that I got nominated more variation within population groups can be dealt with by focusing on social, en- and then had to get myself confirmed. There than between populations, despite that vironmental, and cultural aspects of this was very little assistance. essential finding, the focus has steadily problem, one of the big dangers is that we would look for genetic explanations for dis- parities more than to more complex, holis- Israeli President Shimon Peres on Peace tic explanations.” nobel prize winner president shimon King ended her lecture with an example Peres of Israel delivered “The Globalization of how medicine might operate in an ideal of Peace,” analyzing the conflict in the Mid- world. In the early 1990s, the medical estab- dle East and forecasting the region’s politi- lishment became aware that significantly cal future. The lecture was sponsored by more whites than blacks received kidney NYU’s Taub Center for Israeli Studies last transplants, despite the fact that a larger September. Peres enumerated what he saw proportion of African Americans suffer as the three primary roots of dispute in the from kidney ailments. Researchers even- Middle East: religious zealots attempting tually realized that the organ allocation to halt the forces of modernity in favor of policy was flawed: It was based on antigen their traditional beliefs; Iran’s plays for he- matching, and African Americans have gemony in the region; and clashes between more antigen variation than whites. Health Israel and its Arab neighbors. In its 60 years, officials subsequently instituted less strin- Peres said, Israel had endured seven wars, gent criteria for antigen matching. The an- “outgunned, outnumbered,” and “demon- ecdote had a deep impact on King: “What I strated that democracy, even if it doesn’t was struck by was, when confronted with a have the right numbers or the right weap- difference in an area that was of enormous ons, can win a war.” Accords, also pointed to Israel’s peace concern to African Americans, the way was But Peres, who won the 1994 Nobel Peace agreements with Egypt and Jordan: “We not to ignore the difference but to see if dif- Prize for his participation in the peace prefer an imperfect peace to a perfect vic- ference could be made to work in a more talks with Palestinians that led to the Oslo tory or a perfect war.” positive fashion.”

THE LAW SCHOOL 2009 103 China’s Courts: Legit or Puppet? he long-standing reputation and villages, many of them thousands of past three decades, Liebman has noticed of China’s courts—reinforced by miles from Beijing? current party rhetoric beginning again to press accounts—is that they are Frank Upham, Wilf Family Professor of emphasize the preeminence of CCP ideol- T controlled absolutely by the Chinese Property Law and co-director of the Law ogy. Howson seemed to confirm this obser- Communist Party (CCP). Judges barely School’s U.S.–Asia Law Institute, sought to vation in his description of recent corporate apply the law, let alone innovate; they just investigate these hoary assumptions and cases in Shanghai: The 2006 Company Law take direction from the party. But is this tear down any misconceptions about Chi- gave courts more authority to determine na’s courts. Coordinat- legal claims, but Shanghai courts have in- ing with Ben Liebman stead abdicated some of their statutorily of Columbia Law School, imposed responsibilities. Upham made great Stern and He both provided contrast strides with “China’s with a more positive assessment in envi- Changing Courts: Pop- ronmental and labor cases, noting that ulist Vehicle or Party there has been innovation occurring in the Puppet?” a discussion margins of cases in these areas. Hinting at last February featuring one potential evolution of China’s courts, a panel of China law Minzner described the current incentive scholars: Xin He of the system that rewards judges and govern- City University of Hong ment officials for meeting targets instead Kong School of Law of being faithful to the spirit of the law. and an NYU Hauser Ultimately, “China’s Changing Courts” Stern, Minzner, Howson, Liebman, He, and Upham Global Visiting Profes- did not just delineate the changes to Chi- sor; Nicholas Howson of na’s courts, but also showed that China is true? After 30 years of legal development the University of Michigan Law School; Carl a nation at a crossroads. It remains to be and a rapid increase in law schools, lawyers, Minzner of Washington University School seen whether the nation will allow greater and legal knowledge, are judges still mere of Law; and Rachel Stern, a Ph.D. candidate innovation and court-initiated legal devel- mouthpieces of the party? Can the CCP at the University of California, Berkeley. opment, tie the courts more tightly to the have such control when more than eight While China’s courts have made prog- party, or find a middle ground that will fit million cases are filed annually in cities ress in developing a rule of law during the with China’s own modern development. Faculty Confer Abroad: A Different Kind of Global Warming Engaging with scholars, policy makers, and and faculty director of the Hauser Global ment,” said China law expert Professor industry leaders from around the world, Law School Program and director of the Jerome Cohen. “The symposium demon- members of the faculty held conferences in Frank J. Guarini Center on Environmental strated the value of sustained engage- Geneva, Abu Dhabi, and Beijing on conflicts and Land Use Law. ment with Chinese legal scholars.” The GPI over global regulation and its governance. Kingsbury, Stewart, and Kevin Davis, scholars, who came from Argentina, Brazil, The goal was to build a legal framework for Beller Family Professor of Law, have also Canada, China, Colombia, India, Italy, South addressing and managing these tensions— just launched the Global Partners Initiative Africa, and the United States, also discussed an improvement on current ad hoc practices with a substantial financial commitment capital development, sovereign wealth funds, that lead to errors and ineffective compro- from the Canadian-based International De- trade, intellectual property, regulatory and in- mise, says Benedict Kingsbury, Murry and velopment Research Centre. The GPI will stitutional reform, and trade protectionism. Ida Becker Professor of Law and director work with leading developing country insti- In March in Geneva, the discussions fo- of the Institute for International Law and tutions on economic and social regulatory cused on the complex issues of accountabil- Justice, the events’ co-sponsor. “There are issues of concern to the global South. “It is ity of far-flung international organizations high stakes in these issues,” he said. “A critically important for us to forge collabo- such as the World Health Organization, in- structured framework for organizing and rations in countries that will be the most im- cluding questions of human rights protec- controlling practical uses of power by inter- portant players on the international scene tion and legal liability for harms caused by national organizations is much needed and in the years to come,” said Davis. their operations. And in May in Abu Dhabi, is essential for them to work effectively.” The GPI participants convened for the representatives from countries rich and “NYU’s engagement with Europe, the first time in May in Beijing, where Tsinghua poor, banks, and NGOs debated new ways Gulf, Asia, and elsewhere enhances our University hosted a nine-nation conference of channeling funds to developing countries position as a truly global university,” said focusing on the legal context of China as a to limit greenhouse gas emissions while Simon Chesterman, director of the NYU@ key player in the future of global economic maintaining or even accelerating clean de- NUS Singapore program. Invited scholars and environmental regulation. “China clearly velopment. “Bringing together experts in presented papers that contribute to the faces very significant problems in the en- development, finance, trade, and tax,” said IILJ’s Global Administrative Law Project, a vironmental sphere and is now grappling international tax specialist Professor Mitch- research initiative led by Kingsbury and with ways to ensure that its rapid economic ell Kane, “makes a much deeper contribu- University Professor Richard Stewart, chair growth is not at the expense of its environ- tion to solving climate change problems.”

104 NYU SCHOOL OF LAW around the law school The Long Arm of State Law ustice jack jacobs of the delaware the Constitution’s commerce clause. An- Supreme Court depicted a complex other point of contention has been the in- J patchwork of legal mandates when ternal affairs doctrine, which dictates that a he gave the 2009 Justice William J. corporation’s internal affairs are governed Brennan Jr. Lecture, “The Reach of State by the laws of its state of incorporation. Corporate Law Beyond State Borders: Since the majority of Fortune 500 and New Reflections Upon Federalism.” A Rational Way To Theoretically, Jacobs said, the 50 states’ individual laws operate Be Earth-Friendly independently, with an overrid- launched last summer, the institute ing layer of federal law. “But as for Policy Integrity, housed in the Frank with much in life,” he said, “the J. Guarini Center for Environmental and reality is more complex than the Land Use Law, is a nonpartisan think tank theory. And that’s particularly advocating a version of cost-benefit anal- true in the case of corporate law, ysis that promotes social well-being and because in that arena one state’s superior economic returns and is not bi- corporate law will often acquire ased against government regulation. IPI’s an extraterritorial reach that’s at mission echoes the main argument of odds with the theory.” Retaking Rationality: How Cost-Benefit Jacobs traced the history of Analysis Can Better Protect the Environment U.S. corporate law, which was and Our Health (2008), written by IPI fac- virtually all local, he said, until ulty director Dean Richard Revesz and the 20th century. The onset of the Executive Director Michael Livermore ’06. Great Depression prompted the United York Stock Exchange–traded companies Among the stream of policy documents States to enact federal laws dealing with incorporate in Delaware, Jacobs said, the from IPI in its first year, the most notable corporations, which had grown increas- doctrine gives Delaware disproportionate are “The Road Ahead” by IPI fellows Ini- ingly multistate, leading to potential ju- clout in corporate legal proceedings. mai Chettiar and Jason Schwartz ’06, who risdictional conflicts. Statutes enacted by The doctrine also conflicts with corpo- analyzed greenhouse gas regulation under states beginning in the 1960s to regulate rate outreach statutes. Enacted in states the Clean Air Act, and “Fixing Regulatory hostile takeover bids have led to conflicts including California and New York, such Review” by Revesz and Livermore, which in cases where one state’s laws have signif- statutes are meant to legislatively overrule set out 10 broad review principles, includ- icantly affected companies that incorpo- the internal affairs doctrine and, in the case ing better coordination among agencies, rated in other states. For example, in Edgar of California’s statute, even amend a foreign enhanced transparency, and the maximi- v. MITE Corporation, a Delaware-incorpo- company’s articles of incorporation, Jacobs zation of net benefits. The report also gave rated Connecticut company successfully said. The ultimate question, he argued, is line-by-line suggestions on how President argued before the U.S. Supreme Court that whether corporate outreach statutes or the Bill Clinton’s 1993 executive order con- the Illinois Business Takeover Act violated internal affairs doctrine should prevail. cerning regulatory planning and review might be updated. “Fixing Regulatory Review” is based Time for Maritime to Go Green partly on concepts generated at a roundta- With the notorious Exxon Valdez spill 20 vessels and crews fail to comply with en- ble convened at the Law School last Novem- years in the past, and economic pressures vironmental regulations. From ship owners ber. Participants, whose specific views were mounting to keep costs ever lower, the to classification societies, no one has a free not necessarily reflected in the final report, maritime industry takes significant risks if pass, said Judge Peter Hall of the U.S. Court included Rob Brenner, director of the EPA’s of Appeals for the Second Circuit, in his Office of Policy Analysis and Review; Sally lecture “On Notice: Why the Maritime Katzen, the Office of Management and Bud- Industry Must Embrace Environmental get’s former deputy director for manage- Responsibility,” the Ninth Nicholas J. Healy ment; Nancy Ketcham-Colwill of the EPA’s Lecture on Admiralty Law, in April. Guests Office of General Counsel; Vickie Patton were welcomed to the event by John Kim- ball, adjunct professor of law. ’90, deputy general counsel for the Envi- The lecture was launched in 1992 as a fo- ronmental Defense Fund; and professors rum for the scholarly consideration of mari- Richard Stewart and Katrina Wyman. IPI is time law and to honor Healy, who died in hopeful that the report, written expressly to May at the age of 99. An adjunct professor offer advice to the new president and deliv- of admiralty law from 1947 to 1986, Healy ered to strategic contacts in the Obama ad- was described as “probably the world[’s]” ministration during the first 100 days, will Hall and Kimball finest admiralty lawyer by the Journal of be used to “re-imagine the structure of the Maritime Law and Commerce in 1991. federal administrative state.”

THE LAW SCHOOL 2009 105 Former Prosecutor Looks for Guidance in Hip-Hop Rappers, he said, are a diverse group, but the one issue upon which there is consensus is Lawyers as dissatisfaction with law enforcement. While he conceded that some hip-hop does glorify Advocates criminal activities, Butler said he believes that more often the genre articulates a justi- John Trasviña, president and general fied skepticism toward legal institutions. For counsel of the Mexican American example, he said, while African Americans Legal Defense and Educational Fund, constitute about 12 percent of drug users, 75 gave the inaugural Bickel & Brewer La- percent of those in prison for drug offenses tinos and the Law Lecture in February. In “National Immigration Policy in the are black. And nearly one-third of young New Administration,” Trasviña, for- black men in the U.S. are in prison, await- mer special counsel for immigration- ing trial, or on parole. related unfair employment practices The implications of such a high incar- in the Clinton administration, called aul butler was once a star fed- ceration rate extend far beyond individual for more advocacy among immigration eral prosecutor at the U.S. Depart- criminals. Families, relationships, and en- lawyers. “The nature of lawyering has ment of Justice with a near-perfect tire communities are suffering. In seeking changed,” said Trasviña. “There needs P conviction record. Despite his pro- a remedy for this collateral damage, Butler to be much more advocacy—in front of fessional success, he found himself troubled diverges from mainstream law enforce- state legislatures, in front of local city by his work. Speaking at the 13th Annual ment. He proposes an alternative criminal councils. It’s cheaper and much more effective to win at the advocacy level Derrick Bell Lecture on Race in American justice system based on three main tenets rather than having to go into court.” Society last November, Butler said, “I did of hip-hop justice: Those who harm others The recent wave of local anti-immi- not go to law school to put black people and should be harmed in return; criminals are grant ordinance efforts has been driven Latino people in prison.” As he became more people who deserve love and respect; and more by right-wing talk radio than by concerned with inequities in the American communities can be hurt both by crime any real immigration spike in those legal system, Butler, now the associate and by the criminal justice system. Butler localities, Trasviña said. An ordinance dean for faculty development and Carville emphasized the last point: “Punishment in Valley Park, Missouri, for instance, Dickinson Benson Research Professor of Law should be reduced when it harms people referred to the burden of illegal immi- at the George Washington University Law other than the criminal.” Butler believes grants on local hospitals, even though School, found his views heavily informed by that a more socially conscious justice sys- the town has no hospital. Anti-immi- grant rhetoric, he said, has also led to an unorthodox body of work. “If we listen to tem is viable, but meanwhile he advocates a record level of anti-Latino hate crimes. hip-hop,” he claimed, “we can have a crimi- the thoughtful use of jury nullification as a Immigration affects everyone, nal justice system that works better.” means for communities to avoid the social Trasviña concluded: “It’s important In his lecture, “A Hip-Hop Theory of Jus- costs of locking up nonviolent offenders. that we as lawyers, law students, and tice,” Butler used the lyrics of rap artists such Butler concluded with a quote from an future lawyers provide the law and the as Nas, Jay-Z, and the late Tupac Shakur to interview on Black Entertainment Television facts to people so it gives them the offer insight into the often tense relation- with then-President-Elect Obama: “Hip-hop ability to say, ‘This isn’t right. This is ship between urban African-American com- is not just a mirror of what is. It should also not what America stands for.’” munities and the criminal justice system. be a reflection of what can be.” Sahrawi Gandhi Champions Her Cause minatou haidar, the 2008 robert After being arrested at age 21 “we cannot talk about transi- F. Kennedy Human Rights Award for helping to organize a peace- tional justice.” Since her re- A winner, gave a talk, “Forgotten in ful demonstration, Haidar was lease from detention in 1991, Transition? The Western Sahara and the subsequently “disappeared” for Haidar has worked tirelessly Moroccan Transitional Justice Experience,” four years and tortured by the for the Sahrawis’ right to self- as part of the Center for Human Rights and Moroccan police. The Sahrawis, determination. Amnesty Inter- Global Justice’s Transitional Justice Lunch Western Sahara’s inhabitants, national began to champion Series last November. have long endured such treat- Haidar and her cause after her Haidar, who advocates a referendum to ment; despite the International public beating by police dur- settle the relationship of the Western Sa- Court of Justice’s rejection ing a 2005 demonstration, fol- hara territory with Morocco, its occupier of Morocco’s claim, Western Sahara has lowed by seven months in prison. since 1975, has a long history as a peace been deemed Africa’s last colony. “As long Despite her brutal treatment, Haidar, of- activist on the order of Mahatma Gandhi. as there is no decolonization,” said Haidar, ten called the Sahrawi Gandhi, continues ▷

106 NYU SCHOOL OF LAW around the law school

In addition to lectures by Milgram and Trasviña, other events in the Leaders in Public Interest Lecture Series were: Solving Global Warming, Improving Our Economy Jim Marston ’78, regional director, Environmental Defense Fund Confronting Injustice Professor Bryan Stevenson, executive director, Equal Justice Initiative Campaign for Fiscal Equity— Making the Right to a Sound Basic Education a Reality in Our Schools Geri Palast ’76, executive director, Campaign for Fiscal Equity Making a Difference and Realizing Professional Satisfaction: The Role of a Government Lawyer Michael Cardozo, corporation counsel, Doing Good and Well New York City Law Department Mission Impossible: Making Milgram prescribes public interest law as good for the soul. Governmental Proceedings Funda- mentally Fair—Will You Accept little more than a year after help her serve the public: “When you step This Assignment? David Raff ’70, Anne Milgram ’96 became one of into a courtroom, you get to see real wrongs managing partner, Raff & Becker the youngest state attorneys being righted and justice being rendered A general in history, she reflected on right before your eyes.” Milgram subse- U.S. Foreign Policy and Multilateral her swiftly ascending public-service career quently worked in the Manhattan District Engagement Spencer Boyer ’95, direc- tor, international law and diplomacy, path and encouraged Law School students Attorney’s office, where, as a member of the Center for American Progress to work for the greater good in her speech, domestic violence unit, she handled the “Public Interest as a Career,” for the 12th first case under a new antistalking statute. Public Interest Forum Jonathan annual Attorney General Robert Abrams Among her other career victories, she Leibowitz ’84, commissioner, Public Service Lecture last September. won some of the first prosecutions under Federal Trade Commission Growing up in East Brunswick, New the Trafficking Victims Protection Act of Beyond Lawyering: A Holistic Vision Jersey, in a family of teachers and police 2000, when she was the lead prosecutor for of Public Defense Robin Steinberg ’82, officers, Milgram learned early about the human trafficking cases at the U.S. Depart- founder and executive director, fulfillment found in helping others. She ment of Justice’s Civil Rights Division, and Bronx Defenders remembered how she would accompany she secured the convictions of six defen- Advancing Immigrants Rights in her grandmother on visits to soup kitch- dants in the enforced prostitution case U.S. the Post-9/11 World (While Raising ens and orphanages on holidays when she v. Jimenez-Calderon. Kids on Two Public Interest Salaries) was a child. Later, clerking for Chief Judge As New Jersey’s chief law enforcement of- Joanne Lin ’97, legislative counsel, Anne E. Thompson of the U.S. District Court ficer, she authored Governor Jon Corzine’s American Civil Liberties Union (ACLU) for the District of New Jersey, Milgram was major anticrime initiative to combat gang vi- and Gregory Chen ’97, director for legislative affairs, Lutheran Immigration convinced that the practice of the law could olence, bolster crime prevention, and reduce and Refugee Service ex-convict recidivism. She has also grappled with problems as diverse as Internet safety, Public Interest Cyber-Lawyering on the to call for a referendum without resorting to environmental laws, and mortgage fraud. Electronic Frontier Fred von Lohmann, violence. While gains have been made, the Milgram thrives on the challenges of senior staff attorney, Electronic Frontier Foundation task of organizing for change is compli- her job. “I wake up every morning think- cated by the Sahrawis’ popular fear of gov- ing about how I can improve the lives of The Future of National Security ernment reprisals and the high illiteracy people in the state, and that is a tremen- Professor Samuel Rascoff and rate. Nevertheless, Haidar added, she re- dous gift,” she said. Urging her audience to Ben Wizner ’00, staff attorney, ACLU mains optimistic: “I am convinced that my act in the public interest, either full-time Defending Women’s Rights Around cause is a just cause. But what also gives me or through pro bono or volunteer work, the World: The Role of International courage and hope is the determination of Milgram vouched for the personal satisfac- Human Rights Law Luisa Cabal, direc- the Sahrawi people…. Even after 30 years tion public service has given her: “I wanted tor, International Legal Program, Center of occupation and state terrorism, today a job where I couldn’t believe that some- for Reproductive Rights there is a new generation of children who one would actually pay me to do work that Scholarship in the Public Interest raise the Western Saharan flag in schools I loved that much. And I will tell you the Professors Lily Batchelder and and say to their teachers, ‘No, Western truth, that I’ve generally felt that I’ve had Randy Hertz, NYU School of Law Sahara is not Moroccan.’” those jobs all along.”

THE LAW SCHOOL 2009 107 Notes from All Around

identity, religion and politics Ruth Gavison, Haim H. Cohn Professor of Human Rights Law at the Hebrew University of Jerusalem Faculty of Law and founding president of the Metzilah Center for Zionist, Jewish, Liberal, and Humanist Thought, delivered the seventh annual Caroline and Joseph S. Gruss Lecture, “Jews and Israelis: Issues of Membership in the Jewish Religion, Jewish People, Jewish State,” last March. In her speech, Gavison Simplifying Taxes pointed out that not all Israelis are Jews: “Identities—Jews, Israelis—are complex, in the E.U. multifaceted, and very dynamic.” despite the european union’s goal of a single market, multinational companies in the E.U. currently contend with numer- the state of the european union ous tax barriers, including the coexistence Luís Miguel Poiares Pessoa Maduro, the advocate general of the Court of Justice of of 27 different tax systems, complex trans- the European Communities, presented the fer pricing rules, a nearly absolute lack of fifth annual Emile Noël Lecture. Sponsored cross-border loss-offsets, and a perplexing by the Law School’s Jean Monnet Center network of tax treaties. Needless to say, ob- for International and Regional Economic stacles presented by the current tax treat- Law and Justice, the November event ment significantly impede cross-border took the form of a fireside chat between economic activity. To clean up the current the advocate general and Joseph Weiler, disarray, the Economic and Financial Af- University Professor and Joseph Straus fairs Council for the E.U. formed the Com- Professor of Law. The two deliberated mon Consolidated Corporate Tax Base over the Lisbon treaty, the perceived cul- tural divide between the United States and Working Group, charged with proposing a Europe, and the European Court of Justice. single set of tax rules for corporations par- taking in E.U.-wide activities. Last Septem- ber, the former director of tax policy at the an ally’s perspective Last September, David Miliband, foreign secretary of the E.U. Commission, Michel Aujean, whose United Kingdom, and Norman Dorsen, Frederick I. and Grace A. Stokes Professor of Law, primary responsibility in office was to pave had a wide-ranging discussion forecasting the major challenges that would face the 44th the way for a common corporate tax base, U.S. president. Miliband described the importance of this administration, saying it was the “last chance for the transatlantic alliance…to set a global agenda” as the size and influence presented the working group’s proposals at of non-Western nations grow over the next decade. On a lighter note, Dorsen recalled that the 13th annual David R. Tillinghast Lec- he had met Miliband back in the 1960s, when Miliband was only three years old and his ture on International Taxation, “Toward a father, Ralph, was Dorsen’s colleague at the London School of Economics. “When I looked Common Consolidated Corporate Tax Base at him more closely,” Dorsen recalled, “I immediately said, ‘He will go far.’” in the European Union.” Aujean championed the working group’s basic recommendations. Among them: a body of rules defining a common tax base, consolidation of profit or loss in accor- dance with the “all in or all out” principle, inclusion of passive income in the tax base, apportionment of that tax base among member states, and administration of the tax system by a single body. Aujean took pains to point out that the working group’s opinions are nonbinding, and any decision related to tax matters requires unanimous approval of all 27 member states—not an easy feat considering the amount of tax rev- enue at stake. Eliminating tax obstacles to cross-border business activity, however, is a priority for many member states, and the Dorsen, NYU President John Sexton, Miliband working group’s proposals will undoubtedly take a critical place in future debates.

108 NYU SCHOOL OF LAW alumni almanac

Alumni Almanac

Seth Glickenhaus, Wall Street Sage | 111 Daniel Doctoroff at Alumni Luncheon | 112 Judith Kaye Delivers Swan Song at NYU | 112 Priti Radhakrishnan, Medicine Woman | 113 Immigrant Rights Clinic Turns 10 | 114 Robin Steinberg’s Holistic Defense | 117 2009 Law School Reunion in Photos | 118 David Boies’s Trials and Triumphs | 119 Alumni Achievements | 120

Neil Barofsky ’95, special inspector general for the Troubled Asset Relief Program, on Capitol Hill. He was testifying at a February hearing focused on ensuring transparency in how TARP funds are spent.

THE LAW SCHOOL 2009 109 Way Up High: 2008 Weinfeld Gala at the Rainbow Room

1 2

5

3 4 5

5

september 15, 2008 6 7 8

where you’ll find me 1 Rebecca Sullivan and her husband, Stephen Greenwald ’66 (ll.m. ’95); 2 Barbara Chesler and Trustee Evan Chesler ’75; 3 Enid Boxer and Life Trustee Leonard Boxer ’63; 4 Trustees Rachel Robbins ’76, Rita Hauser, who was presented with the Judge Edward Weinfeld Award that evening, Chairman of the Board Anthony Welters ’77, and former Chairman of the Board Lester Pollack ’57; 5 guests danced off dinner with a little night music; 6 Robin Fuchsberg and Trustee Alan Fuchsberg ’79; 7 Dean Richard Revesz; 8 Lilia Toson-Dysvick ’11, the gala’s student speaker. A Supreme Experience at the BLAPA Spring Dinner tringer

3 mages/ Brendan Hoffman / S

april 17, 2009

1 etty I

an appealing choice 1 U.S. Circuit Judge Sonia Sotomayor was the featured guest speaker; 2 Eduardo Padro ’80, BLAPA Board President Edward Rodriguez ’97, Richard Brand ’07, and Tiennhan Phan; 3, 4 Distinguished Service hon- orees Joseph Scantlebury ’92 of the Bill and Melinda Gates Foundation and Keith Harper ’94 of Kilpatrick & Stockton. 2 4 previous page: G

110 NYU SCHOOL OF LAW alumni almanac wife, having met a pretty speech therapist, Sarah Brody, while studying Norwegian at A Life on the Street the University of Minnesota. He returned to Wall Street and struck it Taking the long view, Seth Glickenhaus, who worked at rich after a lucrative bond deal in 1959. He Salomon Brothers in 1929, is optimistic about the recession. and Lembo retired. He was in his 40s, how- ever. So, in a midlife crisis, Glickenhaus he great depression seems a & Poor’s. Analysts say their sunny ratings decided on his version of a cherry-red Cor- succession of iconic images and of mortgage securities helped lead to bil- vette: He wanted to become a doctor. After moments: Variety’s 1929 headline: lions of dollars in losses. But Glickenhaus brushing up on sciences at Columbia, he T “Wall Street Lays an Egg”; Hoover- thinks the agencies will never get it right. was admitted to Albert Einstein College of villes in Central Park; Franklin Delano They “look at the past and the present, with- Medicine, but reconsidered matriculating Roosevelt declaring the nation had noth- out making a real effort to look into the fu- when he realized the toll years more of ing to fear but “fear itself.” ture because that’s more subjective.” He training would take on his marriage and his But Seth Glickenhaus ’38 has a single, frowned. “So the day after a triple-A bond then-teenage children, Jimmy and Nancy. searing memory: When he was a 16-year- defaults, they downgrade it!” old freshman at Harvard College in 1930, he said, laughing. Glickenhaus was surprised to arrive home Glickenhaus’s skepticism to find his father, Morris, downcast. An in- toward Wall Street began in surance broker, his father had just fired a the summer of 1929 when he longtime employee. “He’ll get another job, worked as a teenage errands won’t he?” Glickenhaus said. His father, not “runner” for Salomon Broth- a man given to emotion, wept. ers & Hutzler (now Salomon Now 95, Glickenhaus has been besieged Brothers, part of Citigroup). by business reporters seeking the perspec- He was chided by his boss for tive of someone who worked on Wall Street doing his job too quickly as during the Great Depression. They want longer tasks paid better. “The his insight into the economic crisis and word was ‘stall,’” he said. “You are frankly astonished that someone of were supposed to take twice his years is still working. Glickenhaus sets as long. You could get a cup aside weekdays at 4:15, after the market of coffee, you could get your closes, just for media interviews. shoes shined. I was appalled.” When Glickenhaus sat down to talk in Nonetheless, after Harvard, his midtown Manhattan office on an over- where he concentrated in eco- cast day last November, the market, after nomics because of the stock weeks of free fall, was up. He wore a brown market crash, he got a job as a sweater, gray pants, and eyeglasses the size bond trader at Salomon in 1934. of oranges. His thin white hair was swept In the days before computers, back on his head. Though he walked slowly, bonds were an arcane market. in tiny steps, his voice was strong, his hear- “If you had a good memory” ing good, and his opinions tart. for bond yields and financial When investment bankers today take minutiae, he said, “you could tens of millions of dollars in fees, “that, make a good living.” to me, is Al Capone with a high hat,” said But he wasn’t making a Glickenhaus, senior partner and chief in- good living: He earned only vestment officer of Glickenhaus & Co. Just $48 a week, a small sum as bad in its way is the business press, he even then. He had decided to said. “The media has so emphasized the hedge his career bets by going to New York Today, Glickenhaus & Co., founded in negative, that the market has made a low University School of Law at night, gradu- 1961, is small by Wall Street standards, man- that will stand for some time even though ating in 1938. That year, however, he and aging $1 billion for high-net-worth clients. we are in for only a year or two of reces- a friend, Lawrence Lembo, founded their Glickenhaus is one of only five senior man- sion.” The country has deeper problems own small securities firm, Glickenhaus agers making investment decisions. than it had during the Depression, he ac- & Lembo. And he never looked back. He He snorts at the inevitable question of the knowledged. But unlike that time, when worked at the firm until World War II secret to long life: “The right genes and a wife government failed to act quickly, Glicken- intervened. “As an American and a Jew, who makes sure you live sensibly.” He exer- haus said, “governments—both ours and in I felt I owed it to myself to shoot Nazis.” cises regularly, sleeps nine or more hours a Europe and in Asia—are throwing so many Alas, it was not to be. Despite being night, and eats a Mediterranean diet. trillions at the problem that the recession assigned to what became the legend- Any parting advice? Don’t follow icons, will not be very deep or very long.” ary 10th Mountain Division, the Army’s he said. “If Warren Buffet is doing some- a k He singles out one Wall Street player for white-clad ski soldiers, he spent much of thing, people want to do it,” he said. “Think criticism: the credit-rating agencies, like the war training other troops and learn- for yourself, or else the world will really foul van Kafvan

E Moody’s Investors Service and Standard ing a foreign language. Still, he gained a you up!” Anthony Ramirez

THE LAW SCHOOL 2009 111 A View from the Roller Coaster o stranger to dramatic changes, Doctoroff signed on as deputy mayor of of two postwar recoveries, every upturn has Daniel Doctoroff, president of New York City, when the economy was in been fueled by major innovation. Bloomberg L.P. and former deputy shambles and the municipal government “The reason New York City will survive N mayor for economic development in dire straits. He would spearhead the ul- this crisis—I believe without a significant and rebuilding in New York City, tossed timately unsuccessful bid for New York to diminution in our quality of life—is because away his planned remarks for the January 30 host the 2012 Olympics. Finally, in January when times were good we didn’t spend all Annual Alumni Luncheon. His original topic, “Private to Public to Private Again,” became “Planning Through Panic.” “My entire career has essen- tially been shaped by the four major economic downturns of the last 30 years,” Doctoroff said. For the record: Graduat- ing Harvard University at the start of the 1980 recession, he ducked into the University of Chicago Law School (al- though he transferred to NYU Law for his third year). Two months after 2008, he became president of the financial of our resources. We invested wisely, but he left Lehman Brothers in 1987 to form information company Bloomberg, only to we put money away,” said Doctoroff, who Oak Hill Capital Partners, an investment see the economy collapse yet again. oversaw a shift from a nearly $5 billion city partnership focused on leveraged buy- The Big Apple itself, Doctoroff explained, budget gap in 2002 to a $5.5 billion surplus in outs and junk bonds, Black Monday struck offers a perfect model for study: “New 2006, when the city placed $2 billion in trust (his partnership bailed out American Sav- York was literally formed by the rhythm for city retirees’ health benefits. “Invest- ings Bank, the nation’s largest failed thrift, of boom and bust.” Rattling off a dozen ing aggressively in the bad times and being selling it years later for a 70-fold return names of past crises since the Panic of 1809, prudent in the good times is a strategy that on its investment). Just weeks after 9/11, Doctoroff observed that, with the exception proves successful over and over again.” Farewell to the Chief Judith Kaye ’62 decided that her last state- of-the-judiciary speech as New York’s chief judge should be delivered at NYU rather than in Albany, bucking tradition to reach a larger audience and to give a nod to her alma mater. Kaye used her power to the last minute; she postponed her address, usually given in February, until November to protest the state legislature’s refusal to raise judges’ pay. The 10-year salary freeze was Kaye’s the judge wore red Kaye received a standing biggest disappointment on the bench. ovation at her last public Calling her quarter century on the Court address as New York’s of Appeals (the last 15 as chief judge) “the chief judge. A few weeks role of a lifetime,” Kaye led the audience later, Jonathan Lippman on a whirlwind tour of the state’s judicial was named her successor. system. She began by reviewing efforts to justice system that is modern, up-to-date, state’s highest court, let alone lead it, she improve child welfare proceedings and hire effective, and efficient.” In 1996 Kaye fa- left it with a female majority. more judges in the overburdened family mously eliminated professional exemptions, Throughout her speech, and particu-

courts, before moving on to the state of civil compelling notable figures like former may- larly as she concluded her remarks, Kaye ews or Rudolph Giuliani ’68, newscaster Dan thanked many of her colleagues, especially h

justice, which has been affected dramatic- att ally by the nation’s current financial crisis— Rather, actor Robert De Niro, and even Kaye Jonathan Lippman ’68, now Kaye’s succes- eto M

some counties’ housing courts have seen herself to show up for jury duty. Her legacy sor, who was then still the presiding justice b 200-percent increases in foreclosure cases. also includes a host of initiatives tackling of the Appellate Division. Kaye, the longest- Kaye also discussed one of her most-lauded domestic violence, drug abuse, and mental serving chief judge in the history of the post, oto/Be achievements as chief judge, jury reform, health through the courts. And it was Kaye deemed it “a privilege beyond description who broke the New York judiciary’s glass to labor in the cause of justice alongside the

calling the American jury system “a rare aye: AP Ph

opportunity to show the public firsthand a ceiling: The first woman to serve on the greatest people on earth.” h k judit

112 NYU SCHOOL OF LAW alumni almanac breakthroughs.” While her friends deco- rated their rooms with posters of teen heart- Medicine’s Robin Hood throbs, she had a huge laminated periodic Priti Radhakrishnan gives the poor access to lifesaving drugs. table of elements—a gift from dad. Radhakrishnan got involved in social ith one grandfather a union a year after I-MAK prepared a challenge. activism, raising awareness about domes- organizer in the United States “Until we intervene, and impoverished pa- tic violence, at the University of California, and the other a political journal- tients take on the additional burden of filing Berkeley. Graduating in 1999 with a B.A. in W ist in India, Priti Radhakrishnan legal cases, these companies don’t seem to political science and international rela- ’02 has activism in her blood. So it came as care about access,” said Radhakrishnan. tions, she entered NYU Law. “At orienta- little surprise when she left a high-paying The pharmaceuticals see it differently. tion, the dean told us that we were a family. job at L.A.’s McDermott Will & Emery after “Incremental improvements are not desper- I don’t think I realized that this incredibly just one year to take an internship, with a ate moves to extend patent life,” says Ken supportive community would actually end stipend from the Center for Human Rights Johnson, senior vice president of PhRMA, a up changing my life,” she said. One course and Global Justice, at the World Health membership organization that includes the that made a deep impression was Professor Organization. Six months later she was off to Delhi to work at the Lawyers Collective, where she became an expert at patent inter- vention, scrutinizing and challenging pat- ent applications. Radhakrishnan, now 31, arrived in India at a crucial time for its pharmaceutical in- dustry. Upon joining the World Trade Or- ganization in 1995, India was required to enact patent legislation by 2005. Patents offer pharmaceutical companies a 20-year period of exclusivity to manufacture and sell their inventions. But too often, Rad- hakrishnan argues, the companies make only minor changes to drugs whose patents are about to expire, then apply for patents to essentially extend their monopoly for an- other 20 years. “They’re gaming the system,” she said, causing profound hardship on the poor in developing nations where generics are the only affordable drugs. WHO predicts leading pharmaceutical companies. He ar- Holly Maguigan’s seminar, Comparative that 10 million lives could be saved yearly gues that, for example, creating a shelf-stable Criminal Justice—Focus on Domestic Vio- with more access to medicines. “That’s the form of a drug that otherwise would require lence. “She was truly engaged and a wonder- injustice that drives me,” she added. refrigeration, which is largely unavailable to fully iconoclastic thinker,” said Maguigan. In May 2006, Radhakrishnan, along with the world’s poor, is a significant advance. Once, she walked into class wearing gigan- her husband, Tahir Amin, 37, an intellectual In 2008, Radhakrishnan and Amin won tic overalls, Maguigan recalled. The slight property soliciter, launched I-MAK (Initia- a $90,000 fellowship from Echoing Green, and soft-spoken Radhakrishnan explained tive for Medicines, Access & Knowledge) to which invests in and supports budding so- that how you dress affects how you sit and take on pharmaceutical companies. “We’re cial entrepreneurs. Radhakrishnan also was ultimately how you would conduct yourself not anti-patent, we’re anti-undeserved pat- awarded a Social Innovation Fellowship by in the classroom. ents,” said Radhakrishnan. Doing much Pop! Tech. Gregg Gonsalves, a patients’ rights Over the next three years, Radhakrish- of their work in Internet cafes and on air- advocate, said, “She’s part of a small corps of nan and Amin, based in New York City’s planes as they fly from one developing na- people worldwide that have used legal strat- Upper West Side, plan to build a free online tion to another, the two rely on a small team egies to expand access to lifesaving drugs to database that will track pending patents on of scientists and lawyers to selectively re- millions of people. There are not many law- drugs for the most common diseases in the view and expose unmerited patents. Argu- yers of her generation who have made such developing world such as HIV/AIDS, hepa- ing on the basis of scientific validity, such an impact.” titis, and malaria. Since that information is as newness, usefulness, and inventiveness, Radhakrishnan grew up in Fremont, usually costly, “we are leveling the playing I-MAK has challenged patents dozens of California. She traces her passion for sci- field for patients and the public by mak- times and has won at least two battles. ence to her father, an Indian immigrant ing the system more transparent,” she said. In June 2008 after an I-MAK challenge, who completed his postdoctorate work in They will also take time out for Salsa and the Indian Patent Office denied Boehringer pharmaceutical science at MIT and has Samba lessons. Doing increasingly more Ingelheim’s patent application on a syrup worked at Bay Area drug companies for work in Latin America, they’re often taken version of a pediatric anti-HIV drug that al- the past 25 years. She recalls spending early to dance clubs. “We felt like we had two left ready existed in tablet form. In 2007, Glaxo- childhood dinners listening to her dad and feet,” says Tahir. “We want to get this right, SmithKline withdrew a patent application 1968 Nobel Laureate H. Gobind Khorana so we’ve chalked it up on our board as a

Kris Krug and cut the price of an adult anti-HIV drug “fiercely discussing scientific theories and must-do.” Jennifer Frey

THE LAW SCHOOL 2009 113 Putting Down Roots Former students and teachers gather to celebrate a decade of ensuring fair treatment for immigrants. rofessor nancy morawetz ’81, the pending matter of Flore- founding director of the Immigrant Figueroa v. U.S. In their brief, Rights Clinic, confessed “a little and in strategy assistance P embarrassment” at the flood of trib- given to plaintiff counsel, utes she received last March when half Gittleman and Johnson ar- her 150 former clinic students met to cel- gue that workers who submit ebrate the IRC’s 10th anniversary and to to employers falsified docu- share lessons learned in advancing social ments containing randomly justice for a largely defenseless population. created Social Security num- “The dream was there,” said Morawetz, as bers should not be subjected she reflected on the clinic’s genesis in an to the “aggravated identity interview, “but there was no way back in ’99 theft” penalty that warrants a that we could have completely envisioned mandatory two-year jail sentence. especially in a post-9/11 climate hostile to where our work would take us.” The clinic’s agenda has expanded far be- them. “In class, I would secretly wonder— Ten years later, the destination includes yond NYU Law as some who have co-taught is she crazy?” said Rosenbloom, a former the highest court of the land. Morawetz alongside Morawetz have replicated the supervising attorney at the Post-Deporta- and her small but strongly idealistic army program at Yale Law School, the City Uni- tion Human Rights Project at the Center for of law students were involved in the bulk versity of New York School of Law, and the Human Rights and International Justice at of immigration matters before the U.S. Su- University of Texas at Austin School of Law. Boston College. “But I’ve learned that being preme Court over the past decade. Even Recently, IRC alumnus Peter Markowitz a graduate of Professor Morawetz’s clinic after graduating, many clinic alumni have ’01 launched an immigrants’ rights clinic at means that in the world of criminal depor- stayed in the field. Now as practitioners, the Benjamin N. Cardozo School of Law. tation, doors open anywhere in the world.” they are fanned out across America and Isaac Wheeler ’03, today a staff attorney Enthusiasm for the clinic is perhaps points overseas to apply the clinic’s for- at the Bronx Defenders, spoke for his fel- best demonstrated by Alina Das ’05, an mula of legislative effort, community ad- low celebrants in explaining Morawetz’s IRC alumna who became Morawetz’s co- vocacy, and media outreach in addition to continuing influence. “Whenever I think, teacher in 2008. “I remember thinking af- impact litigation. (See “The Hard Line on there’s no way, no chance for this case, I ter my year as a clinic student, wouldn’t it Immigration” on page 24.) hear Nancy’s voice saying, ‘Oh, you can do be great to do this forever?” said Das. “So, This year, for instance, students Andrea this!’” said Wheeler. “I am forever warped,” it’s been great getting a job here.” Mayra Gittleman ’09 and Sara Johnson ’09 drafted he added. “So thanks, Nancy.” Peters-Quintero ’99, now a program direc- an amicus curiae brief to the high court on Rachel Rosenbloom ’02 spoke of doubt tor of migrant and immigrant rights at the behalf of the Supreme Court Immigration on first exposure to Morawetz’s fierce view Ford Foundation and Morawetz’s former Law Working Group, a coalition of major that young lawyers have a responsibility to co-teacher from 2004 to 2008, graduated immigrant rights organizations monitoring accept the growing needs of immigrants, the spring before the clinic was begun. ▷

Eric Dinallo ’90, superintendent Who’s Who in the U.S. Financial Bailout of the New York State Insurance Department from 2007 to 2009, All hands on deck! In the aftermath of the global finan- stabilized the bond-insurance in- dustry and played a key role in the cial meltdown, lawyers and judges with expertise in such bailout of AIG. areas as fiscal policy, bankruptcy, investment banking, James Duffy ’75 was appointed mediation, and mortgage lending have been called into interim CEO of NYSE Regulation service. Herewith is a diverse group of alumni who have in March after serving as execu- tive vice president and general been involved in helping to right the U.S. economy. counsel since 2006.

Neil Barofsky ’95, special inspec- James Clarkson ’69, director of regional office Dennis Dunne ’90, leader of the tor general of the U.S. Treasury's operations in the SEC's Division restructuring group at Milbank, Troubled Asset Relief Program, of Enforcement in Washing- Tweed, Hadley & McCloy, heads is responsible for overseeing ton, D.C., served as acting the firm's team representing the Congress's emergency bailout regional director of the SEC's creditors' committee in the Lehman plan for the financial industry. New York office from October Brothers bankruptcy. 2008 to June 2009.

114 THE LAW SCHOOL alumni almanac Morawetz spoke of the clinic’s ongoing efforts in navigating what she terms the “horrible process” of alien detainment and deportation hearings in accordance with the Illegal Immigration Reform and Immi- grant Responsibility Act. Luis Gutierrez, blindsided by an espe- cially draconian application of that 1996 federal statute, was represented by clinic students in his long struggle for habeas cor- pus relief after being deported to his native 1 2 Colombia—a struggle that included being “ripped off,” as he put it, by an ineffective private attorney. Gutierrez, one of a few for- mer clients invited to the reunion, offered his thanks to the dozens of students who helped him from 2000 to 2007, when he re- turned to the United States as a free man. “I had lost all hope of justice,” said Gutier- rez, now working as an electrician in Jersey City and reunited with his American-born daughter. “But then I found this clinic.” 3 4 Morawetz, admitting inability to imag- ine an eight-year separation from her own two children, said of the Gutierrez case, “He suffered terribly. His marriage was de- stroyed. You can’t make somebody whole again. All that pain and anguish, yet he’s the happy story.” Thomas Adcock 5 6

6

defenders of the powerless 1 Peter Markowitz ’01; 2 Alisa Wellek ’10, Maribel Hernandez ’10, Julia Dietz ’10, Andrea Gittleman ’09; 3 Joanne Lin ’97, Melissa Goodman ’03, and Omar Jadwat ’01; 4 Alina Das ’05; 5 Jenn Ching ’00, Maya Nath ’04, and Tony Lu ’02 (looking down); 6 Past and present students of the Immigrant Rights Clinic, 1999 to 2009. 5

Kenneth Feinberg ’70 was appoint- in January 2009, the same month he Lee Meyerson ’81 is head of ed compensation overseer by the received his J.D. Simpson Thacher & Bartlett's Obama administration in June 2009. financial institutions practice, His job: to set pay for executives at Richard Ketchum ’75 is CEO of which advised the Treasury companies that received federal bail- the Financial Industry Regula- Department on structuring the out money. tory Authority. Until March Troubled Asset Relief Program. 2009, he was the CEO of NYSE Matthew Feldman ’88 joined Regulation. Judge James Peck ’71 of the U.S. the Obama administration's Bankruptcy Court for the Southern Auto Industry Task Force in B. Robbins Kiessling ’76, bank- District of New York was selected March 2009. ing practice leader at Cravath, to preside over the Lehman Broth- Swaine & Moore, advised the ers bankruptcy. Judge Arthur Gonzalez (LL.M. ’90) consortium of banks providing of the U.S. Bankruptcy Court for the Lehman Brothers with liquidity. Bradley Smith ’74 led the Davis Southern District of New York was Polk & Wardwell team rep- selected to preside over the Chrysler Timothy Mayopoulos ’84 became executive resenting the Treasury and bankruptcy. vice president, general coun- the Federal Reserve Bank of sel, and corporate secretary of New York in the AIG bailout David Kamin ’09 was appoint- Fannie Mae in April 2009. He negotiations. ed special assistant to Peter had been executive vice presi- Orszag, director of the Office dent and general counsel of of Management and Budget, Bank of America. THE LAW SCHOOL 2009 115 Both Lashof and Livermore pressed for a national comprehensive plan to price Lean, Green, and Ready carbon to replace our current piecemeal legislative actions. They each favor a cap- Environmentalists focus on averting the worst effects of and-trade scheme that would provide an global warming in a dramatically changed economic climate. incentive for energy companies to reduce emissions and increase efficiency. This, t quickly became clear at the they argue, could lower consumers’ bills Law Alumni Association’s climate even though the price of a kilowatt hour change panel discussion last fall might go up. Coupled with pro- I that among environmental experts grams specifically targeted at lower- the goal of mitigating global warming income Americans, said Livermore, has overtaken the dream of pre- “it’s a smarter policy that allows us vention. “A significant amount to address climate change without of damage is already baked in,” overburdening the disadvantaged said Daniel Lashof, director of in our society.” the Climate Center at the Natural Barkoff added that from the Resources Defense Council. private investment perspective, “Now we have to adapt and avoid what is necessary is consistency the worst consequences.” But in and certainty in regulation—a the midst of a global financial policy that would bring clar- crisis, it was no surprise that the ity to the competition between panelists held competing views traditional and alternative on who should pay and how to sources for energy. Even if reg- lower carbon emissions. ulations do not level the playing The panel, called “Environmental field, clean-energy investors need some Law and Climate Change: Public Pol- reassurance that there is some stability in icy, Corporate Strategies, and Plan- overall policy. ning for the Future,” was moderated Though they had their differences, by Dean Richard Revesz and inaugurated Global Environment Fund; Michael Liver- the panelists were able to agree on one the Law School’s Frank J. Guarini Center on more ’06, executive director of NYU Law’s thing: that the costs of moving to a lower- Environmental and Land Use Law. In ad- new Institute for Policy Integrity; and Uni- carbon economy will be high. The alter- dition to Lashof, the invited experts were versity Professor Richard Stewart, director native, however, is a price no one would Stuart Barkoff, managing director of the of the Guarini Center. want to pay. Mutual Appreciation: Scholarship Donors and Students Meet

2 3

november 17, 2008 1

5 6

positive reception 1 C.V. Starr Scholar Jason Richman ’11, C.V. Starr Scholar Matthew Nazareth ’11, and Hauser Starr Scholar Alamo Laiman (ll.m. ’09) with Starr Foundation President Florence Davis ’79; 2 AnBryce Professor of Law Deborah Malamud, AnBryce Scholar Lilia Toson-Dysvick ’11, and Trustee Anthony Welters ’77, founder of the AnBryce Scholarship Program; 3 Bickel & Brewer Scholars Thomas Fritzsche ’09, Andrea Nieves ’10, Alba Villa ’11, Maribel Hernandez ’10, and Melissa Navarro ’09, with Deidre Cousman; 4 Evan Chesler Scholar Athena Bochanis ’11 and Cravath, Swaine & Moore Scholar John Leo ’10 with Barbara Chesler and Trustee Evan Chesler ’75; 5 George T. Lowy Scholars Jonathan Crandall ’10 and Gabriel Armas-Cardona ’11 with Trustee George Lowy ’55; 6 Keren Raz ’10, recipient of the Root-Tilden-Kern Jacobson Public Service Scholarship for Women, Children, and Families, with Kathy Jacobson and Marne Lenox ’11, Jacobson Family Scholar 4

116 NYU SCHOOL OF LAW alumni almanac Her smile is warm and endearing, her en- thusiasm, contagious. She chuckles and Another Bronx Tale confesses that she can’t walk by someone asking for money without giving them a few Robin Steinberg passionately believes that effective legal coins. “I always look them in the eye and ask defense for the poor includes a good dose of social work. them how they’re doing,” she says, a habit that has prompted her 13-year-old daughter ever say something is impos- Clients arrive at the Bronx Defenders’ to call her “the nicest person she’s ever met.” sible to achieve around Robin doorstep through the criminal and family Her daughter has a point. Steinberg, a native Steinberg ’82; it will only motivate courts. The office also gets lots of walk-ins, New Yorker, is the kind of do-gooder that N her to prove you wrong. The 51-year- who sometimes only want to do something makes you want to empty your pocket for old founder of the Bronx Defenders, a unique as simple as making a copy of a document. the next homeless person you run across. non-profit public defense group in the Bronx, The office always obliges. And all clients, no Steinberg didn’t always think law was always steps up to a challenge. “When some- matter what the request, are made to feel the way to accomplish her goals. At the Uni- one says, ‘Oh you can’t,’ nothing lights a fire comfortable. A bright reception area, filled versity of California, Berkeley, in the 1970s, under my behind more than that,” she said with couches, plump pillows, an assort- she majored in women’s studies. Her ambi- with a laugh over a bowl of steaming oatmeal ment of toys, telephones, and free coffee, tion, even then, was a lofty one: She wanted at an Upper West Side café. welcomes them. “I’ve put a lot of thought to change the world. Eventually she came That spirit drove this public defender to into our physical space. We want our clients to think she could do that by becoming a find a more comprehensive way to repre- to feel that this is a place they can trust and lawyer and advocating for women’s rights, sent people thrust into the crimi- nal justice system. Enter the Bronx Defenders. Founded in 1997 with the help of a city grant, the Bronx Defenders tackle the broader eco- nomic and social contexts that affect their clients—from immi- gration status to child welfare is- sues. It’s an approach that turns the traditional public defense sys- tem on its head. “Public defenders only focus on the circumstances of the arrest and have no idea about the other areas in a person’s life that may have destabilized them to begin with,” Steinberg says. “We ask the broader questions: Are you receiving public aid? What’s your immigration status? Where are your kids? Nobody asks these kinds of questions. We do. Our job is to counsel and represent the human where they feel safe,” she says, with a hint of so she applied to NYU and made her way being. We try to get to know them, under- pride in her voice. “Every client deserves to back to her hometown. At first, law school stand them, and make sure that what’s be treated with compassion and dignity.” wasn’t quite as inspirational as she’d imag- good about them is understood.” Likewise, Steinberg insists that every ined. “I was hardly a stellar law student,” During the last decade or so, Steinberg client served by the Bronx Defenders leaves she laughs. “I sat in the back row and did has assembled a diverse staff of criminal feeling that his or her story has been heard, not participate.” As she put it when she re- defense, housing, immigration, family law, regardless of the outcome. “Sometimes the ceived her Alumna of the Year award from employment, and civil rights lawyers, so- case is so strong, you can’t stop the train,” Law Women last February, “Don’t under- cial workers, parent advocates, investiga- she says. “But at the end of the day, I tell my estimate the power and the passion of the tors, public benefits specialists, community staff, if all you can do is enable your clients to quiet students in the back row trying to stay organizers, and administrative staff—120 in believe that their dignity has been preserved unnoticed.” In her second year, Steinberg all. The Bronx Defenders Web site profiles and you have shown respect for them, then took a criminal defense clinic that involved every one of them, even the janitor. Accord- you’ve succeeded.” She underscores her helping women in a maximum-security ing to Steinberg, her organization assists point, as she sips her coffee, adding, “Some prison in Bedford, New York. “I literally some 14,000 people annually with every- of my biggest fans are doing life in prison.” spent the year getting to know women and thing from navigating the criminal justice It’s not difficult to see why Steinberg listening to their stories,” she says. She was system to housing and health issues. “She has fans. She’s a sincere woman with gen- hooked. Today, she’s still listening to clients is truly a visionary,” says Justine Olderman, uine conviction. You believe her when she who want to be heard—and in the process, managing attorney at the Bronx Defenders, talks about how she wants to help people she’s achieved a sliver of her goal: She is decrying what she calls the “cookie-cutter who have been mistreated by a system that changing the world, at least in her own cor- approach” to criminal defense. she considers heartless and complacent. ner of the Bronx. Dody Tsiantar

THE LAW SCHOOL 2009 117 Pack Your Books– april 3-4, 2009 and Your Dancing Shoes The 2009 Reunion featured four engaging panel discussions on the Washington Square campus and a reception at the Waldorf-Astoria Hotel. Panels included: “Reform of the Reform? What the New Congress and Administration Will Mean for Bankruptcy Law,” moderated by Assistant Pro- fessor of Law Troy McKenzie ’00; “The Meltdown of 2008: Causes, Cures and Consequences,” moderated by John C. Coates IV ’89; “Tax Policy in the New Administration,” mod- erated by Professor of Law Lily Batchelder; and “Rethinking the Mortgage Finance Industry After the Foreclosure Crisis,” moderated by Boxer Family Professor of Law Vicki Been ’83.

118 NYU SCHOOL OF LAW alumni almanac A Top Gun Shoots from the Hip y anyone’s reckoning, david boies (ll.m. ’67) has had a highly success- ful legal career. At Cravath, Swaine Roundtable Guests B & Moore, he successfully defended During 2008-09 Dean Richard Revesz IBM from antitrust action, persuaded also invited these prominent alumni to General William Westmoreland to drop his intimate luncheons with students. libel suit against CBS, and made partner at 31. Boies left the firm in 1997 to start Boies, Sean O. Burton ’97 Schiller & Flexner, which counts as clients President and COO, CityView

American Express, DuPont, and NASCAR. Robert Holmes ’69 Nonetheless, he has never forgotten the one former Executive Vice President, that got away: Bush v. Gore. Sony Pictures Entertainment Boies recalled the infamous Supreme Court case, which he argued on Al Gore’s Max M. Kampelman ’45 behalf in 2000, at a roundtable last spring former Counselor, hosted by Dean Richard Revesz. “Ev- U.S. Department of State ery lawyer is used to losing cases, but it’s tough when you lose the whole country,” the Senate Antitrust Subcommittee and Jared Kushner ’07 Boies said, calling the defeat “particularly Judiciary Committee in the 1970s, and as Owner, New York Observer frustrating and disappointing” because counsel to the Federal Deposit Insurance Edgar A. Lampert ’65 the Florida courts had been receptive to Corporation in the 1990s. In 1997, he won the President, The Georgetown Company Gore’s arguments. Boies described those closely watched United States v. Microsoft tense post-election days for a rapt audi- antitrust case as the Justice Department's Ivan Ross ’86 ence of students. While the Court stipu- special trial counsel. (See page 4 for news on Managing Director, Goldman Sachs & Co. lated that its decision should not be used Boies’s latest headline-grabbing suit.) as precedent, Boies likened the case to a That high-profile case undoubtedly landmine: “People sometimes even forget helped to fuel the extraordinary growth of Boies, who suffers from dyslexia, does it’s there, but in the right circumstances it Boies’s three-lawyer boutique into a 240-at- not use notes when arguing in court, but can blow something up.” He predicted we torney behemoth. Despite its size, Boies still can still cite cases from memory, down to may not have heard the last of Bush v. Gore. believes that less is more. “Size is really an the page number. And despite being a for- “It could come back to haunt some of the enemy,” he said. “But it’s a necessary evil be- midable trial lawyer, he confessed that he ideological conservatives who thought it cause if you’re not growing, you’re not going had his heart set on teaching; he was an was a good idea at the time.” to be able to continue to have the very best adjunct professor at NYU Law for six years. Boies is no stranger to politics. He served lawyers, and having the very best lawyers is “I enjoy the law,” he said. “There’s almost no as chief counsel and staff director to both the way you keep the very best clients.” aspect of it that I don’t enjoy.” All Aboard: Recent Graduates Party at Grand Central Station

2

date??? october 16, 2008 1

in training 1 Sipping cocktails at Metrazur, in Grand Central Station’s iconic great hall; 2 Anna Hutchinson ’04, Jade Hon ’04, and Kelvin Chen ’04; 3 Daniel Blaser '06, Lisa Ahdoot and Jonathan Ahdoot '06; 4 Eugene Kowel ’01 and Fernanda Ramo 3 4

THE LAW SCHOOL 2009 119 Honor Guard: NYU Law Lauds Outgoing Board Chair

2 3

thanks, and hello 1 Anthony Welters ’77 honored Lester Pollack ’57 for his tenure as chair of the Board; 2 Fried, Frank, Harris, Shriver & Jacobson partner and new trustee october 2, 2008 Jonathan Mechanic ’77; 3 Minnesota Vikings owner and new trustee Mark Wilf ’87 1 Stepping Out in Beverly Hills London Exchange

february 23, 2009 march 24, 2009

Charles P. Rettig (LL.M. ’82) of Hochman, Salkin, Rettig, Toscher & Perez hosted Cocktail reception host Lady Barbara Judge ’69, chairman of the UK Atomic a tax law alumni luncheon with guest speaker Terence Cuff (LL.M. ’79). Energy Authority, with guest Charles Hawes ’97.

Applause, Applause: Notable Alumni Career Highlights Law Trustee Sheila Birnbaum ’65 was Susan Herman ’74 has been elected presi- Eric Doppstadt ’84 was appointed vice awarded an honorary Doctor of Laws from dent of the American Civil Liberties Union. president and chief investment officer of Hunter College in 2009. the Ford Foundation. Peter Neufeld ’75, co-founder of the Inno- Yaakov Neeman (LL.M. ’65, J.S.D. ’68) was cence Project, was given the University of Loretha Jones ’84 is the new president of sworn in as Israel's Justice Minister in March. Virginia’s Thomas Jefferson Medal in Law. programming, responsible for original pro- He previously served as director general of gramming, news, development, planning, Israel's Ministry of Finance. Tongthong Chandransu (LL.M. ’80) has and acquisitions at BET Networks. been named secretary general of the Office Daniel David Ntanda Nsereko (LL.M. ’71, of National Education Council in Thailand. Ann Lininger ’95 has been selected to serve J.S.D. ’75) was sworn in as a judge of the In- a four-year term on the Clackamas County ternational Criminal Court in January 2008. David S. Cunningham III ’80 was appointed Board of Commissioners in Oregon. to the Los Angeles Superior Court by Gov- Marc Marmaro ’72 and Richard Marmaro ernor Arnold Schwarzenegger in April. Sean Burton ’97 has been appointed to the ’75 were inducted into the American College Los Angeles Planning Commission by L.A. of Trial Lawyers, the first time brothers have Patrick Ende ’82 has been named chief Mayor Antonio Villaraigosa. been inducted at the same time. counsel to Maine Governor John Baldacci. Frank J. Macchiarola ’02 has been named James Clark ’73, a partner at Gibson, Dunn Felicia Marcus ’83 has filled the newly the Republican staff director of the Senate & Crutcher in Los Angeles, has become an created position of western director with Committee on Health, Education, Labor and American College of Trial Lawyers fellow. the Natural Resources Defense Council. Pensions.

120 NYU SCHOOL OF LAW

Making the Grade

Ambassador Khalilzad Addresses Class of 2009 at Convocation | 82 Singapore Program Graduates 55 | 82 Smiles and Tears: Hooding Album | 83 Secretary Clinton Speaks at NYU Commencement | 84

Dr. Shila Sarker beams at her son, Paul, at the entrance to the WaMu Theater at Madison Square Garden. Paul Sarker is a media and licensing associ- ate in the office of in-house counsel at Marvel Enter- tainment in New York City . “NYU has truly been the Brandon LeBlanc, above left, being hooded; Sumiti Yadava, above right, and LeBlanc were asked to say greatest adventure of my life a few words on behalf of the Class of 2009. “Now we’re looking out into so far. Its brilliant academic the world and we can plot the environment, driven by the direction and we can choose emphasis on innovation, “Your NYU Law education Singapore Joint- the way we want to walk.” has pushed us hard to ask the has shown you—through Degree Program right questions more than your work with faculty, J.D. class speaker to give the right answers.” the clinics, and centers, and Graduates 55 Ian Marcus Amelkin, the first your exposure to alumni who this year’s graduates from the person in his family to earn Graduate studies class speaker are teachers, practitioners, NYU@NUS program celebrated the a professional degree Matthildi Chatzipanagiotou judges, and policymakers— 2009 convocation on March 2 at the that there is more than one Asian Civilisations Museum in Singa- pore. Among the invited guests were way to have an impact on family, friends, and faculty from both law, on policy, on business, universities and then-Deputy Prime on communities, and on the Minister of Singapore S. Jayakumar, Convocation 2009 Lauren Burke ’09, chair of the Class of 2009 Graduation lives of individual clients.” who would soon be appointed senior Gift Committee, and committee member Iván Chanis minister and coordinating minister for Barahona (LL.M. ’09) presented the class’s $62,700 gift national security. to Law School Board of Trustees Chair Anthony Welters Dean Richard Revesz ’77 and Lester Pollack ’57, chair emeritus. This is only the second class to gradu- “The World’s Most Powerful Political Idea” ate from the joint venture between the Former U.S. envoy to Afghanistan, Iraq, and the United Nations lauds the rule of law. New York University School of Law and the National University of Singapore that he more than 1,000 members of the United States of America, is the world’s position that he and Afghan President other countries cannot just replicate those NUS President Tan Chorh Chuan, speak- the Class of 2009, who had already most powerful political idea.” Hamid Karzai have described as chief ex- that have worked here, and instead must ing at the ceremony, said “exemplifies T journeyed long and far in pursuit The speech was subdued, yet powerful ecutive officer of the country. This would be tailored to their own political circum- how two top universities with a global of their law degrees, traveled another and even, at times, stirring. Khalilzad, now represent an enormous trajectory for stances, traditions, and cultures. However, vision have combined their strengths 6,000 miles and back again when Zalmay a counselor at the Center for Strategic and Khalilzad, who recalled in his speech be- I firmly believe that the aspiration for the and exploited complementarities to cre- Khalilzad, former U.S. ambassador to International Studies, helped create new ing a teenage Afghani exchange student rule of law, the desire for justice, account- ate a program that is unique in content Afghanistan, Iraq, and the United Nations, constitutions in both Afghanistan and Iraq, in a small California farming town, and ability, and due process, is universal.” In and international in composition.” invoked his own experiences in the Middle where the United States is still struggling feeling struck by its democratic spirit and places where women and minorities are A recurring theme at the ceremony East to remind the students of their privi- to maintain order. “All sides learned that American emphasis on fairness. A society denied equality and young people lack was the ability of the 55 graduates who lege and new responsibility. one can do battle over important issues on that respected the rules was a revelation to chances for merit-based advancement, hailed from 25 countries to better face “You are now custodians of the rule of the level of ideas and maneuvering through him, he said, making life simpler in small Khalilzad said, lawyers can offer recourse. the worrisome global economy armed law,” Khalilzad said in his May 15 convoca- argument, lobbying, bargaining, and other but significant ways. In his native country He stayed on this idealistic plane by of- with their dual degrees. Sumiti Yadava tion address at Madison Square Garden’s such means, as an alternative to violence,” he was used to the idea of buying a ticket to fering some parting career advice: “If you (LL.M. ’09) said it most artfully: “Within WaMu Theater. “Living in a modern West- he said. “In both cases the legal process, a sporting event or concert with the possi- take part in such efforts, it will be fulfilling the crisis lies an opportunity to test our ern democracy, it can be easy to forget just the negotiations, encouraged the start of a bility of being ejected from his seat in favor for you personally, and it will have a great strength, to show what winners are what this means, and more importantly, political reconciliation.” of a higher-ranking individual. meaning for those you help in countries made out of, and to prove that NYU’s what its absence means.... I have come to According to reports a few days later in Building the rule of law is a slow process, seeking the blessing of a system based motto, which calls upon us ‘to perse- believe that the rule of law, which in its con- the New York Times, Khalilzad could as- Khalilzad admitted, pointing out that it has on the recognition of human dignity and vere and to excel,’ is not just words, but temporary form is closely associated with sume a powerful, unelected government taken centuries in the West. “Solutions in founded on the rule of law.” a way of life.”

122 NYU SCHOOL OF LAW THE LAW SCHOOL 2009 123 “NYU has truly been the Brandon LeBlanc, above left, being hooded; Sumiti Yadava, above right, and LeBlanc were asked to say greatest adventure of my life a few words on behalf of the Class of 2009. “Now we’re looking out into so far. Its brilliant academic the world and we can plot the environment, driven by the direction and we can choose emphasis on innovation, “Your NYU Law education Singapore Joint- the way we want to walk.” has pushed us hard to ask the has shown you—through Degree Program right questions more than your work with faculty, J.D. class speaker to give the right answers.” the clinics, and centers, and Graduates 55 Ian Marcus Amelkin, the first your exposure to alumni who this year’s graduates from the person in his family to earn Graduate studies class speaker are teachers, practitioners, NYU@NUS program celebrated the a professional degree Matthildi Chatzipanagiotou judges, and policymakers— 2009 convocation on March 2 at the that there is more than one Asian Civilisations Museum in Singa- pore. Among the invited guests were way to have an impact on family, friends, and faculty from both law, on policy, on business, universities and then-Deputy Prime on communities, and on the Minister of Singapore S. Jayakumar, Convocation 2009 Lauren Burke ’09, chair of the Class of 2009 Graduation lives of individual clients.” who would soon be appointed senior Gift Committee, and committee member Iván Chanis minister and coordinating minister for Barahona (LL.M. ’09) presented the class’s $62,700 gift national security. to Law School Board of Trustees Chair Anthony Welters Dean Richard Revesz ’77 and Lester Pollack ’57, chair emeritus. This is only the second class to gradu- “The World’s Most Powerful Political Idea” ate from the joint venture between the Former U.S. envoy to Afghanistan, Iraq, and the United Nations lauds the rule of law. New York University School of Law and the National University of Singapore that he more than 1,000 members of the United States of America, is the world’s position that he and Afghan President other countries cannot just replicate those NUS President Tan Chorh Chuan, speak- the Class of 2009, who had already most powerful political idea.” Hamid Karzai have described as chief ex- that have worked here, and instead must ing at the ceremony, said “exemplifies T journeyed long and far in pursuit The speech was subdued, yet powerful ecutive officer of the country. This would be tailored to their own political circum- how two top universities with a global of their law degrees, traveled another and even, at times, stirring. Khalilzad, now represent an enormous trajectory for stances, traditions, and cultures. However, vision have combined their strengths 6,000 miles and back again when Zalmay a counselor at the Center for Strategic and Khalilzad, who recalled in his speech be- I firmly believe that the aspiration for the and exploited complementarities to cre- Khalilzad, former U.S. ambassador to International Studies, helped create new ing a teenage Afghani exchange student rule of law, the desire for justice, account- ate a program that is unique in content Afghanistan, Iraq, and the United Nations, constitutions in both Afghanistan and Iraq, in a small California farming town, and ability, and due process, is universal.” In and international in composition.” invoked his own experiences in the Middle where the United States is still struggling feeling struck by its democratic spirit and places where women and minorities are A recurring theme at the ceremony East to remind the students of their privi- to maintain order. “All sides learned that American emphasis on fairness. A society denied equality and young people lack was the ability of the 55 graduates who lege and new responsibility. one can do battle over important issues on that respected the rules was a revelation to chances for merit-based advancement, hailed from 25 countries to better face “You are now custodians of the rule of the level of ideas and maneuvering through him, he said, making life simpler in small Khalilzad said, lawyers can offer recourse. the worrisome global economy armed law,” Khalilzad said in his May 15 convoca- argument, lobbying, bargaining, and other but significant ways. In his native country He stayed on this idealistic plane by of- with their dual degrees. Sumiti Yadava tion address at Madison Square Garden’s such means, as an alternative to violence,” he was used to the idea of buying a ticket to fering some parting career advice: “If you (LL.M. ’09) said it most artfully: “Within WaMu Theater. “Living in a modern West- he said. “In both cases the legal process, a sporting event or concert with the possi- take part in such efforts, it will be fulfilling the crisis lies an opportunity to test our ern democracy, it can be easy to forget just the negotiations, encouraged the start of a bility of being ejected from his seat in favor for you personally, and it will have a great strength, to show what winners are what this means, and more importantly, political reconciliation.” of a higher-ranking individual. meaning for those you help in countries made out of, and to prove that NYU’s what its absence means.... I have come to According to reports a few days later in Building the rule of law is a slow process, seeking the blessing of a system based motto, which calls upon us ‘to perse- believe that the rule of law, which in its con- the New York Times, Khalilzad could as- Khalilzad admitted, pointing out that it has on the recognition of human dignity and vere and to excel,’ is not just words, but temporary form is closely associated with sume a powerful, unelected government taken centuries in the West. “Solutions in founded on the rule of law.” a way of life.”

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5. Omomichi Bujo with 10. James Hallock with 14. David Lawrence 18. Andrew Ross 22. Matthew Benjamin Who’s Who his wife, Natsuko his mother, Maryanne ’09 with his Meyerson with his Rogers with his father, Bujo (LL.M. ’08) Honan ’79, and father, brother, Matthew mother, Roberta Laurence Rogers ’75 1. Emilie Adams with her 6. Akash Desai Kurt Hallock ’80 Lawrence ’09 Meyerson (LL.M. ’78) 23. Sarah Samuels with father, David Adams with his brother, 11. Brian Horan with 15. Yulia Makhotina 19. Ann-Elizabeth her father, John ’77, and mother, Atur Desai ’06 his brother, Paul with her husband, Ostrager with Samuels (LL.M. ’75) Mindy Farber ’77 7. Jason Falk with his Horan ’00 Mikhail Makhotin her father, Barry 24. Zachary Segal with 2. Rebecca Anikstein father, Edward Falk 12. Jeremy Kimball (LL.M. ’07) Ostrager ’72 his brothers Justin with her mother, (LL.M. ’83) with his father, 16. Katherine Mastman ’09 20. Danielle Polebaum Segal ’96 and Law Pride and Joy Karen Levy ’77 8. Maurice Gindi with Dudley Kimball ’74 with her brother, with her father, Elliot School Trustee 3. Thomas John his cousin, Jacob (LL.M. ’78) Michael Mastman ’09 Polebaum ’77, and Andrew Segal ’92 Beaming relatives and scholarship donors hood members of the Class of 2009 and Attanasio with Sasson ’06 13. Emily Kindler 17. Ravi Mehta with her mother, Gilda 25. David Alfasi Siffert his father, John with her father, his cousin, Mehri Brancato ’77 with his father, celebrate the achievement of attaining a degree from the NYU School of Law. Attanasio ’79 9. David Goldstein with his father, Law School Trustee Shadman ’06 21. Rebecca Press with NYU School of Law 4. Andrew Baker with Seth Goldstein ’76 Robert Kindler ’80 her father, Aric Press Adjunct Professor his grandfather, ’74, and mother, John Siffert Charles Sakany ’56 Jean Berman ’77 (continues on next page)

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5. Omomichi Bujo with 10. James Hallock with 14. David Lawrence 18. Andrew Ross 22. Matthew Benjamin Who’s Who his wife, Natsuko his mother, Maryanne ’09 with his Meyerson with his Rogers with his father, Bujo (LL.M. ’08) Honan ’79, and father, brother, Matthew mother, Roberta Laurence Rogers ’75 1. Emilie Adams with her 6. Akash Desai Kurt Hallock ’80 Lawrence ’09 Meyerson (LL.M. ’78) 23. Sarah Samuels with father, David Adams with his brother, 11. Brian Horan with 15. Yulia Makhotina 19. Ann-Elizabeth her father, John ’77, and mother, Atur Desai ’06 his brother, Paul with her husband, Ostrager with Samuels (LL.M. ’75) Mindy Farber ’77 7. Jason Falk with his Horan ’00 Mikhail Makhotin her father, Barry 24. Zachary Segal with 2. Rebecca Anikstein father, Edward Falk 12. Jeremy Kimball (LL.M. ’07) Ostrager ’72 his brothers Justin with her mother, (LL.M. ’83) with his father, 16. Katherine Mastman ’09 20. Danielle Polebaum Segal ’96 and Law Pride and Joy Karen Levy ’77 8. Maurice Gindi with Dudley Kimball ’74 with her brother, with her father, Elliot School Trustee 3. Thomas John his cousin, Jacob (LL.M. ’78) Michael Mastman ’09 Polebaum ’77, and Andrew Segal ’92 Beaming relatives and scholarship donors hood members of the Class of 2009 and Attanasio with Sasson ’06 13. Emily Kindler 17. Ravi Mehta with her mother, Gilda 25. David Alfasi Siffert his father, John with her father, his cousin, Mehri Brancato ’77 with his father, celebrate the achievement of attaining a degree from the NYU School of Law. Attanasio ’79 9. David Goldstein with his father, Law School Trustee Shadman ’06 21. Rebecca Press with NYU School of Law 4. Andrew Baker with Seth Goldstein ’76 Robert Kindler ’80 her father, Aric Press Adjunct Professor his grandfather, ’74, and mother, John Siffert Charles Sakany ’56 Jean Berman ’77 (continues on next page)

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124 NYU SCHOOL OF LAW 12 13 14 26 27 28 THE LAW SCHOOL 2009 125 making the grade “Be Citizen Ambassadors” Secretary of State Clinton receives an honorary doctorate of laws and delivers a commencement address. ith washington square park by almost everybody, immediately and still undergoing renovation, a unavoidably.” W brand-new Yankee Stadium pinch- The university bestowed five honor- hit as the site for New York University’s ary degrees on such notables as physicist 177th Commencement Exercises. An Albert Fert, healthcare advocate Jessie estimated 20,000 guests donned NYU Christine Gruman, former White House Commencement baseball caps, transform- journalist Helen Thomas, and playwright, 31 32 ing the first and second decks from their director, and NYU alumnus John Patrick usual navy-and-white pinstripes to violet. Shanley. Introduced by President Sexton The smell of fresh paint and new plastic as a “deeply loyal and cherished friend of intermingled with amplified speeches that NYU,” Secretary of State Hillary Clinton, were somber and hopeful, referencing the who received an honorary doctorate of laws, serious, even perilous, issues currently at spoke on behalf of all the honorary degree play while also acknowledging our human recipients. While describing the rough road progress. “We live in an era when the great ahead, Clinton recognized the potential of world has grown small,” said President the new administration and the new grad- anti-terrorism protests in Colombia, fueled 34 John Sexton. “What happens in distant uates. “I am well aware of the challenges by the support of over 250,000 Facebook us- places is experienced almost everywhere, that we face,” said Clinton. “You, as new ers. Diplomacy, as Clinton pointed out, is graduates, and your generation will be up no longer “the domain of privileged men against those challenges: climate change working behind closed doors.” and hunger, extreme poverty and extreme As the purple-and-black-robed gradu- ideologies, new diseases and nuclear pro- ates left Yankee Stadium, now armed with liferation.” She noted that the young inevi- NYU degrees, the words of Clinton, former tably must step up to the plate: “The biggest first lady and once and perhaps future presi- challenges we face today will be solved by dential candidate, lingered on, urging them the 60 percent of the world’s population un- to swing for the bleachers: “Be the special

33 35 36 der the age of 30.” envoys of your ideals; use the communica- Clinton expressed confidence that be- tion tools at your disposal to advance the 26. Cheryl Ann Testa 30. Lindsey Weinstock 32. M. Carr Ferguson 34. Hauser Global Law 36. KPMG Graduate Tax 39. C.V. Starr Scholars fore her sat a “future generation of diplo- interests of our nation and humanity every- with her fiancé, with her father, Fellow David Warner School Starr Scholars Scholars Gunther Jeffrey Goetz and mats.” The use of new media and social where; be citizen ambassadors, using your Michael Espinoza ’06 Jeffrey Weinstock ’73 was hooded by Law Na Yang, Davidson Wagner and Matthew Jonathan Horne were networking Web sites—the same ones that personal and professional lives to forge 27. Michael Tisch Scholars and Donors School Trustee M. Carr Mwaisaka, and Alamo Reiber were hooded by hooded by Law School Ferguson (LL.M. ’60) Laiman were hooded Lawrence Allen Pollack Trustee Florence helped Barack Obama become the 44th global partnerships, build on a common with his father, 31. AnBryce Scholars University Trustee 33. Furman Academic by Starr Foundation (LL.M. ’88) (not photo- Davis ’79 president of the United States—can be the commitment to solving our planet’s com- (from back): Krenice President and Law graphed: Ajay Gupta) Daniel Tisch Roseman, Joe Fellows (from back): 40. The Sullivan & seed of change. Clinton told the story of mon problems.” Matthew Lawrence, School Trustee Florence 37. Norma Z. Paige Cromwell Public 28. Jaime Vasquez with Hurtado, Toby Lewis, Davis ’79 his brother, Juan Christopher Filburn, Brian Burgess, Patrick Scholar Eleanor Tai Interest Scholar Anna Vasquez Jr. (LL.M. Jason Banks, Kristina Garlinger, Rebecca 35. Deborah Rachel was hooded by Law Purinton was hooded ’02), and father, Alexander, Jennifer Stone and Joshua Linfield Fellow School Trustee by Law School Trustee Judge Juan Vasquez Swayne, Hyun Kim, Libling were hooded Elizabeth Seidlin- Norma Paige ’46 Kenneth Raisler ’76 (LL.M. ’78) and Lerin Kol were by Law School Trustee Bernstein was hooded 38. Sinsheimer Public Jay Furman ’71 by Jordan Linfield Making the Grade 29. Tim Henry hooded by Anthony Service Scholar photographs by Leo Sorel Warden-Hertz with Welters ’77, chairman Russell Curtiss Crane his grandmother, of the Law School’s was hooded by Law Natalie Hertz ’76 Board of Trustees, and School Trustee Warren Beatrice Welters Sinsheimer (LL.M. ’57)

39

126 NYU SCHOOL OF LAW 37 38 40 THE LAW SCHOOL 2009 127 making the grade “Be Citizen Ambassadors” Secretary of State Clinton receives an honorary doctorate of laws and delivers a commencement address. ith washington square park by almost everybody, immediately and still undergoing renovation, a unavoidably.” W brand-new Yankee Stadium pinch- The university bestowed five honor- hit as the site for New York University’s ary degrees on such notables as physicist 177th Commencement Exercises. An Albert Fert, healthcare advocate Jessie estimated 20,000 guests donned NYU Christine Gruman, former White House Commencement baseball caps, transform- journalist Helen Thomas, and playwright, 31 32 ing the first and second decks from their director, and NYU alumnus John Patrick usual navy-and-white pinstripes to violet. Shanley. Introduced by President Sexton The smell of fresh paint and new plastic as a “deeply loyal and cherished friend of intermingled with amplified speeches that NYU,” Secretary of State Hillary Clinton, were somber and hopeful, referencing the who received an honorary doctorate of laws, serious, even perilous, issues currently at spoke on behalf of all the honorary degree play while also acknowledging our human recipients. While describing the rough road progress. “We live in an era when the great ahead, Clinton recognized the potential of world has grown small,” said President the new administration and the new grad- anti-terrorism protests in Colombia, fueled 34 John Sexton. “What happens in distant uates. “I am well aware of the challenges by the support of over 250,000 Facebook us- places is experienced almost everywhere, that we face,” said Clinton. “You, as new ers. Diplomacy, as Clinton pointed out, is graduates, and your generation will be up no longer “the domain of privileged men against those challenges: climate change working behind closed doors.” and hunger, extreme poverty and extreme As the purple-and-black-robed gradu- ideologies, new diseases and nuclear pro- ates left Yankee Stadium, now armed with liferation.” She noted that the young inevi- NYU degrees, the words of Clinton, former tably must step up to the plate: “The biggest first lady and once and perhaps future presi- challenges we face today will be solved by dential candidate, lingered on, urging them the 60 percent of the world’s population un- to swing for the bleachers: “Be the special

33 35 36 der the age of 30.” envoys of your ideals; use the communica- Clinton expressed confidence that be- tion tools at your disposal to advance the 26. Cheryl Ann Testa 30. Lindsey Weinstock 32. M. Carr Ferguson 34. Hauser Global Law 36. KPMG Graduate Tax 39. C.V. Starr Scholars fore her sat a “future generation of diplo- interests of our nation and humanity every- with her fiancé, with her father, Fellow David Warner School Starr Scholars Scholars Gunther Jeffrey Goetz and mats.” The use of new media and social where; be citizen ambassadors, using your Michael Espinoza ’06 Jeffrey Weinstock ’73 was hooded by Law Na Yang, Davidson Wagner and Matthew Jonathan Horne were networking Web sites—the same ones that personal and professional lives to forge 27. Michael Tisch Scholars and Donors School Trustee M. Carr Mwaisaka, and Alamo Reiber were hooded by hooded by Law School Ferguson (LL.M. ’60) Laiman were hooded Lawrence Allen Pollack Trustee Florence helped Barack Obama become the 44th global partnerships, build on a common with his father, 31. AnBryce Scholars University Trustee 33. Furman Academic by Starr Foundation (LL.M. ’88) (not photo- Davis ’79 president of the United States—can be the commitment to solving our planet’s com- (from back): Krenice President and Law graphed: Ajay Gupta) Daniel Tisch Roseman, Joe Fellows (from back): 40. The Sullivan & seed of change. Clinton told the story of mon problems.” Matthew Lawrence, School Trustee Florence 37. Norma Z. Paige Cromwell Public 28. Jaime Vasquez with Hurtado, Toby Lewis, Davis ’79 his brother, Juan Christopher Filburn, Brian Burgess, Patrick Scholar Eleanor Tai Interest Scholar Anna Vasquez Jr. (LL.M. Jason Banks, Kristina Garlinger, Rebecca 35. Deborah Rachel was hooded by Law Purinton was hooded ’02), and father, Alexander, Jennifer Stone and Joshua Linfield Fellow School Trustee by Law School Trustee Judge Juan Vasquez Swayne, Hyun Kim, Libling were hooded Elizabeth Seidlin- Norma Paige ’46 Kenneth Raisler ’76 (LL.M. ’78) and Lerin Kol were by Law School Trustee Bernstein was hooded 38. Sinsheimer Public Jay Furman ’71 by Jordan Linfield Making the Grade 29. Tim Henry hooded by Anthony Service Scholar photographs by Leo Sorel Warden-Hertz with Welters ’77, chairman Russell Curtiss Crane his grandmother, of the Law School’s was hooded by Law Natalie Hertz ’76 Board of Trustees, and School Trustee Warren Beatrice Welters Sinsheimer (LL.M. ’57)

39

126 NYU SCHOOL OF LAW 37 38 40 THE LAW SCHOOL 2009 127 A Chat with Max Kampelman

In 1985, President Ronald Reagan reported back to his principal advisers after his first meeting with Mikhail Gorbachev. Members of the de­part​ ​- ­ments­­​­ of Defense and State were there, and so was arms nego­tiator Max Kampelman ’45, who remembers Reagan saying that he told the newly installed Soviet leader: “Wouldn’t it be great if our negotiations ended up with zero nuclear weapons for everybody?” Kampelman, who was also a top aide to Senator Hubert Humphrey, counselor to Secretary of State George Shultz, and founding host of Washington Week in Review, talked this spring with Daniel Benjamin of the Brookings Institution about what drives him, at the age of 88, to work for nuclear disarmament.

You have always described yourself as a liberal Democrat. How did you become Ronald Reagan’s arms negotiator? When Reagan was elected, I was in Madrid as President Carter’s negotiator for the Conference on Security and Cooperation in Europe, the continu- ation of the 1975 Helsinki Conference. I got a call from Al Haig, who was going to be the secretary of state. “The president wants to reap- point you.” I knew Haig quite well and said, “Al, I’m a Democrat.”  o in 1985 how did all of Reagan’s advisers react to the “zero” He says, “He knows you’re a Democrat and he’s reappointing two comment? There was consternation. His staff and cabinet people Democrats: you and Ambassador Mike Mansfield in Japan.” S very politely tried to point out that it was not in our interest to Madrid lasted till 1983, then I was back in private life. President go to zero. He listened attentively—didn’t argue, didn’t respond. But Reagan, out of the blue, calls me up and says, “Max, we’re gonna re- a year later in Reykjavík he repeated zero to Gorbachev. start our negotiations on arms.” I knew he had just seen Gorbachev in Geneva. “And I want you to head up the American delegation.” Why are you pushing the “zero option” now? I read in the press after I said, “I’m not equipped—I don’t know the first thing about the 9/11 that if those airplanes had carried nuclear weapons, New York nuclear arms issue.” He said, “I know, but you and I worked very and Washington would have been destroyed. It scared the living closely in Madrid.” And he then said with a laugh, “Actually you’re daylights out of me. So I called some of my old staff and asked them, the only fellow Shultz and [Caspar] Weinberger could agree on.” “Were you right or was Reagan right?” As an aide to Humphrey, you worked for the passage of key civil That’s how you became the catalyst behind the “Gang of Four”— rights legislation. How did you feel seeing an African American former Secretaries of State George Shultz and Henry Kissinger, former sworn in as president? Really, my chest bursts with satisfaction. Secretary of Defense William Perry and former Senator Sam Nunn— My concern is that he is inadequately prepared. But he can learn. who are advocating eliminating nuclear arms. But with the North Ko- reans testing their nuclear device and the Iranians enriching uranium, You had been a pacifist during World War II—a pretty unusual thing this doesn’t seem the time to go to zero. All of this makes it essential to for a Jewish kid from the Bronx. And as a conscientious objector, go to zero. It’s got to be done universally. It also cannot realistically you were involved in a range of government-approved activities. materialize unless we develop a method of preventing cheating. I was an only child; I went to a Jewish school. But the exposure to We must first establish a recognition about the international the world was not there. During the war, I worked as a hospital nurse desirability and necessity of zero, and build on that. It depends on for mentally handicapped children in Maine, and was involved in our leadership or the leadership of other countries—and, in my soil conservation work and the University of Minnesota’s Starvation opinion, the declaration of the “ought” by the General Assembly Experiment, which was supposed to help the authorities learn what of the United Nations. There is no other vehicle in the world which challenges they would face with POWs and concentration camp sur- can establish the “ought.” Now, it is much too weak and unable to vivors. We had a 1,500 calorie-a-day diet and 3,000 calorie-a-day bring about the “is,” but it can establish the “ought.” work regimen. I went from 161 pounds to under 120.

Would you support the use of force against Iran if it doesn’t stop the Looking back on your life, what are you proudest of? The Starvation development of nuclear weapons? Yes. If they got it, and the Paki- project. Everything else took time, a little energy—but the thing stani scientist admits he sold the goddam thing, I would. that hurt and I paid a price for was the Starvation Experiment.

128 NYU SCHOOL OF LAW Take A Shot

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v and Security o l Find out what you can do to have Please contact Marsha Metrinko at u m e IN THE WAKE of 9/11, SACRED TENETS OF DEMOCRACY ARE BEING challengED your firm acknowledged on our (212) 998-6485 or [email protected]. XIX Wall of Honor. and a NEW LEGAL DISCIPLINE grapples with the fallout.