NUMBER 65 SUMMER 2010

THE BULLETIN

PRESIDENT-ELECT JOSEPH SEES IMPENDING CRISIS

Greg Joseph and wife Barbara The American judicial system is at a turning point of historical proportions and new College president Greg Joseph pledges to focus on the issues as his highest priority for 2010-2011.

Continued on page 8

This Issue: 88 Pages FROM THE EDITORIAL BOARD

As is our custom, we have attempted to preserve, the impact of the present near stalemate in the particularly for those Fellows who were not present, confirmation of federal judicial nominees, the the essence of what a superb group of speakers had process of selecting a Justice of the United States to say at the 60th Spring Meeting of the College in Supreme Court and finally, the issue of closing Palm Springs, California. the detainment center at Guantánamo Bay, are a revealing inside look at the inner workings of a The economy and contentious national issues national administration. dominated the program In this issue you will thus find Andrew Ross Sorkin’s riveting presentation On the latter subject, Craig paid tribute to those of how he went about researching and writing lawyers who have stepped forward to represent his best-selling account of the 2008 financial detainees in habeas corpus proceedings. The meltdown, Too Big to Fail. Fellows of the College who have participated in those representations will be honored at the Fall The presentation by Sullivan & Cromwell attorney Meeting in Washington, D.C. H. Rodgin Cohen of his insider’s blow-by-blow account of how close we came to a financial The account of the debate between David Boies, Armageddon in that meltdown and his detailed FACTL, and David B. Rivkin, Jr. of the issues prescription of what we need to do to ensure that involved in Perry v. Schwarzenegger, the case experience not be repeated may provide you with a challenging California’s Proposition 8, which checklist against which to grade the evolving steps bans same-sex marriages, may provide you with a we take towards that end. program guide as that case, raising one of the more contentious social issues of our time, wends its Law firm consultant Peter Zeughauser’s way through the federal appellate system. reflections on the impact of a changing economy on law firms are worthy of study, even for those We know Louis D. Brandeis as a legendary who are not in large law firms. Associate Justice of the United States Supreme Court. Professor and historian Melvin I. Author Bryan Burrough’s story of the rise and fall Urofsky’s account of Brandeis’ thirty-eight years of Marc Dreier, whose large law firm itself turned as a practicing lawyer casts a new light on Brandeis out to be a massive Ponzi scheme, is a modern and chronicles a pivotal time in the evolution of the morality tale that every lawyer ought to read. legal profession in the United States.

As for contentious national issues, Professor And finally, the inspiring story of D. J. Gregory’s Stephen A. Saltzberg’s analysis of the issues year-long odyssey as he walked every hole of involved in deciding where, and in what tribunals, every PGA tournament in 2008 in spite of his life- those accused of terrorism should be tried is an long battle with cerebral palsy, may be well worth eloquent statement of one point of view on those reading to your children or grandchildren. issues.

All three of the subjects that Former White House Counsel Gregory B. Craig, FACTL, addressed,

2 w THE BULLETIN American College of Trial Lawyers The Bulletin IN THIS ISSUE

Chancellor-Founder Hon. Emil Gumpert President-Elect Greg Joseph...... Cover (1895-1982)

Officers From the Editorial Board...... 3 Joan. A. Lukey, President Gregory P. Joseph, President-Elect Chilton Davis Varner, Secretary Spring Meeting Overview...... 4 Thomas H. Tongue, Treasurer John J. (Jack) Dalton, Immediate Past President Roster Update...... 7 Board of Regents

Paul D. Bekman Robert A. Goodin Baltimore, Maryland San Francisco, California Fellows to the Bench...... 7

Robert L. Byman Christy D. Jones Chicago, Illinois Jackson, Mississippi Centenarian Honored...... 11 Bartholomew J. Dalton Gregory P. Joseph Wilmington, Delaware New York, New York Where to Try Terrorists—Saltzburg...... 12 John J. (Jack) Dalton Joan A. Lukey Atlanta, Georgia Boston, Massachusetts

Michel Decary, Q.C. Paul S. Meyer Montreal, Canada Costa Mesa, California Too Big to Fail—Sorkin...... 18

John M. Famularo John S. Siffert Lexington, Kentucky New York, New York Never Again—Cohen...... 24 Bruce W. Felmly Michael W. Smith Manchester, New Hampshire Richmond, Virginia

Paul T. Fortino Thomas H. Tongue Brave New Legal World...... 30 Portland, Oregon Portland, Oregon

Samuel H. Frankin Chilton Davis Varner Birmingham, Alabama Atlanta, Georgia Awards, Honors, Elections...... 35

Phillip R. Garrison Francis M. Wikstrom Springfield, Missouri Salt Lake City, Utah College Inducts 88...... 36 Editorial Board E. Osborne Ayscue, Jr., Charlotte, North Carolina, Chair The Saga of Marc Dreier...... 38 Susan S. Brewer, Morgantown, West Virginia, Vice Chair James J. Brosnahan, San Francisco, California Richard C. Cahn, Melville, New York Andrew M. Coats, Norman, Oklahoma Louis Brandeis, Trial Lawyer...... 43 Michael A. Cooper, New York, New York Patricia D. S. (Trisha) Jackson, Toronto, Ontario Timothy D. Kelly, Minneapolis, Minnesota Hon. Garr M. King, Portland, Oregon Former White House Counsel...... 49 Warren B. Lightfoot, Birmingham, Alabama C. Rufus Pennington, III, Jacksonville, Florida Simon V. Potter, Montreal, Quebec Conrad M. Shumadine, Norfolk, Virginia Same-Sex Marriage...... 56 Michael A. Williams, Denver, Colorado G. Gray Wilson, Winston-Salem, North Carolina Samuel H. Franklin, Birmingham, Alabama, Regent Liaison Walking With Friends...... 63

Marion A. Ellis, Editor Telephone: 919.383.3737 Email: [email protected] In Memoriam...... 68 Liz Doten, Art Direction and Design Email: [email protected]

American College of Trial Lawyers A current calendar of College events is posted on Dennis J. Maggi, CAE Executive Director the College website at www.actl.com, as is 19900 MacArthur Boulevard, Suite 530, Irvine, California 92612 a current compendium of the ongoing projects Telephone: 949.752.1801 Facsimile: 949.752.1674 Email: [email protected] Website: www.actl.com of the College’s National Committees. COPYRIGHT © 2010

THE BULLETIN w 3 60TH SPRING MEETING PROGRAM A SUCCESS PALM DESERT, CALIFORNIA

The Desert Springs JW Marriott Resort and Spa at Palm Desert, California was the site for the College’s 60th Spring Meeting.

President-elect Gregory P. Joseph, New York, New York, had planned outstanding programs for both Friday and Saturday mornings, over which President Joan A. Lukey, Boston, Massachusetts, presided.

A Thursday afternoon professional program, entitled Task Force on Discovery and Civil Justice Symposium: Let the Dialogue Begin, launched the meeting. The Joint Report of the College’s Task Force on Discovery and Civil Justice and the Institute for the Advancement of the American Legal System and their supplementary publications, intended to be used in pilot projects to test the findings and recommendations in the report, have stirred an ongoing national debate. This was the first occasion that the Fellows had to engage in a discussion of the Task Force’s recommendations.

President Lukey introduced the moderators and panel- ists. The moderators were Paul C. Saunders, FACTL, John D. Wilson, Jr., FACTL, Debbi Wilson New York, New York, and Ann B. Frick, FACTL, Den- and Inductee Elizabeth (Liz) Leedom, all of ver, Colorado, Task Force Chair and Vice-Chair, respec- Seattle, Washington, enjoy the Sixties Party tively. The panelists were Task Force members William U. Norwood, III; FACTL, Atlanta, Georgia, W. Foster Wollen, FACTL, San Francisco, California, and Judge Jack Zouhary, Jr., JFACTL, Toledo, Ohio. They were joined by Paula Fisett Sweeney, FACTL, Dallas, Texas,

4 w THE BULLETIN Hon. Sam Sparks, JFACTL, Sorkin was followed by banking ity tale well worth pondering Marshall, Texas and Hon. T. and finance attorney H. Rodgin and passing on to the next gen- John Ward, JFACTL, Austin, Cohen, New York, New York, eration of lawyers. Texas. Chairman of Sullivan & Crom- well LLP, who had been in the The Friday morning program President Lukey and her hus- middle of many of the critical ended with a presentation band, Phil Stevenson greeted moments in the 2008 financial by law firm consultant Peter the arriving attendees at a recep- meltdown. In remarks entitled Zeughauser, Newport Beach, tion on Thursday night. The Financial Crisis of 2008: California, who gave his analy- “Never Again,” Cohen both sis of the impact of the financial The Friday morning program explained how the crisis had meltdown of 2008 and its after- commenced with an invocation developed and gave a careful math on the legal profession. by Regent Robert A. Goodin, point-by-point outline of the San Francisco, California. remedies he sees as fundamen- The Friday evening entertain- tal to protecting the financial ment, labeled Celebrate the In the College’s effort to present system against a recurrence. Sixties: Camelot to Haight- various points of view, the legal Ashbury. Began with a sixties- issues surrounding the detainees The Congressional legislation era video clip of an Ed Sullivan at Guantanamo Bay, Cuba, have that has since been enacted is introduction, followed by three been the subject of a number of on its face a work in progress, Supremes lookalikes and others programs at its national meet- with most of the details left to who turned out a string of nos- ings. The first speaker, George be filled in by administrative talgic music, including such fa- Washington University Law regulation. Cohen’s outline, vorites as You Keep Me Hanging School Professor Stephen A. which is covered in detail in this On, Stop in the Name of Love Saltzburg, Washington, District issue, will serve as a convenient and My Girl. At one point in the of Columbia, continued that tra- checklist for those who wish to evening, the announcer made dition. He delivered a provoca- follow how well we are address- a brief “public service” an- tive presentation entitled Where ing systemic problems in our fi- nouncement, “Committee meet- To Try Terrorists, exploring the nancial system. ings start at seven in the morn- pros and cons of using military ing,” a reminder that had little commissions, military courts Cohen was followed by author impact on the remaining crowd martial or Article III courts for Bryan Burrough, New York, of dancers, many of whom were this task. New York, perhaps best known actually old enough to remem- for his epic work, Barbarians ber the Sixties. The next speaker, author and at the Gate: The Fall of RJR New York Times reporter An- Nabisco, published when he The first speaker on Saturday drew Ross Sorkin, New York, was twenty-nine years old. Bur- morning was former White New York, author of the best- rough presented an inside look House Counsel Gregory B. selling book Too Big To Fail, at the rise and fall of New York Craig, FACTL, Washington, delivered a riveting inside look attorney Marc Dreier, whose en- District of Columbia, who at some of the major players in tire law firm was exposed as one shared his reflections on the log- the financial crisis of 2008 and giant Ponzi scheme. Eclipsed by jam in federal judicial confirma- recounted how he had gone the subsequent exposure of the tions, the considerations in se- about researching and writing misdeeds of Bernie Madoff and lecting a nominee to the United his highly acclaimed account of Allen Stanford, Dreier’s story, States Supreme Court and the that complicated saga. which has thus faded from the issues surrounding the proposed public view, is a modern moral- L

THE BULLETIN w 5 closing of the detainment facility The final presentation of the Carolina, delivered the now six- at Guantanamo Bay. morning came from D.J. Greg- ty-year-old induction charge. In- ory, born with cerebral palsy, ductee and new Fellow Corinne Professor and author Melvin I. whose book, entitled Walking E. Rutledge, Cheyenne, Wyo- Urofsky, Gaithersburg, Mary- With Friends: An Inspirational ming, who is also the wife of a land, presented a look at the less Year on the PGA Tour, chroni- Fellow, gave the response on be- familiar, but nevertheless illumi- cles the year in which he walked half of the new inductees. nating, history of iconic Supreme every hole of every round of ev- Court Justice Louis D. Brandeis, ery PGA tournament. The show- The meeting ended with both a during the thirty-eight years he ing of the made-for-television sing-along and dancing that fol- was a trial lawyer before his con- video about Gregory’s venture, lowed the induction banquet. firmation to the bench. which has been ESPN’s most often repeated program and its As is our custom, the presenta- In keeping with its tradition of most often requested video, was tions of the program speakers exposing the Fellows to the pros followed by Gregory’s own in- are preserved in separate articles and cons of current national le- spiring remarks to the audience. in this issue, so that those who gal issues, David Boies, FACTL, could not attend the meeting will New York, New York, and Da- Saturday was also the occasion have the benefit of the substance vid B. Rivkin, Jr., Washington, for a luncheon for inductees, of the presentations. District of Columbia, engaged in their spouses and guests to con- a debate, moderated by Regent tinue their introduction to the Paul S. Meyer, Costa Mesa, Cal- College, an introduction that ifornia, dealing with same-sex culminated in their induction at marriage and entitled The Con- a black-tie dinner, at which Past stitution and Defining Marriage President E. Osborne (Ozzie) in the 21st Century. Ayscue, Jr., Charlotte, North

As we begin this meeting of our great College, we pray for wisdom and humility as we pursue our critical mission, which, at its core, is to nurture, to protect and to extend the Rule of Law, both in our

countries and around the world, because it is the Rule of Law which makes possible the institutions which guarantee the freedom, security, and prosperity of our people; and because it is the Rule of Law which offers the best hope, ultimately, for peace and the only meaningful hope for justice. “ “ We also pray this morning for the safety of the brave men and women of our two countries who serve and defend us at home and around the world at great personal sacrifice to themselves and their families.

And, finally, we pray for relief from the suffering caused by two great natural disasters, for the people of Haiti and the people of Chile. Amen.

Regent Robert A. Goodin, San Francisco, Invocation at the opening session

6 w THE BULLETIN

ROSTER UPDATE

Preparations for the 2011 edition of the ACTL Roster are underway. Address change notices were sent to all Fellows mid July. Please mail any changes to the National Office so that we can update your listing. If you have changed firms or moved, please be sure to include your new e-mail address, telephone and fax numbers. As you verify the accuracy of your current Roster (Blue Book) listing, please also check the other listings in your state or province and notify us if we are currently listing deceased Fellows whose deaths have not been previously reported to us.

FELLOWS TO THE BENCH

Christine Byrd, Judge, Los Angeles County Superior Court, Los Angeles, California.

Sheila Finnegan, United States Magistrate Judge for the Northern District of Illinois, Chicago, Illinois.

Ann B. Frick, Judge, Denver District Court, Denver, Colorado.

David C. Harris, Q.C., Justice, Supreme Court of British Columbia, Vancouver, British Columbia.

Brian A. Jackson, United States District Judge for the Middle District of Louisiana, Baton Rouge, Louisiana.

Terrence J. Lavin, Justice, Illinois Appellate Court, First District, Chicago, Illinois.

Marc Marmaro, Judge, Los Angeles County Superior Court, Los Angeles, California.

Joseph M. Quirk, Judge, Sixth Judicial Circuit of Maryland, Rockville, Maryland.

David Stratas, Justice, Federal Court of Appeal, Ottawa, Ontario.

Marc T. Treadwell, United States Judge for the Middle District of Georgia, Macon, Georgia.

Matt J. Whitworth, United States Magistrate Judge for the Middle District of Missouri, Jefferson City, Missouri.

THE BULLETIN w 7 Continued from cover “Judges are being attacked in sive for a plaintiff in a civil case election cycle, with judges un- the press. They are being paid to get it to trial.” able to respond on their own shabbily. The system of ad- behalf. I really think it is up to judication by trial is wither- Joseph has a daunting agenda Fellows of the College. We have ing. The pendulum has swung ahead for him during his year as the state committee structure in from an era forty years ago of President. place, with the guidance of the wide-open discovery, liberal “Judicial independence, ju- Executive Committee and the construction of pleadings and dicial compensation and the Board of Regents, to be speak- a more trial-centered system in vanishing trial are of the most ing out on behalf of judges who federal court, to quite the op- cannot speak for themselves.” posite,” says Joseph, one of the nation’s leading authorities on Speaking out on judicial com- federal rule-making. “Now we pensation will also be high on have a hostility toward trials, “The biggest issue his agenda during the coming year, Joseph said. both client-fostered and insti- facing the College is the tutional, that manifests itself vanishing trial. “It has now deteriorated to the in strict pleading rules, strict point that an experienced para- expert evidentiary rules, heavy It’s not even the legal in a big firm in a major reliance on dispositive motion vanishing jury trial; it’s city can make more than a fed- practice. It is a series of hurdles eral judicial officer, and that’s that are created in order to get a the vanishing trial.” a disgrace. I appreciate that the case to trial.” College had a very concerted Joseph has written about the and well coordinated effort institutional problem in federal when David Beck was president court in a 2008 article entitled, importance to the Fellows pro- to try and move things along in Federal Litigation-Where Did fessionally and to the College Congress. Bob Byman and oth- It Go Off Track? He opened institutionally. We are a college ers put together an excellent with, “Twenty-five years ago, of trial lawyers, not a college of paper analyzing the crisis in it cost parties roughly the same dispute resolution lawyers.” judicial pay that was taken to to litigate in state and federal Congress by a member of the The College’s role as a leader in Supreme Court, but it fell on court. Plaintiffs chose federal efforts to improve the judicial court sometimes for expansive deaf ears. Congress ultimately system is becoming more im- voted itself a pay raise and, for discovery or to get a preferred portant every year, Joseph says. judge, even though state court the first time, did not include a was an available alternative and “Judicial independence has pay raise for federal judiciary, additur impermissible in feder- come more and more under at- so that congressional officials al court. Today, plaintiffs with tack. I recently visited a meet- now make more than federal non-federal causes of action ing of Fellows in a state where judges. It really is an untenable flee federal courts, and those members of the state supreme situation and it’s something we with federal claims scour the court are the subject of a heavy- have to speak out on.” books for state law analogues.” duty political campaign in a re- Joseph said he realizes that tention election. They are being Today the burden is particularly change is unlikely during the attacked for their resolution of current budgetary situation. onerous on plaintiffs, Joseph a hot-button issue they did not says. “I’m not touting a plain- seek to decide. We see political “I don’t believe this is going to tiff’s position, but it makes it attacks on judges with increas- be a political action item. The much more difficult and expen- ing frequency, regardless of the College is not well-suited for

8 w THE BULLETIN political action, but we have to keep speaking out on this issue because to keep quiet is to sim- ply acquiesce.” The College has a unique role among legal organizations be- cause it is apolitical, Joseph says. “The College is never go- ing to be identified as liberal or conservative, as Republican or Democrat, as plaintiff-oriented or defense-oriented. People do GREGORY P. JOSEPH not join the College to advance a political agenda and the Col- EDUCATION lege has no political agenda to advance, so the College should University of Minnesota, B.A. summa cum laude, 1972 speak carefully because when it University of Minnesota, J.D. cum laude, 1975 speaks it is listened to.” EXPERIENCE COLLEGE IS IN EXCELLENT SHAPE Beginning his practice with a small firm in Minneapolis, he tried 30 cases in three years before coming to New “The College is in extraordinari- York to Fried, Frank, Harris, Shriver & Jacobson, where he ly good health right now,” says subsequently chaired its litigation department. He formed his Joseph, who became a Fellow in own firm, Gregory P. Joseph Law Offices LLC, in 2001. He is 1993. “We have not lost Fellows widely regarded as one of the top commercial trial lawyers in because of the economy.” The the United States. president faces a daunting travel schedule each year, but Joseph Inducted in the American College of Trial Lawyers in 1993, is looking forward to it. “We Joseph served as chair of the Downstate New York and Federal want the best trial lawyers and Civil Procedure Committees, and the Task Force on the we need to have as platform for Vanishing Trial. people to demonstrate that they are among the best.” OTHER MEMBERSHIPS AND AWARDS Having grown up in Minneapo- A former chair of the Litigation Section of the American lis, Joseph always wanted to be Bar Association, he served for six years on the Advisory a lawyer, although no one in his Committee on the Federal Rules of Evidence. He was an family was in the profession. “I Assistant U.S. Special Prosecutor in the early 1980s. He is the liked the debate, the intellectual author of several books, including Modern Visual Evidence; combat,” he said. Watching tele- Sanctions: The Federal Law of Litigation Abuse, and Civil vision shows like Perry Mason RICO: A Definitive Guide, and over one hundred articles on convinced him, “It looked like trial- and evidence-related subjects. His books and articles being a lawyer was a lot of fun have been cited in over 200 judicial opinions. He is the and it is quite a lot of fun. So it Secretary of the Supreme Court Historical Society and a was actually quite realistic.”L member of the Board of Editors of Moore’s Federal Practice.

THE BULLETIN w 9 After undergraduate and law been head of the litigation sec- serve as an assistant special school at the University of tion of the ABA (60,000 sec- prosecutor in the investigation Minnesota in 1975, he joined a tion members), but you would of the U.S. Secretary of Labor. small firm in Minneapolis. But walk into a group of a thousand after winning a million-dollar people, not know anybody and verdict in 1978, he decided to have to work hard to earn a wel- Joseph left Fried Frank in move to New York, where he come. It might take many meet- 2001 to launch his own firm joined Fried, Frank, Harris, ings before you make friends, and quickly built a solid list of Shriver & Jacobson and quickly but when you walk into a group high- profile clients, such as found a mentor in the person of a thousand people at the Citigroup in its 2008 attempt to of Leon Silverman, one of the College as an inductee every- merge with Wachovia. nation’s top trial lawyers and a body is reaching out to you, to past president of the American talk to you, to welcome you, to Away from the office, Joseph College of Trial Lawyers. tell you about the College. It’s enjoys jogging, Pilates and completely unique in my expe- reading. He and Barbara, his “I learned quickly that the Col- rience.” wife of more than thirty years, lege was the kind of organiza- have a weekend house in Con- tion that every trial lawyer as- By 1982, Joseph had made necticut and have been known pires to and I was alerted early partner at Fried Frank in New to ship a box of books to their on that one can’t seek to be- York and later chaired its liti- favorite vacation spot in Hawaii come a member; one doesn’t gation department. Along the when they are able to get away. lobby for membership; that one way, Joseph built a reputation earns membership without any as an expert in securities class action of one’s own, other than actions, complex commercial litigating, trying cases.” litigation and RICO cases. He also lectured and wrote papers When he was inducted in 1993, and books including Modern he was impressed with the cali- Visual Evidence and Sanctions: ber of the Fellows and the col- The Federal Law of Litigation legiality. “Everybody was very Abuse. He also found time to welcoming,” he said. “I had

FELLOW IN PRINT

Carol S.Vance of Houston, Texas has published his memoir entitled Boomtown D.A., chronicling his years as prosecutor and chairman of the Texas Prison Board. It is available through Whitecaps Media at whitecapsmedia.com.

10 w THE BULLETIN CENTENARIAN FELLOW, STILL ACTIVE, HONORED

S. Hazard Gillespie, among the College’s oldest living Fellows, has added another high honor to his long list.

On January 30, Gillespie received the New York State Bar Association’s highest honor, its Gold Medal, joining a distinguished group, which includes Frederick “Fritz” A.O. Schwarz, Jr., senior counsel at Cravath, Swaine & Moore LLP, Hon. Sandra Day O’Connor, retired U.S. Supreme Court associate justice; and Hon. Judith S. Kaye, retired chief judge of the State of New York.

Gillespie, who was 100 years old on July 12, 2010, was inducted in 1956. He is now senior counsel to Davis Polk & Wardell and continues to go to the office every day devoting most of S. Hazard Gillespie his time to pro bono work. “I was thrilled to be nominated to join the distinguished group of trial lawyers in 1956, and I have been in awe of the entire experience and continued membership,” he said.

A graduate of Yale University, Gillespie received his LL.B. from Yale Law School in 1936 and was admitted to practice in New York in 1937. He served in the Army Air Force during WWII. He was elected president of the New York State Bar in 1958-59 and served as U.S. Attorney for the Southern District of New York from 1959 to 1961.

(The College office has identified fifteen Fellows whose ages range from 98 to 102. We would like to hear from — or about — them for future issues.)

THE BULLETIN w 11 WHERE TO TRY TERRORISTS

“The Obama administration . . . is struggling with a question that has been debated since former President Bush, shortly after the September 11th, 2001 attacks on the World Trade Center, signed the November 13 military order announcing, among other things, that certain noncitizens would be subject to detention and trial by military authority. The question for the Obama administration is where to try the accused mastermind of the September 11th attacks and other terrorists− in civilian courts, [in courts-martial] or in military commissions.” Speaker introduction by Fellow Gregory K. Wells, of Rockville, Maryland.

In keeping with its established policy of trying to hear all sides of a controversy of national proportions, the Spring Meeting in Palm Desert heard an address by Professor Stephen A. Saltzburg, a prolific author who has been a leading voice in the debate on the issue of where the United States should try alleged terrorists and a strong proponent of using either civilian courts or courts-martial for that purpose.

The Wallace and Beverley Woodbury University Professor of Law at George Washington University Law School, Saltzburg is a 1970 graduate of the University of Pennsylvania Law School. He served as a law clerk for a Judge of the United States District Court for the Northern District of California and for Associate Supreme Court Justice Thurgood Marshall.

He served as Associate Independent Counsel in connection with the Iran-Contra affair and as Deputy Assistant Attorney General in the Criminal Division of Stephen A. Saltzburg the Department of Justice. A former chair of the American Bar Association’s Criminal Justice Section and its Commission on Effective Criminal Sanctions, he has also served as a member of the ABA Task Force on Terrorism

12 w THE BULLETIN and the Law and its Task Force on number of different circumstanc- as the random selection system Enemy Combatants. es. But if we are going to pros- that we use to assemble a jury in ecute them, we have to say they Article III courts. Saltzburg began by noting committed crimes.” that his appearance could not The military rules of evidence are be more timely because it had “We have three kinds of tribunals virtually identical to the Federal been reported that very morning that can do that: We have Article Rules of Evidence. The jurors that the Administration was III, the regular federal district in court-martial serve a function about to reverse itself and try courts. We have courts-martial, that is basically similar to that Sheikh Mohammed and the where we prosecute military of jurors in an Article III court. other defendants accused of personnel who have violated The rules of confrontation are masterminding the 9/11 attacks in the Code of Military Justice and identical. Defense counsel and military commissions. sometimes the Law of War, and prosecutors are as well trained as we have military commissions, are those in civilian courts. To put his presentation in per- which actually have a pedigree spective, he described his own that goes back to even before the Thus, he concluded, the choice first experience in dealing with Revolutionary War.” between an Article III tribunal terrorism: he was on duty at the and a court-martial is really not Department of Justice the night “The question for us as a country a major one in terms of what a terrorist act sent PanAm Flight is, ‘What is the right tribunal for kind of procedure is going to be 103 crashing down in Lockerbie, certain defendants?’” employed. The question actually Scotland with a loss of 270 lives. boils down to whether the military “Since then,” he continued, “we ART. III COURTS AND or a civilian authority is going to in the United States, unfortunate- COURTS-MARTIAL prosecute. ly, have had to grapple with it [ter- COMPARED rorism]. We have new machinery MILITARY COMMISSIONS and new mechanisms and all the Saltzburg, who was a co-founder CONTRASTED same issues that we have had to of the National Institute of face over the years and some new Military Justice in 1991 and who “Military commissions,” he ones. The new issue since the has been its general counsel ever continued, “are quite a bit horrible attacks on 9/11 is what to since, proceeded to outline the different.” Lumping together do with some of the people that differences between military Article III courts and courts- we have apprehended.” courts-martial and civilian courts. martial as one alternative and The greatest difference is that military commissions as the THE OPTIONS FOR there is no grand jury in military other, he asserted, “There are PROSECUTION courts. Instead, there is an three principal differences investigatory proceeding, called between military commissions “There are,” he continued, “three an Article 32 proceeding, which, and the other tribunals. They are: options, at least if you are going he asserted, is a better, fairer One, the rules of evidence do not to prosecute people. . . . [Y]ou proceeding than a grand jury. apply in military commissions. only prosecute people in the Unit- The rules of evidence basically ed States if they commit crimes; The other major difference is the get tossed out, and military let us be clear about that. We can way in which jurors are picked. commissions can hear any lock people up . . . and keep them In military courts the jurors, who evidence that a military judge for a long time, maybe indefinite- are called “members,” are picked believes is relevant. Two, . . .there ly, as a kind of preventive deten- by the commanding officer who is no right of confrontation, so tion. We keep people locked up convenes the prosecution. There that hearsay evidence can be used to protect them from themselves are, he conceded, questions about and to protect communities in a whether that system is as fair L

THE BULLETIN w 13 that would never be admitted in them, but I just thought I would There is no reason to believe that a federal district court or a court- share with you a few things . . . a judge who presides in a com- martial. . . . [T]hat is a big deal concerning the arguments that mission, if there is going to be in terms of American justice, are made in favor of military risk, is less immune from risk. because the Supreme Court has commissions, to debunk most of It is true that a military judge, recently held the Confrontation them and to point out why none until he or she retires, is probably Clause of the 6th Amendment of them actually makes a strong going to be in somewhat more has real bite because testimonial case for the use of commissions secure places than the average evidence, which is all that kind of over either Article III trials, or Article III judge, but it does not evidence that prosecutors gather court-martials.” mean they are not at risk. Maybe with the intent to use it at trial, has more important . . . groups like to be cross-examined in an Article Judges at Risk Al Qaeda, terrorist groups, do not III tribunal or a court-martial, but necessarily retaliate against an in- not in a military commission.” “First, the notion is that the judge dividual judge. They can retaliate who presides over a trial, an against any Article III judge in or- “And then [third], military com- Article III trial, will be at risk for der to show their displeasure with missions can receive a kind of the rest of his or her life because what the United States is doing in evidence that no other court in the judge will be identified. terms of apprehending, prosecut- America can receive: coerced People cite as an example the ing, convicting and sometimes confessions. As long as they judge who presided over the first executing the people who come are not tortured, simply coerced, World Trade Center bombing in from their midst. The World they are admissible if the military New York, who still has a marshal Trade Center, . . . the Pentagon . judge finds them to be reliable running around to protect him. . . they were not attacked because enough. So you have this unique Well, it is true that judges who of retaliation against something combination of advantages for handle unpopular cases may be at they particularly did. They were the prosecution: . . . you have risk, and I do not want to diminish symbols, and, unfortunately, ev- hearsay evidence that cannot be that for a moment, but it does go ery federal judge is a symbol.” cross-examined from declarants with the territory. It is part of the who are either unavailable or Rule of Law; it is part of what this Jurors at Risk located far away, and you have country has seen for many years.” statements that are coerced from “What about juries? The idea the people being tried, and may- “When Judge Robert Merhige is that jurors will be safer and be even from co-defendants, that desegregated the schools in feel more secure in a military are admissible, [statements] that Richmond, he had threats on his commission. We know and have would not be admissible in any life daily. People poisoned his great familiarity now with the use other tribunal.” dog, . . . and he had marshals of anonymous jurors. It is very living with him for years. But he possible to have jurors who are ARGUMENTS FOR presided because it was the right never filmed, whose names are MILITARY COMMISSIONS thing to do. We have judges who never used, and those jurors can ADDRESSED deal with the most contentious feel as secure in their anonymity as issues that this society faces, . . any juror who sits or any member “The question is, ‘Are military . which drive the population to who sits on a commission.” commissions fair? Are they fair political extremes, and judges enough? Are they preferable for render their decisions and they Media Circus some reason?’” take some risks.” “It is said that trials will become “The answer to these questions is “But, more importantly, military a circus if they’re held in Article not an easy one, and reasonable judges, whether they’re in com- III courts and we ought not to people can certainly differ on missions or not, get identified. let that happen. . . . [I]f there is

14 w THE BULLETIN anything resembling a circus, it is spend the rest of his life looking of the crazies coming out, the the uncertainty that we see every at those walls and wondering loonies who come out, because day in Guantanamo. Just read the about what it was that he did and they can see an opportunity reports of those who go down. how righteous he felt as he faced to make history with an act of Here we are, nine years after the a life in prison.” violence. And so, if the terrorists attacks of 9/11, and two people had been tried in Manhattan, the have been tried, . . . one, the DO TERRORISTS security risks were real. The driver for Osama Bin Laden, and DESERVE DUE PROCESS? costs . . . were high. And there the other, I cannot even remember really is reason to be concerned what he supposedly did. Nobody “It is said that the terrorists do about those things.” has been tried for 9/11. The only not deserve the protections that person who even came close to come with an Article III trial. . . The Choices of Venue being tried for 9/11 was Zacarias . When we try people for crimes, Moussaoui, who was tried in an when we put them in risk of their “ . . . . You would come to Article III court, convicted, and life, why do they not deserve believe, if you listen to the . . . sentenced to life imprisonment the procedures that we say are commentators, that the choice without parole, where he belongs. fundamental in the United States? is Manhattan or Guantánamo. If anyone wants to turn a tribunal . . . Common Article 3 of the That is not true. Years ago, Gene into a circus, they will have the Geneva Conventions promises Fidell, . . . the president of the opportunity to do that.” everyone, whether they are a National Institute of Military soldier or a civilian, if they are Justice, and I wrote a little piece A Forum for Political Statements charged with violating the law of which said you can conduct an war, they are promised that they Article III trial anywhere in the “Similarly, it is said that terrorists are going to be tried in a ‘regularly United States. You can conduct will use a trial as a forum to make constituted tribunal.’. . . [I]t is an Article III trial on a military political statements. Sure they really hard to say that a military base, where there is security and will; they are going to do it in commission . . . where the rules the security is awfully good. You Guantanamo. They are going are written by the President and can provide jurors, Article III to do it in New York. They are the Department of Defense and jurors, civilian jurors, with the going to do it wherever you have those rules differ from every other security of a military base. There a trial. But it is their right, by the tribunal throughout the United is no reason the choice has to be way, . . to avail themselves of States, is a ‘regularly constituted New York City or Guantánamo. whatever procedure is available tribunal.’” There are plenty of places. There to make their own statements. are Fort Bragg and Fort Ord and And if they are found guilty, they THINGS THAT all the places around the country will then pay the price.” REALLY MATTER where you could constitute an Article III tribunal, and you could But good judges, as Judge The Cost of Security actually play by the rules if you Brinkema was in the Moussaoui wanted to. The costs would be case, basically can control how “. . . . What about the cost of no higher than they would be to much of a forum they have and security? And what about security conduct a court-martial in the end up, as Judge Brinkema did, itself? I think it is and was a same vicinity.” having the last word when she mistake to think about trying told Zacarias Moussaoui that for terrorists in Manhattan. . . . [I]t is WHY WE ARE HAVING all his bluster, she was going to not just because we are worried THIS DEBATE tell him that he was going to see about Al Qaeda attacking. When daylight for the last time as they you have any highly publicized Saltzburg then addressed in strong locked him up in a maximum trial, especially the trial of the terms his view of the reason security prison and he would century now, you have a risk L

THE BULLETIN w 15 we are even having this debate: worry. Wherever we’re going to rules. . . . It is not because anybody “The real reason . . . in my view, try these people, we guarantee you believes that the people who hate that we have this debate [about victory.’ That is not justice. That us won’t hate us if we use the which courts to use] is one that is not America. That is not what typical trial procedures. They are the Attorney General, for whom we know. What we guarantee going to continue to hate us. We I have great respect, Eric Holder, is we are going to have a fair do not try to appeal to them.” was candid about when he trial and convince the American testified before Congress. . . . [H]is people that, in fact, if people are WHY IT MATTERS testimony, in some ways was, convicted, it is because they did for me, the most disappointing what they were charged with.” “It is the people who admire us, it bit of testimony that I have heard is the people who follow us, it is in many, many years. . . . Here THE PLACE FOR the people who look to the United is what he said when pressed by MILITARY COMMISSIONS States for leadership that we senators about trying people in a generally try to appeal to. And civilian court, ‘I’m confident we “There is a place . . . for military when you look around the world have the evidence.’ And he said, commissions. The American Bar . . . and you ask, ‘What it is they ‘Losing is not an option.’ . . .” Association, in February 2002, expect from the United States?’ shortly after the 9/11 attacks, said, They expect the United States to “What does that mean, losing ‘We support the use of military use the tribunals that made the is not an option? That is what commissions where appropriate. United States the admiration of trials are about. I do not know, We recommend, however, that the world. Anybody who thinks and you do not know, whether the rules for courts-martial apply that we cannot try a terrorist in an Sheikh Mohammed actually in military commissions, except Article III court or in a military organized 9/11 and whether for Article 32 proceedings, the court-martial is mistaken. If we Ramses Bin Osaid was guilty complex investigation procedure.’ choose not to do it because we as charged or whether the other And the reason was that Article III want a guaranteed conviction, three defendants actually were courts, courts-martial, guarantee we are making a bad choice. key players or whether they, in fundamental liberties. They are If we choose to use military fact, are wannabes, like Zacarias regularly constituted tribunals. commissions in the right places, Moussaoui. Nobody knows. We We have demonstrated that we we are making a good choice. . . have a presumption of innocence can convict Americans who . It is not right for the President, in this country. Then when the commit atrocities like Mei Lai in it is not right for the Attorney President of the United States a court-martial. We can convict General, and it is not right for said the same thing: ‘They will be terrorists like Zacarias Moussaoui the Congress to basically, all as a convicted. They will be executed.’ in an Article III proceeding.” chorus, say, ‘These people will be I said, ‘Wait a minute. That is not convicted; losing is not an option; what the President’s supposed to “We ought to be prosecuting they must be convicted.’ They do.’ Past Presidents have done it, people like those who attacked must be tried; they must be tried and the organized bar stood up and the USS Cole in Yemen . . . in fairly. And if they are convicted, said, ‘You are trying to prejudice military commissions. Military whatever punishment is imposed, the people.’. . .” commissions have a great place . . . that punishment will be a when people commit war crimes punishment that is given more “The Rule of Law is what you abroad. We capture them abroad respect if the rules that governed protect; the Rule of Law is what and we want to prosecute them the proceeding are fair.” we stand for. In my judgment, we immediately. The [military do not really support the Rule of commission] . . . is a perfect “The American people are an Law when we have an Attorney tribunal to do it. If we are going amazingly just people. Zacarias General who kowtows to the to do it, though, even in tribunals, Moussaoui, who essentially Congress and tells them, ‘Don’t we ought to play by the American wanted to die, was given a life

16 w THE BULLETIN sentence by a jury who did not imprisonment or whether it is commission, you are doing it for think he deserved death. They did acquittal, . . . as long as it is done a reason that makes sense. So far, not want to make a martyr out of with justice, the American people none of the reasons that I have a guy who was mostly dangerous can be proud.” been given make a whole lot of and partly crazy. Instead, they sense to me.” put him where he belongs, behind “When you go out of here today bars, looking at a wall for the and you ask yourself where rest of his life. Whether it is the they should be tried, just make death penalty, whether it is life sure if you say it is a military bon mot “I have been dealing with terrorism issues for twenty-two years . . . . I can take you back to December 21, 1988. . . . The Attorney General, the Deputy Attorney General and all the Assistant Attorney Generals were at the White House Christmas party, and I was the highest ranking Justice Department official present at the Department because I was not invited to the White House Christmas party. . . .”

“The Command Center called, and I answered the phone, and they said, ‘We’ve just gotten a report that PanAm 103 has gone off the radar over Scotland. What do you want to do?’”

“In 1988, the entire mechanism in the Department of Justice to deal with terrorism was located in a section of the Criminal Division . . . called the General Litigation Section, and it had four to six people who were . . . supposed to be the experts on terrorism. So I called in the head of the Terrorism Section and I said, ‘I’ve just gotten this report. I’ve already made up my mind what I’m going to do. I just want to know, what do you think I should do?’”

“And he said, ‘I think we should go home. . . . We have no information that anything wrong has happened. . . . It’s four days before Christmas. We should go home.’”

“And I said, ‘Thanks.’ He left and I called John Martin, who was the head of the Internal Security Section in the Criminal Division and . . . I told him what happened and I said, ‘What do you think we should do? . . . ‘The other guy thinks we should go home.’”

“And he said, ‘I think we should treat it as a terrorist attack until we know otherwise.’ And I said, ‘Well, I’m glad you said that ‘cause that’s what I was going to do. I just wanted to have somebody who’s a career person tell me that this wasn’t nuts.’”

“So I called the Command Center and I said, ‘You’re to treat it as a terrorist incident until you know otherwise. And if anybody else challenges that, you just tell them it’s my decision. I’ll take responsibility for it, because I know one thing: tomorrow morning when we get up, nobody is going to see a headline saying ‘PanAm 103 Goes Down, Justice Goes Home’”

“And that was my first experience dealing with terrorism . . . .”

Professor Stephen A. Saltzburg

bon mot w THE BULLETIN 17 TOO BIG TO FAIL—WHAT HAPPENED

“You know, . . . now . . . [when] we look at the bail-out, . . . we have a lot of questions about whether it worked, whether it was executed properly and, frankly, whether it was needed at all. . . [I]f you appreciated how bad it really was, I think that the world really might have fallen off of its axis. . . . [A]s unsatisfying as it is to say, . . . I think it was more than required; it was necessary.”

Andrew Ross Sorkin, chief mergers and acquisitions reporter for The New York Times and author of the widely acclaimed account of the financial crisis of September 2008, Too Big To Fail: The Inside Story of How Wall Street and Washington Fought to Save the Financial System─And Themselves, gave the attendees at the College’s Spring meeting an inside look at how the crisis came about and how close we may have come to a financial Armageddon.

A reporter who began writing for the Times while still in high school, he is the author or co-author of, or contributor to, over 2,000 articles for the Times, 120 of them published on the front page, and editor of the Times’ online daily financial report, Dealbook. He has won the Gerald Loeb Award for Excellence in Financial Reporting, the Society of American Business Writers and Editors Award for Breaking Andrew Ross Sorkin News and the World Economic Forum’s recognition as a Young Global Leader.

College Secretary Chilton Davis Varner, Atlanta, Georgia, laid the scene for Sorkin’s presentation:

18 w THE BULLETIN “Cast back with me, if you will, A compelling reconstruction of completed the front-page story to March of 2008. A faint tremor the drama.” for the paper that was going to of anxiety, little more than that be in Monday’s paper. . . . for most of us who lived outside And Bloomberg said, “Sorkin of Manhattan, emerged as Bear has pulled off a rare feat. He I had gotten home, and I didn’t Stearns was sold at a fire sale has turned more than 500 hours have anybody to talk to, and for $2.00 a share, later raised of interviews and documentary I was kind of freaked out, to $10, allegedly because of an evidence, ranging from e-mails because I couldn’t believe error in the documents by the to call logs, into an engrossing that this had happened. I had legal counsel. That deal was fly-on-the-wall account of one been covering mergers and engineered by then Fed Chief of the most tumultuous years acquisitions for years, but I had Timothy Geithner and Jamie in U.S. history. What sets this never lived through a Sunday Dimon of J P Morgan Chase. . . . account apart is its smooth syn- like this. So, I wanted to talk to thesis of telling details, conver- the only person I could; I woke “Fast forward to the autumn sations and multiple story lines up my wife, who, of course, of 2008. With the failure of into a seamless narrative, writ- was none too pleased, . . . and I Lehman Brothers, the tremor ten in lean, unembroidered sen- said to her, “You’re not going to accelerated into a shudder, tences. It reads like a thriller believe it.” I went through all and then another shudder without the hype.” of the machinations of what had with AIG, and another with happened over the weekend. I Fannie Mae and Freddy Mac, Rather than trying to summarize looked at her and I said, “It’s so and don’t forget Citi, Merrill his 539-page work, Sorkin, dramatic . . . it’s like a movie.” Lynch and Wachovia. And by using anecdotes, gave his then, as Congress fiddled while audience a taste of both how And she’s sort of not really New York burned, we had the this financial saga unfolded and paying attention, and she just stomach-dropping collapse how he went about gathering looks at me, and . . . before of the Dow for 777 points in material to tell the story. rolling over, she goes, “No, a single morning. Anxiety His account, slightly edited, Andrew, it’s like a book.” And had quickly become a deeply follows. that’s sort of how this project embedded thread in all our began. . . . lives, and when you read Mr. THE ORIGIN OF A BOOK Sorkin’s book, you’ll learn that HOW BAD we didn’t know the half of it. [T]his book, in fact, started on IT REALLY WAS This crisis was different. . . .” September 15th, 2008 at 2:30 a.m. in the morning. . . . [I]t What I thought I would do is try The Economist, termed Sorkin’s was about forty-five minutes to spend a little bit of time trying account of this crisis: “Too good after Lehman Brothers had to explain how we got here and, to put down. It is the story of the filed for bankruptcy, about frankly, how bad it really was. . actors in the most extraordinary five hours after Merrill Lynch . . [N]ow . . . [when] we look at financial spectacle in 80 years, had just sold itself to Bank of the bail-out, I think we have a and it is told brilliantly. Me- America, and about thirty-two lot of questions about whether ticulously researched, drawing hours before we, the taxpayers, it worked, whether it was on interviews with more than ponied up $85,000,000,000 to 200 of those who participated. give over to AIG. I had just L

THE BULLETIN w 19 executed properly and, frankly, Reserve and, frankly, within the back now and we say, “Was whether it was needed at all. White House, which was that the bailout necessary, was it re- if Goldman Sachs had fallen, quired?” as unsatisfying as it is I thought I would start by telling all of a sudden this problem, to say, oddly enough, I think it you a little story that happened, which we had thought was was more than required. It was actually, after the famous contained or contained to the necessary. I say that because Lehman weekend. We have all extent it was on Wall Street, when you really think about spent a lot of time focused on would migrate in a meaningful what would have happened, and the panic of that week where we way to Main Street. And that when you look and you get in- took over Lehman and Merrill would have actually happened side and see some of these docu- got sold and AIG gets bailed in General Electric,. . . the next ments and some of the measures out, but, in fact, it’s the weekend domino. You know, we think of that the Treasury and the Fed after that that’s oddly more General Electric as this massive had been making, we were talk- interesting. And it’s oddly more conglomerate that makes light ing about 25 percent unemploy- interesting because you never bulbs and ovens, but, in fact, it ment. read about it in the newspapers, was as much a product of Wall and if you appreciated how bad Street as anything else, in that Hank Paulson loves to go it really was, I think that the virtually half of its business was around now and say that he world really might have fallen a bank in something called GE thought there’d be 25-percent off of its axis. Capital. So the view was that unemployment. There’s actually this domino would go next, and a document within Treasury that Let me give you a couple of after that, as we all imagined, shows that we might have had examples. On Friday, the week Armageddon. 35 percent unemployment at after Lehman Brothers, Lloyd that point. Blankfein of Goldman Sachs There was a point on Thursday calls up John Mack─and there’s of that week where J P Morgan And so, while I think we can a view, by the way, at this point, and Citigroup literally stopped all be very frustrated with the that Morgan Stanley could be trading . . . [with] each other; bailout and with its execution on the verge of bankruptcy, that again, something that was not in that there weren’t as many they might have seventy-two publicized. But when you think strings attached as I suspect hours to do something quite about what that means, when many people would have drastic. Lloyd calls him up and, you think about the system truly wanted, I think it was necessary, at the end of his conversation, seizing up, there was a moment because I don’t think that we, the he says, quote, “John, you better at which Bank of America, which American public, appreciated hang on because I am thirty rolled paper for McDonald’s, how bad it really was, and that seconds behind you.” The view which McDonald’s relied on to what happens on Wall Street was that had Morgan Stanley pay its people, the people who really does impact Main Street. fallen, Goldman Sachs would literally flip the burgers, they fall too. weren’t going to do it. And I would argue, actually, that the government, in a way, did a But it was the domino after that WAS THE BAILOUT horrible job of articulating the that actually had people more NECESSARY? connection, so that today, when concerned within the Treasury we look at the strides that Wall Department, within the Federal And so I think when we look Street has made and we look at

20 w THE BULLETIN Main Street and the strides that he tried to merge J P Morgan happened. It was bad. they have not, there seems to and Morgan Stanley together. In be this divide, this disconnect. fact, . . . at some point the CEOs But at the end of the interview, And there is one; I don’t want started calling him eHarmony, I asked him a question, and it to suggest there is not. but the given his role as matchmaker. was one of those questions you connection was much greater But it says a lot about how bad could only ask if you knew, if than anybody appreciated. the people in the room actually you had been in the room, and thought things were. he sort of looked at me and he The other thing that I think really didn’t respond. About today that we don’t appreciate is HOW THE BOOK WAS a half-hour later, I’m walking what the bailout was supposed RESEARCHED down the street. I get a phone to do. In some ways, Hank call on my cell phone. He says, Paulson oversold it to all of us, . . . . I spent the past year “I heard your question. Can you . . . [saying], “The good news literally interviewing over 200 come to my house on Sunday? is that the patient is now stable; people for over 500 hours, And don’t tell anybody I’m and that’s what the goal of the some of whom, I would argue . calling.” project was. The bad news is . . spoke to me for all the right that we’re not in rehab yet.” reasons, some of whom spoke I didn’t leave his home till 11:00 to me for all the wrong reasons, o’clock on Sunday night, and That is the harder part for people reconstructing their legacy and he literally showed me every to appreciate, in part because whatnot. My job was, of course, piece of notes, his calendars, it looks like Wall Street has to try to keep them honest. The everything. And it was one of already gone through its own third group, by the way, was the the most remarkable experiences rehab. And so, I tell you all of most interesting. This was the as a reporter. that because I think what we’re group that didn’t want to speak all trying to do is appreciate to me at all. As you’d imagine, The other piece was I actually and understand what happened there are a number of civil and got a guy, a lawyer, no less . . during this period. And I think criminal suits, or investigations, . a lawyer who did not want to when you actually can get inside at least, that are still ongoing. participate at all, former lawyer, the details, when you can see and actually . . . For months I had see the people in the moment, it One of the great experiences been beating him down trying to may change your view. as a reporter is when you can get him to speak with me. He almost force the interview. So finally picks up the phone. . . . I will tell you another quick fun- there was a moment very early So I say to him, “Listen, I know ny story. . . . The weekend after on in my reporting where I’d you don’t want to speak, but let Lehman Brothers, Tim Geithner gone in to see a CEO, and he me tell you what I‘ve got.” And tried to put─are you ready for sat with his lawyer, actually, I said, “I’m going to put you in this─ Goldman Sachs and Citi- two lawyers, and his PR person. a scene at John Mack’s house on group together. At another point, And they had early told him not July 12th, 2008. It’s a Saturday he tried to merge Goldman Sachs to say anything. And this was, I morning. It’s 10:30. You sat on and Wachovia together. At an- have to argue, one of the worst the couch on the right. It was a other point, he tried to merge interviews I’d ever had in my green couch. You were eating a Morgan Stanley and Wachovia whole life. I did it for about an chicken wrap sandwich that his together, and at another point, hour and a half, nothing really L

THE BULLETIN w 21 wife, Christy, had brought you. to buy up 500 billion dollars of But one of the phrases that many Your son’s lacrosse game was at toxic assets, not 700. So they of the CEOs who I spoke with 1:30 and you were late because were off by about 200 billion dol- use when they think about them- you were going to get there at lars, but it was really one of those selves and refer to themselves in about 2:00. You took these three extraordinary moments that you the context of what happened is calls at 11:02, 11:58 and 12:10.” realized that what we knew and that they call themselves “sur- He said, “I think we should talk.” what they knew was something vivors.” That’s the word they . . . It was that, it was getting in- very different. I would also tell use. And I always thought that side the room, that I think allows you, unfortunately, Hank Paulson was a very odd choice of words, you to really understand and ap- gave a speech literally the next because they say it as if they’re preciate what took place during day, where not only did he not tell cancer survivors. And I think this extraordinary time. you anything about this, but told there truly is a lack of apprecia- you that everything was just fine. tion still, sadly, that they were HOW MUCH WE DID So you’re excused if you didn’t rescued and what that means and NOT KNOW know this was coming. what the responsibilities, there- fore, are to the rest of the country. The great surprise to me, by the WHERE WE ARE NOW way, throughout all this was ac- When you look at . . . the regula- tually how much we didn’t know The last piece that I wanted to tions and real transformation that and how much, unfortunately, I leave you with, if I could, was took place on Wall Street after the think the government and many to really talk about where we are Great Depression, much of those folks on Wall Street actually did now, sadly. When I started this regulations were pushed for or know. project, one of the conversations at least accepted very easily by I used to have with my editor was many people on Wall Street. To- The greatest example of that, I that I was going to have to write day, if you look at where the would tell you, is the TARP plan. a new epilogue, because I imag- push-back is coming from, it’s You know, we all thought that ined there would be enormous from the people you would ex- TARP was written in September amounts of regulatory reform, pect, it’s Wall Street. There has of 2008. This was originally the that Wall Street would have not been the leadership that I plan to buy toxic assets. It seemed changed remarkably by the time think many people expected in like something you would write this book was finished. And here terms of really trying to change after a crisis. But, in fact, almost we are, more than a year later, and transform this business. sadly in some ways, though . . . and nothing has happened. [Edi- you might be able to give them tor’s note: this address was given THE STATE OF some credit for this, TARP was before the enactment of the Re- THE ECONOMY written on April 15th, 2008 by storing American Financial Sta- the Treasury Department. There bility Act of 2010.] But I would Finally, a quick note on the econ- was a view inside Treasury that tell you not only has nothing hap- omy. . . . I seem to get a lot of the world might truly fall off its pened in Washington, but noth- questions about where things axis, and that they might as well ing has happened on Wall Street. may or not be going. I hate to get a plan together. It’s an 11- One of the saddest parts of this is ruin everybody’s breakfast, and page plan. really that the ethos, that of the if you’ve eaten, I apologize al- culture hasn’t changed. Maybe ready, but I do want to tell you The original plan was actually my expectations were too high. that I do think, given all the peo-

22 w THE BULLETIN ple I’ve been spending too much going to make the guy or the of the book, and it’s a remarkable time with these days, that we are woman who’s working for you, quote that I think applies to this really in much more of a peril- instead of working 34 hours a situation, but also applies to life, ous state than we would like to week, you’re going to make them which is that in October of 2008, even imagine. When you think work 35, 36, 37, 38, 39, 40 hours after the bail-outs, Jamie Dimon about the recovery, we’re having a week. So there is a long way sent Hank Paulson a note with a people talk about a jobless recov- to go when you think about the quote from a speech that Presi- ery, here are some numbers just opportunity for unemployment dent Theodore Roosevelt had de- to think about. to come down . . . . livered at the Sorbonne in April 1910, entitled “Citizenship in the Currently, we really are not at a BLAME Republic.” And it reads: jobless number that’s around 10 percent. We’re at a jobless num- We spend a lot of time blaming It is not the critic who counts: ber that’s literally over 17 per- people. This is a country that not the man who points out cent. When you think about how loves to blame. We’re looking how the strong man stumbles or many jobs need to be created to- for the villains. People call me where the doer of deeds could morrow just to get back to the old up and they say, “Who’s the vil- have done better. The credit normal, the five-, six-percent un- lain in this book? Is Dick Fuld belongs to the man who is actu- employment in this country, you your villain? Is Hank Paulson ally in the arena, whose face is need 10,000,000 jobs. You need the villain? Who is the villain?” marred by dust and sweat and to come up with 10,000,000 new And I, before writing this book, blood; who strives valiantly; jobs. Given the number of new watched an interview with Quen- who errs and comes up short people coming into the job mar- tin Tarantino and Charlie Rose. again and again, because there ket every day, just to stay stable And one of the things he said to is no effort without error or where we are today, you need to Charlie Rose was that his goal shortcoming; but who knows generate 1.25 million new jobs a with any movie project that he the great enthusiasms, the great year, and that’s to stay at unem- did was that when the audience devotions, who spends himself ployment at 10 percent. left the room, he really wanted for a worthy cause; who, at the them, every single one of them, best, knows in the end, the tri- The number, by the way, to pay to feel like they saw a different umph of high achievement, and attention to more than any oth- picture. I thought it was sort of who, at the worst, if he fails, er number in all of this is actu- an amazing idea, and that’s really at least he fails while daring ally the average hours worked, what I tried to do with this book. greatly, so that his place shall and that’s a number that’s actu- But more than anything else, I never be with those cold and ally the scariest of all, which is, think that when you actually get timid souls who knew neither we’re still hovering in the 33-, inside the room, when you actu- victory nor defeat. 34-hours-a-week range. The ally get to see the decisions that problem with that number is that people were making, what looks Thank you very, very much. when you think about a company like black and white today is that wants to be more productive, much more gray. And so, final- that wants to have more output, ly, I wanted to leave you with a instead of going out and hiring quote. For those of you who read more people and bringing that the book, you’ll know where this 10-percent number down, you’re is coming from. It’s at the end

THE BULLETIN w 23 FINANCIAL CRISIS OF 2008: NEVER AGAIN

“We were able to back away from the edge of a financial abyss only through a combination of decisive action by a handful of key government officials, massive government intervention and, let’s face it, a very large measure of luck. . . . [I]t is unthinkable that we would not address the fundamental issues that were responsible for the greatest financial crisis in seventy-five years . . . . “

[Editor’s note: The address of H. Rodgin Cohen at the College’s Spring meeting was a systematic analysis of the regulatory changes he felt needed to avoid another financial crisis. Recently, Congress enacted theRe- storing American Financial Stability Act of 2010, leav- ing much of its implementation to yet-to-be-formulat- ed administrative regulations. Reform thus remains a work in progress. Mr. Cohen’s address provides an an- alytical framework for analyzing the progress to date in addressing this major economic problem.]

H. Rodgin Cohen, Sullivan & Cromwell, New York, New York, generally regarded as the preeminent bank- ing lawyer of our time, addressed the Spring 2010 meeting of the American College of Trial Lawyers. His topic, “Financial Crisis of 2008: Never Again.”

Named by Institutional Investor as the only lawyer among the twenty-five most influential people in the H. Rodgin Cohen world of finance worldwide, he has, since the bankrupt- cy of Franklin National Bank in 1974, been involved in almost every significant transaction in the financial services industry. The American Lawyer named him #1 on its list of “Dealmakers of the Year,” recogniz-

24 w THE BULLETIN ing his participation in nearly tors, creditors, other counter- institutions were unregulated twenty substantial credit crisis- parts simply were unwilling to or under-regulated. Second, related transactions in the wake assess the creditworthiness of even for those institutions that of the 2008 crisis. individual financial institutions. were subject to a comprehen- They just fled the entire system. sive regulatory regime, certain His introducer, his law partner We were able to back away from activities─those largely related College Past President Michael the edge of a financial abyss to real estate─were not subject A. Cooper, New York, point- only through a combination of to sufficient regulatory scru- ed out that in September 2008 decisive action by a handful of tiny or a limitation. Recogni- Cohen was closer to the mol- key government officials, mas- tion of the sector and system ten core of the financial crisis sive government intervention flaws is essential if we are to than any other lawyer. He was and, let us face it, a very large implement the comprehensive at the side of Lehman’s CEO measure of luck. regulatory reform that will when the government permit- enable us to avoid, or at least ted it to fail. Among others, he Had we plunged over the abyss, satisfactorily deal with, future represented Goldman Sachs and the results may not have been financial crises. AIG. “During that turbulent limited to the financial system, time,” Cooper continued, “they or even the broader economy. Now, my second action item is all turned to him because of his There could have been profound an effective resolution regime extraordinary grasp of the com- social and political consequenc- for major financial institutions plexities of the financial system es of the type not seen since the that ends “too big to fail” as and the patchwork of regulatory 1930s. It would be an indict- both a perception and a real- controls; and also because of ment of all involved─the Ad- ity. . . . No country should his ability to go directly to the ministration, Congress and the ever again be confronted with crux of an issue, his judgment financial services industry─if the Hobson’s choice of: one, a in resolving it, and his calm we do not enact a truly mean- free-fall bankruptcy of a lead- decisiveness.” ingful legislative response. . . . ing financial institution with the attendant severe impact on Cohen began by saying, “I WHAT NEEDS TO the global financial system and, have titled my presentation “Fi- BE DONE two, massive taxpayer bailouts. nancial Crisis of 2008: Never Again,” because it is unthink- First, self-recognition of the Moreover, even before we reach able that we would not address flaws in both the banking in- the failure stage, “too big to the fundamental issues that dustry and in the regulatory fail” creates competitive ineq- were responsible for the great- system. Only if these flaws are uity and exacerbates so-called est financial crisis in seventy- recognized and acknowledged moral hazard, because creditors five years . . . .” can an appropriate set of reme- believe there is no real credit dies be fashioned. In the bank- risk. A new regulatory system The address that followed was ing sector, we had a number of that permits individual bank a carefully organized checklist financial institutions that just failure without devastating sys- of his prescription for reaching took too much risk. There was temic consequences should be that result. excessive leverage, the suspen- the linchpin of regulatory re- sion of prudent credit under- form legislation. . . . I believe WHAT HAPPENED writing standards, and an ab- [there] are two critical ques- IN 2008 sence of controls. On the regu- tions which really have been What occurred in 2008 was true latory side, there were two seri- obscured, and these are critical financial contagion. Deposi- ous gaps. First, many financial L

THE BULLETIN w 25 for an effective regulatory sys- creditors, but each has serious harm the consumer. Transpar- tem. First, you need to figure defects. First, it has been wide- ency, it is clear, is just not suf- out what are you going to do ly suggested we should do it just ficient. We must have rules of with creditors as their claims like the Bankruptcy Code and uniform and comprehensive ap- become due. Banks are not like have an automatic stay: nobody plicability. industrial and commercial com- gets paid for a long period of panies. Every day you have time. The problem is, that cre- The fourth action item is a got billions and billions of dol- ates financial contagion because council of regulators that has lars of claims becoming due. . . creditors of the failed institution the responsibility for identifying Second, you have got to figure may be unable, as a result, to pay risks and dictating guidelines out who is going to pay for it. their own creditors. And even if for dealing with those risks to they were able, there is likely to what are called the micropru- Perhaps indicatively, these be a widespread misperception dential regulators, those who questions have been largely ig- that they cannot. The second have the hands-on regulatory nored in the legislative debate in option is, just pay out the credi- responsibility. favor of process issues, such as, tors a hundred cents on the dol- “Should we amend the Bank- lar, but that simply institutional- Let me just offer one example. ruptcy Code or have a new free- izes “too big to fail.” The explosion of credit default standing statute?” In response swaps created risk at many lev- to the first question, I would With respect to the second ques- els, the exposure of the swap recommend an approach in tion, remember, we are talking writers, such as AIG and MBIA, which creditors would promptly about liquidity and that liquid- overreliance by purchasers, such receive a payment based on a ity can be dealt with by a gov- as Merrill Lynch, and the use of conservative estimate of their ernment guarantee of private- these instruments for question- ultimate recovery. This idea sector financing. The govern- able purposes. More generally, is actually based on what the ment guarantee would, howev- these instruments, which were FDIC has done for years . . . er, be first priority in settling all developed as a risk mitigant, when it has a bank in receiver- claims, so that there is no risk of were transmogrified into the ship and there are uninsured de- taxpayer loss and, in addition, world’s biggest gambling casi- posits which are not assumed. the government would be paid a no, yet no one had the overarch- guarantee fee. ing regulatory authority even to If you take that as the position, determine the volume of credit you need to supplement it with My third action item is com- default swaps, much less their some mechanisms, because the prehensive consumer protec- purpose or the exposures. estimate could be wrong, so you tion, particularly in the area of have got to be able to adjust it home mortgage lending. There One other key function of the as more information becomes were no standards applied by systemic risk council would be available. What you would also the unregulated institutions, and to identify gaps and inadequa- need to adopt are provisions too lax standards by many regu- cies in the regulatory system from the Bankruptcy Code, lated institutions. The need for and deal with them. This could such as a preference avoidance a separate consumer protection include, for example, restricting arrangement and an ex post fac- agency may be debatable, but regulated institutions from deal- to provision which avoids ac- we must at least have greater ing, except on a limited basis, celeration clauses. dedication by the existing regu- with unregulated institutions. latory agencies to identifying There have been two other op- and prohibiting lending prac- Now, there are concerns, ap- tions suggested for dealing with tices that mislead or otherwise propriately, about a council ap-

26 w THE BULLETIN proach to systemic risk. Dif- policy can be used to deal ef- the signage “break here in case fused responsibility is all too fectively with the asset bubble. of fire” for every financial insti- often unexercised responsibil- These are just numerous tools: tution. ity. But we are dealing with capital requirements, margin political realities here, so the requirements, enhanced disclo- My seventh action relates to im- emphasis needs to be on the sure and absolute limits. proved capital requirements. I structural effectiveness of the am consciously using the word council. As just one example, we would “improved” rather than higher, be in a very different place to- because the real task here is to My fifth action is a controver- day if, in 2004, the regulators relate capital more closely to sial one, but it is a leading role had dealt with the asset bubble actual risk. Specifically, we for the Federal Reserve in the in home mortgage lending by must address the problem of the ongoing regulatory and super- imposing strict loan-to-value outsized risk in certain assets on visory process. No other orga- requirements, cash down pay- banks’ balance sheets. There is nization has the independence, ment and income verification a cap: you cannot risk weighing the depth of knowledge, the obligations. Only the central an asset at more than 100 per- expertise, the balance, the in- bank, the Fed, has the capacity cent under the current regime. ternational reputation and con- to recognize these asset bubbles There is no logical reason for tacts and the esprit de corps to and effectively deploy regula- such a cap, which would rate a be such an effective supervisor. tory mechanisms to deal with CDO cubed equally with a tri- At the risk of a strained analogy, them. ple-A corporate loan. there was considerable criticism of our intelligence agencies in I say all this, recognizing that My last two actions are, unfor- the wake of the failed Christ- there were deficiencies in the tunately, not dealt with, or dealt mas Day bombing for a failure Federal Reserve’s supervisory with only at the margin, by the to connect the dots. The Fed- performance in the period lead- current legislative proposals. eral Reserve is best positioned ing up to the 2008 crisis. The to connect the monetary and deficiencies were a function of My eighth recommendation is economic dots. It is not impos- both error and philosophy, but a regulatory system that encom- sible that a new agency could, what should be equally recog- passes all financial institutions over time, replicate those quali- nized is that the Fed has been that compete with banks and fications, but at best it will take promptly self-critical and has insurers. There is a regulatory a very long time. made major, if subtle, changes corollary to Gresham’s Law, to prevent repetition. and that is bad regulation drives Let me make one other impor- out good regulation. What we tant, I think, argument in sup- My sixth action relates to what need is a comprehensive regula- port of a prominent supervisory is arguably the most serious tory system. role for the Federal Reserve. regulatory defect exposed by The catastrophic impact of asset the financial crisis. There were, Ninth and last, our home mort- bubbles in the overall economy apparently, no plans for dealing gage system is totally broken. is presumably beyond question, with individual institutions if When one considers what a sub- but there appears to be a wide- they encountered severe finan- stantial part of the nation’s GDP spread consensus that monetary cial instability. The resolutions is represented by home mort- policy is an overly blunt or in- in 2008 were often imperfect gage debt, as well as the im- effective tool to deal with those precisely because they had to portance of home ownership in unfortunately reoccurring phe- be so ad hoc. The regulators nomena. In contrast, regulatory should have a glass panel with L

THE BULLETIN w 27 creating financial, familial and weak economy . . . . that big can be good. There are societal stability, a resolution advantages for consumers in to this problem must be of the Banks: Big Is Not terms of geographic and prod- highest import and priority. The Necessarily Bad uct scope. There are advan- GSEs (government-sponsored tages of risk reduction through enterprises), Fannie Mae and The specific actions that should diversification, and there is an Freddie Mac, are overwhelmed be avoided are those directed ability to resolve failing institu- by their huge losses, and they to implementing the related tions with the least cost to the continue to have a market-dis- contentions of “big is bad” and taxpayer and the least systemic torting impact. At a minimum, “banking should be boring.” consequences. What would they should be reduced, not nec- The idea that banks are inher- have happened if there had been essarily by size, but by purpose. ently more risky if they are big no institution large enough to They should no longer be seen has gained substantial currency, acquire Bear Stearns, Wachovia as the dominant end providers notwithstanding the lack of any or Washington Mutual? of mortgages. They do have a empirical support and even a re- role as providers of mortgages cord that contradicts the asser- Banks Need Not under specific government pro- tion. If size truly correlated to Be Boring grams. risk, then how do you explain the hundreds of smaller institu- Equally flawed is the related In order to accomplish this goal, tions that have and are experi- argument that banking should it is essential that mortgages be encing severe financial distress? be boring. Acceptance of this an appropriate asset for banks How can you explain the expe- argument would threaten both to hold, as they have been for riences in Canada and Austra- longstanding and long-term fi- decades until the 1980s. This lia, which have probably the nancial well-being of our banks requires, among other things, two most concentrated banking and the potential for an eco- prudent underwriting standards systems in the world, yet their nomic recovery. If banks are and prepayment penalties to banks were able to withstand too small and too confined to prevent banks from being con- the international financial crisis meet the legitimate needs of stantly whipsawed by interest better than their counterparts consumers, the economy suffers rate changes. worldwide? because those consumers can- not grow and expand. If banks WHAT WE NEED A more legitimate rationale for cannot develop new products, TO AVOID the “big-is-bad” theory is that their customers’ progress is big banks do create greater risk likewise confined. And if every [W]hat we need is action, not for the system if they fail. But loan gets repaid in full, there are inaction. But, at the same time, there is a fundamental inequity a lot of good loans that will not it is essential that the legisla- in penalizing all large banks be made. tive solutions be thoughtfully because of the possibility that calibrated rather than simply one of them may cause greater The utility risk-free model for reflexive or punitive. Those systemic risk. The clearly more banks both misunderstands the solutions should be directed to appropriate, fairer and direct re- nature of banking and threatens the actual causes of the crisis sponse to this risk is to create banks’ ability to advance the and crafted in a way that avoids an effective resolution scheme economy. The basic business undermining the important role, if they fail, which I previously of banking, taking deposits and the critical role, of banking discussed. making loans, has inherent risk. in our economy or places The principal risks are the cred- additional pressure on a still It is also necessary to understand it risk of the borrowers and the

28 w THE BULLETIN asset-liability mismatch of bor- etary trading and investing in the same level of risk, but in en- rowing short and lending long. hedge funds and private equity. tities which are unregulated. These risks can only be elimi- nated, totally eliminated, at The suggestion that the partial The Real Cause of the Crisis the cost of lower overall credit repeal of Glass-Steagall was the availability, sharply less credit leading cause, nine years later, of Of perhaps most importance, all for smaller businesses and in- the 2008 financial crisis is deci- of these proposals which focus creased risk for businesses and sively refuted by even a cursory on securities-related activities consumers in the deployment of review of the major failures and threaten to divert attention from their funds. near failures. In chronological the real cause of the most seri- order, none of the following had ous problem at banks─and this Banks As Fuel anything to do with the repeal has been true in the last decade, of the Economy of Glass-Steagall: Bear Stearns, it has been true in the ‘90s, the Fannie and Freddie, Lehman, ‘80s, and you can go back in Banks should not be viewed . . AIG, Washington Mutual, Wa- time, including the ‘20s and . as the engine of the economy, chovia. Indeed, most economic ‘30s─and that is an overcon- but banks are the essential fuel historians now agree that the centration in risky real-estate- of the economy through their Glass-Steagall Act itself was related obligations. credit payment processing and originally enacted on the false intermediation roles. If those premise that bank securities THE NEED FOR A roles are overly confined in an activities had been a principal POSITIVE RESPONSE effort to squeeze out all risk, the cause of the 1929-33 financial FROM BANKS economy will sputter. Let me collapse. state it differently: throughout I thought I would close by reit- modern history, there has not The Volcker rule is a somewhat erating [a point] about the bank- been a great economy without a more limited version of the ing industry itself and its re- supportive and successful bank- Glass-Steagall proposal, but the sponse to proposals for change. ing system. basic issue is the same: Where I would suggest that it is subop- is the evidence that the to-be- timal for the banking industry to Proposed Banking banned activity created signifi- respond to these proposals with Regulation Misguided cant financial distress at any only opposition and vague state- financial institution? There is ments of policy. The banking Let me . . . discuss two mani- no record whatsoever from the industry and the country would festations of these contentions, proponents. But there is an even be better served by a coherent “big is bad” and “banking greater defect in the Volcker and a specific statement of what should be boring.” The first is a Rule, and I say this with all hu- the industry is for, rather than bipartisan . . . proposal by Sena- mility, because there is no indi- for what it is against. . . . I do tors Cantwell and McCain to vidual with greater knowledge see some major leaders of Wall roll back the 1999 partial repeal and greater intellectual integrity Street understanding that calcu- of the Glass-Steagall Act, which than Paul Volcker. If you think lus and, hopefully, stepping to had separated commercial and it through, what he proposes to the fore. investment banking. The sec- do is reduce risk in the banking ond, which has received much system, but that is not going to prominence recently, is the end the risk. The risk will move so-called Volcker rule, which to the non-regulated sectors of would ban banking organiza- the financial industry. And what tions from engaging in propri- that means is that we will have

THE BULLETIN w 29 LARGE LAW FIRMS IN A CHANGING WORLD

In the wake of what has been termed the worst year for the legal market in at least the last fifty years, author and law firm consultantPeter Zeughauser, Newport Beach, California, addressed the Spring Meeting of the American College of Trial Lawyers in a presentation entitled The Brave New Legal World.

Although his address dealt mainly with large national and global law firms, a world to which a majority of the Fellows of the College and a far larger portion of the gen- eral lawyer population are strangers, it contained some illuminating insights of value to every lawyer.

In his introduction, Past President David Beck of Hous- ton, Texas, pointed out that in his career, Zeughauser has worn multiple hats: He has been both a lawyer and a client. He served for over ten years as Senior Vice President and General Counsel of The Irvine Company, a very large real estate development company. Under his leadership, its law department was recognized by the National Law Journal as one of the top ten law depart- ments in the country.

The author of a widely acclaimed book entitled Lawyers are From Mercury, Clients are From Pluto, in which he shares his insights on law firm management, Zeughauser Peter Zeughauser is a contributing editor of the American Lawyer magazine and is frequently quoted in such diverse publications as the Wall Street Journal, Business Week, Corporate Coun- sel magazine, and many others. He has served as past chair of the American Corporate Counsel Association.

Setting the stage, Beck noted, “Today’s American Bar

30 w THE BULLETIN Association weekly newsletter decline in revenue and profits serted, continues to consolidate. reported that law firm associate marked the end of an era of tre- Approximately 75 percent of the offers are down seventeen per- mendous growth. firms in theGlobal 100 are indig- cent. According to the National enous U.S. law firms, so that one Law Journal, in 2009, 5,258 law- Recent reports, he then ob- might infer that roughly three- yers were laid off at our coun- served, indicate that the AmLaw quarters of that 85 billion dollars, try’s 250 largest law firms. And 100 firms, who had been pulling in excess of 60 billion, is in the then you superimpose on those away from the rest of the pro- U.S. legal market. layoffs scaled-back recruiting, fession in terms of their success salary cuts, rescinded job offers and profitability for about a gen- CONSOLIDATION and postponed associate starting eration, were losing ground to dates, and you can see that 2009 the next tier down, the AmLaw That market is consolidating sig- was probably one of the worst 200 firms. He described how in- nificantly. The AmLaw 25 firms years in the history of our profes- credible pricing pressure on law have just slightly less than half, sion.” firms, imposed by clients as a re- 49 percent, of the total revenue of sult of the economy, is currently the entire AmLaw 100. The Am- THE BRAVE NEW causing legal work to migrate to Law 13, firms with revenue of a LEGAL WORLD lower-priced firms. While the billion dollars or more, have 29 sixty-eight of the AmLaw 100 percent of the market share, or In his address, Zeughauser made firms that had already reported about 2.2 percent each. Indeed, three major points, which he their 2009 results as of the date the top three firms have nine per- characterized as his answers to of his presentation were still off cent of the market share, leaving questions he is frequently asked. in profitability for that year, the the other 97 to compete for the They were: second hundred were up nearly remaining 91 percent. Fifteen ten percent in profitability. years ago, no firm would have 1. The basic law firm model is had more than one-and-a-quarter not dead. The reports indicated that 2008 percent. was a bad year and that 2009 2. For many firms, however, the was worse for the largest firms, The mergers we read about are model is changing. though the fourth quarter of 2009 evidence of a consolidating in- was promising, indicating that dustry, one that continues to con- 3. The “golden era” for law firms the market was clearly coming solidate. Overall, most, though is not over, and the future is actu- back. not all, of the larger firms have ally very promising for American made great gains on the most law firms, for successful world- THE MARKET FOR profitable firms and are emerg- wide law firms and for litigation LEGAL SERVICES ing as dominant global players specifically. and dominant U.S. players. Con- Turning to what he saw as hap- solidation is being driven by the Zeughauser pointed out that in pening broadly in the market for increased resources needed by 2008, the American Lawyer 100 legal services, some of the large law firms to achieve top status firms (the hundred firms with the trends, he began by defining that around the world for a market highest reported gross revenues) market. In the last full reported that is increasingly driven by the for the first time in seventeen year, the gross revenue of the interdependence of the world’s years saw declines in both prof- Global 100 law firms, the larg- economies, particularly the inter- its per partner and in revenue per est firms in the world in terms of dependence of the world’s capital lawyer. The result of the incred- gross revenue, was about 85 bil- markets and the dispersion of the ible decline in the economy, that lion dollars. That market, he as- L

THE BULLETIN w 31 world’s financial assets outside position it in the consolidation. while attracting, developing and of the United States and London retaining the staffing level they to other emerging markets, such As a result of the economic crisis, would like. The present glut in as those people call the “brick” we have seen the acceleration of the market allows them to do that. countries: Brazil, Russia, India trends in the legal industry, accel- That is a message that has been and China. eration to the point that for some very well received by clients, and firms, it has actually become a it is part of the reason work is mi- There is certainly less litigation, crucible of change. The change grating to those firms. or at least fewer trials. It is dif- is inexorable, and there is great ficult to tell whether there is less pressure on law firms to tweak The other trend we are seeing litigation, but clearly litigation is their models, not abandon them, is a move away from lock-step consolidating among larger firms. but tweak them. compensation. We are in a con- They are gaining greater market solidating free market. Law firms share as a result of their higher SEGMENTATION and lawyers are competing more top-of-mind status in the client and more based on merit. They community and as clients, under The trends he sees include glo- are not viewed generically by cli- increasing cost pressure, find that balization, consolidation, conver- ents, who want to hire the best at by bundling their work among gence (clients reducing the num- whatever it is they need solved. a smaller number of firms with ber of firms they use) and seg- Everyone is competing much greater breadth and depth, they mentation. As to the latter, clients more on merit today than ever can achieve cost savings. This, he are becoming smarter about who before. People who achieve at a pointed out, is not true across the they hire to do which work, real- high level all through school, who entire market, but looking at the izing that they can get some work do well in a great college, who go market for legal services broadly, done at a lower cost than other to a great law school and excel, it is a significant trend. work, and that not all of the work and then join a great law firm, and that lawyers do in every matter is are told, “I’m going to pay you a The AmLaw 100 have gone from rocket science. Clients are there- lot of money by the hour to get it a group of largely regional firms fore unbundling packages and right,” will get it right. to become a group of national sending different pieces to differ- firms, and they are increasingly ent firms. In turn, law firms, par- The profession has produced an becoming international, shedding ticularly the successful firms, are amazing level of quality, which their regional and national status. responding by going after more is a great thing, but that is not so specific segments of the market. distinctive anymore. Firms do The second hundred firms, which All of this also has driven the not compete just on quality. They more recently were regional, are increased specialization in firms compete on results and on their following suit and becoming na- and in the profession. ability to deliver those results tional. Mid-size, single-city firms cost-effectively. In a free mar- are becoming more distinct. That LAWYER COMPENSATION ket where people are competing is not bad for them as long as on merit, people must be paid by they are focused on excelling in Two big trends in the profession merit. That is a major trend in the their markets as they define them. relate to staffing. There has been profession, not just at the associ- What all of this is telling us, what a significant crack in the national ate level, but also at the partner we are learning from it, he contin- starting salaries with the market level. ued, is that the market is segment- segmenting, some firms saying ing, and a firm either needs to po- that to make the kind of money It is, however, as Zeughauser sition itself in the market where they need to make, they have to pointed out, difficult to generalize it wants to be or the market will pay their starting lawyers less, on this point. Some of the most

32 w THE BULLETIN successful law firms in the world become more profitable than they look at the basic model for prac- do not pay by merit. They often can be charging only on a cost- ticing law in the United States have lock-step compensation, plus system. Many people were and around the world, which is but they live in a rarified world unaware that last year for the first to take very bright, young, new of high expertise, and there is time, some of the top firms were graduates of law school and in- not enough room at that level for discounting their accounts receiv- vest the time and energy in train- every other firm among the Am- able as much as forty percent to ing them and teaching them the Law 200, and so most of the pro- get money in at the end of the year, skills to successfully resolve cli- fession is experiencing a change and discounting their charges for ent problems cost-effectively, and away from lock-step compen- new matters ranging as high as serve productively as a partner in sation and towards merit-based twenty-five to fifty percent. This the firm. That is the basic model, compensation for associates and all ties back to consolidation and a which Zeughauser does not think for partners. That, in turn has led huge battle for market share, and is going to change. He thinks that to a lot of cherry-picking, and in even for survival, that is going on the most successful firms in the a down time, we have seen a lot among the AmLaw 200 as a result world will be those who do that more cherry-picking, and partner of the economic crisis. These well, and if that changes, we will talent is much less “sticky.” were long-term trends, but they have an upheaval in the way le- have been significantly acceler- gal services are delivered, and, he When you pay people based on ated as a result of the economy. suspects, quality will be greatly merit, you make decisions about diminished. who, based on merit, should be in THE BASIC LAW the partnership in the first place, FIRM MODEL He believes that firms are reli- and we are seeing shrinkage in gious about that model, that the the equity and non-equity part- Thus, Zeughauser posited, the better firms are at adhering to ner ranks because of the pressure model is changing, but the basic that, the more successful they on firms to maintain high levels model is not dead. First of all, he will be, and that that is unlikely of profitability so that they can reminded the audience why cli- to change. keep their best performers. We ents hire lawyers and law firms. are seeing significantly increased This is essentially a relationship Zeughauser sees a bright future compensation ratios among the business, and it is about perceived for lawyers. He bases this on firms that have gone to merit- value. No matter how many re- his view of what lawyers do for based compensation for partners. quests for proposals go out and clients. He posits that it is essen- Over the last five years, the aver- no matter how many convergen- tially the aspiration of all people age ratio has probably gone up ces occur, in the end, particularly in the world, the essential nature from about four-to-one to about for the best work, which is what of the human condition, to im- five-and-a-half to one, and we lawyers aspire to get, it is still prove their lot in life. People do see firms in the market that have very much a relationship busi- this by investing assets, their time ten-to-one and even thirty-to-one ness. Relationships involve un- and their money, and they use ratios based on perceived relative derstanding and satisfying client time and money to create or use merit. needs; nothing has changed about property, real and personal prop- that. Clients perceive value dif- erty, intellectual property, natural CHANGING PRICING ferently for different types of resources, and to turn them into MODELS work; nothing has really changed financial assets that they can re- about that. invest and do more of the same We are also seeing changes in with. That he argues, is how the the pricing model as a result, be- To determine whether the basic human condition has improved cause firms need to find ways to model has changed, you need to L bon mot THE BULLETIN w 33 in civilized society. All humans Returning to the global market, jury trials, and rare loser-pays aspire to live a better life. he noted that although seventy- rules. The U.S. legal system five percent of the largest law is unique in that regard in the THE GLOBAL firms in the world are indigenous world. Zeughauser posited that LEGAL MARKET U.S. law firms, there are 1.5 bil- while there may be some changes lion people in China. Shanghai around the margins, that is likely The rest of the world, whatever alone has built and occupied to stay the same. As companies the political system, has adopted each year for five years as much become more global and plain- or is adopting as a model an ap- office space as there is in all of tiffs have grievances about them, propriately regulated free mar- downtown Manhattan. We have they will want those grievances ket. Even China, a communist ten cities in the United States resolved in U.S. courts. They country with a completely dif- with over a million in popula- are the most attractive venue for ferent form of government from tion. There are twenty with over those reasons and also because ours, has decided that an appro- ten million and two hundred with we have built “a pretty good le- priately regulated free market is over a million in China. China is gal system.” the best way to improve the con- rising and it is roaring, and they dition of the lives of the Chinese are weak in lawyers and legal THE FUTURE people and provide stability for ability and in know-how about Chinese society. That is true in how to appropriately regulate a There is a limited supply of law- India; it is true in Brazil; it is true free market. yers. It is still difficult to get a in Russia, and it is true in all of license to practice law. We are the world’s growing economies. DEMAND FOR a highly-regulated profession It is the western-style, appropri- WESTERN-STYLE because of the important role ately regulated free market, to LEGAL SERVICES we play in the prosperity of the which the world aspires as the world’s people, but there will be best vehicle for improving the Though China is now experi- much greater demand going for- human condition. encing a pretty good run, they ward than there is supply, despite will make their own mistakes, this blip. It is inexorable that the Zeughauser posited that a law- and they are essentially learning market will come back, and legal yer’s work is at the intersection from our mistakes. The demand services will be strong and still of the use and protection of as- around the world for western- more expensive, and they will be sets. “We are in the engine room style legal services, the level of a great value. of the very effort of all of human quality and the know-how to op- kind to improve its condition.” erate, to help people invest and Zeughauser therefore does not resolve disputes over the use think that the golden era is over, He agreed with those on the pro- of assets, can only grow expo- certainly not for the largest and gram who had spoken on the cri- nentially as China and the other best U.S. law firms. The U.S. sis in the financial world that we emerging countries’ economies is by far the richest legal mar- made some errors in how to ap- grow. It is the greatest challenge ket in the world. Of that 85 bil- propriately regulate the free mar- of the largest and best U.S. law lion in gross revenues among kets, but that as long as we learn firms, to penetrate those markets. the Global 100, 65 billion is in from those mistakes, this is not a Assuming that they are success- U.S. firms. Among the AmLaw fundamental flaw of the system. ful, the future is very great. 200 in 2008, the total revenue We will fix those mistakes, and for the top 200 firms was about he termed it inevitable that the We have a robust plaintiffs’ bar 102 billion dollars. He estimat- world’s economy will resume its because of punitive damages, ed that roughly forty percent of growth. treble damages in some cases, that came from litigation, which

34 w THE BULLETIN is roughly a 31-billion-dollar In 2009, after a significant drop in ally is an incredibly strong and ef- market today. the value of the world’s financial ficient and cost-effective system.” assets -- that’s all debt and equity LITIGATION COSTS assets -- the value of those assets “And so,” he concluded, “I think IN CONTEXT was about 176 trillion dollars. there is a very promising future.” That’s a lot of money. If you look Clients complain that litigation is at the cost of litigation in that con- expensive, and when you are writ- text, it’s about 31 billion dollars. ing the check, it does seem expen- It’s 1/50th of one percent. That is sive. “But if you look at it in the an amazingly inexpensive num- scheme of things,” he observed, ber for resolving disputes over the “it’s actually not that expensive. world’s financial assets. It actu-

AWARDS, HONORS and ELECTIONS

U.S. Attorney Sally Quillian Yates of Atlanta, Georgia, has been named to a two-year term on the U.S. Attorney General’s Advisory Committee. This policy-making and advisory body serves as the voice of the nation’s U.S. attorneys at the Justice Department.

Four Fellows of the College were honored with the American Inns of Court Professionalism Award at their respective Federal Circuit Judicial Conferences in 2010. Created to recognize “lawyers and judges whose life and practice display sterling character and unquestioned integrity, coupled with ongoing dedication to the highest standards of the legal profession and the rule of law,” the recipients were: Past President and University of Oklahoma School of Law Dean Andrew M. Coats, James R. Figliulo, Figliulo & Silverman, Chicago, Illinois, Mark O’Neill, Weston Hurd, LLP, Chicago, Illinois, and Dan K. Webb, Winston & Strawn, LLP, Chicago, Illinois. .

Past President E. Osborne Ayscue, Jr., McGuireWoods, LLP, Charlotte, North Carolina has received the Judge John J. Parker Memorial Award from the North Carolina Bar Association. The Association’s highest award, it recognizes conspicuous service to the cause of jurisprudence in North Carolina.

Mark O’Neill, Weston Hurd, LLP, Chicago, Illinois has also won the American Inns of Court’s Lewis Powell, Jr. Award for Professionalism and Ethics. The award is given for exemplary service in the areas of legal excellence, professionalism and ethics.

THE BULLETIN w 35 College Inducts 88 at palm desert

united states Walter H. Walker, III, Craig A. Raabe, IDAHO: Thomas L. Kemp, San Francisco Hartford Amil N. Myshin, Elkton, ARKANSAS: Boise Michael Schatzow, Kirkman T. Dougherty, SOUTHERN DELAWARE: Kerry D. Staton and Fort Smith, CALIFORNIA: Donald J. Wolfe, Jr., ILLINOIS: Jerrold A. Thrope, Jim L. Julian and Gary S. Lincenberg and Wilmington Wendell W. Clancy, Baltimore Lyn P. Pruitt, Gregory G. Lynch, St. Charles Little Rock Los Angeles, FLORIDA: MAINE: John W. Marshall, Jeffrey R. Garvin, INDIANA: J. William Druary, Jr., ARIZONA: Riverside, Fort Myers, Thomas H. Bryan, Waterville Bruce F. Griffen, Patrick McNicholas and Thomas M. Gonzalez, Evansville Flagstaff Gregory P. Stone, Tampa, MISSOURI: KENTUCKY: Los Angeles, Kirk N. Kirkconnell, Steve Garner, NORTHERN Barton D. Darrell, Stephen P. Swinton, Winter Park, Springfield, CALIFORNIA: Bowling Green, San Diego Dixon Ross McCloy, Jr., Jeffrey O. Parshall, Robert A. Buccola, Panama City, Robert E. Stopher, Columbia, Sacramento, COLORADO: Scott N. Richardson and Louisville, Kevin E. J. Regan, Clement L. Glynn, Gary J. Ceriani, Peter A. Sachs, J. Guthrie True, Kansas City, Walnut Creek, Denver, West Palm Beach; Frankfort John L. Roark, Susan J. Harriman, William D. Meyer, Columbia MARYLAND: William P. Keane and Boulder HAWAII: Wayne T. Lamprey, Howard K. K. Luke and Richard C. Burch, NEBRASKA: San Francisco, CONNECTICUT: Lisa Woods Munger, Towson, Donald W. Kleine, Frank M. Pitre, John J. Kennedy, Jr., Honolulu J. Mark Coulson, Omaha Burlingame, New Haven, Baltimore,

36 w THE BULLETIN NEW HAMPSHIRE: Gary K. Morrell, Timothy C. Houpt, WEST VIRGINIA: Michael A. Eizenga, Charles P. Bauer, Memphis, Salt Lake City Marvin W. Masters, London, Concord, Richard A. Schulman, Charleston Scott K. Fenton and Gregory S. Clayton, Chattanooga, VIRGINIA: Wendy M. Matheson, Littleton, Thomas B. Thurman and Stephen E. Noona, WYOMING: Toronto Blaine R. Hawkes, Edward M. Yarbrough, Norfolk, Richard H. Honaker, Dover Nashville Carlyle R. Wimbish, III, Rock Springs, QUEBEC: Richmond Corinne E. Rutledge, Francois M. Grenier and NEW JERSEY: TEXAS: Cheyenne Olivier F. Kott, Michael J. Maggiano, David P. Boyce, WASHINGTON: Montreal, Fort Lee, Austin, James S. Berg, CANADA Suzanne H. Pringle, Robert E. Paarz, Richard C. Danysh, Yakima, Laval ATLANTIC Northfield San Antonio, Jenny A. Durkan, PROVINCES: Michael G. Terry, Seattle, Richard B. Costello, NEVADA: Scott A. Corpus Christi, William J. (Jay) Q.C., Glogovac, David B. Weinstein, Flynn, Jr., Saint John, Reno Houston, Kennewick, Joseph S. Hutchings, R. Laughton Mark Johnson and TENNESSEE: Q.C., Whitehead, Jr., Elizabeth A. Leedom, G. Gordon Comer Brook Longview Seattle Bonnyman, Jr., ONTARIO: Nashville, UTAH: WISCONSIN: J. Stephen Cavanagh, W. Kyle Carpenter, Byron J. Benevento, J. Michael End, Ottawa, Knoxville, James C. Bradshaw and Milwaukee

THE BULLETIN w 37 THE SAGA OF MARC DREIER, ATTORNEY

“Everybody can relax, take a deep breath, stretch a little bit, ‘cause I’m just going to tell you a story. I’m going to tell you a story about one of your own, who is not here today because he’s in a minimum-security prison outside Minneapolis.”

Eclipsed by the exposure of Bernie Madoff, whose story broke less than a week later, that of New York lawyer Marc Dreier, leader of a 200-plus person law firm whose members were unaware that the firm he had created was itself a massive Ponzi scheme, is a modern morality tale that has perhaps received too little attention from the profession.

Drier’s chilling story had been the subject of an article in Vanity Fair by Bryan Burrough, author, former investigative reporter for The Wall Street Journal and for years special correspondent for Vanity Fair. Three- time winner of the Gerald Loeb Award for Excellence in Financial Reporting, and co-author at age twenty-nine of the now-legendary 1989 work, Barbarians At the Gate, and of a number of more recent books, including Public Enemies and The Big Rich: The Rise and Fall of the Greatest Texas Oil Fortunes, Burrough is a master storyteller. Bryan Burrough At the invitation of College President-Elect Gregory P. Joseph, who introduced him, Burrough retold Dreier’s story at the College’s Spring meeting in Palm Springs. That story, slightly edited, follows.

*****************

38 w THE BULLETIN The story begins . . . when shortly what I quickly discerned is that Harvard Law. He was 59. He was after the . . . fall of Lehman and this was a thorough loser of a story staring at . . . easy 20, 30 years, and everybody else, a fellow was because the guy had pled. He was he basically knew his life was over. arrested at LaGuardia coming never going to tell his story, and, back from Canada. His name was basically, I was going to end up I sat there, and I’ve got to tell Marc Dreier. The Post and the running around talking to clients you, it was one heck of a nice Times and everybody had the story of his 270-member law firm and apartment. He had, I want to say, the next morning that this fellow former attorneys, friends, et cetera. 7,000 square feet, $11,000,000 was being charged with a Ponzi In other words, I was going to end apartment. If you ever go to La scheme, that somehow, some way, up writing a 7,000-word profile Cirque when you go to New York, nobody quite understood it, he had of a New York litigator, and it it’s in that little courtyard along managed to steal something on was going to put me to sleep and with Bloomberg. He was on the the order of $400,000,000 from a probably most of you all. 34th floor straight over La Cirque. series of hedge funds. So, long story short, I waited He started telling me the story, and By and large, the name “Marc around and twiddled my thumbs it’s a pretty good story. . . . Marc Dreier” was then forgotten, and eventually realized that this Dreier was born in 1950, which because about five days later, a story was going to be so bad, my makes him about 60 right now. He fellow named Bernie Madoff hit only hope was to somehow get to grew up . . . out on Long Island, the headlines, and Dreier’s story Dreier himself. That took several Lawrence . . . . Marc Dreier was kind of bled away. Ultimately, he weeks. Unfortunately, I had always above average, smart kid, became number three on the hit waited too long and I was down good talker, voted most likely to list of this era’s Ponzi schemers, way behind Andrew Sorkin and succeed at Lawrence. behind Madoff, behind Allen Business Week and everybody else Stanford of Stanford Financial on the list of potential interviewers. He goes to Lawrence High. He down in Houston. goes off to Yale. He goes off to Luckily, . . . one of my neighbors Harvard [law], does everything For the sake of this audience, is the number-three guy at 60 he’s supposed to do. Right about Dreier has the most relevance, Minutes. And I pigeonholed him 1977 he joined a nice, medium- because he was not only an one night and said, “Hey, how sized firm, Rosenman & Colin, attorney, he was a trial attorney; about we go try Marc Dreier and, again, did everything he he was a litigator. . . . together?” And he said, “That’s a was supposed to do, worked 60- good idea.” I said, “Why don’t and 80-hour weeks, carrying the AN IMPOSSIBLE you have Steve Croft call and, you briefcase initially of the head ASSIGNMENT know, you guys do the TV stuff litigator at the firm; went on to and I’ll do the print?” . . . Anyway, third chair, moved up to second About a month after this happened, it worked. 60 Minutes got the TV, chair, and kind of cut his teeth right after Christmas, I got a call I got the print, and we both went in a famous suit years ago, the from the editor of Vanity Fair, in and started interviewing this Betamax suit. . . . . Dreier was a as often happens. And the story fellow in April. young guy on the make. assignments at Vanity Fair come with a great amount of detail and THE GOLDEN BOY “ENTITLEMENT” thought; and the conversation, as I UNFULFILLED recall, was “Go do Dreier,” click. Let me tell you, he was like talking with a corpse. This was a guy who Around about ‘85, [he] gets mar- I’ve been there eighteen years had always been a golden boy. He ried, has a couple of kids and he and I know what that means, and had gone to Yale undergraduate, to L

THE BULLETIN w 39 makes partner; and the future and, once again, Mr. Dreier found came in, when it finally went to should be assured. But the one himself having to have lots of din- trial, Marc knew that . . . that was word you’ve got to keep in mind ners with people . . . in which he going to be worth 10,000,000 to when we talk about Marc Dreier, basically found himself begging him. He knew he was going to get and it is a word that always is for business. I don’t think he liked Joe Jamail money on that one. in my mind when I am on Wall that either. Street . . . from time to time: “en- Unfortunately, he lost that two titlement.” This is a guy who had He ultimately got into the snit months after 9/11, and he went been told since the age of five or that you knew he would with into a long depression. He was six that he was a genius, that he Fulbright and their management now alone, without his wife. He was a golden boy; they said it at committee, and in around about had a few associates, and he went Yale; they said it at Harvard, they ‘95, he wrote kind of a Jerry Ma- into a long depression that lasted said it at Rosenman. guire memo . . . and he decided for about eighteen months. to go out and his own. . . . When he made partner in 1985, A BEACH HOUSE he found that it was not quite ev- [He] joined a three-lawyer firm. erything that he wanted it to be. They didn’t get along either, so In the summer of 2003, he found He was a lead in the litigation in two more years, Mr. Dreier de- himself walking down the beach section, but he found that an aw- cides to go out on his own. He in Westhampton, Long Island, ful lot of the attorneys, the older gets a small office over in Rock- where he had a meager beach attorneys, did not want to share efeller Center and, once again, house, and he found himself star- their clients with him, that he starts hunting up business, takes ing up at some of the nicer houses, would, in fact, have to go around on a couple of partners. That the ones on the beach. And I asked and hustle them up. . . . doesn’t go too well. And, basi- him, just about that time I said, cally, along about the year 2000, not knowing what he was going I don’t think Marc Dreier wanted he’s 50 years old; he’s got a nice to say, “Gosh, did there every to work that hard. I don’t think little office in Rockefeller - Cen come a moment where you knew he wanted to eat what he killed. ter; he’s got a duplex on 73rd; you were going to cross the line, He got frustrated out there trying he’s got a wife; he’s got two kids, where you saw something you had to continually talk up and chat and he’s still out there hustling to have?” up attorneys who might give him for business, and he feels like, “I business. So [he] . . . started look- was destined for greater things. I And he said, “Oh, yeah. It was the ing around. shouldn’t have to be doing this.” beach house.” And he admitted to me . . . that, essentially, the en- In 1990, Fulbright & Jaworski DEPRESSION tire reason that he ultimately em- hired him to be head of their new barked on a life of crime was that New York litigation section. Suf- And then 9/11 hit, and he went he wanted a bigger beach house. fice it to say, it did not go well into a bit of a depression. He went “I wanted to just, well, appease because, once again, he entered a through a nasty divorce. . . . [H]is myself; well, not appease my- new firm thinking, “Oh, golly, all great case─I see this with litiga- self, gratify myself. I was very, these Fulbright partners down in tors often─there’s always the one very caught up in seeing the cri- Houston, they’re just going to be home-run case that’s always back teria of success in terms of profes- calling me to handle all the litiga- in the drawer that when this one sional and financial achievement, tion needs of Exxon and whatever comes, “I’m going to really make which I think was a big part of the other clients are there: Baker, my nut.” His involved a piece of problem, I guess. But I thought Hughes.” Unfortunately, Houston securities litigation against Avon it would make me happy, and I already had some fine firms, . . . products, . . . and when that one wanted to be happy again.”

40 w THE BULLETIN THE FIRM OF HIS DREAMS be a security or anything. It had $250,000,000. Dreier, LLC goes to be something they couldn’t in- from one floor to 11 on Park Av- So he decides that he’s going to vestigate, so he came up with the enue. It has a flag of its own on begin hiring lawyers. He’s going idea of selling debt, essentially the building. He had─you can- to take his little one-man firm and selling IOUs. not make this stuff up─he has he’s going to hire entire groups two more floors in L.A., another and he’s going to build Dreier, But who would issue it? His larg- 60 attorneys in L.A. And they’ve LLC, into the firm of his dreams. est client was a very secretive real got cute clients like, you know, the estate developer named Sheldon Go-Gos and movie stars and stuff. There is something of a prob- Solow. He . . . called up an Ex- He opens a sushi restaurant out lem with this approach in that it cel spreadsheet. He didn’t know there, another beach house. requires large amounts of cash. much about financial statements, Banks, he found, did not want to so he took some from other real THE BUBBLE BURSTS loan him large amounts of money estate companies, dummied up to build the firm of his dreams. numbers, came up with a piece of You know, when Dreier happened, He initially started getting loans debt. He knew Solow’s auditors. everybody thought that somehow from factors, even on his receiv- He got their . . . letterhead, put it the guy had gotten in over his head ables. Even that didn’t work, so, under their letterhead; found a . . . and he was forced to embezzle a having hired a few-dozen attor- hedge-fund guy up in Connecticut little around the edges to pay [for] neys and realizing that they need- to buy it and, voila, in 10 days he you know, the way that this firm ed to be paid, in 2004, he’s sitting had $20,000,000. was living. In fact, everything in front of his computer, saying, about this firm, from lawyer num- “Oh, my God, how am I going to All his debt is gone. He’s able ber three to lawyer number 275, do this? I’ve got a whole floor. to hire another few-dozen attor- was paid for with outright fraud. I’ve got all this technology. I’ve neys. He’s able to get an Aston got 24 attorneys.” Martin and the first beach house. Long story short, what happens is There would later be a second the housing market goes down in CROSSING THE LINE: beach house. 2006. And by 2007, Mr. Dreier “I JUST DID IT” suddenly finds that not only is it Long story short, in the next two not as easy to sell some of these I asked him, “Was there a moment years, what happens the first time notes, but there’s an awful thing where you, where you determined anybody does something wrong? about selling IOUs. At some to cross the line, where you had They tell themselves─and I point you have to “you.” And he this great ethical quandary of ‘what can’t tell you, over 27 years as a found not many of these firms that type of person am I going to be?’” reporter at the Wall Street Jour- he was selling 12- and 18-month He said, “Huh-uh, no. I just did it.” nal and Vanity Fair, how many notes to wanting to roll over. So times I’ve heard this─”I only instead of selling notes with 10 In 2004, if you were going to thought I would do it the one percent interest, he suddenly is steal, and you were in New York, time. I would pay it back.” selling 12 percent, 14 percent. In- there’s only one place to steal; stead of 18 months, he’s now sell- and that was from hedge funds. No, it never works like that. Oh, ing 12-month notes. Hedge funds basically had more come on, the second time is so Unfortunately, by about the time money than they knew what to much easier than the first -be that Lehman and all the others start do with. They were all looking cause now you know how to do to fall into the canyons of Wall for investments, so he realized he it. Over the course of 24 months, Street in the fall of 2008, nobody had to come up with something to that $20,000,000 note becomes wants any of his notes and he’s got sell to a hedge fund. It couldn’t 18 more notes on the order of L

THE BULLETIN w 41 $200,000,000 due. It’s about this to trust fund. Unfortunately, there go back and face the music. time that he starts to contemplate came the moment of truth when At age 59, with two children, a number of options. The best in- the buyer of the note showed up he told me he did not relish a volved selling new notes to people at the Toronto hedge fund’s offic- life on the lam in Venezuela or in Abu Dhabi and things like this. es where Mr. Dreier was sitting in wherever it might be. So he The worst of his options included a conference room, smiling, not went back, turned himself in to suicide. So he did what everybody that anyone inside the fund knew the exceedingly polite RCMP would do at this point. He actually it, and, unfortunately, the lawyer [Royal Canadian Mounted managed to sell about another 150 got suspicious when he couldn’t Police] detectives. Long story in notes, but, at some point, he just answer things like, “Where’s the short, he will now be, probably ran out of options. bathroom?” for the rest of his life, sitting in a nice little Club Fed up in PLAYING BOTH ENDS And he [the lawyer] happened to Minnesota. know somebody, and so he said, The ultimate─and this is kind of “Do you mind if I call Tom Jones I was very surprised when he the climax of the article, unfortu- down the hall?” And Dreier said, acceded to the interview. It was nately, of his life─the only way “Oh, no.” And, unfortunately, he sad. I’ve done it before. I will he was able to make these notes realized he was going to call to say he was remarkably candid. at the end was by impersonating say, “Is this guy part of the firm?” He had a very clear sense of those who were issuing them. So everything he’d done wrong . . he had famously called a meeting At that point, Mr. Dreier decided . morally, legally, and in every in Sheldon Solow’s conference that he badly needed to go to the other part of it. room, which neither Mr. Solow bathroom, rose, walked out of nor any of his people knew about, the conference room, got on the I will close just by saying I think in which Mr. Dreier ran a meeting elevator, and went to his private that the one thing that Marc with some of the noteholders. He plane. Ultimately, he was sitting Dreier took out of this that made managed to find a . . . [client] that on the private plane when he got him happy is that he became far he’d represented at some point to a call from the buyers of the note better known as he walked off impersonate, to show up as Mr. who said, “Something’s gone to prison than he ever had been Solow’s COO. That worked for wrong. Someone’s impersonat- as a trial attorney. a while. ing you.”

THE MOMENT OF TRUTH THE END OF THE STORY

The next time he did it, he imper- At that point, Dreier decided sonated a lawyer at a large Toron- he could either flee or he could [I]t’s a good reminder to us, as we teach those who are junior to us, that one step “ over the line is straight onto a slippery slope.

President Joan A. Lukey, Boston, Massachusetts “ Reflecting on the Mark Dreier story 42 w THE BULLETIN LOUIS BRANDEIS, TRIAL LAWYER

Lost to many of us is the recollection that before Louis Dembitz Brandeis became the iconic United States Supreme Court Justice, he was for almost forty years a practicing lawyer, a fact of which he was quite proud, in an era that saw a sea change in the practice of law.

In his address to the Spring 2010 Meeting of the College, Professor Melvin I. Urofsky, J.D., Ph.D., the author of a number of books about Brandeis, including Louis D. Brandeis, A Life (2009), chose to deal with Brandeis, whose graduating average at the Harvard Law School has never been equaled, as a practicing lawyer.

Urofsky received his BA, MA and Ph.D. from Columbia University and is a graduate of the University of Virginia School of Law. Retired from the history department at Virginia Commonwealth University, where he taught for over thirty years, he is currently a Senior Fellow at the National Endowment for the Humanities and, since 1993, has chaired the Board of Editors of the Supreme Court Historical Society’s Journal of Supreme Court History.

Pursuing the theme of his address, Urofsky observed, Melvin I. Urofsky “[W]hen someone once complimented him [Brandeis] on the quality of a judicial opinion he had written, he told them, “You must remember, for thirty-eight years I was a lawyer.” Indeed, as Urofsky noted, “[T]he habits and skills he developed in the law office permeated all aspects of his life, as a litigator, a reformer, the head of L

THE BULLETIN w 43 the American Zionist Movement, terms, a school that was more young lawyers who flocked an advisor to the presidents, and, than an American high school, to the city. . . . [H]e did get to of course, one of the greatest yet less than a college. do some trial work, and that Justices in the Court’s history.” pleased him greatly; even when Of added relevance to an audience When the family returned to the man whose office he worked of lawyers was the history lesson the United States in May 1875, in . . . assigned him cases with implicit in his story. The years they stopped in Boston to visit little chance of success. The of Brandeis’ practice, from the friends, and the 18-year-old next week he wrote home, “I late 1870s to 1916, coincided Brandeis went to Cambridge to expect to try a case for George, with a sea change in both legal see the dean of the Harvard Law which we both fully expect to education and the nature of the School, Christopher Columbus lose. In fact, our only chance of practice of law that shaped the Langdell, and convinced him to winning rests in the possibility profession in ways we now take admit him to the fall class. of total mental aberration of for granted. The impact of his the judge. That probably is the career as a practicing lawyer on Brandeis’ enthusiasm for the reason why George shifts the his role on the Supreme Court law and for the law school is work and responsibility onto my was, likewise, not lost on the evident in the letters he wrote to shoulders.” . . . audience. his family . . . , “You will have heard from others, ‘How well- When his law school classmate An edited version of Urofsky’s pleased I am with everything and friend, Samuel D. Warren, address follows. that pertains to the law.’ ” To a who had stood second in the sister he declared, “Law seems rankings, wrote and urged him to BRANDEIS’ LEGAL so interesting to me in all its come and form a partnership in EDUCATION aspects, it is difficult for me Boston, it must have seemed as to understand that any of the if he had been thrown a lifeline. As a youth, he [Louis Brandeis, initiated should not burn with Boston also had a lot of hungry born in Louisville, Kentucky] enthusiasm.” young lawyers, and Warren was greatly influenced by his suggested that it might be uncle, Louis Navatal Dembitz, He finished the then two- possible to secure the editorship considered one of the finest legal year course at Harvard with of two law journals published minds in Kentucky . . . . His the highest grade level in the in Boston, positions that would nephew so admired him that school’s history; it has never give them a cushion of income he changed his middle name been equaled. In fact, he was so while they built up their practice. from David to Dembitz, and young that . . . [the University] Brandeis wrote back that it was a apparently never considered any had to pass a special resolution good idea, but it could not be the other vocation except the law. to allow him to graduate. He main work, saying, “Although stayed on for what we would I am very desirous of devoting When the depression of 1873 now call a year of graduate some of my time to the literary hit, his father, Adolph Brandeis, study, and then, at his sister’s part of the law, I want to become liquidated his wholesale grain urging, he joined her in St. Louis known as a practicing lawyer.” business in Louisville, and took to start his practice. the family to Europe to visit The editorship failed to family and the great cultural THE BEGINNING OF A materialize, but Brandeis became centers there. During that time, CAREER a part-time secretary to the Chief Brandeis attended the Annen- Judge of Massachusetts, Horace Realschule in Dresden for three It was a bad time for the many Gray, where he . . . formed the

44 w THE BULLETIN template that he would use with the U.S. Supreme Court in practicing proved difficult for his own clerks four decades later November 1889, and he would many lawyers and for many when he went on to the U.S. return to that tribunal several clients. One of Brandeis’ Supreme Court. times during the course of his long-time clients and friends, legal career. . . . Edward Filene of the department The firm of Warren & Brandeis store, later wrote him, “I recall thrived from the start. The FROM ADVOCATE TO especially how mystified I was Warren Paper Company became COUNSELLOR at first at a great lawyer’s efforts their first client, but the fame of to keep his clients out of court. the two bright young men soon Aside from the trial work, I could not comprehend the brought them in other business. Brandeis pioneered in the strategy, but you taught me the Charles Bradley, who had been revolutionary change in legal wisdom of conciliation.” one of their teachers at Harvard practice that took place in the and a former Chief Justice of the late 19th century. Prior to the KNOW THY CLIENT Rhode Island Supreme Court, Civil War, one went to a lawyer brought Brandeis down to argue after the event. . . . And the The ability to give advice a case before that tribunal. pre-Civil War attorney was a required the lawyer to know not Although he lost the appeal, as generalist, who practiced more only the law, but business as he expected, he did get the court or less alone, and he sued on well. “Why should a man come to reduce the judgment against behalf or defended the client to me for advice,” Brandeis said, his client. Aside from a hefty against suit. . . . “unless I know his business as fee, the case won him admirers well as he does.” In the early and clients among Rhode Island But with the great industrializa- years . . . Brandeis spent many businessmen and lawyers. tion of the country, it became hours at the Warren Paper Mills, too expensive to wait and see if learning about the business, On New Year’s Day 1881, Louis you were going to be sued. It since many of the questions that sent greetings to his sister and was one thing to argue about a the Warren officers asked them jokingly mourned, “Yesterday $20 livestock sale, quite another affected business, as well as was a sad day. We buried to run into a problem after tens legal questions. irretrievably a half-dozen of or hundreds of thousands of dol- the most beautiful and lucrative lars had been invested in a new Perhaps the best example of how lawsuits, and all for the love of factory or railroad. Business- Brandeis filled the role of counsel our clients. The only consolation men started going to lawyers involved William McIlwain, who is that we get our opponent for a ahead of time, telling them what started from scratch and built client.” they wanted to do and seek- up a multimillion-dollar shoe ing their advice on how best to business in little over a decade. In In the firm’s early years, Brandeis avoid legal problems. “A law- 1902, he asked Brandeis to help handled much of the trial work, yer’s chief business,” said Elihu him. The country was in a mild as well as appeals to the higher Root, a leader of the New York recession, and McIlwain wanted courts. “I have spent much time Bar, “is to keep his clients out his workers to accept a wage of late before juries,” he told his of litigation.” cut without a strike. Well aware sister, “and am becoming quite of his own humble beginnings, enamored of the common sense The shift from advocate to McIlwain had tried to treat his of the people.” He argued his counsel and the adjustment workers fairly, maintaining a first case, unsuccessfully, before to the new requirements of safe working environment and L

THE BULLETIN w 45 paying them good wages. He the individual case. A man may than 300 days a year. Not only thought they had little grounds have six meals one day and none did McIlwain regularize his to complain, and he did not the next, making an average of work force, but by imposing understand the resentment. three per day. But that’s not a some order on the sales force, good way to live.” . . . rationalized the business as a The matter McIlwain brought whole. to Brandeis was . . . a business McIlwain asked him what problem. Brandeis began he should do. After all, the McIlwain followed Brandeis’ familiarizing himself with the entire industry operated on this advice, not only because he saw shoe manufacturing business by basis. Brandeis suggested that the wisdom of it, but because he talking not only to McIlwain’s McIlwain reorganize the sales trusted the man. He knew that managers, but also to the leaders end of his business. Salesmen Brandeis would never suggest of the labor unions at the plants. went out on the road with shoe any plan that did not take into He learned that although the work samples for styles that would account the facts of the situation. force did, indeed, enjoy high be made the following year, And facts to Brandeis, as to any wages, they received that pay and they would travel until they good lawyer, mattered greatly. only for the weeks they worked. had accumulated a fair batch of The shoe business ran on cycles. orders before filing them with the BRANDEIS’ OBSESSION When salesmen sent in their factory. However, some retailers WITH FACTS orders, the factories worked on would not put in orders until the full shift, often with overtime. last minute because they didn’t Years earlier he had written in Then men would be laid off until want to tie up either their capital a chapbook, “Know thoroughly the next batch of orders came in. or shelf space. each fact; don’t believe client Most manufacturers closed their witnesses; examine documents; factories completely at least Brandeis suggested that the reason; use imagination; know twice a year for several weeks at salesmen file their orders earlier, bookkeeping, the universal a stretch and often had additional as they received them, and not language of business; know periods of slack time when the accept orders from retailers persons; know not only specific men worked partial shifts. unless they came in well ahead cases, but whole subjects; can’t of the delivery date. Then otherwise know the facts, know McIlwain’s high wages McIlwain’s managers could not only those facts which proved illusory, since what a plan their work for weeks, even bear on direct controversy, but laborer could make over a year months ahead, set up the work know all the facts and law that amounted to less than a living force so that the men can work surround.” wage. The men understood regularly and so there need not that, and resisted the wage cut in be either overtime or enforced . . . . [T]his obsession with facts busy times, knowing that there layoffs. “Do not accept last is one of the keys that made would be no money at all in the minute rush orders, but promise Brandeis a great lawyer. One slack periods. Brandeis learned the customers they will get their should not think that all he did that this situation permeated the delivery on time only if they was research different industries entire business. . . . order on time.” and then hand out sage advice to businessmen. On many The more he [Brandeis] studied McIlwain agreed, and within occasions, litigation could not the situation, the less sense a few years had completely be avoided, and once involved, it made to him. . . . “I abhor revamped the shoe business. he would be a tireless, some averages,” he declared. “I like His men . . . now worked more said a ferocious, adversary. He

46 w THE BULLETIN prepared his trials and had little office was not one of life’s more intense preparation beforehand. patience with lawyers who had pleasant experiences. There Submerging himself first in not done their homework on are numerous stories of clients the source material, he was time, and this often earned him or would-be clients coming determining the exclusion or the enmity of opposing counsel. in to ask Brandeis to take on inclusion of detail, the order, their cases. In the winter, the selectiveness, the emphasis A DEFICIT IN they kept on their coats, since which marked his method. Once COLLEGIALITY Brandeis deliberately kept the determined upon, it had all the temperature in his office chilly spontaneity of a great address, In explaining some of the so that people would not be because he had so mastered the animosity of the Boston Bar at tempted to stay and chat. They details that they fell into place, the time of Brandeis’ nomination would ask his help, make their as it were, as a consummate for the Supreme Court, his case and then be subjected to a whole.” friend and long-time pillar of grilling on who had the right. If the New York Bar, Charles C. Brandeis decided that the man But it was always in the facts Bellingham, noted that many stood in the wrong, he would that he believed a case could be lawyers resented Brandeis tell him so and suggest reaching won. On more than one occasion because he neither asked for nor an accommodation as quickly as he tripped up an opponent by gave favors in the usual give and possible. . . . . knowing more about the subject take of the law. If one lawyer at hand than the other man did. asked for an adjournment, for If, on the other hand, Brandeis Once the subject involved the whatever reason, professional thought his client was in the price of feathers for mattresses courtesy dictated that the right, he would agree to take the and pillows. Brandeis, at one opposing lawyer agreed on case, and the client would then time, had some trouble sleeping the understanding that at some thank him, through chattering and, for his own purposes, had point in the future, the tables teeth, and go out into the warmth researched the different types might be reversed. Brandeis, of the winter. If there appeared of stuffing used in bedware and according to Burlingham, never to be right on both sides, as the market prices. A man who gave any favors to anybody. in the McIlwain situation, apparently forgot nothing, this His justification was that he Brandeis might seek a solution information came to his client’s was representing his client. beneficial to all parties. He aid years later. Bellingham himself thought that liked this role of what he called Brandeis was wrong on this, and “counsel to the situation,” a role ECONOMIC it contributed to the ill feeling that occasionally got him into SUCCESS against him by the Boston Bar. difficulty . . . . . This work . . . did not go We also have evidence that THE CONSUMMATE unrewarded, and Brandeis must Brandeis did not suffer fools ADVOCATE be counted among the top- gladly, even outside the paid lawyers in the country. courtroom. . . . [He was] a fierce We have a description of The range of incomes in the opponent, but not necessarily a Brandeis before the Supreme profession . . . varied greatly. lovable one. Court . . . . “Brandeis slowly, Young lawyers in large firms deliberately, without seeming made more than those in small Although his clients trusted to refer to a note, built his offices. Two-thirds of the him and some became his case from the particular to the lawyers practicing in New York friends, a trip to Brandeis’ general. It was the result of L

THE BULLETIN w 47 at the end of the 19th Century had told his mother that he a model ever since for whatever made about $3,000 a year, while needed challenges to prove had, reform legislation is challenged those working in the large firms indeed, done well. in the courts...... made thrice that. Of the 1,500 lawyers in Philadelphia Then he did good, devoting more BRANDEIS, THE LAWYER, in the late 1880s, fewer than and more of his time to pro bono AS A JUSTICE one-third were thought to be work. self-supporting . . . . Brandeis . . . carried this passion THE BRANDEIS for facts into his work on the In Boston in the 1890s, the best BRIEF Supreme Court. Today, many estimate is that perhaps a half- Justices will assign one of their dozen made $20,000 a year, a Of course, the great example clerks to write up the factual dozen more made $10,000, and of Brandeis and facts involved part of an opinion, but Brandeis another quarter $5,000, and the what we still call the “Brandeis did this himself, believing that remaining three-fourths made Brief,” the appeal he made in unless he understood the facts of less, often far less. . . . In 1890, at the Supreme Court in 1908 the case, he could not know the the age of 34, [Brandeis] earned in defense of an Oregon law law. He was determined, he told more than $50,000 a year, well establishing maximum hours one clerk, that he would never over $1,000,000 in current for women workers in factories, be caught in a factual error . . . value, . . . while 75 percent of laundries and mills. The unusual . And if his great dissents often the lawyers in the United States brief he filed inMuller v. Oregon, sounded, as the political scientist made less than $5,000. As late with only a few pages of legal Harold Laski complained, like as 1912 when he was devoting citations and over a hundred Brandeis Briefs, that, in fact, much of his time to reform, factory and medical reports was his purpose. he received $105,000 from his on the effect of long hours on practice. The young man who women’s health, would become bon mot

Thank you so much Professor Urofsky. I have to tell you, as a member of the Boston Bar and a former State Committee member in Massachusetts for this organization, there has often been a joke that many of the people that we passed over for lack of collegiality were more collegial than Louie Brandeis, and that Louie Brandeis, were he to have come before the State Committee of the ACTL, would not have made it through because of lack of collegiality. However, he was certainly brilliant, and that was the reason that little character flaw seems to have been overlooked, and we consider him a local gem.

College President Joan Lukey, Responding to the address on Justice Louis Brandeis

48 w THE BULLETIN bon mot FORMER WHITE HOUSE COUNSEL SPEAKS

SELECTION OF FEDERAL JUDGES, CHOOSING A SUPREME COURT JUSTICE AND CLOSING GUANTÁNAMO

Former White House Counsel Gregory B. Craig, FACTL, of Washington D.C., since January 2010 a partner in Skadden, Arps, Slate, Meagher & Flom, LLP, shared with the Spring Meeting audience some of his reflections on his experience as White House Counsel in the first year of the Obama Administration.

In introducing Craig, Past President Gene Lafitte, of New Orleans, Louisiana, noted that he “has had an amazing career as a lawyer . . . at the White House, on The Hill, in the State Department and in the courtroom. . . . a fine American, devoted to his country, as exemplified by his public service to our nation.”

The son of a World War II naval officer who became Dean of Men at Stanford, went on to become president of several colleges and universities and was the first Director of Training for the Peace Corps, Craig is a graduate of Harvard and of Yale Law School.

He began his legal career at Williams & Connelly, under the tutelage of Edward Bennett Williams. In public ser- vice, he served as Advisor on Foreign Policy, National Security and Defense to Senator Edward Kennedy, as Assistant to the President and Special Counsel, coordi- nating the defense of President Clinton in his impeach- Gregory B. Craig ment proceeding, and as Director of Policy Planning and L bon mot THE BULLETIN w 49 Special Coordinator for Tibetan es as White House Counsel, to bench in their state, had been Issues under Secretary of State discuss three subjects: picking abolished by a Republican ma- Madeleine Albright. Federal judges, picking a Justice jority in 2001 and restored by of the Supreme Court and the a Democratic majority in 2006. The first White House Counsel detention center at Guantanamo. The effect of the blue slip rule is in the Obama administration, to require in those states where he was in the forefront of the SELECTING the senators are not of the same efforts to fulfill the President’s FEDERAL JUDGES party a measure of bipartisan- campaign pledge to close the de- ship in judicial selection. tention facility at Guantánamo “[I]n my judgment,” he began, Bay, and he was instrumental in “finding good candidates for THE CRITICAL changing the interrogation and the bench and appointing indi- IMPORTANCE OF detention policies at that facil- viduals of character and qual- TRIAL JUDGES ity. He also participated in the ity to serve as judges is one of search that led to the nomination the most important functions . . Observing that his was not an of Sonia Sotomayor to the Unit- . [of] the President of the United audience to which he needed to ed States Supreme Court. States . . . .” explain the critical importance of judicial appointments, he In his years in private practice “Now, as you know, the process offered his three reasons why he has represented, among oth- of appointing judges is not sim- this is so. First, “I believe that ers: John Hinckley, the would- ply the President picking a name for those of us who practice in be assassin of President Ronald and saying, ‘That’s going to be courts, the quality of our lives Reagan; Juan Miguel González, the judge.’. . . The Constitu- depends heavily on the quality in the custody proceeding in- tion says that the President shall of the judges that we appear be- volving his son, Elián González; nominate and by and with the fore. Judges that do not measure United Nations Secretary Gen- advice and consent of the Sen- up turn our lives into more agony eral Kofi Annan before the ate shall appoint judges of the than ecstasy, and those prosecu- Volker Commission in the oil- Supreme Court. Now, that has tors and those federal defenders for-food program investigation; gone on to mean not only judges that have to live with the judges the Panamanian government of the Supreme Court, but fed- who do not have the tempera- in the trial of former president, eral District Court Judges and ment or the interest or the ethic Manuel Noriega; former CIA Courts of Appeal. So the Sen- to serve as conscientious judges director, Richard Helms for al- ate plays an important role ...... do enormous damage . . . .” leged perjured testimony before . [T]he White House counsel the Senate Foreign Relations spends a lot of time with mem- “Secondly, I believe that consci- Committee; Victor Posner when bers of the Senate talking about entious judges are responsible he was charged with income judges.” for the credibility of the entire tax evasion, and Alexander Sol- system. Depending on the dis- zhenitsyn, in a 1978 libel case. He observed that the Sen- trict, sometimes eighty percent ate’s precise role is a matter of of the criminal defendants in a ********** some debate. The “blue-slip” jurisdiction are indigent, and rule, which allowed both sena- there is not a strong political Disclosing that he had been tors from a state, regardless of constituency that looks after asked to talk about “anything political party, a veto over the this particular sector of our soci- that is on my mind,” Craig selection of the Federal judges ety. In my judgment, this is the chose, out of all his experienc- nominated to serve in the trial emergency room of the criminal

50 w THE BULLETIN justice system, the way in which “Now,” he concluded, “no one Hamilton, a nomination enthu- we handle these individuals, the is more passionate about the le- siastically supported by the Re- prosecutors and the defenders. gitimate role of the Senate in the publican senator from his home What is most important to me is process of providing their ad- state, to the Seventh Circuit the quality of the judges that call vice and consent with respect to Court of Appeals. The nomina- the balls and call the strikes and individual nominees than I am. tion, which was ultimately con- maintain the legitimacy and the It is an important and a vital firmed by a margin of more than fairness of the criminal justice check, and it also balances out twenty votes, was filibustered system.” the presidency when it comes to and not voted on in the full Sen- what would otherwise be unfet- ate until eight months later. “My view remains the same, tered presidential power to re- that . . . those federal judges make the federal judiciary in the Craig went on to list three other playing that role in the criminal President’s own image.” appellate court nominees, whose justice system really are abso- confirmations took from five to lutely essential to the legitimacy DELAY AND seven months from the date of of the entire system of constitu- OBSTRUCTION nomination to a vote in the Sen- tional government, because, as I ate, though none of the confir- say, this is one place where the Craig went on to assert his opin- mation votes was close. Indeed, Constitution every day is in the ion that in the present Admin- in one that took seven months, hands of these individuals.” istration the “check” has been the vote was 97 to nothing. He abused and the “balance” is not called attention to a fifth nomi- “A final perspective,” he contin- right. He went on to give exam- nation, that of Virginia Supreme ued, “on the importance of fed- ples as of the date of his address. Court Justice Barbara Keenan to eral judges also reflects my own Since his inauguration on Janu- the Fourth Circuit, that had been personal experience. . . . I do ary 20, 2009, President Obama subjected to “massive delay,” believe American history hap- had sent 48 nominations, includ- ending the week before his ad- pens in federal district courts all ing that of Justice Sotomayor, to dress with a cloture vote of 99 to the time. We know that it hap- the Senate. Not one of those nothing to end a filibuster of her pens in Supreme Court opinions, nominations had been rejected, nomination. “It seems to me,” because we read about it and de- but only sixteen had been con- he suggested, “that that is an ex- bate about it. It gets a good deal firmed. Fourteen names have ample of delay and procedural . of attention. But it also hap- been sent by the President for . . obstructionism that is unnec- pens in the courtrooms where confirmation to the Courts of essary and unworthy of the Sen- powerful, strong, smart, federal Appeal in the federal appellate ate. It just took up floor time district court judges every day courts, but only five had been and delayed the confirmation of operate and issue their opinions confirmed. None had been- re a totally qualified judge.” and hand down their decisions. jected. “There has been, with I would just say, in my own life, respect to each one of them,” he “In my judgment,” he con- look at John Sirica, look at Bar- asserted, “extraordinary delay tinued, “this delay in the con- rington Parker, Gerhard Gesell. that I believe is unconscionable firmation of these judicial- ap The number of strong and pow- and indefensible.” pointments will be seen [to] and erful and important district court could undermine the President’s judges that have made a differ- Noting that in less than sixty constitutional right . . . to make ence in American history is re- days from his inauguration the the appointments that he is en- ally very significant.” President had sent up the nomi- titled to make.” nation of District Judge David L

THE BULLETIN w 51 SELECTING “she started her courtesy calls on the selection of a nominee . . . A SUPREME the leadership of the Senate, and begin and end with the consider- COURT NOMINEE those private meetings, one on ation of these factors: personal one with Senators on both sides integrity, professional com- Craig observed that the nomina- of the aisle, continued throughout petence, capacity to write and tion of Justice Sonia Sotomayor the process until the final vote in articulate lucidly. . . . “ provided “an experience I think August. And . . . one of many ex- we can all learn from.” He noted traordinary things about the pro- Lesson number two: “[A] a com- that since January 1969, when cess is that by the end of the pro- pelling personal story, where she President Nixon took office, Re- cess, Judge Sotomayor had met came from, where she grew up, publican Presidents have pro- with 93 members of the United what she had accomplished in posed seventeen individuals to be States Senate. That is a record her own life. And that powerful Justices of the Supreme Court and that will probably never be sur- personal narrative emerged over that twelve have been confirmed passed.” and over again during the pro- and the rest rejected, withdrawn cess and strengthened an already or withheld. The three nominees He noted in passing that there very strong candidacy. It also of Democratic Presidents were were two “firsts” involved in her was there for Justice Alito. It was confirmed. swearing-in ceremony. It became also there for Justice Roberts. known that members of the Su- That compelling story is always He reported that from the very preme Court wanted the ceremo- very important, at least to the pre- earliest days of the transition, ny to take place in the Supreme sentation of the candidate to the President Obama, a teacher of Court, rather than at the White American public.” constitutional law, knowing that House, and so Chief Justice Rob- he might well have a Supreme erts performed the ceremony Lesson number three: “[D]ur- Court vacancy to fill, was talking there. The other “first” was the ing the first forty-eight hours of a informally with his staff about live filming on national television nomination, the public’s percep- names of potential nominees in of the ceremony in the Supreme tion and understanding of that the university community, the ap- Court building. nominee, the character, person- pellate court community, the prac- ality and story of that nominee, titioner community and elected Craig went on to list eight lessons is largely established, and so if and serving government officials. learned from the Sotomayor ex- you want to have a successful The staff then performed a fairly perience. Lesson number one: nomination, you spend a lot of complete vetting of each person “By far the single most impor- time developing the presentation who might be considered, so as tant factor in . . . any process in- of that nominee to the American to be prepared to act if a vacancy volving a Supreme Court confir- public, because after that positive occurred. mation, was Justice Sotomayor’s image and positive frame have own impeccable credentials, her been established, it is very diffi- LESSONS FROM qualifications, her personal char- cult for the opponents to change SOTOMAYOR acter, her record and her profes- the view of that person, because NOMINATION sional integrity, her competence they have to change the public’s and her self-evident adherence mind.” He reminded the audience that on to the rule of law. This is a good May 26, 2009, the day Judge So- place, by the way,” he suggest- Lesson number four: “[B]ehind nia Sotomayor was nominated to ed, “to begin with all consider- every successful Supreme Court fill the vacancy created by the re- ations of a potential nominee. . . nomination is a powerful cham- tirement of Justice David Souter, . I think [it] is so important that pion in the Senate. . . . So there

52 w THE BULLETIN is something to be learned there with the majority leader and mi- so, in my view, we’ve got to get when you consider the various nority leader the day of the an- ready the next time around for potential candidates: does that nouncement, and those courtesy exactly the same thing.” person have someone who will calls will be discussing all the go to bat, will be in the corner hot topics that the Court is deal- “I think,” he continued. “there is prepared to go out and defend ing with. And, although it is an much to be said for these open the nomination under all circum- informal conversation, . . she will hearings. I know . . . the academ- stances?” have to be prepared to deal with ics . . . would like a more robust all those issues right from the debate. They do not satisfy the Lesson number five: “[B]e sure get-go. The courtesy calls do not purists or the ideologues who that you know that every nomi- change opinions. They will neu- would like to explore every nook nee, no matter how flawless and tralize opposition, but they can do and cranny of a potential candi- issue-free, will have some prob- real damage, I think, to the candi- date’s history and thinking about lems. . . . [A]s problem-free as dacy if they’re not handled well.” an issue. But, in my view, this Judge Sotomayor was, there were is the only place that the Ameri- some issues in some of her opin- Lesson number eight: “[I]t is can people have a chance to get ions and some of the speeches that not a sign of weakness, to pre- to know the members of the Su- she had given that we had to iden- pare to spend time with the can- preme Court without going to the tify in advance and address the didate. No candidate, not even Court themselves and as a mem- challenges and prepare for them.” someone as well-read and sophis- ber of the public . . . to sit and ticated as Chief Justice Roberts watch an oral argument. And Lesson number six: “[I]t is im- or as knowledgeable of the law that, I think, is valuable.” portant to have a comprehensive as Judge Sotomayor, is fully con- strategy and a mechanism to co- versant with all the legal issues GUANTANÁMO ordinate the various components that will be discussed, so it makes of the confirmation process. sense to spend time organizing Finally, Craig asserted that, “I There are the legal issues. There thoughts, legal briefings and deal- believe that the President of the are the political issues. There is ing also with the land mines that United States is still fully com- the outreach. There is the me- are unique to Washington D.C.” mitted to closing the detention dia. And let me tell you, one of facility at Guantánamo, and I the greatest challenges is to deal Craig ended this part of his ad- believe he will succeed in that with the single-interest issue dress by commenting on the pro- mission. It is true that we did not groups that always participate in cess itself. He noted a raging succeed in making the deadline the Supreme Court process. . . . debate among academics about that was set forth in the Executive [S]ingle-interest issue groups that whether or not this process is Order that he signed on January support you can do as much dam- worthwhile, whether the open 22nd, and that there has been a age to your nomination or to your public hearing covered by tele- delay in that. But that delay is not candidate as single-interest issue vision and cable television, and attributable to any lack of com- groups that oppose it.” now the blogs, is a public service mitment on the President’s part or a public detriment. “Those are or any lack of competence on the Lesson number seven: “Courte- all interesting questions . . . for people that have been working on sy calls, you have to prepare for. the academics,” he said, “but not the problem. It is a difficult . . . They begin immediately, so you for the practitioners. Live radio a tough problem that has become have to work with your candidate and television coverage of the politically charged. It is going to long before the announcement Supreme Court confirmation pro- require work to achieve without is made. She goes up and meets cess . . . is here to stay . . . and L

THE BULLETIN w 53 permanent disruption, I think, of cent attacks that have come out ular clients, even evil clients, do Washington D.C.” of the blogosphere and some of enormous service to the country. the most extreme elements of So I find the effort to character- “But what remains to be done? the political spectrum, raising ize lawyers serving in the De- There still remains vigorous diplo- questions about the patriotism partment of Justice as ‘terrorist macy. When the President took of- and the character of government lawyers’ to be really reprehensi- fice, there were approximately 250 attorneys who come from law ble, and I applaud Former Solic- detainees there. It has now been firms that represented detain- itor General Ted Olson and his worked down to 188, and that will ees or who themselves were in- counterpart, Walter Dellinger. be broken down into three groups. volved, in their private practice, They are to be commended and And you will see that develop in in representation of detainees.” emulated, in my judgment, in the next months and weeks. But condemning these attacks in the truth is, we have made enor- “The lawyers who took those public, and I would hope other mous progress in placing detain- cases did so, at least in part, former government officials ees carefully and safely with other in response to the Supreme would do the same. I would urge nations who have been willing to Court’s opinion in Boumediene this body, through its officers, to help us solve a problem that is not that concluded that the detain- consider using the precise lan- of their making. And Secretary of ees were entitled, under the guage, because to use Walter’s State Clinton has done a magnifi- Constitution, to habeas corpus very good word for this, it is re- cent job working with her special procedures. . . . [T]hat neces- ally ‘shameful.’” envoy, Ambassador Dan Fried, to sarily requires legal representa- make this happen.” tion, so even these individuals PRESIDENT who were being held as terror- LUKEY’S RESPONSE “The second major challenge is to ists were entitled to counsel. get bipartisan congressional action The willingness of American In thanking Craig for his re- to fund the new facility in Thomp- lawyers to take on these cases, marks, President Joan Lukey son, Illinois, and this is the critical in my judgment, was praise- pointed out that approximately political challenge for the Presi- worthy, not blameworthy. That eighty Fellows of the College dent. In my view,” Craig contin- they did so, I think, was con- have been involved in represen- ued,” if he can persuade the Re- sistent with the highest and tation of Guantánamo detainees, publicans to join a bipartisan effort best traditions of the American even in circumstances and in lo- to close the detention facility and criminal justice system.” cations where it was not popular to support funding for that facil- for them to do so. “We thank ity in exchange for trying the 9/11 “I need not point out to this audi- them for their service,” she con- detainees in military tribunals, as ence that this tradition goes back cluded, “and we are proud that opposed to Article III courts, that in our country hundreds of years, the College could play a role in would be a good result and a fair and that John Adams’ willing- helping to reduce the number of and a positive compromise.” ness to take on the representation detainees at Guantánamo and to of an English soldier charged protect the Great Writ.” REPRESENTATION with murder because he shot into OF GUANTÁNAMO an unarmed crowd in Boston, DETAINEES an incident you all know as the Boston Massacre, is only one of Craig ended his address by as- many examples in our history serting, “Finally, I would like where lawyers taking on unpop- to comment briefly on the- re

54 w THE BULLETIN bon mots I . . . [am] reminded of the wife who elbowed her husband in the middle of the night and said, “Wake up, Dear. I” -- I hear noises on the other side of the house. I think we have a burglar.” The husband sleepily, but dutifully, got up out of bed and went to investigate. And as he rounded the hallway and looked into the living room, sure enough, there was the burglar rifling his wife’s purse. He flipped on the light switch, and ran over to the burglar and grabbed him and gave him a big hug and said, “Praise the Lord, you finally arrived. My wife has been expecting you for 12 years.”

Past President Gene Lafitte. Introducing Greg Craig, FACTL * * * * * * * * * * * And I always remembered when I learned that I had passed the Bar, I went running . . . in to Ed’s [Edward Bennett Williams] office, and I was feeling pretty proud of myself and pleased with myself. And I said, “Ed, I just got the news. It’s good news. I passed the Bar.” And I would say about a gallon of cold icy water came throwing down on me. And he says, “It’s just like the Wassermann test.” And I said, “I don’t know what the Wassermann test is. Could you tell me?” He says, “It’s a medical test designed to determine whether or not you have been infected with the disease of syphilis.” And like the Bar, the Wassermann test, no one pays much attention if you pass. But if you fail, it could be a disaster.” . . . .

[I]f there were such a thing as estoppel in American politics, we’d be in great shape.

Greg Craig, FACTL, Washington, D.C. bon mots Former White House Counsel

Almighty God, we ask you to bless this food and this occasion, a gathering of dedicated Fellows of the American College of Trial Lawyers, joined by a very special assembly of inductees, together celebrating a unique institution, embracing members of the trial bar of the United States and Canada, two great neighboring nations, each, while enjoying distinct cultural traditions, nonetheless sharing a commitment to the pursuit of access to justice. “

Our shared values include a fierce dedication to the notions of the highest standards of ethical “professionalism, practiced in an environment of civility and friendship. We pray the special privileges and opportunities which we enjoy will serve to fuel our ambitions to do well by the citizens of both our nations and that our traditional standards of both commitment and fellowship will be renewed and refreshed by the presence of our distinguished colleagues at the Bar who, by way of this timeless induction ceremony, will shortly join our ranks as Fellows of the American College of Trial Lawyers. Amen.

Past President David W. Scott, Q.C., Spring Induction Banquet

THE BULLETIN w 55 CONSTITUTIONAL IMPLICATIONS of BANNING SAME-SEX MARRIAGE DEBATED

Following its tradition of using national meetings of the College to focus on contemporary issues, the Spring meeting featured a debate between counsel representing opposing sides in Perry v. Schwarzenegger, the case challenging the constitutionality of Proposition 8, which banned same-sex marriages in California. The district judge before whom the case was then pending had denied summary judgment and had held extensive evidentiary hearings. At the time of this writing, that court has found Proposition 8 unconstitutional and the case is on appeal to the Ninth Circuit Court of Appeals, which has stayed implementation of the trial court’s decree. The following account of the debate frames issues that will be debated in other jurisdictions and that may well ultimately be decided by the United States Supreme Court.

David B. Rivkin, Jr. David Boies

56 w THE BULLETIN In a debate entitled The Consti- In setting the stage for the de- ernment regulation of intimate tution and Defining Marriage in bate, Regent Paul Meyer of and private conduct that does the 21st Century, David Boies, Costa Mesa, California, who in- raise constitutional concern, FACTL, of Armonk, New York troduced the two speakers and he argued that no fundamental and David B. Rivkin, Jr., Wash- moderated the debate, noted that constitutional issues are impli- ington, District of Columbia, the evidentiary phase of the case cated either by the definition of explored the issues underlying had been concluded and the case marriage or regulation of vari- the ongoing debate on same-sex was awaiting oral argument in ous aspects of marriage. Hori- marriage. Boies, as co-chief the trial court. zontal and vertical separation of counsel with Fellow Ted Olson, powers, he argued, thus leaves currently represents the plain- The trial judge had ruled that, in marriage to be regulated by the tiff in Perry v. Schwarzenegger, addition to the primary constitu- states, rather than the federal challenging the constitutional- tional issues of due process and government. ity of California’s Proposition 8. equal protection, the issues of Rivkin is defending its constitu- fact explored in the evidentiary He then argued that Proposition tional validity. phase should include an exami- 8 rationally advances legitimate nation of the state’s underlying government interest. The first Boies, the founder and chair of interest in Proposition 8. Thus underlying purpose is the desire Boies, Schiller & Flexner, was broadened, the evidentiary phase to ensure that the definition of lead counsel for Vice President had included testimony of histo- marriage is configured in a way Gore in Bush v. Gore (in which rians, sociologists and psycholo- that advances marriage’s core Olsen was his principal oppo- gists, to whose testimony the traditional goal, procreation, of nent) and Special Trial Counsel speakers referred in their presen- which same-sex unions are inca- for the Department of Justice tations. . pable without outside help, and in the Microsoft antitrust litiga- through it, the preservation of tion. Named Lawyer of the Year IN DEFENSE OF our species. by the National Law Journal and PROPOSITION 8 runner-up Person of the Year by The second, he asserted, is sup- Time magazine, he has served his In his opening statement, Rivkin ported by a body of knowledge country as counsel or chief coun- asserted that the debate involves that suggests that children are sel in a multitude of capacities. two core issues: whether or not best reared in a domestic envi- it was rational for the people of ronment that includes a resident Rivkin, a senior litigation part- California to adopt a particular father and mother. Conced- ner with Baker Hostetler, is a definition of marriage as reflect- ing that children are not always noted writer and commentator ed in Proposition 8, and what is brought up in tranquil surround- on constitutional issues, inter- the proper judicial role in the ings, given the incidence of di- national law and foreign and de- area of marriage. vorce, domestic violence and fense policy. He was legal ad- death, he argued that it is nev- visor to the President’s Counsel Rationality ertheless rational for the people in the first Bush Administration, of California to aspire to adopt a and Deputy Director of the Of- Conceding that the judgment re- definition of marriage that maxi- fice of Policy Development for flected in Proposition 8 is some- mizes the prospects of a two- the United States Department of thing on which we can disagree parent home. Justice and has served in a num- and which may well be wrong, ber of high-profile issue-oriented Rivkin argued that that did not Rivkin went on to suggest what organizations. make it irrational. Unlike gov- L

THE BULLETIN w 57 he termed a more fundamental same-sex partners symbolic state ginia and other Supreme Court rational purpose that Proposition imprimatur violated some Cali- cases can be read to define mar- 8 advances, the unique role that fornia statutory or constitutional riage as a fundamental right, he family plays in our system of provision, the same argument argued that this language “re- ordered liberty. That system re- could then be made of a state’s ally describes, not the state- quires that governmental power refusal to classify a polygamous sanctioned symbolic aspects of be cabined and exercised only or polyandrous union of adults marriage, but the intimate and in a carefully delineated sphere as marriage. private elements of marriage . . and that it be balanced and con- . which we know is largely, al- strained, not only by the set of Thus, Rivkin concluded, the peo- most exclusively, immune from constitutional restrictions, but ple of California had a choice ei- state regulation. Even here,” he also through the existence of a ther of preserving the traditional asserted, “the courts have dealt vigorous and dynamic private definition of marriage as the with traditional marriage defined sphere. This private sphere, he baseline or dispensing with mar- as the union of man and woman.” asserted, is populated by partici- riage altogether in favor of mul- pants ranging from corporations tiple and complex arrangements, Rivkin conceded that case law to not-for-profit entities, but, an outcome that he asserted suggests that a key starting point most importantly, by families. would have greatly harmed in- in discerning whether a par- Preserving the viability of a fam- dividual liberty. In his view, in ticular right is fundamental for ily is thus of utmost importance, a very real sense the people of the purposes of substantive due not just for some abstract gov- California had to balance two process analysis is to ascertain ernmental purpose, but for pres- competing liberty interests, an whether it enjoys sufficiently ervation of individual liberty. exercise he termed inherently in- robust recognition and wide- fused with rationality. spread recognition in the body It was not, he argued, irratio- polity. He conceded that al- nal for the people of California Constitutional Issues though same-sex unions do not to conclude, when California presently enjoy this degree of courts began to act as if alterna- On the due process issue, Rivkin recognition, he could envision tive arrangements could, indeed noted that marriage was once a situation in the future where, must, qualify as marriage, that regulated by religious institu- through democratic channels, marriage as traditionally defined tions and by the concept of pri- a sufficiently large number of was being displaced in favor of vate marriage contract. There states come to endorse and even “multiple arrangements.” It was are wide variations in legal pro- praise same-sex unions. In that then legitimate for the people of visions among states as they re- event, legal impediments such as California to conclude that true late to property rights, custody Proposition 8 would have to be traditional definition of -mar of children and the like, States, reviewed under a high level of riage had to be shored up. The he asserted, could get out of the scrutiny. That, he argued, is not problem was not just the broad- business of regulating marriage the case today. ening the definition of marriage, entirely by refusing to sanction but also how it was being done, any kind of union as marriage, As to the equal-protection argu- through judicial, rather than po- leaving this to the private sector, ment, Rivkin pointed first to the litical, channels. or they could refuse to infuse fundamental procreation-related . marriage with any particular set differences between same-sex Further, Rivkin argued, if Cali- of legal consequences. and heterosexual couples, argu- fornia courts leaned towards a ing that they were, therefore, not legal conclusion that denying Conceding that Loving v. Vir- similarly situated. Second, he

58 w THE BULLETIN argued that Proposition 8 does about many other contentious they held that people of different not facially discriminate against public policy issues, including races could not be barred from gay and lesbian Californians at abortion, that got taken out of marrying, and, incidentally, they all. It does not prevent a gay the democratic vortex in favor did that at a time when 64 per- person of one gender and a bi- of judicial decision-making.” cent of the American people be- sexual person of another or two lieved that interracial marriage gay persons of opposite gender IN OPPOSITION TO was wrong.” from marrying. If, he argued, PROPOSITION 8 you can decouple marriage from “This was not a situation in procreation, who can say that Restating the two basic issues, which the Supreme Court said, marriage cannot be decoupled Boies asserted that they are, first, ‘Well, we’re only going to rule from sex. whether marriage is a funda- this after the public has already mental right that has been recog- decided that.’. . . [I]f you took Arguing that Proposition 8 does nized by the courts and, second, that approach to the Constitu- not directly implicate the equal whether there is justification for tion, you would not need a Con- protection clause at all, he as- California limiting marriage to stitution; you would simply look serted that at most, it has an couples that are members of the at what the voters decided. The asymmetrical, disproportion- opposite sex. purpose of having a Constitu- ate impact, on gay and lesbian tion, particularly the purpose Californians. While, he argued, Marriage as a of having an equal-protection disproportionate impacts can be Fundamental Right clause and due-process clause, is a basis for finding a violation that there are certain rights that of statutes and civil rights acts, “The problem with the first argu- no minority should be deprived they do not necessarily make a ment,” he asserted, “. . . is that of, regardless of whether it’s 52 constitutional violation. the Supreme Court has already percent of the public, as it was in ruled on that issue. . . . The Su- Proposition 8, or . . . or 64 per- Rivkin ended his opening re- preme Court has ruled repeated- cent of the public, which was the marks by pointing out what he ly that marriage is a fundamen- case in the poll with respect to called the ultimate irony, that tal right. Contrary to the argu- interracial marriage.” there are no practical differences ment that . . . the courts should between marriages and civil stay out of this area, . . . leave Boies went on to cite other simi- unions and that the pending case it up to the democratic legisla- lar holdings: a case invalidating is all about symbolism. “What tures to decide the definition of a Wisconsin statute that withheld is really being sought here is to marriage, the United States Su- a marriage license where the ap- force the . . . people of California preme Court has repeatedly said plicant had abused a prior mar- to give their symbolic blessing that this is such a fundamental riage and a case from Missouri to same-sex unions. This goal . right of all individuals that the invalidating a restriction of mar- . . can be accomplished through Supreme Court has an obliga- riage for prisoners facing incar- democratic channels. To take it tion, under the due-process and ceration for long periods. These out of these channels, . . . to liter- equal-protection clauses of the holdings by the Supreme Court ally shove it down the throats of Constitution, to make sure that illustrate that the courts do have people of California by judicial states do not discriminate, do not a role in making sure that every action, would be counterproduc- enact laws that . . . have a dis- person has the right to marry the tive and would only further po- proportionate effect on certain person they choose. larize the debate in ways that so of its citizens. . . . [T]hey did tragically plagued our discourse so in Loving v. Virginia, in which L

THE BULLETIN w 59 Absence of Rational, Suggesting that this does not “Obviously,” he concluded, “if Compelling Justification reflect either common sense or the Proposition cannot withstand the support of scholarship, he a rational basis scrutiny, it can- On the issue whether there is a asserted that Canada, South Af- not withstand strict scrutiny, sufficiently rational, compelling rica, and Spain have legalized so that the courts have already justification for the State of Cali- gay and lesbian marriages and ruled that this is something that’s fornia to restrict marriage to op- that states as diverse as Iowa and appropriate for judicial review. posite sex couples, Boies assert- the District of Columbia have le- And if you look at this particu- ed that “if you believe in the val- galized same-sex marriage. Yet, lar situation, there simply is no ues of marriage, if you believe “Nobody at the trial could come rational basis to say that there is that marriage is good for society, forward and say, ‘This is how or a need to deprive gays and les- if you believe in the governance this is why or this is maybe why bians, and the children that they reasons for marriage, if you be- allowing gays and lesbians to are raising, of the benefit of a lieve that marriage helps stabil- marry can somehow deprive us stable marital advantage.” ity with children, then there are heterosexuals of our marriage or two questions to ask: “If mar- the value of our marriage or the QUESTIONS riage is so good for society and stability of our marriage.’” FROM THE so good for children, why don’t MODERATOR you expand it to same-sex cou- Boies asserted that the studies ples and the children that they Rivkin had referred to actually Moderator Meyer then asked are raising?” Indeed at trial the say that it is important for chil- Boies why a proposition ap- witnesses for both sides agreed dren to be raised by two loving proved by the voters of an entire that both spouses and the chil- parents and that there is no dis- state should not be honored. His dren being raised by same-sex cernible difference in the perfor- response was that constitutional couples would materially benefit mance and adjustment of chil- rights are not subject to a vote. from such an expansion. dren raised by two loving gay “[T]he whole point of a written and lesbian couples, compared Constitution, and the Supreme Addressing the question whether to heterosexual couples. Court to enforce it, is so that you allowing gay and lesbian cou- have an ability of the courts to ples to marry harms heterosex- In short, Boies argued that the say ‘no.’ In this area the people ual marriage, Boies postulated: evidence shows that allowing do not get to decide.” :”If your gay or lesbian neighbor same-sex marriages helps the got the right to marry, would you gay couple, helps their children Rivkin, responding, conceded say, ‘Well, that’s it for me. If and hurts nobody else. Thus, he that, “The Constitution does . . . they can marry, I don’t want to argued, even if the standard were take the disposition of some is- be married anymore?’ For those a rational basis, the Proposition sues out of the democratic con- of you who have children who would fail. But, he argued, if text and the judiciary is allowed, fall in love and want to get mar- there ever was a group of people indeed, obliged, in that case, to ried, can you imagine them . . . if who have been subjected to his- strike down the particular mani- they found out that their gay and torical discrimination, it is gays festations of a popular will. . . . lesbian friends could get mar- and lesbians, which makes them, [But] those occasions are very, ried, saying, ‘No, we don’t want under established equal-protec- very infrequent, they are meant to get married. If they’re going tion and due process doctrines, a to be infrequent by the Fram- to get married, why should we group that deserves strict scruti- ers, and certainly should not be get married?’ ny of actions that disproportion- augmented by the courts. . . . To ally affect them. enforce the Constitution really is

60 w THE BULLETIN nothing more than to enforce the of the legislative enactment look at the thing as a society, as democratic choices at the time or referendum, and . . . look at a rational body polity, beyond of the founding, so it’s really a the underlying motivations in a those retail instances. You look matter of one democratic choice situation where you sort of have at the more underlying existen- trumping other.” a prima facie problem . . . that tialist interest involved.” does not seem to strike you as Meyer than asked if a finding of being particularly rational.” Rivkin then suggested that if animus, bad motive, behind the the recognition of same-sex will of the people has a role in Responding to Boies’ other unions prevails, there would be judging such cases. Boies re- point, Rivkin conceded that we no meaningful distinction be- plied in the negative. “Animus have the “somewhat anomalous tween them and other alterna- is not really the critical issue situation where you do have tive unions among adults. The here.” The critical issue, he as- similarly situated couples, same- rationality arguments would be serted, “is whether the state is sex couples, whose marriage the same, and there would be no drawing distinctions between is recognized and, obviously, marriage as a uniform stable ar- members of its citizenry that this marriage would not be rec- rangement left. are irrational or unsupportable. ognized. . . . But . . . in some And remember, in California, sense, this is an artifact of how Meyer then asked Rivkin for you have 18,000 gay and lesbi- this issue has been driven in the more insight into the benefit to an couples who are married, and State of California, which does society of defining marriage in the state recognizes those mar- not really . . . cast fundamental a specific way, as Proposition riages. . . . . You have thousands doubt on the rationality of this 8 does. In responding, Rivkin more gay and lesbian couples choice. “ noted that we focus on the idea who were married in other states of the Bill of Rights protecting . . . where it was legal, who Rivkin suggested that Boies’ us against an overbearing gov- have come here to California, argument “looks at the marriage ernment, “But there is also the and California continues to rec- almost in a retail sense. . . . I’ll fundamental recognition that the ognize their marriages as legal. be the first one to agree, that I government would be hemmed And yet, the thousands of other have absolutely no problem if in by a robust private sphere.” gay and lesbian couples who are my neighbors are gay and ob- He equated this with his concept not already married, can’t get tain a sanction for their union. It of an “ordered liberty.” married. In addition to that, if would not affect my marriage at some of the gay and lesbian cou- all. But that’s not the issue . . . . Rivkin went on to argue that ples who are lawfully married And I would also stipulate that, heterosexual marriage is a part get divorced, they can’t remarry. indeed, in some intangible way, of human history and that if we They can’t even remarry them- getting a symbolic affirmation of recognize same-sex unions, we selves, and that’s the kind of same-sex unions would be good would not be able to draw the disproportionate classification for both partners. That’s what line there. “You really would system that the equal-protection they’re seeking it for. I trust they open up Pandora’s box.” clause is particularly directed know best what they want. I cer- at, regardless of the question tainly would not gainsay, and it Boies, in response, pointed out of animus.” would be good for the children that even counsel in the pending they are raising.” case had been unable to tell the RIvkin agreed that animus does court how same-sex marriage not matter that much. “You re- “But I would submit to you that’s threatened heterosexual mar- ally look primarily at the text not the end of the analysis. You L

THE BULLETIN w 61 riage. He discounted the argu- That’s not a good thing. That withstand even a heightened ment that same-sex marriage is certainly not the way courts level of scrutiny, or it is not ra- would lead to legalization of should function.” tional, in which case it would not polygamy and polyandry unless withstand it, irrespective of the you can say that somehow the Boies, disagreeing, asserted, “It equal-protection analysis.”. adoption of same-sex marriage has nothing to do with weasel- would somehow lead heterosex- ing out of the decisions. What a Meyer then asked, “Do you think ual couples to want to be married court does in every due-process it is wise to have a decision like to more than one person. and equal-protection clause case, this come via judicial channels? is to say, ‘Is there a sufficient jus- What are the consequences of Furthermore, he argued, the Su- tification for this discrimination? taking the decision away from preme Court can say that, though Is there a sufficient justification the political arena?” there is no basis to prohibit gay for treating these two groups of marriage, there is a basis to pro- people differently?’ . . . . But the Rivkin responded, ”[M]y con- hibit polygamy, and that the fact that there is a sufficient jus- cern is not whether or not we states can prohibit polygamy, but tification for prohibiting polyga- should, as a society, sanction not gay marriage. my and polyandry does not mean same-sex marriage. It’s how we that there is a sufficient justifica- get there.” He suggested that it is “the total tion for prohibiting two people absence of any justification for who happen to be gay or two Boies responded, “[I]f you’re go- a ban on gay and lesbian mar- people who happen to be lesbian ing to have an equal-protection riage that causes people to try to from getting married.” and due-process clause, you’re defend Proposition 8 by talking going to have the courts. The about things that have nothing to Meyer then asked Rivkin for his courts have to review what the do with Proposition 8, like poly- view on whether we are dealing legislature or the people do in a andry and polygamy.” with an essentially disenfran- democratic elected sense in order chised group. Rivkin responded to have enforcement of consti- Rivkin responded that in that case that, unlike race, which is clear- tutional rights. . . . That’s what there would be no principled rea- ly subject to the highest level of you’ve had in all of the cases son for distinguishing among the scrutiny, sexual orientation is against discrimination, whether other forms of marriage. not subject to more than an in- on the basis of race or sex or any termediate level of scrutiny. He of the other classifications.” Rivkin then reverted to what he argued that we are not dealing termed the thrust of his opening with a law that facially discrimi- ********** remarks, “that if you accomplish nates against gays and lesbians, this through democratic chan- but only with a symnbolic af- This debate will continue as the nels, you can come up with a set firmation of marriage, as distin- case winds its way through the of outcomes . . . at least most of guished from civil unions, which appellate judicial system to- us would find palatable. If you has a disproportionate impact on wards what many think will be drive it from judicial channels, this group. ultimate resolution in the United you would not be able to do that. States Supreme Court. All you would rely on is the abil- Rivkin ended by agreeing with ity of a future Supreme Court Boies that, “[I]n some sense, it to somehow . . . weasel out of [Proposition 8] is either ratio- the implications of its decision. nal, and it is rational enough to

62 w THE BULLETIN WALKING WITH FRIENDS

I am confident. . . that everyone in this audience, at some time during their lives, has longed to live their dream. How many of us, however, have had to overcome abiding adversity to live our dream? How many of us have taken steps on the way to our dreams and fallen, gotten back up and fallen and gotten back up? And how many of us have done something no one else has ever done? And perhaps, most importantly, how many of us, in our journey toward our dreams, have impacted everyone along the way? Past President John A. (Jack) Dalton, Atlanta, Georgia, introducing D. J. Gregory.

The Saturday morning program at Palm Desert ended with the inspiring story of thirty-two year old D. J. Gregory, Savannah, Georgia. It began with the show- ing of a made-for-television account of the year-long quest of a young man, born with cerebral palsy, to walk every hole of every PGA tournament for an entire year and to record his journey. His published account of that journey is entitled Walking with Friends.

EXCERPTS FROM THE VIDEO:

NARRATOR: For all its lush quiet, its apparent still- ness, it is a game obsessed with movement: measuring it, controlling it, perfecting it. For D.J. Gregory, golf has a movement all its own, a long walk, not toward perfection, but possibility, a walk beyond measurement. . . . Born with cerebral palsy, his lungs underdevel- oped, legs entangled, doctors told D.J.’s parents about D.J. Gregory his future in blunt terms. L

THE BULLETIN w 63 NARRATOR: . . . D.J. endured GOLFER: The greatest chal- five surgeries on his legs by the NARRATOR: And then he in- lenge is trying to stay consistent. time he was in first grade. troduced D.J. to [sportscaster] And just the fact that he’s walking Jim Nantz. every tournament, every round, FATHER: They took his low- for the entire year. I mean, we, er legs and cut both bones and NANTZ: He would sit in our as PGA Tour golfers, we’re ex- turned his feet out so that they tower while we were on the air. hausted at the end of the year. I went straight, then they put them We always gave him full access. mean, I can’t even imagine what back together and put two full- And he would do that for years. he’s going to feel like. . . . length casts on him and that’s how he had to survive for a NARRATOR: As the years FATHER: His toes overlap, . . while. . . . passed and his relationship with . so the pressure and all is un- Jim Nantz grew, D.J. tackled believable. And he was putting MOTHER: The low point was more challenges off the course, seven Band-Aids, eight Band- that he was really into sports. earning a master’s degree in Aids, on every day . . . to mini- And he couldn’t actually play. sports management from Spring- mize the blisters. You know, he couldn’t play bas- field College in Massachusetts. ketball or football, but he can Still, golf was a constant, and NARRATOR: The first steps play golf. from it came an idea all D.J.’s came in January in Hawaii with own, a goal both simple and un- his father at his side. GREGORY: I started playing fathomable. golf when I was 9 years old. My GREGORY: On the Plantation swing is a self-taught swing. I FATHER: Walking every hole of Course at Kapalua, there is not swing one-handed. The one every round of every golf tour- one even piece of land on that reason why golf is my favorite nament this year [2008]. What golf course, and I’m proud to is ‘cause it is a sport that I can I kept telling him is there is not say that I did not fall once there. play competitively. . . . I play a player out here that walks ev- from the forward tees. I shoot ery round of every tournament. NARRATOR: But over the anywhere from 105 to 115, but I There’s nobody. I mean, nobody weeks and months, from Palm love the game. does this. . . . Springs to Hartford, D.J. Greg- ory did fall . . . More than two NARRATOR: As D.J.’s love for NARRATOR: With the help of dozen falls. He kept track of ev- the game grew, so did his love of Nantz and his supportive spon- ery one and kept on walking. watching the pros play. His fa- sors, the PGA Tour gave D.J. ther took him to his first tourna- his chance to walk every tour- GREGORY: You know, if I fall, ment in Greensboro, North Car- nament. As part of his personal I fall . . . it’s just another chal- olina in 1990 to get autographs. quest, he would follow a differ- lenge. I’m going to fall. It’s That’s when CBS golf commen- ent player each week, interview just the way it is. I’m going to tator, Ken Venturi, spotted him him and write a blog about the do it. So you know what? You and invited a 12-year-old boy up experience. get back up and you learn from to the announcer’s booth. your mistakes and you don’t do GREGORY: What’s the greatest it again. VENTURI: I said if I have to challenge you face in the game carry him on my shoulders, I’ll of golf? FATHER: Isn’t that what we tell get him up there. everyone, you fall off a horse,

64 w THE BULLETIN pick yourself up, get back on the IN GREGORY’S cerebral palsy, I was also born horse and do it again? So why OWN WORDS cross-eyed, and with your eyes, shouldn’t he do the same? . . . they only could do a little bit at NARRATOR: At every tour As the video ended, Gregory a time. So do a little bit, make stop, D.J.’s journey gained made his way forward to a sure it heals correctly, do a little greater momentum and deeper standing ovation from the au- bit more, it heals correctly, and respect. . . . In particular, from dience. This is his story in his so on . . . the players he walked with, own words: moving from curiosity to admi- I progressed to a walker with ration, Kenny Perry was the first I was born ten weeks premature, four wheels, to a walker with to request that D.J. follow him so when I was born, my lungs two wheels and two crutch tips, at a tournament. That was in were not fully developed. For to a walker with four crutch March. They’ve been close ever the first month of my life, I was trips, to two canes, to one cane. since. in an incubator. During that first . . . I have been determined all month, the nurses tried to force my life and I feel like I get that PERRY: How can you see a kid some oxygen into my brain, and determination from my parents . struggle around the golf course at one time it burst one of the . . . Every time I put my mind to and then you’re out there com- capillaries in my brain that con- something, I’m going to do it, no plaining playing golf? I mean, trolled my leg muscles; hence matter what. I don’t care what it just really changed my per- part of the reason why I have ce- I have to do. I don’t care how spective about my life and rebral palsy. . . . hard I have to work. about my golf game. . . . [M]y parents were told, when For me, I think goal-setting is I was 2 years old, that I would NARRATOR: Inevitably, as he extremely important. . . . Be- never walk, [would] be in a walked on through the months, cause that way you can see a wheelchair for the rest of my light at the end of the tunnel; D.J.’s trek drew national atten- life. They did not take that for there’s a reason why you’re do- tion . . . . an answer. They consulted with ing something. You may not doctors to find out what surger- know it at the time, but there’s NARRATOR: For the past elev- ies could be done so that I would always a reason. . . . en months, every step has led have a chance to walk and stand here to Orlando, to this day, Sun- on my own. One of the surger- I’m a sports fanatic . . . but day, November 9th, the final day ies . . . was to cut my abductor golf is my favorite. . . . Prior of the PGA Tour this year. . . . muscles. Those are the muscles to 2008, I always went to about in your legs that control your six or seven events on my own, FATHER: It’s going to be a very balance. Since my abductor and I would always walk with a emotional thing for all of us. I muscles were cut, I have no bal- player that I know, so I knew I mean, he’s going to complete ance . . . and I use a cane for could do the journey. And just something that nobody would that reason. . . . For the first what would it be like to go to ev- have given him a chance to do. four or five years of my life, I ery event, get to know the play- Army-crawled around the house ers on a more personal level, but NARRATOR: It’s the walk . . . that is basically one arm over at the same time, accomplish a that left a trail from a boy told another. personal challenge? . . . he would never walk, to a man who left his footsteps across an I have had . . . six surgeries on I lived out a dream. When I entire sport. my eyes. In addition to having L

THE BULLETIN w 65 started the journey, it wasn’t to Just keep on going. . . . be bumps in the road. And, for inspire or motivate people; it me, those bumps in the road dur- wasn’t for the media coverage. [W]hen I did the journey, I also ing the journey were when I fell. . . . I did it for personal selfish did a blog on PGAtour.com and But that’s how you handle those reasons, because I wanted to I talked about my experiences tough situations that make you a live out a dream, but I quickly with the players and my experi- better person. . . . realized, by what I was doing, I ences at the tournaments. But could inspire and motivate oth- I also kept some stats . . . . I You may not win a case . . . , but ers in their own lives. I could consumed 332 sodas -- number in every situation you can learn inspire others to set goals and of beers is not included, by the from it and it makes you a bet- dreams for themselves, and I way -- 280 bottles of water, 259 ter person, so the next time you could motivate others to achieve sports drinks, walked over a get in that similar situation, you those goals and dreams. thousand miles, traveled 80,077 don’t do the same things. You miles, walked 3,256 holes. I may change it up a little bit, but I didn’t do the journey for the went through five pairs of golf in every situation, through the media coverage. But having shoes . . . . And from January 1st tough times, through the good said that, I’m never going to to November 16th, I was home a times, it’s how you handle those turn down a media request, not grand total of four days. situations that makes you a bet- because I want to see myself on ter person. TV or read about myself in the There’s one stat that I kept track newspaper or on the Internet, of that I got questioned about all People ask me . . . what do I take but because if people are going the time, and that is my number away most from the journey? to take the time to tell my story, of falls. People said, “Why do It’s the friendships I have, the then I’m going to give them the you keep track of your number friendships I have with the play- time to do what they want. . . . of falls?” Well, I like to have a ers, their families, the staff of the good time. I like to joke around. PGA Tour and people I met all That video you just saw has I kind of like to make fun of my- across the country. I have some been seen by over 4,000,000 self, so I felt like keeping track of the best friends from what I people across the world. It’s the of my number of falls was an- did in 2008, and I’ve met some most watched video on ESPN. other way for me to show my incredible people along the way com and most requested video personality. It was my goal to from what I did. And I cherish from ESPN. I didn’t expect that average less than one fall per all those friendships. . . . and I will never get used to it, week, which would be 44 falls but I appreciate the support and in 45 weeks, or in 44 tourna- [T]here are some players that encouragement from others. . . . ments. I’m proud to say I came I’m closer with than others, but It’s special for me to hear some- in at 29. every player was great. . . . I’m body say, “You’re doing a great so fortunate to have so many job. Keep up the good work, but But I also think it’s extremely good friends and so many great you inspire me in my own life.” important for me, . . . keep- relationships. And . . . I cher- ing track of the falls. I knew ish every one of them. But what I know everybody in this room there wouldn’t be a chance that is important to me is that . . . has a goal and a dream; ev- I would go 44 weeks without they’re not my friends because erybody does. And I’m living falling at least once. And when they feel sorry for me because I proof to show you that through you set goals, you’re not al- have a disability. I don’t look at hard work, anything is possible. ways going to take the easiest myself as having a disability. . . Don’t take “no” for an answer. road. There’s always going to . I can do anything anybody else

66 w THE BULLETIN can do, but maybe some things it right now, and I sure wouldn’t It was the best thing I’ve ever takes a little bit more time. be talking to you, and I sure seen.” She said, “I needed it wouldn’t have walked over a more than anything because my I’m fortunate that when I was thousand miles. It’s determina- parents just finished chemother- younger, my parents treated me tion. It’s believing in yourself apy.” At the same time, both just like anybody else. I still had and knowing you can do it. I her parents were fighting can- chores. I still had to make my did not second-guess if I could cer. She said, “I was extremely bed. I still had to take out the walk every hole. Yes, some- down, but watching your video trash. But I loved that, because times those early morning tee really lifted my spirits.” that’s just what everybody else times were difficult. Yes, walk- did. I don’t want anybody to ing thirty-six holes in one day And she said, “I hope I’m not treat me any different. was a challenge sometimes, but bothering you.” And I absolute- I had the best gig in the world, . . ly said, “No, not at all. I really I’m not sure if many of you have . because all I had to do was get enjoy when people come up to seen my book, but . . . there are up every morning, walk some of me and talk to me. I appreci- some great stories in there from the most beautiful golf courses ate the support and encourage- players. Rich Beem actually has in the country and meet some of ment.” . . . I gave her one of my a nickname for me. He calls me the greatest people. cards. The next day she sent me “pimp with a limp,” or “pimple” an e-mail and she said, “I was for short. And I love that . . . Along the way, I’ve been able so excited to meet you, I forgot because the players feel com- to inspire and motivate others. to tell you my name.” I didn’t fortable enough with me to joke That’s not what I started out the realize it, but for 15 minutes we around, and they know that I’m journey to do, but that’s the card talked and she never even said going to be able to handle it and I’ve been dealt, and that’s the her name . . . it’s not going to bother me. And card I’m going to play to the best they know that I’m going to give of my ability, no matter what. I love talking to people and I ab- it right back. . . . People continue to tell me and solutely love to see the impact it stop me every day in the airport, has on other people. I am who I [T]he one thing I enjoy the most on the golf course, and tell me am, and I don’t want what I did is being able to go out and speak what impact I’ve had on their to change who I am as a person. to different groups, organiza- lives. And that’s why now, in As I go on now, I realize that the tions, schools, get my story out 2010, I’ve started a foundation, next journey in my life is to con- there and, hopefully, inspire and Walking for Kids Foundation, tinue to get my story out there motivate others, inspire them to raise money for children’s and inspire and motivate others. to set goals for themselves and charities, just because I wanted motivate them to achieve those another way to continue to make So as I close today, if I can re- goals, because, as I said earlier, a positive impact on people’s peat what I said earlier, through through hard work, anything is lives. . . . hard work, anything is possible. possible. Don’t let anybody tell Don’t take “no” for an answer. you [that] you can’t do some- A couple months ago I was in Don’t let anybody tell you [that] thing. If you put your mind to Hartford, Connecticut and I you can’t do something. If you something, you can do it, no was in the airport. And I was have a goal, you can achieve it matter what. just walking to the baggage through hard work. claim, and this girl comes run- If I took the advice of people, I ning over to me. And she says, sure wouldn’t be standing here “I saw your video on ESPN.

THE BULLETIN w 67 IN MEMORIAM

In this issue, we report the passing of fifty-three Fellows, the youngest, fifty-eight, the oldest ninety-seven. Of those, only three were younger than seventy-one, eleven were in their seventies, twenty-five in their eighties and a remarkable fourteen in their nineties. We also note among those who lived long lives the large number of marriages lasting more than fifty years. Thirty of the fifty-three saw service in World War II, most of them in the military, but two in the FBI, and two of those also served in the Korean Conflict. One other Fellow served in Korea. Seven served in peacetime military service. The World War II stories include flying “the hump” in a C-47 cargo plane, piloting a PBY Catalina “flying boat” in the Pacific, spending over twenty-four hours floating in the Adriatic Sea with a broken leg after parachuting from a burning B-17 Flying Fortress, commanding a landing craft on D-Day, flying fifty missions as the lead squadron pilot in a B-24 Liberator in Italy and being assigned as liaison to British General Bernard Montgomery on D-Day. One led a combat rifle platoon in Korea. The legal careers are equally colorful. Many were presidents of their local and state bars and of national organizations. One was an organizer of the ABA Litigation Section and later chaired it. Several, including one who became the Chief Justice of his state’s Supreme Court, served on the bench. Many were adjunct professors of trial practice. One conducted the first deposition under oath of a sitting President of the United States. Another negotiated the pardon given President Richard Nixon. One was a cofounder of the National College of District Attorneys who later chaired the commission that reviewed the lessons to be learned from the 1999 tragedy at Columbine High School. One was the first person of Asian ancestry to argue a case before the United States Supreme Court. In their other lives, four were college football players, one of whom went on to coach under the legendary University of Georgia coach, Wally Butts. One was an ordained Presbyterian minister. In retirement many of their generation moved to warmer climates, one even to Hawaii. Another spent ten years cruising the waters of New England and the Inland Waterway before settling in Florida. Another moved to a farm and raised cattle and bees. And finally, there is the story of the son of one deceased Fellow who temporarily disappointed his father by taking a low-paying job with a small newspaper instead of joining the family law firm, but who redeemed himself by breaking, with a fellow reporter, the story of the Watergate break-in. Collectively, these stories of the lives of deceased Fellows are a tribute to both the profession and the College.

Editor’s note: the numbers in parentheses indicate the year of induction into the College.

68 w THE BULLETIN James Louden Armstrong, III (82), a Fellow Command, winning a Distinguished Flying

Emeritus from Coral Gables, Florida, former Cross flying a C-47 cargo plane over the managing partner of Smathers & Thompson, “hump.” A widower who had remarried, his

Miami, Florida and of the Miami office of survivors include his wife, two sons, a daughter,

Kelley, Drye & Warren, died September 2, a step-daughter and a step-son.

2009 at age 77 of complications of cancer.

A graduate of Miami High School, Phillips Perry S. Bechtle (74), a Fellow Emeritus who

Exeter Academy (where he and the late Billy had practiced law in Philadelphia, Pennsylvania

Wells were a legendary backfield duo) and and later retired to Virginia Beach, Virginia,

Yale, where he also played football, he was a died May 9, 2010 of a stroke at age 84. A ball graduate of Yale Law School. A past president turret gunner in a B-17 Flying Fortress in of the Dade County Bar Association and of World War II, he and his fellow crewmen had the Orange Bowl Committee, he had also parachuted into the Adriatic after an engine on co-chaired the Community Partnership for their plane exploded and caught fire, causing

Homeless. His survivors include his wife, a him to suffer a broken leg and to lose most of daughter and a son. his hearing in one ear. All but one of the crew,

of which he was the last living member, had

W. T. Barnes (82), a Fellow Emeritus from survived after spending over twenty-four hours

Ottumwa, Iowa, who had spent most of his in the water. After two years at what is now St. career with Barnes, Schlegel and McGiverin Joseph’s University, he was admitted to Temple until his retirement in 1986, died January 16, Law School, from which he graduated in 1951,

2000 at age 90. A graduate of the University second in his class. Beginning his career with of Iowa and of its School of Law, he had Liberty Mutual Insurance Company, he had been president of the Iowa Academy of Trial later practiced with various law firms, including

Lawyers. Finishing law school in 1942, he Pepper, Hamilton & Scheetz, Krusen Evans entered the Army Air Corps and during World & Byrne and LaBrum & Doak. He had also

War II was a pilot and flight instructor in the served as Vice-President and General Counsel

India-China Division of the Air Transport of General Accident Insurance Company and L

THE BULLETIN w 69 ended his active career as an arbitrator and of Bowdoin College, he had earned his mediator. A past president of the International law degree from the Harvard Law School

Society of Barristers, he had taught as an and clerked on the Massachusetts Supreme adjunct professor at the law schools at both Judicial Court for two years before serving

Villanova and Temple and was a frequent for four years as an officer in the U.S. Navy lecturer for a variety of state and national Amphibious Force in World War II. Beginning legal organizations. He served several terms as his law practice with Laflamme and Nourie, the College’s Pennsylvania State Chair. The he then practiced with the firm now known as

Philadelphia Association of Defense Counsel Burns, Bryant, Cox, Rockefeller and Durkin had honored him with its Distinguished until age 90. He had served as president of

Service Award. His survivors include his wife, his local bar and of the New Hampshire Bar five sons and two daughters. Association, as well as serving as president or

a board member in numerous civic and service

Bayard F. Berman (75), a Fellow Emeritus organizations, including the presidency of from Beverly Hills, California, retired from the Society of Mayflower Descendants in the

Hicks, Recasens & Berman, died January 20, State of New Hampshire. He had been named

2010 at age 88. After attending the University Dover’s Citizen of the Year and had received of California at Los Angeles, he had earned a Community Service Award in recognition of both an MBA and a law degree at Harvard. He his many years of civic service. His survivors had been a Captain in the Army Air Corps in include his wife of sixty-five years, two sons

World War II and had also served in the early and two daughters. days of the Korean Conflict. His survivors include his wife and a daughter. Arthur D. Byrne (81), Knoxville, Tennessee,

retired from Baker, McReynolds, Byrne,

Donald Robert Bryant (77), a Fellow Brackett, O’Kane & Shea, died June 26, 2007

Emeritus from Dover, New Hampshire died at age 88. A graduate of Maryville College

October 23, 2009 at age 93 after a period of and of the University of Tennessee School of declining health. A Phi Beta Kappa graduate Law, where he was a member of the Order of

70 w THE BULLETIN the Coif and editor of his law review, he had member of the Order of the Coif, he had earned served as an officer in the Army Air Force an LL.M. from the University of Michigan and in the South Pacific Theater in World War had served in the United States Marine Corps

II. A past president of his local bar and a in the Korean Conflict. He had also served former vice-president of the Tennessee Bar on the Executive Committee of the National

Association, he had also served as president Association of Railroad Counsel. A widower, his of the Knoxville Symphony Orchestra. His survivors include a daughter and a son. survivors include his wife of sixty-five years and two daughters. Paul Jerome Curran (78), New York, New

York, died September 4, 2008 at age 75 of

Philippe Casgrain, Q.C. (88), Montréal, complications of cancer. After graduating

Quebec, a founding member of Fraser Milner from Georgetown and Fordham Law School,

Casgrain, died February 28, 2010. Born he had served as an officer in the U.S. Air in 1927, he had served as chairman of the Force. He began his career as a federal

Junior Bar Association of Montréal and had prosecutor, later joining Kaye Scholer, LLP, served as president of the Bar of Montréal where he was a partner and later Special and on the General Council of the Québec Counsel. He had led that firm’s legal

Bar, which had conferred on him the honorary department for more than a decade and had title of Advocatus Emeritus (Ad.E.). He had served on the firm’s executive committee. served on several boards of directors and In his early days, he had served in the New was involved in various cultural and social York State Assembly, leaving that post to organizations. His survivors include two sons become Mayor John Lindsay’s city lobbyist in and a daughter. Albany. Governor Nelson A. Rockefeller had

appointed him chair of the State Commission

Robert G. Clayton, Jr. (78), a Fellow Emeritus of Investigation, probing into various forms from Toledo, Ohio, retired in 1998 from of public corruption. Then, on leave from

Shumaker, Loop and Kendrick, died May 25, his firm, he had served as the United States

2010 at age 80. A graduate of the University Attorney for the Southern District of New of Cincinnati and of its School of Law and a L

THE BULLETIN w 71 York, succeeding Whitney North Seymour, Mines and of the University of Virginia Law

Jr., FACTL. In that office, he had successfully School, he had practiced in Denver for twenty- prosecuted mobster Carmine Tramunti and one years before his appointment to the Court.

Representative Bertram L. Podell. In 1979 At the time of his appointment he was the he was appointed Special Counsel to the College’s Colorado State Chair. He had been

Department of Justice to investigate loans president of his local bar and had served on the made by the National Bank of Georgia, run Board of Governors of both the Colorado Bar by director of the Office of Management and Association and the American Bar Association,

Budget, Bert Lance, to the peanut business of had chaired the American Bar Foundation the family of President Jimmy Carter, run by and had been a member of the Council of his brother, Billy Carter. After a seven-month the American Law Institute and the Board of investigation that included the first sworn Directors of the American Judicature Society. deposition of a sitting President, Curran found He had served on the National Advisory no evidence of unlawful conduct by either the Commission on Criminal Justice Standards

President or his brother. He had later served and had chaired the Criminal Justice Section of as Special Consultant on Intelligence Matters the ABA and the commission that formulated to the Secretary of Defense. He had also the ABA Standards of Criminal Justice. He chaired numerous professional and charitable had served on the National Commission for organizations, including the alumni association the Formulation of Standards for Accreditation of his law school and the University Club. of Law Enforcement Agencies and had chaired

His survivors include his wife, three sons and the President’s National Commission for the four daughters. Review of Federal and State Laws Relating

to Wiretapping and Electronic Surveillance.

Hon. William H. Erickson (67), a Judicial Co-founder of the National College for

Fellow from Englewood, Colorado, a former District Attorneys and Defense Lawyers at the

Chief Justice of the Colorado Supreme Court, University of Houston, he had been a Director where he had served for twenty-five years, of the National Judicial College and a member died January 13, 2010 at age 85 of Parkinson’s of the faculty of the NYU Appellate Judges

Disease. A graduate of the Colorado School of School. He had been a Woodrow Wilson

72 w THE BULLETIN Fellow at Washington and Lee University Bar President’s Award of Merit and the and had been president of the International Outstanding Past Voluntary Bar Association

Society of Barristers. He had served on the President’s Award. His survivors include his

Erickson Commission on Police Shootings wife, three daughters and a son. in Denver and in retirement had chaired the

Columbine Review Commission, appointed Jack S. Francis (75), New Martinsville, West by the Governor of Colorado to conduct an Virginia, a partner in Jackson Kelly, PLLC, independent investigation and to report on the died January 13, 2010 at age 88. A veteran lessons to be learned from the April 20, 1999 of World War II, in which he served in the 1st tragedy at Columbine High School. He was Army Infantry and then in the Signal Corps the co-author of a four-volume treatise on the Intelligence Service, he was a graduate of decisions of the United States Supreme Court the University of West Virginia and of its on criminal law and procedure. His survivors School of Law. A past governor of the West include his wife, two daughters and two sons. Virginia State Bar Association, he had served

as legal counsel to several local boards and

Thomas Mabry Ervin, Jr. (90), Tallahassee, commissions. His survivors include his wife

Florida, senior partner in Ervin, Kitchen of sixty-seven years and two sons.

& Ervin, died January 5, 2010 at age 69.

A graduate of Florida State University, he Daniel John Furniss (06), Palo Alto, served in the U.S. Marine Corps before California, a partner in Townsend, Townsend earning his law degree at the University of & Crew, died February 5, 2010 of a heart

Florida College of Law. A past president of attack at age 58. An honors graduate of his local bar and of the Florida Council of Bar Stanford University, he received his law

Association Presidents, he served four terms degree from Boalt Hall at the University of on the Board of Governors of the Florida Bar, California, Berkeley. He had chaired the chairing numerous committees and serving Board of Trustees of the Hillsborough School on that organization’s executive council. He and spent his free time coaching children’s had also served as a director of the Florida soccer teams and refereeing games. His Bar Foundation. He had received the Florida L

THE BULLETIN w 73 survivors include his wife, two daughters States Supreme Court. A frequent lecturer and a son. on immigration law and frequently quoted

in the press on that subject, he was the first

Benjamin Gim (93), a Fellow Emeritus from Asian American president of the American

New York, New York, died January 16, 2010 Immigration Lawyers Association. He was at age 87. The son of Chinese immigrant a founding member of the Asian American parents who settled first in Idaho, then moved Legal Defense & Education Fund and had to Salt Lake City, Utah, and who died before served as chair of the American Council for he reached his teenage years, Gim and his Nationalities Services. In honoring his career, siblings were kept together through the the American Immigration Law Foundation

Depression years by an older sister. He left described him as “a pioneer in his field, the University of Utah to serve in the United . . . a true role model. Ben’s devotion to

States Army in the European Theater in World the cause has brought honor and respect to

War II. Returning to the University to enter the immigrant experience in America. He law school, he was told by the Dean at the end will forever be an inspiration to us all.” He of his first year that, despite his high marks, was also the recipient of the National Bar he “did not have a Chinaman’s chance” of Association’s Wiley A. Branton Civil Rights practicing law successfully in Utah. He then Award. Divorced from his first wife, who has transferred to Columbia Law School, where since died, his survivors include his second he was one of only two Asian students, and wife, a daughter and a step-daughter. completed his law school education on the

GI Bill. Finding no law firm that would hire Samuel McPheeters (Mack) Glasgow, Jr. him, he became New York’s first Assistant (67), a Fellow Emeritus from Nashville,

Attorney General of Asian ancestry. Then, Tennessee, retired from Glasgow and Veasey, establishing his own law firm, Gim & Wong, died in December 2009 at age 93. he practiced law in New York’s Chinatown, He received his undergraduate degree from principally as an immigration lawyer, for Vanderbilt University and his law degree from almost fifty years. He was the first Asian the University of Washington. He served as a

American to argue a case before the United JAG officer in the U.S. Army Field Artillery

74 w THE BULLETIN in World War II. He had served as a deacon Committee and serving for a time as majority and elder in his church, sat on or chaired the floor leader. He is credited with supporting a boards of two local schools and chaired the number of progressive legislative enactments. county elections board for sixteen years. His He had been president of his local bar and of survivors include his wife of seventy years, the Kansas Association of Defense Counsel. two sons and two daughters. For over thirty years a member of the National

Conference of Commissioners on Uniform

Claire Herman Greve (78), Folsom, State Laws, he had been a director and vice-

California, died January 29, 2010 at age 89. president of the Kansas State Chamber of

A graduate of Wayne State University and of Commerce and had led a number of business,

Stanford Law School, where he was a member civic and social organizations. He had also of the Order of the Coif, he had served as a served as the College’s Kansas State Chair. navigator in the Army Air Corps in World War His survivors include his wife, a son and a

II. He had practiced law with Greve, Clifford, daughter.

Wengel & Paras in Sacramento, California, until 1998. He had lived in Hawaii from 1998 Edward R. Hays (69), a Fellow Emeritus to 2004, then moved to Folsom. His survivors from Lexington, Kentucky, whose passing had include his wife, four daughters and two sons. previously gone unreported to the College,

died September 7, 2003 at age 90. A graduate

John F. Hayes (70), Hutchinson, Kansas, died of Cumberland Junior College and, in 1936 at

January 14, 2010 at age 90. A founding partner age twenty-three, of the Jefferson School of or Gilliland & Hayes, he was a graduate of Law, he was an FBI agent during World War

Washburn University and of its School of II, He had practiced in his native McKee,

Law. An officer in the U.S. Army in World Kentucky, later moving to Pikeville, where

War II, he had served in New Hebrides and he a was a partner in Baird & Hays, and then the Philippines. He had been a delegate to in Lexington, where he practiced with Hays, the Republican National Convention and Moss & Lynn. A widower, his survivors had served six terms in his state legislature, included a daughter and a son. chairing the Insurance and Judiciary L

THE BULLETIN w 75 Charles T. Herndon, III (81), a Fellow he had been president of his local bar and of

Emeritus from Johnson City, Tennessee, of other local legal organizations. A director of counsel to Herndon, Coleman, Brading & Goodwill Industries of Central Indiana for

McKee, died January 23, 2010 at age 89. thirty-one years, he had been president of the

A graduate of Vanderbilt University and of Indianapolis Legal Aid Society and had served the University of Virginia School of Law, he as chair of his law school’s Board of Visitors. had served as a finance officer in the U.S. He had been inducted into the Academy of

Army in World War II and had retired as a Law Alumni Fellows, the highest recognition colonel in the Army reserves. He had served accorded by his law school to its alumni. His on the Tennessee Board of Professional survivors include his wife and three sons.

Responsibility and, for over twenty-five years, was a trustee of Cannon Memorial Hospital in James Ernest Hudson (97), Athens, Georgia,

Banner Elk, North Carolina. An elder in retired from Hudson, Montgomery and his church, he had taught a men’s Bible class Kalvoda, died January 11, 2010 at age 80. for twenty-five years. His survivors include A graduate of Wofford College, where he his wife of sixty-seven years, a daughter and played football, he served in the U.S. Army, a son. then coached at the South Carolina School for

the Deaf and Blind, where he was honored

John W. Houghton (65), a Fellow Emeritus as Coach of the Year. While enrolled in from Indianapolis, Indiana, retired from law school at the University of Georgia, he

Barnes & Thornburg LLP, died July 25, 2009 coached the freshman line under Coach Wally at age 89. A graduate of the University of Butts and scouted for the San Francisco Forty-

Indiana at Bloomington and a cum laude Niners. After practicing law for fifty years, he graduate of the University of Indiana Law retired in 2007. A past president of the Western

School, he was editor- in-chief of his law Judicial Circuit Bar Association, he spent review and a member of the Order of the many years as a faithful friend of Bill W. His

Coif. A Fellow of both the College and the survivors include two daughters and a son.

American College of Trust and Estate Counsel,

76 w THE BULLETIN Alan Dale Hunter, Q.C. (02), a Fellow Silver Fox” for his mane of white hair, he was

Emeritus from Calgary, Alberta, retired from an elder in his church, led several civic and

Code Hunter, died April 6, 2010 at age 72. social organizations and ran in races until he

Raised by a grandmother and an aunt, educated was seventy-four years old. His survivors at the University of British Columbia, he include his wife of sixty-four years and three had been a Bencher and then President of daughters. the Law Society of Alberta, a director of the

Environmental Law Center and of the Uniform Frederick K. William Joyner (88),

Law Reform Commission and chair of the Springfield, Missouri, a former member of

Alberta Law Reform Institute. He was a Lowther Johnson, LLC, died January 26, 2010 founder of both Advisory Legal Guidance and at age 71. A graduate of Northwest Missouri

Pro Bono Law Alberta. He had been made an State University, he received his law degree

Honorary Professor of the Alberta Law Society from the University of Missouri-Columbia. and was a recipient of the Alberta Centennial

Medal in recognition of his service to the James E. Kehoe, Jr. (73), a Fellow Emeritus people of that province. His survivors include from Olean, New York, retired from Kehoe his wife of fifty years, two sons and a daughter. & DeRose, whose passing had previously

gone unreported to the College, died January

Noah Hannibal Jenerette, Jr. (73), a Fellow 9, 2003 at age 82. A college athlete at Alfred

Emeritus from Jacksonville, Florida, founder University, where he was named All Western of Boyd & Jenerette, P.A., died February 26, New York Quarterback, his education was

2010 at age 86, of cancer. An Eagle Scout, he interrupted by service in the U.S. Army in left the University of Florida to enroll as an World War II. He received his law degree from aviation cadet and was a carrier pilot in the the University of Buffalo. A past president of

U.S. Navy in World War II. After graduating his local bar and a parish trustee, he had served from the University of Florida School of on the board of his local hospital. A widower,

Law, he was a special agent in the Federal his survivors included six daughters.

Bureau of Investigation for three years before entering private practice. Nicknamed “the L

THE BULLETIN w 77 Arthur Wellington Kelly, Jr. (82), a Fellow Pennsylvania Bar and had served in its House

Emeritus, retired from Thompson & Colgate, of Delegates. He had served on the Board of

Riverside, California, died in January 2010 at Governors of the Association of Trial Lawyers age 88. Employed by Bank of America after of America and was a permanent member of the high school, he served in the U.S.Coast Guard Third Circuit Judicial Conference. A prolific in World War II. Working for Seaboard Oil writer, he had been Associate Editor of the

Company, for five years he attended law school N.A.C.C.A. Law Journal. A partner in Richter, at night at Southwestern University, earning a Lord & Levy and later a sole practitioner, he certificate in law. After five more years with had retired in 1985 and had spent the next

Seaboard, he entered private practice in 1961 ten years cruising the Inland Waterway and and practiced until his retirement in 1986. He the waters of New England before settling in had served on the board of his local hospital. Sarasota. He had received the Fidelity Bank

A diplomate of the San Bernardino Chapter Award for improving the quality of justice of ABOTA, he had received its first Civility in Philadelphia and the Justice Michael A.

Award. His survivors include his wife Musamanno Award for his contribution to and a daughter. tort law and the judicial selection process. In

2006 he had been honored by the Philadelphia

Elwood S. Levy (68), a Fellow Emeritus, Bar Association as a 70-year “Philadelphia retired to Sarasota, Florida after a career in Lawyer.” His survivors include his wife, a son

Philadelphia, Pennsylvania, died April 27, and a daughter.

2007 at age 95. A graduate of the University of

Pennsylvania, where he was a member of Phi Richard H. Lewis (75), a Fellow Emeritus,

Beta Kappa, and of the Harvard Law School, retired to Fort Lauderdale, Florida, died March he had served as a naval air combat intelligence 20, 2010 of heart failure at age 80. A graduate officer in the Pacific Theater in World War II. of the College of William & Mary and of its

He had served on or chaired many committees School of Law, he practiced until his retirement of the Philadelphia Bar and had served a term with Lewis, Trichilo, Bancroft & McGavin in on its Board of Governors. He had also served Fairfax, Virginia. His survivors include his on or chaired a number of committees of the wife and five children.

78 w THE BULLETIN Hon. James P. Lynch, Jr. (65), a Judicial Fel- in World War II. He practiced in Alton, Illinois low from Natick, Massachusetts, retired Chief until his retirement. His survivors included his

Justice of the Massachusetts Superior Court, wife, two daughters and a step-son. died February 25, 2010 at age 88. A graduate of the College of the Holy Cross and of Boston James J. McLaughlin (73), Trenton, New

College Law School, between undergraduate Jersey died April 29, 2010 at age 81. A graduate and law school he had served as a landing craft of St. Joseph’s College and of the Fordham officer in the U.S. Navy in World War II, par- University School of Law, he had begun his ticipating in the D-Day invasion of Normandy. career as a Deputy Attorney General of the

After a clerkship with a federal district judge, State of New Jersey. Beginning his practice as he had joined Ropes & Gray, then served as an an associate of Richard J. Hughes, who became

Assistant United States Attorney before join- Governor and later Chief Justice of New Jersey, ing Nutter, McClennen & Fish, where he prac- he was later a founder of McLaughlin and ticed until his 1972 appointment to the bench, Cooper. He had served as president of his local from which he retired in 1991. He had taught bar, as a trustee of the New Jersey Lawyers’ evidence at Boston College Law School and Fund for Client Protection and as chair of the lectured and taught trial practice at the Har- College’s New Jersey State Committee. A vard Law School. In 1988 the Boston Bar had long-time teacher of trial advocacy at both presented him with the Haskell Cohn Distin- Fordham and Widener University School of guished Judicial Service Award. A widower, his Law, he had received the Trial Bar Award from survivors include a daughter and a son. the Trial Attorneys of New Jersey, the Michael

J. Nizolek Award for service to his local bar, the

Professional Lawyer of the Year Award from Robert B. Maucker (75), a Fellow Emeritus, the New Jersey Committee on Professionalism retired to Fort Myers, Florida, whose passing in Law and in 1998 was the first recipient of was only recently reported to the College, the New Jersey State Bar Association’s James died October 3, 2005 at age 90. A graduate of J. McLaughlin Professionalism Award, which it Augustana College and of the University of named for him. His wife survives him. Illinois Law School, he had been an FBI agent L

THE BULLETIN w 79 Toney Daniel McMillan (99), a partner in related organizations. His survivors include his

McMillan, McCorkle, Currie and Bennington, wife, two daughters and a son.

Arkadelphia, Arkansas, died November 22,

2009 at age 67. A graduate of Davidson Frederick M. Meyers (87), Of Counsel to

College and of the Austin Presbyterian Mills Meyers Swartling, Seattle, Washington,

Theological Seminary, he had been a died March 27, 2010 at age 71. A graduate

Presbyterian minister for five years before of the University of Washington and of its entering law school at the University of School of Law, he served as Operations Officer

Arkansas. After his graduation, he joined the for the First Airborne Battle Group, 327th firm founded in 1859 by his great grandfather. Infantry, 101st Airborne Division between

He served on the board of the Louisville undergraduate and law school, graduating from

Presbyterian Seminary and held several Ranger, Airborne and Jumpmaster schools. positions in his church and the Arkansas He began his career as a local prosecutor

Presbytery. His survivors include his wife and before entering private practice. Active in a two sons. number of bar organizations, he was a former

faculty member of the Trial Academy of the

François Mercier, O.C., Q.C. (75), Montréal, International Association of Defense Counsel

Quebec, died February 4, 2010. Born in Paris and had chaired the Litigation Section of his in 1923, he was a magna cum laude graduate state bar. His survivors include his wife, two of the Université of Montréal. A founding daughters and a son. member of Stikeman Elliot, he was named

Queen’s Counsel in 1961 and an officer of Hon. William L. Millard (80), a Judicial the Order of Canada in 1976. He had served Fellow from Columbus, Ohio, died May 20, as the College’s Province Chair. He had 2010 at age 79. A graduate of Amherst College also served as secretary of the Montréal Bar and the University of Virginia Law School and

Association and as a chair member of the Droit a former member of Lane, Alton & Horst, he des assurances de l’Université de Montréal. was a judge in the Court of Common Pleas for

He was also actively involved in several arts- Franklin County. He was a long-time member

80 w THE BULLETIN of the board of his local public library. A practice. Among his many clients in various widower, his survivors include a daughter and proceedings had been Senator Ted Kennedy in three sons. the wake of Chappaquiddick, Richard Nixon,

whose pardon Miller negotiated with President

Herbert J. (Jack) Miller, Jr. (81), a Fellow Gerald Ford, Attorney General Richard

Emeritus from Washington, District of Kleindienst and former White House Deputy

Columbia, died November 14, 2009 at age Chief of Staff Mike Deaver. The District of

85 of complications from influenza. His Columbia Bar, of which he had been president, undergraduate education interrupted by World had named him both its Lawyer of the Year and

War II, he was an officer in the U.S. Army, a Legend of the Law. He had also received serving in New Guinea, the Philippines and the Potter Stewart Award from the Council on

Japan. After the war he returned and graduated Court Excellence. His survivors include his from George Washington University and then wife and two sons. its School of Law. He began his practice with what is now Kirkland & Ellis. Democrat Michael Mines (77), a Fellow Emeritus from

Robert Kennedy recruited Republican Miller Seattle, Washington, died February 9, 2010 to become Assistant Attorney General for at age 80. A graduate of the University of the Criminal Division of the Department Washington and of its School of Law, he was of Justice. In that position, he led the fight a co-founder of Betts Patterson and Mines. against Teamsters leader Jimmy Hoffa and He had been local counsel for Chemical the bosses of La Cosa Nostra and prosecuted Bank in the litigation that followed the $2

President Lyndon Johnson’s aide Bobby Baker billion bond default by the Washington for influence peddling. He was a pallbearer Public Power Supply System, at the time the at Robert Kennedy’s funeral. A founding largest such default in history. He was a past partner of Miller, Cassidy, Larroca & Lewin, president of the Washington Defense Trial since merged with Baker Botts, he and the Lawyers, a former member of the board of the late Edward Bennett Williams are generally International Academy of Trial Lawyers and a credited with pioneering white collar defense former chair of the trustees of his law school’s L

THE BULLETIN w 81 alumni association, which had honored him as the trustees of his church. A widower, his with its Law’s Service Recognition Award. A survivors include a daughter and a son. community leader, he had filled many leadership roles, including being president of the Board of John W. Nolan, III (96), a Fellow Emeritus

Trustees of Horizon House, a continuing care from Bon Aqua, Tennessee, retired from Nolan, retirement facility, and Moderator of the Pacific Porter, Niewold, Evans, Hagan, Travis, David &

Northwest Conference of the United Church of Garrett, Nashville, Tennessee, died February 8,

Christ. He was on the organizing committee of 2010 of pancreatic cancer and a neurological dis- the Coalition for Quality Integrated Education, order at age 72. A graduate of the University of an organization that worked to integrate the local Tennessee and of its School of Law, his obituary public schools in the 1960s. He had chaired the described him as a cattle farmer, photographer,

College’s Washington State Committee. His collector, philosopher, bee-keeper and horseman. survivors include his wife of fifty-three years, A widower whose first wife had been his law three daughters and a son. school classmate, he had remarried sixteen years

after her death. His survivors include his second

James Long Newsom (69), a Fellow Emeritus, wife, two daughters and two sons. a retired partner in the Durham, North Carolina firm Newsom, Graham, Hedrick, Bryson and James Madison O’Leary (92), a Fellow

Kennon, who had moved in retirement to Chevy Emeritus from Austin, Texas, retired from the

Chase, Maryland, died February 28, 2007 at age Odessa, Texas firm, Shafer, Davis, O’Leary

92. A graduate of Duke University and of its and Stoker, died January 8, 2010 at age 79. A

School of Law, whose alumni association he had graduate of Austin College and of the University chaired, he served in the U.S. Navy in World of Texas School of Law, where he served on the

War II on Guadalcanal, the Solomon islands and law review and was a member of the Order of

New Caledonia, was Staff Intelligence Officer the Coif, he had served in the U.S. Army Judge on the staff of the Commander, South Pacific Advocate General Corps in the 1960s. His

Area and retired as a Commander in the Naval survivors include his wife of fifty-five years, two

Reserve at age sixty. He had chaired a number daughters and a son. of local civic and service organizations, as well

82 w THE BULLETIN Louis Oneal (79), San Jose, California, died survivors include his wife, a son and a daughter.

April 8, 2010 at age 77 of congestive heart failure. A graduate of Stanford University and Judd N. Poffinberger, Jr. (72), a Fellow of Santa Clara University School of Law, he Emeritus from Pittsburgh, Pennsylvania, died had served in the U.S. Marine Corps between December 2, 2009 at age 90. A graduate of the undergraduate and law schools. An athlete, University of Pittsburgh and of the Harvard Law he had coached his basketball team to the School, he was the first associate at Kirkpatrick

Hawaiian Marine Championship while on & Lockhart and was the senior surviving partner active duty. He had practiced with Rankin and of what is now K&L Gates. An officer in the

Oneal, a firm founded by his grandfather. His U.S. Army Ordnance Department in World War survivors include his wife of fifty-four years, a II, he had served as the president of his local bar son and a daughter. and as the College’s Pennsylvania State Chair,

as well as serving on the Pennsylvania Bar

Bernard S. Peck (68), Naples, Florida, retired Association’s Board of Governors. His survivors from Peck and Peck, Bridgeport, Connecticut, include his wife, a daughter and two step-sons. died July 31, 2009 at age 93. A Phi Beta Kappa graduate of Yale University and of its School William Clarence Reed (85), a Fellow of Law, he had served as an officer in the U.S. Emeritus from Augusta, Georgia, died

Army in World War II. He had also served a September 2, 2007 at age 78 following four-year term as a judge in the local court in several years of declining health. Joining the

Westport, Connecticut and had been the chair U.S. Marine Corps after high school, he had and moderator of the governing body of that graduated from West Georgia College and town. He had chaired the boards of YMCAs in had been recalled to active duty in the Korean both Westport and Naples. He had successfully Conflict. A graduate of the University of defended the Connecticut Bar Association in Georgia School of Law, he was retired from a libel suit brought by the author of How to Fulcher, Fulcher, Hagler, Harper and Reed.

Avoid Probate. He had chaired the College’s He had served as president of his local bar.

Connecticut State Committee. In his later years, A widower who had remarried, his survivors he had practiced with his son in Naples. His L

THE BULLETIN w 83 include his second wife, two sons, a step- Army, serving in the Ordnance Corps and as a daughter and a step-son. military policeman. A Phi Beta Kappa graduate

of the University of Alabama and a magna cum

Robert Given Rose, II (76), a Fellow laude graduate of the Harvard Law School,

Emeritus from Johnstown, Pennsylvania, died between undergraduate and law schools he

December 28, 2009 at age 85. Joining the was recalled to active duty as a combat rifle

Army Air Corps after high school, he was the platoon leader and then an assistant battalion pilot of B-24 bomber in the 15th Air Force operations officer in the Korean Conflict. in Italy in World War II, the lead pilot in his From 1954 to 1962 he practiced with Cabaniss squadron, flying fifty missions and receiving & Johnston in Birmingham, Alabama. In numerous medals for his service. A graduate 1962, he moved to New York City, where he of Penn State University and of the Dickinson was a partner and for many years the chief

School of Law, where he was a member of financial officer of Debevoise & Plimpton. In the law review, he spent most of his career 1991 he retired from that firm and became with Spence, Custer, Saylor, Wolfe and Rose, a shareholder in the Birmingham firm of retiring after fifty years of practice. A civic Maynard, Cooper & Gale, retiring in 2000. leader, he was twice president of his church One of the founders of the Litigation Section council, president of his county bar, and for of the American Bar Association, he was its forty years served on the board of his local chair in 1980-81. A prolific writer, he was the hospital and was chair of the board for twelve author of The Roman Republic: A Historical of those years. His survivors include his wife Parallel? His survivors include his wife of sixty-one years and two sons. and two sons.

Asa Rountree (70), a Fellow Emeritus from Theodore P. Shield (77), a Fellow Emeritus

Birmingham, Alabama, died February 11, from Long Beach, California, died May 31,

2010 at age 83. After graduating from the 2010 at age 90. A football player at both

Capital Page School in Washington, District of Compton Junior College and the University

Columbia, where he was a page in the United of California at Berkeley, he enlisted in the

States Supreme Court, he entered the U.S. Army Air Corps less than a month after Pearl

84 w THE BULLETIN Harbor and served with the 347th Fighter in the U.S. Navy in World War II in which he

Group in the South Pacific throughout the piloted a PBY Catalina “flying boat.” After war. After graduating from the University of the war, he returned to finish his undergraduate

Southern California School of Law, he began education and then graduated from the his career as a Deputy District Attorney in University of Idaho School of Law. He had

Long Beach, then joined the Los Angeles firm served as president of the Idaho State Bar, of Betts, Ely & Loomis, which later became which had honored him with its Distinguished

Shield & Smith. An active trial lawyer for over Lawyer Award, and of the Western States Bar sixty years, he spent his last nineteen years as Conference, which had honored him with both counsel to the firm of Ford, Walker, Haggerty its professionalism and pro bono awards.

& Behar. He had served as president of the He had served as an adjunct professor of

International Association of Defense Counsel trial practice at his law school. His survivors and on the Board of Directors and Executive include his wife, a son, two step-sons and

Committee of the Defense Research Institute. a step-daughter.

A former member of the Board of Governors of the State Bar of California, he had served Oscar M. Smith (72), a Fellow Emeritus as the College’s State Chair for Southern from Rome, Georgia, died January 9, 2010

California. In 1974 the American Board of at age 86. A Phi Beta Kappa graduate of the

Trial Advocates had elected him its Trial University of Georgia, he was an officer in

Lawyer of the Year. A widower whose wife of the U.S. Army in World War II, seeing service sixty years had predeceased him, his survivors in the European Theater as a member of the include three daughters. 153rd Engineer Combat Battalion in the 1st,

3rd and 7th Armies. The first honor graduate

Jerry V. Smith (99), a Fellow Emeritus from in his law class at the University of Georgia,

Lewiston, Idaho, retired from Smith and he was a partner in the firm of Smith, Shaw,

Cannon, died April 11, 2010 at age 85 from Maddox, Davidson and Graham. Serving as secondary injuries from a fall while walking general counsel for several corporations, he his dog. His undergraduate education at the also devoted a good part of his practice to University of Idaho was interrupted by service L

THE BULLETIN w 85 hospital and medical malpractice law, serving General Bernard Montgomery during the for nineteen years as attorney for his county invasion and then served to the end of the hospital authority. A past president of the war in the Army’s Forward Headquarters.

Georgia Defense Lawyers Association, After practicing in Atlanta, Georgia, for a he had been president of the Board of Visitors few years, he joined the Tampa, Florida firm, of the University of Georgia Law School Shackleford, Farrior, Shannon & Stallings.

Alumni Association and chair of the law A past president of his local bar and a former school’s Board of Visitors. He had received member of the Board of Governors of the the law school’s Distinguished Service Florida Bar, he served on the boards of both

Award. He had also chaired the Georgia State Jim Walter Corp. and Jack Eckerd Corp.

Board of Bar Examiners and had also led A leader in numerous civic organizations, numerous charitable and civic organizations. he was vice-chairman of the Hillsborough

After his retirement, he became a national County Aviation Authority and had a major champion builder of rubber-powered scale hand in the creation of Tampa International model airplanes. His wife of sixty-one Airport. He served a term as the College’s years predeceased him. His survivors include Florida State Chair. A widower, his survivors two sons. include a daughter and a son.

Norman Stallings (59), a Fellow Emeritus James E. Tribble (87), a Fellow Emeritus from Tampa, Florida, died March 23, 2010 from Tallahassee, Florida, died October at age 95. A graduate of the University of 27, 2008 of a cerebral hemorrhage. Born in

Florida and of the Harvard Law School, 1933, he earned his undergraduate degree at where he earned both an LL.B. and an LLM Wake Forest University and graduated first in taxation, he was editor of the Harvard in his class from Stetson University Law

Law Review. As an officer in the U.S. School, where his father had once served as

Army in World War II, he served in General Dean. After service in the Judge Advocate

Omar Bradley’s 12th Army Group before General Corps, he was a law clerk on the the invasion of Europe, was with British Florida Supreme Court before moving to

86 w THE BULLETIN Miami, Florida, where he joined the firm of Louis Young (69), a Fellow Emeritus from

Blackwell, Walker & Gray. A Fellow of both Delray Beach, Florida, whose passing was the College and the American Academy of only recently reported to the College, died

Appellate Lawyers, his survivors include his December 7, 2005 at age 97. He had practiced wife, two daughters and a son. his entire career with the Syracuse, New York

firm Melvin & Melvin. A graduate of the

Hon. Alfred E. Woodward (63), a Judicial Syracuse Law School, he had been a member

Fellow from Wheaton, Illinois, died February of its Board of Visitors and had received a

20, 2007 at age 93 of congestive heart failure. Distinguished Service Award from its alumni

A graduate of Oberlin College, where he was association. A past president of his local bar, captain of the football team, he earned his law which had honored him with its Distinguished degree at Northwestern University School of Lawyer Award, he had served in the House

Law. He served as an officer in the U.S. Navy of Delegates of the New York State Bar and in World War II. A partner in the Wheaton as Secretary of that organization. He was a firm, Rathje & Woodward, he was elected to veteran of World War II, serving with the 5th the Circuit Court bench in 1971, served as its Army, 88th Division in the Italian Campaign.

Chief Judge for four years, and in 1977 was At the end of the war he had become a JAG elevated to the 2nd District Appellate Court officer, remaining on active duty for another bench, retiring from the bench in 1994 at age year before returning to civilian life. He had

81. A widower, his survivors include seven been president of his local Legal Aid Society children. At the time of his death, his son and for many years served on the Board of

Robert recalled that there had always been the Directors of the Jewish Home of Central New expectation that he would follow in his father’s York. His wife predeceased him by one week. footsteps, go to law school and join his father’s His survivors include two sons. firm. Instead, to his father’s consternation, he took a $110 a week job at a small newspaper in

Montgomery County, Maryland. That son: the

Bob Woodward of Watergate fame.

THE BULLETIN w 87 PRSRT STANDARD T h e B u l l e t i n U.S. POSTAGE of the PAID SUNDANCE PRESS American College of Trial Lawyers 85719 19900 MacArthur Boulevard, Suite 530 Irvine, California 92612

Statement of Purpose

The American College of Trial Lawyers, founded in 1950, is composed of the best of the trial bar from the United States and Canada. Fellowship in the College is extended by invitation only, after careful investigation, to those experienced trial lawyers who have mastered the art of advocacy and those whose professional careers have been marked by the highest standards of ethical conduct, professionalism, civility and collegiality. Lawyers must have a minimum of 15 years’ experience before they can be considered for Fellowship. Membership in the College cannot exceed 1% of the total lawyer population of any state or province. Fellows are carefully selected from among those who represent plaintiffs and those who represent defendants in civil cases; those who pros- ecute and those who defend persons accused of crime. The College is thus able to speak with a balanced voice on important issues affecting the administration of justice. The College strives to improve and elevate the standards of trial practice, the administration of justice and the ethics of the trial profession. ef

“In this select circle, we find pleasure and charm in the illustrious company of our contemporaries and take the keenest delight in exalting our friendships.” Hon. Emil Gumpert, Chancellor-Founder, ACTL

88 w THE BULLETIN