Law School’S Vision

in this issue

Furman Hall Opens: The Architecture of a Law School’s Vision. The Creative Counsel: Professor Burt Neuborne reflects on his NYU career as a litigating academic. Law School Top Criminal Minds: the magazine of new york university A world-class faculty makes the case for NYU. school of law autumn 2004

Partners in Crime On Our Cover Criminal Law Personified: Here’s how to make a professor proud. NAACP Legal Defense Fund lawyer, Vanita Gupta (’01), the subject of Turning the Tables in Tulia, on page 53, confers with co-counsel during the course of her high-stakes bid to free 35 wrongly-convicted citizens of Tulia, Texas. The lawyer facing Gupta in the sketch is another NYU School of Law graduate, Adam Levin (’97), who took the case pro bono for D.C. firm Hogan & Hartson. Levin is now one of the firm’s senior associates.

Artist Marilyn Church has covered famous courtroom spectacles including trials involving Robert Chambers, John Gotti, and Jean Harris of Scars- dale Diet fame—since the seventies. Her work is often on ABC and in The New York Times, and has been published in Fortune, Esquire, Time, and Newsweek.

Message from Dean Revesz

he Law School continues to astonish me with its vitality. Having completed my second year of stewardship as dean, I feel so grateful for the privilege of learning and interacting with the various communities that comprise the T NYU School of Law. In one extraordinary week last spring, for example, I first welcomed James Wolfensohn, the president of the World Bank, to an important conference on Human Rights and Development. Next, I listened to my colleague Barry Friedman, one of the nation’s leading constitutional theory experts, deliver the inaugural chair lecture for the Jacob D. Fuchsberg Professorship of Law, established by Law School Trustee Alan Fuchsberg (’79) and his family in honor of his father, a distinguished judge on the New York Court of Appeals, who graduated in 1935. I moved on to greet the judges of the U.S. Court of Appeals for the Second Circuit, who had convened to hear Professor Noah Feldman report on his experience serving as a senior advisor on constitutional law to the Coalition Provisional Authority in Iraq, before heading over to the eighth annual Hauser Lecture on international humanitarian law featuring Lord Paddy Ashdown, the high representative for Bosnia and Herzegovina. The lecture, organized by long-time faculty member Theodor Meron, who is currently on leave to serve as the president of the International Criminal Tribunal for the former Yugoslavia, drew a distinguished crowd. Antonio Cassese, also a judge on the ICTY and former President of the tribunal from 1993 to 1997 was there, as was Richard Goldstone, a judge on South Africa’s Constitutional Court and former chief prosecutor for the ICTY. My week was topped off when I presented Rita Hauser (’59) with the Vanderbilt Award; appropriately, the pathbreaking Hauser Global Law School Program, co- founded by Rita and her husband, Gustave (LL.M. ’57), had made the indelible Ashdown session possible. And then it was on to the next week, which brought similar intellectual excitement. For those of us who work and study on Washington Square South, the constant buzz of activity makes every day memorable. At any given time, there are workshops, roundtables, panel discussions and lectures with distinguished guests attended by students, faculty, alumni, and practitioners. I hope that the Student Spotlight, Around the Law School, and Alumni Activities sections in this issue will convey some of that feeling. Our new opening section, Notes & Renderings, should get you quickly up to speed on some of the highlights. Be sure to note the exciting news that we successfully completed our $30 million endowment campaign for the Root-Tilden-Kern Program, the leading public interest program in the country, which just celebrated its 50th anniversary. Thanks to the incredible generosity of Jerome Kern (’60), and many others, we will, once again, offer each entering class 20 full-tuition scholarships. The most tangible physical milestone this year—the opening of Furman Hall, the first new academic building on campus since Vanderbilt Hall was built more than 50 years ago—serves as the editorial gateway to the issue’s longer pieces including Creative Counsel, our profile of the accomplished and affable Burt Neuborne, the John Norton Pomeroy Professor of Law, written by Joseph Berger of The New York Times. We are also proud to showcase Vanita Gupta (’01), whose tale is proof positive of the outstanding training in criminal law available to NYU School of Law students. A profile of this alumna and her battle to free 35 wrongly convicted Texans is embedded in the cover story on our criminal law program, Par tners in Crime, written by Jodi Balsam (’86). This article continues the tradition of focusing on one substantive area of law in which the NYU School of Law has extraordinary strengths. I am confident that an independent peer review would conclude that, among the leading law schools in the country, we have the strongest criminal law program. Our international and environmental law programs, which were the focus of The Law School in the past two years, meet the same standard. I hope you will agree that this issue reflects the intellectual energy and vibrancy of the Law School itself. Please do weigh in with your verdict at [email protected]. We hope to hear from you.

Richard Revesz The Law School the magazine of new york university school of law

The Architecture of Creative Counsel: a Law School’s Vision Professor Furman Hall, the first new construction Burt Neuborne on campus since Vanderbilt Hall some Meet this rare blend of litigating 50 years ago, makes a grand entrance. academic and imaginative lawyer.

By Joanna Goddard By Joseph Berger

10 16

4 104 Notes & Student Spotlight Renderings Scholarship ...... 104 Excerpts from three outstanding Recent NYU School 58 articles by Class of 2004 of Law graduates members Kristine Hutchinson, head to the U.S. Faculty Focus Josh Kagan, and David Lehn. Supreme Court for Scholarship ...... 58 vaunted clerkships, Five Law School teachers and thinkers— Events . . . . . 110 professors win grants, Barry Friedman, David Golove, Marcel Kahan, Students start new make cases, garner Deborah Malamud, and Anthony Thompson— law journals, appointments, share excerpts of their recently published explore issues and more… scholarship articles. ranging from international law Good Reads ...... 77 to courtroom A list of all the work published by full- technology to time, visiting, global, and library faculty. 56 Feature Updates water use, and (Plus, keep an eye out for newspaper Last year’s cover story, Training even squeeze op-eds written by faculty and reprinted Environmental and Land Use Lawyers in some fun. throughout the magazine.) for the New Millenium, focused on the environmental program; this year, we look New Faculty ...... 84 at a few new environmental law projects: The Law School welcomes five new professors, Regulating Regulators; Danube Clean-up; as well as visitors from around the globe. Bait and Switch? Shorts ...... 94 The 2002 magazine took a close look at Professor Stephen Gillers (’68) steps down the international area in International Law from the vice-deanship—and Professors for the Future; a report, this time, on Clayton Gillette and Barry Adler fill his (really the forward-thinking Center on Law and big) shoes, six new chairs are celebrated Security’s high-level conference, “Prosecuting with inaugural lectures, and more. Terrorism: The Global Challenge.” Faculty in the News ...... 99 The New York Times profiles Professor The- odor Meron’s work at the Hague; Professor Geoffrey Miller’s class-action lawsuit study makes waves; and the Chronicle for Higher Education says that Professor Gerald López is a “lawyer with an attitude.” autumn 2004 Volume XIV

Managing Editor Elyse Mall Klayman

Creative Director David Niedenthal

Assistant Managing Editor Partners in Crime Elizabeth Rohlfing Graphic Designers The Criminal Law Program boasts the sharpest Michael Bierman criminal minds in the country—a phalanx of professors Nathan Coates Eric Felisbret who value the lively exchange that distinguishes Yasmin Mistry their intellectual community. It’s simply the best Kim Sajan place to study criminal law—no offense. Senior Editors Jeanhee Kim By Jodi Balsam (’86) Kathleen Maloney Jill Rachlin Marbaix Barbara Tierney Plus: Turning the Tables in Tulia on page 53, a profile of Associate Editor graduate Vanita Gupta (’01), who took what she learned Jill Filipovic and steered an NAACP Legal Defense Fund appeal that Staff Writer would ultimately free 35 innocent people from jail. Dan Bell

By Dan Bell Writers COVER STORY 24 Jodi Balsam (’86) Joseph Berger Wendy Davis Joanna Goddard Jessica O’Brien Kate Siamon

122 148 Contributors Joseph Alonzo (’06) Around the Alumni Activities Alma Asay (’05) Brigham Barnes (’06) Law School Awards, anniversaries, and generous William Baxter (’04) Ruth Beering A survey of donations (along with consequential Daniel Bonnici (’05) achievements) are celebrated. on-campus Emily Bushnell (’05) events ranging Brandon Buskey (‘06) David Chubak (’05) from tax work- Michelle Chui (’06) shops to civil Will Edmonson (’05) Linda Hsia Elmstrom rights sessions, Jordan Fletcher (’06) auctions to Shinbum Han (’06) Deepa Janakiraman (’05) international Joi Lakes (’05) affairs seminars. Kevin Lees (’06) Josh Mahowald (’06) Vincent Mareino (’05) Jeremy Masys (’06) Kevin Moriarty (’04) Jonathan Regenstein (’05) 160 Mary Santanello (’06) Vishal Sheth (’05) The Back Page: Liberty’s Kids Brian Sutherland (’06) Professor Jack Rakove, who visited the NYU Lindsay Traylor (’05) Luke Tullberg (’06) School of Law last year from Stanford, vetted Lais Washington (’06) Liberty’s Kids, an acclaimed and star- stud- Craig Winters (’06) Priyanjali Yadav (LL .M . ’04) ded PBS cartoon, for historical accuracy. Assistants Alison Clement Kathryn Wood

Photographers Bryan Burkey 140 Susan Cook Mark Finkenstaedt Making the Grade Phil Gallo Ken Levinson Commencement and Convocation . . 140 Bob London The annual ritual is celebrated as another Elena Olivo academic cycle is completed. Don Pollard Paule Rogol Debra Rothenberg Hooding Album ...... 143 Leo Sorel Woodruff/Brown Law School alumni, faculty, donors, and _____ family members stand proudly with their brand-new graduates. Send your comments to law .magazine@nyu .edu .

Notes & Renderings A Supreme Achievement

or the first time, four recent NYU School in federal courts, civil procedure and prac- Richard Pildes Wins of Law graduates were selected to clerk tice. Last year he clerked for the Honorable F at the United States Supreme Court in J. Michael Luttig of the U.S. Court of Carnegie Fellowship the same term. Appeals for the Fourth Circuit. Justice Sandra Day O’Connor chose Van Aken, a Root-Tilden-Kern Scholar, or the second year running, a New York Joel Beauvais (’02) and Theano Evangelis also won the University Graduation award. University School of Law professor has (’03)—also the first time two NYU alumni During the 2002-03 term, she clerked for the F been chosen as a Carnegie Scholar by the will work together for a single member of Honorable Pierre N. Leval of the U.S. Court Carnegie Corporation of New York. the court. Larry Thompson, Jr. (’03) was of Appeals for the Second Circuit and was Sudler Family Professor of Constitutional picked to clerk for Justice Clarence Thomas, most recently an associate in the New York Law Richard H. Pildes was one of 15 profes- but deferred for a year. Justice David Souter office of Arnold & Porter. Crediting the Law sors from across the country to join the 2004 selected Christine Van Aken (’02). School for its support, she says, “Because I class of Carnegie Scholars. He will receive Beauvais ranked second in his graduating enjoyed my professors and fellow students nearly $100,000 for his proposed book- class. Among his many awards, he earned so much it made it easier to reach what I the Frank H. Sommer Memorial Award thought was my potential.” I for outstanding scholarship, character and professional activities. During the 2003-04 term, he clerked for the Honorable Harry T. Edwards of the U.S. Court of Appeals for the District of Columbia Circuit. A recipient of the University Graduation Prize given to the highest-ranked student, Evangelis received the Judge Rose L. and Herbert Rubin Law Review Prize for the most outstanding note written for the Law Review in international, commercial or public law. She recently completed a clerkship with Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit. Thompson won the Edward Wein- feld Prize for distinguished scholarship

Theano Evangelis, Joel Beauvais and Chris- tine Van Aken are clerking for the highest court in the land this year.

Nelson v. Campbell: Life and Death Litigation

n May 24, 2004, NYU School of Law from intravenous drug use, prison officers case. During a further appeal, however, Professor Bryan Stevenson won a 9-0 proposed a “cut down” procedure in order the Court found that since Nelson did O victory in the United States Supreme to administer the state’s lethal injection. The not contest the sentence itself, but only the Court, enjoining the execution of David L. method involves deep incisions into either method of execution, his claim was not a Nelson. Stevenson is a renowned specialist the arm or leg, and the insertion of a catheter. habeas corpus petition. Justice O’Connor, in capital defense, and the executive director Prison officials refused to assure Nelson that who wrote the unanimous decision, sup- of the Equal Justice Initiative of Alabama, a medical rather than correctional personnel ported Nelson’s claim for protection under private nonprofit organization that provides would carry out the procedure, or that he the Eighth Amendment and granted him legal defense for people of color, indigents, would receive adequate anesthesia. Nelson both a “stay [of execution] and permanent and the poor. Stevenson worked on Nelson v. appealed on the grounds that the process injunctive relief.” Campbell as part of an EJI team that also constituted cruel and unusual punishment Stevenson took the case due to his concern included two Law School alumni, Marc and was therefore in violation of his rights regarding the restrictive approach of the 1996 Shapiro (’03) and Jamila Wideman (’03). under the Eighth Amendment. Anti-Terrorism and Effective Death Penalty Nelson, who had been on death row for His appeal to the Federal District Act (AEDPA). “In 1996, Congress barred vir- 20 years, did not appeal the death sentence Court was rejected on grounds that it was a tually all litigation by death row prisoners itself, but the proposed method of execution. second habeas corpus petition, and as such after their initial appeals were complete unless Due to advanced deterioration of his veins the court had no jurisdiction to act on the they could present a claim of factual inno-

4 THE LAW SCHOOL AUTUMN 2004 length study on the influence of democratic politics and constitutional law on the design of democratic structures. Ending Executions His work, entitled “The Constitutional- By Wendy Davis ization of Democratic Politics,” will contribute to the emerging field of the Law of Democracy, and is intended to reach a wide Call him the international law Of course, Alston’s lever- version of a volunteer fire- age—much like the United audience of policymakers, judges, and stu- fighter. NYU School of Law Nations’—is limited to dents of democracy and constitutional law, professor Philip Alston political pressure. “The both in the United States and abroad. Pildes has a new part-time gig position carries no for- aims to focus attention on whether the this year: heading off mal power other than regulations of democracy promote political executions before they to try to embarrass happen. the government, or competition, or in fact serve to bolster the As the newly ap- to present some inter- grip of existing partisan forces. pointed United Nations national finding that This is the first time that the Carnegie Commission on Human what’s going on is Award has gone to the same law school two Rights Special Rappor- unacceptable,” he says. years in a row. Last year’s recipient, Walter E. teur on extrajudicial, sum- Still, he hopes to mary, or arbitrary executions, derail imminent killings. Meyer Professor of Law Stephen Holmes, Alston will both investigate For example, the office fre- was chosen for his book on Russian legal human rights violations and quently learns that someone reform. Both Pildes and Holmes are founding attempt to head off imminent has been targeted for execution— members of the Law School’s Center on Law killings at the pass. perhaps by an unscrupulous business execu- and Security. Of the 67 scholars who have “The objective is to reduce the number tive—and that the victim’s government of executions taking place,” says Alston, 54, intends to turn a blind eye. In these situations, received this award since 2000, only two who also serves as faculty director of the Alston can attempt an intervention, usually by besides Holmes and Pildes were law scholars. Center for Human Rights and Global Justice contacting officials from the other country, The Carnegie Scholars Program supports at the NYU School of Law. “This particular letting them know that he’s aware of a death innovative and pathbreaking scholarship mandate,” he adds, “is very crisis-driven.” threat, and at least tacitly threatening them on issues related to education, international Alston, a native of Melbourne, Australia, with embarrassment. Such tactics have pre- was appointed to the three-year Special vented executions in the past, says Alston. development, strengthening U.S. democracy Rapporteur position by Mike Smith, Chair- Long before this appointment, Alston and international peace and security. man of the U.N. Commission on Human was well known for his extensive work for Pildes is recognized as one of America’s Rights. The job, which is unpaid, involves international human rights. “He’s an excellent leading scholars in public law and in the examining and reporting on a broad variety choice,” says Michael Posner, executive legal issues affecting democracy. His work of human rights violations, ranging from director of Human Rights First, a New York–based advocacy group. “He’s been a appears in numerous Supreme Court cita- genocide to paramilitary executions to deaths of prisoners to so-called honor leading figure in the human rights move- tions and has been translated into several killings (involving men who kill female rela- ment for a long time,” adds Posner, who has languages—he’s even been nominated for an tives for having scandalized their families). known Alston since the 1970s. “He combines Emmy Award for his televised legal analysis In some situations, the Special Rappor- academic excellence and scholarship with of the 2000 election. “The Carnegie board teur also scrutinizes the imposition of the the real world of activism.” looks for the most creative and innovative death penalty. For example, the Special Rapporteur has complained about executing scholars to nominate,” says Patricia Rosen- defendants for crimes committed as juve- field, chair of the Carnegie Scholars Pro- niles—which the U.N. considers a human gram. “Pildes’ proposal was particularly rights offense. outstanding.” —Dan Bell

cence,” said Stevenson. “This left many pris- conduct just because the plaintiff is a death oners who faced cruel or inhumane execution row prisoner who may soon face execution.” procedures, or people who were incompetent “I still believe that the civility of a society or unjustly sentenced, with no federal remedy. must be measured by how we treat the poor The Nelson case provided some opportunity and disfavored, not the wealthy and the priv- to challenge the very restrictive approach many ileged,” Stevenson said. “Consequently, federal courts have taken in implementing despite the difficulty of the challenge, I’m this provision of AEDPA.” ultimately energized by advocacy that insists Stevenson was also disturbed that on equal justice, respect for the law and “Alabama officials were so non-responsive to human rights even for the most despised the serious medical needs of a condemned and rejected among us.” prisoner who was offering no resistance to “I believe that the psychic and physical his execution, but just wanted basic medical trauma that surrounds any execution care to avoid what could be torturous pain of a human being will become a and brutality.” He hoped that although the more significant issue in capital judgment “was very narrowly written,” the litigation and the debate sur- case might have wider implications for other rounding the death penalty,” death row defendants. “The Court has he added. “This case will acknowledged that federal courts can’t simply obviously be part of that ignore claims of cruel and unconstitutional story.” —D.B.

AUTUMN 2004 THE LAW SCHOOL 5 NOTES & RENDERINGS

Willing to Pack His Bags for the Chance to Learn

The new executive director of the Jean Monnet Center for International and Regional Economic Law & Justice can credit a “nerdy desire to learn about things” for the wind- ing path that led him back to the NYU School of Law, where he earned his LL.M. in 2002. During four years of practice as an environmental lawyer, Kevin Klingbeil has worked in Johan- nesburg, New York, Seattle, and Denver. Figuring Out How Oil Money Environmental law has many tangents, Klingbeil said, including international trade Slipped Away and human rights. Klingbeil has consulted for Maasai tribal landholders and a group representing the interests of the Peruvian ast spring, U.N. Secretary-General Kofi Volcker stated three primary objectives Inca culture. He was a representative of East Annan formed a three-person Indepen- for the investigation last summer. “We seek African nongovernmental organizations to the U.N.’s Committee for the International L dent Inquiry Committee to find out what to answer conclusively the allegations of cor- Decade of the World’s Indigenous Peoples went wrong with a U.N.-run multibillion- ruption within the U.N. professional staff. in 2001-02, and a consultant at the World dollar aid pipeline to Iraq. The committee We aim to provide…the truly definitive report Summit on Sustainable Development in is led by former chairman of the Federal on the administration of the oil-for-food Johannesburg in 2002. He has also practiced Reserve Board, Paul A. Volcker and includes program. In conjunction with responsible domestically including several years as a Justice Richard Goldstone, a member of the Iraqi and other national authorities, we want consultant and attorney for numerous groups on water, fisheries, natural resources, Law School’s global faculty. to trace corrupt contractors and ill-gotten and land-use law. The so-called oil-for-food program, funds wherever they may be found.” At the Jean Monnet Center, he hopes operated between 1996 and 2003, was For Justice Goldstone, it will be the that his experience in South America, intended to provide vital relief for the Iraqi latest in a series of high-profile international Southeast Asia, and Africa will allow him population, which was being put at risk by investigations. He was a judge of South to broaden the Center’s scope. It is already the leading North American resource for the the international sanctions imposed against Africa’s Constitutional Court; from 1994 study of the European Union and its institu- the regime of Saddam Hussein. The core idea to 1996, Goldstone was chief prosecutor tions, policies and legal system. After practi- was to lift the oil embargo with the condition for the International Criminal Tribunals cally living out of a suitcase for the past four that revenues be exchanged for food and for the former Yugoslavia and Rwanda. He years, Klingbeil is pleased to unpack at NYU. medical supplies. Unfortunately, there are also headed up the International Independent “I’ve always gone wherever I saw the best opportunities to learn,” he said. “Especially now accusations that the pipeline had leaks. Inquiry on Kosovo between 1999 and 2001. in my field, there are few places where I can In fact, preliminary findings by the U.S. Gen- Goldstone is the recipient of numerous feel at the hub of intellectual thought. NYU eral Accounting Office suggest that cash flow human rights awards and has lectured on is one of those places.” was hemorrhaging; charges of corruption human rights and South African constitu- have even implicated a senior U.N. official. tional issues around the world. —D.B. New Center Dir

Chronicling Drought dotal for the journals. So, he decided to that allowed him to “sit, drink coffee, smoke write a book. Almost four years after sending cigarettes and talk to people” all day. n a Fulbright scholarship to Brazil in out the first proposals, Waiting for Rain: In 2001, Arons began his legal studies at 2000, Nicholas Arons (’04, LL.M. ’05) The Politics and Poetry of Drought in Northeast NYU, where he was a Hays Fellow, president O planned to write articles about the effects Brazil will be published in October 2004 of the NYU American Constitution Society of drought. He traveled throughout drought- by the University of Arizona Press. and co-founder of the Indigenous Law Soci- plagued Northeast Brazil and interviewed Arons spent his law school years editing ety. His first summer, he interned in Geneva local residents. Among his adventures, he his 800-page draft of Waiting for Rain. The at the United Nations High Commissioner made a 150-kilometer pil- 250-page book meshes anthropology, history for Refugees. Arons hopes to work in public grimage to pray for rain, and socio-political analysis to tell the stories interest law. endured a hard-partying of people who have suffered through drought. With no publicist, Arons has only adviser who called him Anthropology professor Nancy Scheper- modest hopes for the book. He would like “little animal,” and, in one Hughes at the University of California at to see it in classrooms. “Education should be extraordinary incident, was Berkeley, writes in the foreword: “This book through stories,” he said. “That’s what you kidnapped at an airport. captures the tough spirit of both the region and remember.” And, of course, he’s hoping to But when Arons the author. It tells a story of epic proportions.” call attention to the plight of people suffer- pitched his juicy stories, he was met with Arons, who learned Portugese at Yale, ing from drought. “Everyone does their rejection; editors said his writing was too first went to Brazil as an undergraduate. He little thing,” he said. “Hopefully, this scholarly for popular reading and too anec- immediately took to the laid-back culture will be mine.” —W.D.

6 THE LAW SCHOOL AUTUMN 2004 Using the Law as Leverage Continuing a Family Tradition A Global Background in to Protect Human Rights of International Advocacy Policy and Scholarship

After six years in When Smita Narula goes Simon Chesterman was in the trenches of human to a coffee shop near her Yugoslavia while pressure rights activism, Margaret Furman Hall office, she was mounting for Slobodan Satterthwaite (’99) recog- orders in Punjabi. As the Milosevic to quit office. But nized the power of the law counterman smilingly cor- his Serbian friends—all edu- in human rights issues. rects her, Narula graciously cated professionals—were She’d been at the forefront accepts the tutorials. more interested in the U.S. of pushing organizations to Where others may see the elections and Bill Clinton. recognize gay and lesbian contrast in their stations “It was 2000, and it made rights, co-founding Amnesty International in life, Narula, the executive director of the no sense to the Serbians that the most pow- Members for Lesbian and Gay Reform, now Center for Human Rights and Global Justice, erful man in the world would step down from called OUTfront, in 1990. She also was the sees two South Asians establishing a con- office,” Chesterman says. To people living international programs coordinator for the nection. “Much of my human rights work has under a dictator, term limits and the demo- human rights education organization Street been about eradicating abuse on the basis cratic process were nearly incomprehensible. Law. But it was in 1995, as a human rights of caste, religion, gender, or nationality.” Situations like these raise questions that investigator for the Haitian National Truth Indeed, Narula, whose father retired after fascinate Chesterman regarding law and how and Justice Commission, when the dynamic 31 years at UNICEF and whose mother cur- power is regulated, particularly when countries role of the law in human rights work hit her. rently directs U.N. medical services, has made are in crisis. Besides Yugoslavia, where he “Not only are lawyers taken more seriously an international impact investigating religious worked for the U.N.’s Office for the Coordina- by governments, but they also have the abil- persecution and caste discrimination. In 2002 tion of Humanitarian Affairs, he has taken his ity to articulate protections in an evolving as a senior researcher for Human Rights abiding curiosity to Rwanda, East Timor and manner, ensuring continual progress,” Watch in India, she prepared the only fact- Afghanistan, where he conducted research Satterthwaite says. Following law school, finding report on the massacre of more than for the International Peace Academy on the she served as a law clerk to Judge Betty 2,000 Muslims in Gujarat. She’d also helped role of the U.N. in state-building activities. Fletcher of the U.S. Court of Appeals for the found a campaign for Dalit Human Rights to Since February, Chesterman has been Ninth Circuit, and to the judges of the Inter- fight India’s “hidden apartheid.” the executive director of the Institute for national Court of Justice, before consulting As executive director of the Center, Narula International Law and Justice, which brings at the U.N. Development Fund for Women. helps organize events such as a conference together the Jean Monnet Center, the Center Now, as research director at the Center last March focusing on the intersection of for Human Rights and Global Justice, and for Human Rights and Global Justice, Sat- human rights and development. Co-chaired the Program in the History and Theory of terthwaite, whose own research focuses on by Faculty Director Philip Alston and Mary International Law. Part of his job, which he women migrant worker rights, and method- Robinson, chair of the Ethical Global Initiative, neatly encapsulates as “making the whole ologies for measuring economic and social the session featured World Bank President greater than the sum of its parts,” is thumb- rights, coordinates the Emerging Human James Wolfensohn. Narula co-teaches the ing through his prodigious rolodex to Rights Scholarship conference, a showcase International Human Rights Clinic that equips make things happen. for student research. She also directs the students to be human rights lawyers. Last fall Chesterman is supervising a new collabo- working paper series, which features interna- these future lawyers assisted Human Rights ration of international experts called “Making tional scholarship in economic, social and Watch in locating and interviewing members States Work: Governance and Accountability cultural rights, transitional justice, and the of the Afghan diaspora about crimes against in States at Risk.” Their analysis will contribute right to equality. As a co-teacher of the Inter- humanity by leaders who have now returned to debates on U.N. reform prompted, in national Human Rights Clinic, Satterthwaite to power. Through this project, says Narula, part, by the war in Iraq. Such projects fulfill seeks to turn out lawyers “who are top-notch students “learned of the never-ending cycle Chesterman’s hope for the IILJ to “mix practitioners with a clear sense of their role of abuse when people in power are not held scholarly excellence with policy relevance.” Centerin the larger human rights movement.” accountable.”Directors —Jeanhee Kim

RTK Endowment Campaign Is a Success he Law School’s them to give more by matching funds with who are leaders in public service. “Woven Root-Tilden-Kern his own additional gift. “Philanthropy is not together, your careers make a vibrant tapestry T endowment campaign as simple as writing a check—you’ve got to of public service,” Deborah Ellis (’82), Assistant surpassed its $30 million work to reach your goals,” he said. “When Dean for Public Interest Law, told an audience fundraising goal, thanks I got involved ﬁve years ago, the goal was of 350 RTK alumni and their guests at a gala in large part to a match- to raise enough to once again provide 20 held at the Rainbow Room in April. ing-gift challenge by full-tuition scholarships like the program Professor Vicki Been (’83), RTK faculty Jerome Kern (’60), at left; a gift from the did when I was there.” Over the past years, director, lauded the Class of 2004’s out- John Ben Snow Memorial Trust, a longtime funding had dipped and fewer scholarships standing merit and achievements, including supporter; and boosts from Douglas Lieb- were awarded. With Kern’s encouragement, investigating allocations of humanitarian aid, hafsky (’64) and the Andrew W. Mellon a majority of RTK alumni donated to the building housing for the poor, promoting Foundation, whose predecessor, the Avalon endowment replenishment efforts. better conditions and wages for laborers, and Foundation, had given the program its The funding infusion will permit the working to improve the environment. “They launching gifts in the 1950s. renowned Root-Tilden-Kern Program to again haven’t just shown a commitment to public The campaign topped its target offer the full complement of annual scholar- service,” she said, “they have already made through the support of nearly 470 gener- ships. RTK students will join the ranks of over signiﬁcant marks on the world, in a broad ous alumni led by Kern, who motivated 800 alumni across the nation and the world range of public-service activities.” I

AUTUMN 2004 THE LAW SCHOOL 7 NOTES & RENDERINGS Caliphs and the Constitution

ver since his appointment as a constitu- was published as the troops closed tional law consultant to the Iraq Coalition in on Baghdad, contests the view that E Provisional Authority last year, New York Islam is incompatible with the vote. University School of Law Professor, Noah He points out that, historically, there Feldman, 34, has been much in demand. is nothing inherently democratic about Profiled in the Ne w York Times, the Jerusalem Christianity or Judaism for that matter. Report, and the Village Voice, interviewed by “From the beginning of Muslim history, the the BBC, and often on Charlie Rose for late- caliphs were understood to be selected by night tete-a-tetes, Feldman finds himself people, not God,” says Feldman. “They were at the center of a perfect media storm. expected to consult with the community.” As an American Jew who has not only Yet Feldman knows change won’t mastered constitutional law, but the tenets be easy or swift. He sensibly predicted that of Islam as well, Feldman offers a unique per- it would be impossible to hold elections spective on how to design the Iraqi constitu- in Iraq as quickly as originally planned, tion. He has also gained the trust of those and was in the ranks of those who criti- who must implement the new system. Even cized the U.S. for lax security when he was no longer on the government during the first weeks of the payroll, members of the former Iraqi govern- occupation. As he has fre- ing council continued to seek his advice. quently been heard to say, Feldman’s first book, After Jihad: America “I would rather we do this and the Struggle for Islamic Democracy, which right than do it fast.” —D.B. © Shawn Barber © Shawn Two Professors Hit the Road for Dual Deanships

t is extremely unusual when two leading Law School at the University of California, educational experience. He has been essential law schools choose outside deans in a sin- Los Angeles, in August. to—indeed, he was often the architect of— I gle year and extraordinary if both come Since he joined the Law School in 1994 both our efforts to build the best faculty in from the same institution, but this year the from the University of Michigan Law School, the nation and our work to ensure that the Law School saw two faculty members take Kramer (left) has distinguished himself with intellectual life at NYU is unparalleled.” deanships, both at California schools. Larry first-rate scholarship on constitutional law, “This is a very special place, much greater Kramer, Associate Dean for Research and including his recent book, The People Them- than the sum of its parts,” said Kramer, who is Academics, and the Russell D. Niles Profes- selves: Popular Constitutionalism and Judicial excited about his move to Stanford but also sor of Law became the dean of Stanford Review, published by Oxford University Press. sad about leaving a place he cherishes. Law School this fall. Michael Schill, the In announcing Kramer’s departure, Dean Schill (right), a nationally recognized Wilf Family Professor of Property Law and Revesz said, “He has been a terrific teacher expert on American housing law and policy, Professor of Urban Planning, and the Direc- and mentor for our students, and has has written or edited three books and more tor of the Furman Center for Real Estate devoted enormous time and energy to than 40 articles on various aspects of hous- and Urban Policy, became the Dean of the improving the quality of our students’ ing policy, deregulation, finance, and discrimination. He joined the Law School in 1995 from the University of Pennsylvania. Dean Revesz commented, “Professor Schill has been a leader in building the Law School, launching the Furman Center for Real Estate and Urban Policy, which has produced influential empirical studies of housing policy, and sponsored numerous conferences, panels, and roundtables that have enriched the educational experience of our students and our community.” In his message to the Law School community announcing his departure, Schill said: “I don’t think it is an accident that two great law schools chose NYU professors when they were looking for deans this year. NYU is the finest law school in the nation— the special blend of academic excellence, intellectual striving, innovativeness, and engagement in the community is unique among American law schools.”—Erik Moga

8 AUTUMN 2004 Joining Forces to Ease Suffering

n an overdue conference, human rights of…human rights is inflammatory language.’ activists and development experts found And, it’s getting into areas of politics, and it’s I they share common goals. getting into areas that they’re very concerned Development experts and human rights about. We decide to just go around it and we activists are logical allies, but until recently talk the language of economics and social each tackled issues such as child labor, land development.” Update: The Nanny rights or women’s empowerment in their own Wolfensohn went on to outline the diffi- way. A deeper connection was formed last culties of achieving the Millennium Develop- and the Professor spring, however, at a conference entitled ment Goals—including eradicating extreme “Human Rights and Development: Toward poverty and hunger and achieving universal he compelling story of how Barak Mutual Reinforcement,” co-sponsored by the primary education—that all 191 members of Bassman (’99), as a first-year law student, Law School’s Center for Human Rights and the United Nations have pledged to help T persuaded his fellow students and profes- Global Justice and the Ethical Globalization make happen by 2015. “There’s a fair chance sors to represent his former nanny in a child Initiative, with support from the World Bank. that statistically we will achieve the poverty custody case, was practically made for televi- World Bank President James Wolfensohn goal,” he said. “But if you read the statistics, sion. Last spring, Dateline NBC finally did was the keynote speaker; discussions between they are highly biased by China and India. a segment, interviewing Bassman and Peggy other World Bank officials and human rights And if you take a look at countries in sub- Cooper Davis, the John S. R. Shad Professor experts such as Mary Robinson, former Saharan Africa you’ll find that statistics are, of Lawyering and Ethics. United Nations High Commissioner for in fact, going in the other direction.” As a child, Bassman (above left) had learn- Human Rights and chairwoman of EGI, Wolfensohn argued that these goals are ing disabilities and emotional problems that followed. “There was a time not so long ago difficult to reach because of a lack of focus got him kicked out of first grade. His nanny, when human rights discourse was almost and financing. “We talk about achieving the Louise Brown (right), treated him with prodi- always that of diplomats, lawyers and objectives because the world is united in sup- gious patience and a soothing voice. He cred- philosophers, while development thinking port,” Wolfensohn said. “It’s nonsense. The its her with helping him turn from a troubled and writing was the domain of economists world’s governments are spending 20 times little boy into a successful adult. and other social scientists,” said Robinson, the amount of development expenditures on Years later, in 1997, Bassman returned who also participated in the “Human Rights military expenditures….We [the develop- the favor. Brown was involved in a nasty Perspectives on the Millennium Development ment community and the human rights com- battle to win custody of her two great- Goals,” a Law School symposium sponsored munity] have a common enemy: indifference. nephews, whom she had brought up since by the Center for Human Rights and Global …By joining together [we can put] pressure they were drug-exposed babies. But before Justice. “Today, that gap is finally closing,” she on our leaders to make this world a more she could adopt them, child welfare casework- said. “Development practitioners are finding focused and…effective place in terms of ers removed the boys from her care. As their that there are obvious—indeed, elephantine— development and in terms of rights.” foster mother, she tried to fight, but was told human rights dimensions to many of the prin- Last May, just two months after the con- that she had no right to a court-appointed cipal themes that occupy their attention.” ference, President Wolfensohn announced attorney. With no money for a lawyer, an Wolfensohn also underscored the increas- that he was putting forth a proposal to the accent that caseworkers deemed a speech ing overlap between development and human World Bank board to promote a human defect, and lawyers who argued against her rights. “I’ve said to Mary many times: ‘You rights-oriented method in the bank’s lending even speaking in court, Brown’s case looked know, one of the things we have to do in our policies. “The institution has up until now hopeless. The litigation would drag on for institution is to try and get things done, but refused to deal with its activities using a three years until Brown finally won custody of to some of our shareholders the very mention rights-based approach,” he said. I her nephews. She has also now adopted them. Professor Davis was galvanized by Brown’s plight. “My experience as a family court judge taught me that it often happens that children are removed from their families because an agency has misunderstood the family,” she said. “Removals of this kind are very harmful to the children in addition to being very hurtful to the family.” Davis stressed the true moral of the story—that the system is often unfairly skewed against low-income and nonwhite families. “We had a family that was entirely deserving and loving and was harmed by being separated,” she said. “It took a little army of law students, members of faculty in the clinic, members of the academic faculty, experts that we obtained, including a psychi- atrist, an internal medicine doctor, a lin- guist…and even with all of that, it took us years to reunite the family.” —Jill Filipovic

AUTUMN 2004 THE LAW SCHOOL 9 copyright 2004 Woodruff-Brown Photography Furman Hall “producing thelawyers whomake our citytick.” Law SchoolDeanRichard Revesz for, asRobles-Roman putit, T January 22,2004,to beFurmanHallDay inNew York City. Mayor MichaelR.Bloomberg hadproclaimed that day, ment: City ofNew York, quietlyprepared to make asurpriseannounce- Robles-Roman (’89), thedeputymayor for legalaffairs ofthe spectacular views ofthecity, onealumnainthe crowd, Carol As mor 50 years earlier. addition sinc gathered to dedicate thebuildingitself, thefirst campus f School ofLaw’s annual Weinfeld were Gala celebrating adif- int and well-coiffed women alightingfrom theircarsandheading celebrity-studded movie premiere. Butthetuxedo-clad men Limos, lights,andared carpetusuallymeanonething:a erent kindofopening.Law Schoolluminariesandbenefactors The Architecture ofa he ma o FurmanHall,namedfor Jay for theNYU Furman(’71), Law School’s Vision y e than500gues or wanted to thankNYU Pr e thev ener able Vanderbilt Hallw ts sippedchampagneandadmir esident JohnSexton and as c THE LAWTHE LAW SCHOOL SCHOOL ons truct ed ed 11 11 loomberg was also implicitly the comfortable lounges and clinic offices the center.” Kagan also emphasized the value acknowledging the building’s sym- before heading over to the flower-filled, of Furman Hall’s cutting-edge technology bolic meaning: Furman’s ground- candle-lit law library in Vanderbilt Hall for and generous allocation of space for interna- breaking took place as scheduled the rest of the festivities. The event, by incor- tional legal studies. “Never has there been a on September 28, 2001, just 17 days porating both sites, was designed to pay more important time to create the facilities B after the terrorist attacks on the homage to the older building’s dedication to allow us to connect with opposite shores,” World Trade Center—the first large-scale a half century earlier as well; the new she said. “As a law school dean, I share your construction to begin in the city after that building created a sense of excitement in joy in this simply splendid achievement.” terrible day. “This project affirms our com- the reading room, and the grand dame mitment to prepare our students to seek jus- bestowed a bit of gravitas on the upstart tice through law,” then-Dean Sexton said on across the way. The programs mirrored each RED BRICKS AND that day. “We also reaffirm our University’s other as well. In 1951, the four speakers were: GOLDEN SCISSORS: resolute commitment to a great city. We John W. Davis, president of the New York build our Law School’s future, as our city City Bar Association; Roscoe Pound, dean OPENING THE DOORS must rebuild its future, on a foundation of emeritus, Harvard Law School; Sir Francis justice, the bedrock of our republic.” U.S. Raymond Evershed, the Master of the Rolls “Ours would be an impressive campus Supreme Court Justice Sandra Day O’Con- of England; and Arthur T. Vanderbilt, chief anywhere,” said Dean Revesz at the January nor, who attended the ceremony, echoed justice of the Supreme Court of New Jersey 12, 2004, ribbon-cutting ceremony. “It’s Sexton’s sentiments. “The need for lawyers and dean emeritus of the NYU School of wonderful to think we have it right here does not diminish in times of crisis,” she Law. In 2004, the four were: A. Thomas in Greenwich Village.” Furman Hall, at 245 said. “It only increases. NYU has played, and Levin (’67, LL.M. ’68), president of the Sullivan Street, between Washington Square will continue to play, an important role in New York State Bar Association; Elena Park South and West Third streets, com- training lawyers who understand the need to Kagan, dean of Harvard Law School; the prises 170,000 square feet, almost doubling convince a sometimes-hostile world that our Right Honorable Lord Slynn of Hadley, the Law School’s space, while the number dream of a society that conforms to the rule Law Lord, House of Lords; and Richard of students holds steady at around 1,900. of law is a dream we all should share.” Revesz, dean of the NYU School of Law. Early on, the Greenwich Village community A little more than two years later, their Dean Kagan, for her part, underscored voiced concerns about the building’s effect ambitious plan was realized, and clusters her commitment to the psychological corner- on the neighborhood, but the Law School, of alumni and other members of the Law stones laid by Roscoe Pound: “Harvard and with the guidance of architectural firm Kohn School’s extended family were touring the NYU have followed Pound’s blueprint,” she Pedersen Fox Associates, worked with the state-of-the-art classrooms and checking out said. “Go global and keep comparative law at community and city preservation groups to

12 THE LAW SCHOOL AUTUMN 2004 ensure that Furman Hall reflected the history Real Estate and Urban Policy and the WIRED FOR THE RIGHT and feel of the neighborhood. The building’s Furman Academic Scholarship Program, per- facade re-creates aspects of the two structures sonifies a love and commitment to learning. REASONS: TECH SOLUTIONS that previously occupied the site: Judson No name could fit more perfectly on this House, an annex of Judson Memorial Church structure than his.” Aside from being an enormously welcoming that was renovated by McKim, Mead & White Standing in the bright winter sunlight and well-thought-out space, Furman is also in 1899, and the Poe House, a row house from during the ribbon cutting ceremony on a one of the most technically advanced educa- the 1830s, occupied briefly by Edgar Allan freezing January morning, Board Chairman tional facilities in the country. Each of the six Poe. Perhaps the most remarkable aspect of Lester Pollack, flanked by festive purple and classrooms is like a mini-production center the new building is that it was finished on white balloons, reviewed highlights of the where lectures and activities can be recorded, time and under budget. “We are grateful Law School’s history—the creation of the edited, and made available on the Web. to the members of the Greenwich Village Root-Tilden Scholarship Program, the build- Instructors use SMART Sympodiums— community,” said Dean Revesz. “They ing of Vanderbilt Hall, the formation of the basically a kind of touch screen with a com- ended up being our partners.” clinical programs—and added Furman’s puter behind it, allowing teachers to easily The dean also expressed gratitude to inauguration to the list of big moments. incorporate computer and DVD elements other key players, including University “This building,” he concluded, “is an act into their lectures. The Sympodiums also President John Sexton; Lester Pollack (’57), of transformation.” allow annotating and writing on screen. chair of the Law School’s Board of Trustees; Then the speakers lifted a pair of enor- All nine seminar rooms have built-in full- Martin Lipton (’55), former chair of the Law mous golden scissors and snipped the rib- coverage miking of both the professors and School’s Board of Trustees and currently the bon, officially opening Furman Hall’s doors. students, and the four Flexcourts, classrooms chair of the University’s Board; and, of The group, along with students and faculty, with easily changed set-ups that are ideal for course, Jay Furman (’71), one of the coun- headed inside to scatter crumbs and spill various moot court exercises, are equipped try’s leading real estate developers and the coffee (that is, to have breakfast for the first with a broadcast-quality video camera, and building’s namesake. “Jay contributed not time in the new building) in the John Sexton an on-site control room featuring a produc- only generous resources,” said Revesz, “but Student Forum, a cozy lounge with couches tion switcher and nonlinear editing system. worked tirelessly over several years, with and wooden booths. “Furman Hall is first- That means students can simulate a trial, enormous creativity and imagination, to rate,” pronounced Barry E. Adler, Charles produce a video, and then stream it to the make sure that the project was completed Seligson Professor of Law and associate dean Web. Best of all, the storeroom of old moot on schedule. Even more to the point, Jay, a for Information Systems and Technology, court videotapes that could not be accessed devoted alumnus whose generosity has also as he tried out a booth. “It’s as convenient efficiently has been replaced by a system helped establish our Furman Center for and functional as it is attractive.” where, once captured, the video (and audio)

Opposite page, from top left: Dean Richard Revesz, Lester Pollack (’57), Jay Fur- man (’71), NYU President John Sexton, Martin Lipton (’55), and former Dean Norman Redlich (LL.M. ’55).

Law School Trustees, Justice Stewart Pollock (’57) and William J. Williams (’61).

Furman Hall awaits students to fill its hallways.

Former Dean Norman Redlich (LL.M. ’55), NYU President John Sexton, and Dean Richard Revesz.

This page, from top left: The John Sexton Student Forum.

Sandra Coudert (’94) and Gary J. Stadtmauer, MD, enjoy the Furman festivities.

Nicole Deller (’98) and Matthew Bliwise (’98) pose in the new building.

Current students Rajeev Ananda (’05), Anita Girdhari (’05), Menna Tesfatsion (’05), and Candace Brown (’05).

AUTUMN 2004 THE LAW SCHOOL 13

is indexed and saved to a database, from “I like the new space very much,” said encompassing interview workshops, negotia- which it can be easily called up and viewed Burt Neuborne, John Norton Pomeroy tion exercises, and other practical assignments. on the Web. Professor of Law and legal director of the Vanderbilt also worried about the lack When not in class, students can work Brennan Center for Justice. “The symposium of instruction in international and civil law, and congregate in a multitude of meeting space on the ninth floor where the faculty said Revesz, pointing out that the [Gustave areas, including a study lounge overlooking meets is the clubhouse I always wanted as (LL.M. ’57) and Rita (’59)] Hauser Global a garden and several email bars—spots where a kid—only it’s not in a tree. The seminar Law School Program is located on the third they can log on and check or send messages. rooms teach well, and the snack bar serves floor, and attracts more than a dozen leading Benches and lounges are liberally scattered good coffee.” faculty members from foreign countries to throughout the building. The street-level teach courses and seminars at NYU each year. Wachtell, Lipton, Rosen & Katz Student The program funds 10 of the most outstand- Cafe, named for the prestigious law firm that VANDERBILT’S LEGACY: ing young international lawyers to obtain carries the name of four of the Law School’s A MISSION ACCOMPLISHED their LL.M. degrees as Hauser Scholars, most distinguished alumni (Herbert Wachtell while also encouraging collaborations (’54), Martin Lipton (’55), Leonard Rosen At the Weinfeld dinner, Dean Revesz on scholarship between full-time faculty and (’54), and the late George A. Katz (’54)) expressed confidence that Arthur Vanderbilt top scholars from around the world. looks onto West Third Street through floor- would have been thrilled by the new build- “Vanderbilt also would be proud if he to-ceiling windows. Corridors are intention- ing. “Vanderbilt bemoaned the fact that law visited the Lester Pollack Colloquium Room ally wide so that students can gather between schools were failing to train students in the on the ninth floor,” said Revesz, because classes, and the building is linked to Vander- various skills essential to the work of a it addresses that great educator’s assertion bilt Hall through a basement walkway for lawyer,” Revesz said. The Jacob D. Fuchsberg that the relationship between law and the convenience on cold or rainy days. Clinical Law Center, named after one of the humanities was not as strong as it should be. “We appreciate the adjustable-height Law School’s most distinguished alumni “Surrounded on three sides by terraces, the seats in the lecture halls, the amount of space who served for many years on the New York bright and airy space offers an impressive set aside exclusively for students, and the Court of Appeals, occupies two floors, neatly place for flagship intellectual events of legal southern exposure in the clinic offices,” said addressing that concern. Students here try academia, including the prestigious Law Nicholas Kujawa (’04), then-president of the (and frequently win) actual cases, write legal and Philosophy Colloquium.” Law School’s Student Bar Association. “Stu- briefs, and learn how to deal with unpre- Finally, Vanderbilt articulated his desire dents clearly were first and foremost in the dictable clients. Furman Hall also houses the for law schools to address problems minds of everyone involved in the creation Lawyering Program, the intensive manda- of the legal profession itself, Revesz said. of Furman Hall.” tory first-year research and writing course, Administrative offices—including the Public

From top left: Jay Furman (’71) receiving the Mayoral Proclamation from Deputy Mayor Carol Robles-Roman (’89).

Alumnae Hall, a 60-seat classroom located on the second floor was funded through the Women’s Building Initiative and celebrates the accomplishments of the women who have passed through the Law School. The Hall prominently features portraits of alumnae judges.

The Right Honorable Lord Slynn of Hadley, Law Lord, House of Lords.

Elena Kagan, dean of Harvard Law School.

A. Thomas Levin (’67, LL.M. ’68) president of the New York State Bar Association.

14 THE LAW SCHOOL AUTUMN 2004 Interest Law Center (PILC)—located on the fourth ﬂoor, answer that need. “PILC works tirelessly to ensure that our graduates are Naming Names: able to play leading roles in public service,” the dean said. “We led the way in designing Designated Spaces an extraordinarily generous Loan Repayment Assistance Program in the mid-1990s and in Furman Hall make enormous efforts to fund students who are interested in summer jobs in the public 9th Floor services.” PILC also administers the Root- James H. Fogelson (’67) Gallery and Seminar Room Tilden-Kern program, launched by Vander- Lester Pollack (’57) Colloquium Room bilt himself, which celebrated its 50th anniversary this year. A newer initiative, the Global Public Service Law Program, brings lawyers from developing countries to the 6th Floor Law School to help them hone the skills Gary A. Beller (’63, LL.M. ’71) Conference Room necessary to strengthen the rule of law Congressman Frank J. Guarini (’50, LL.M. ’55) Moot Court Room when they return home. Estate of Stella Malkin Flexible Seminar and Trial Courtroom There is no doubt that adding Furman Jacob D. Fuchsberg (’35) Clinical Law Center (spans 2 floors) Hall to the NYU School of Law campus is cause for celebration—and that it would have earned Vanderbilt’s robust approval. 5th Floor “We have lofty aspirations to be not only Emile Zola Berman (’24) Conference Room the leading law school, but also the law Jacob D. Fuchsberg (’35) Clinical Law Center (spans 2 floors) school that leads in providing social good— with the education, scholarship, and vision needed to improve our nation and the 4th Floor world,” Dean Revesz said during the festivi- Adelaide Schnittman Interview Suite ties. “Furman Hall brings us a great deal closer to this ambitious goal. For that, I am deeply grateful.” —Joanna Goddard 3rd Floor Hauser Global Law Center Martin R. Lewis (’51) Flexible Seminar and Trial Courtroom A Room of Their Own Inge and Ira Rennert International Law Suite Stroock Classroom Tese Family Flexible Seminar and Trial Courtroom A fundraising campaign allowed for the designation of a special place in the new building to recognize women's contributions both to the Law School and the legal profession. Alumnae Hall com- 2nd Floor memorates women's long history with Alumnae Hall the NYU School of Law, beginning with Stanley J. Gross Academic Corridor female scholars who attended in 1892— John Sexton Student Forum before women could even vote in the U.S. Alumnae have gone on to become some of the country's leading judges, practitioners, and government officials. Located on Furman's second floor, the hall seats 1st Floor 60 students, and features photos of the Honorable Frank J. Guarini, Sr. and Caroline L. Guarini Study Lounge nearly 50 women judges who are NYU Wachtell, Lipton, Rosen & Katz Student Café School of Law graduates. Stephanie Weil, Gotshal & Manges Seminar Room Abramson (’69), Kathryn Cassell Chenault Beth and Leonard (LL.M. ’77) Wilf Main Lobby (’80), Marilyn Friedman (’69), Patricia Martone (’73), Bonnie Feldman Reiss (’69), and Kathleen Shea (’57) led the Alumnae Hall effort. Sullivan Street Braff Family Garden

C1 Oscar Lasdon Seminar Room Ira W. DeCamp Foundation Computer Teaching Lab

AUTUMN 2004 THE LAW SCHOOL 15 oof: 2 • 7/18/04 • dn File: LSMGNEU05 • Pr

Burt Neuborne is a litigating academic, a pragmatic liberal, and an inquisitive teacher. He sees himself, simply, as an imaginative lawyer.

16 THE LAW SCHOOL AUTUMN 2004

oof: 2 • 7/18/04 • dn File: LSMGNEU05 • Pr Illustration by Goro Sasaki

CREATIVE COUNSEL BY JOSEPH BERGER

o understand how Burt Neuborne has managed to win so many watershed constitutional Tcases and harvest billions of dollars for families of Holocaust survivors around the world, all while being a faculty star at the New York University School of Law, it helps to reach back to his days as a gangly youngster on the postwar streets of Jamaica, Queens. As dusk would fall, young Burt would be out playing stickball with the rest of the neighborhood kids and the receding light would make the spaldeen (as the pink Spalding rubber ball was known) hard to pick out. His less relentless buddies were ready to call it a day. Not Neuborne. “When it would get dark and I was losing, I would always say, ‘We can play another inning,’ ” he remembers. Now fast-forward to the Vietnam War era to roughly 1970, when Neuborne, a lawyer for the New York Civil Liberties Union, was defending an artist who had been arrested for sewing a 7 1/2 foot-long American ﬂag into the shape of a penis, stufﬁng it, and displaying it near the window of

AUTUMN 2004 THE LAW SCHOOL 17 a Madison Avenue gallery. A three-judge criminal court panel con- around a few signature themes like the First Amendment and civil rights. victed the artist of desecrating the flag and a seven-judge New York He has argued cases six times before the Supreme Court and briefed State Court of Appeals affirmed that ruling. But displaying his legendary some 200 others. His imprint on civil-liberties laws and his ability to ana- doggedness, Neuborne twice took the case all the way to the United lyze the pertinent issues has made him the go-to guy over the years for States Supreme Court and eventually got a lower court federal judge— dozens of journalists and scholars seeking insights on those laws. He the 37th judge to rule on the matter—to declare the flag-desecration shows no signs of slowing down, either. During the last year or so, statute in viola- Neuborne was a tion of the First key player in two Amendment’s “I’m an unreconstructed ham,” he said. of the seminal right of free cases of our time. speech. Exhausted “That’s why I love being in court, He helped prosecutors called defend the it a day, and Neu- that’s why I love teaching. I love the performance, groundbreaking borne had won the McCain-Feingold game in extra the standing up in front of a group and campaign-finance innings. reforms, advising It’s 1973, and performing for them. I also love the bill’s sponsors this time, in a throughout the more momentous the intellectual challenge of it.” process—even case, Neuborne helping to craft displayed even more fevered persistence. Now assistant legal director the legislation. Neuborne also has been deeply immersed in two major at the American Civil Liberties Union, he was defending American Holocaust cases. He is plaintiffs’ counsel in a lawsuit against Swiss banks bomber pilots in Thailand who were facing courts-martial for refusing over their handling of Nazi-era bank accounts and was the principal to carpet-bomb Cambodia. To Neuborne’s astonishment, Federal lawyer in a series of Holocaust suits involving compensation for slave Judge Orrin Judd of the Eastern District in New York upheld his laborers of wartime German industry. argument—that the pilots could not be punished since Congress had Yet, for the past three decades, the chief institutional anchor of his life not authorized the war. But the Second Circuit Court of Appeals has been not an opulent law office but a podium at the New York Uni- stayed Judd’s ruling, allowing the bombing to continue. It was sum- versity School of Law, where he started teaching in 1972 as an adjunct mer, so Neuborne could not appeal to the full Supreme Court, and and now has the title of John Norton Pomeroy Professor of Law. There the circuit justice, Thurgood Marshall, despite his anguished personal he also serves as the legal director of the Brennan Center for Justice, misgivings, declined to step in. But Neuborne knew that there was at which was started in 1995 by Supreme Court Justice William J. Brennan’s least one more inning he could play. family with a broad mission of trying to clear the hurdles to a more The ACLU had a “Douglas watch” to keep tabs on the whereabouts democratic society. The center’s most notable Supreme Court victories of the Court’s most liberal jurist, Justice William O. Douglas, whenever have been its successful defense of the McCain-Feingold campaign- capital punishment and other irreparable-harm cases required emergency finance reform bill, where Neuborne wrote the brief, and Velazquez v. stays. Neuborne flew to Washington State, where Douglas was vacation- Legal Services Corp., where Neuborne briefed and argued a landmark First ing, and, in a scene evocative of Henry IV’s humbling call at Canossa in Amendment challenge to the government’s effort to muzzle lawyers for 1077, he knocked one morning on the door of Douglas’s rustic cabin in the poor. While juggling these enormously important cases, Neuborne Goose Prairie. Douglas, unfazed, agreed to hear oral arguments in the has consistently prepared and inspired NYU School of Law students Yakima post office. with his lively Evidence and Procedure lectures. “Burt has tremendous energy,” said Judge Edward R. Korman of Federal Court in Brooklyn, who decided how to distribute the money in ouglas, as Neuborne recalls it, was frail and tired at the end of the settlement of the Swiss banks case. “While everything’s going on he his career. “People sort of knew this was his last hurrah.” The sends me law review articles he’s written, he’s speaking in various places, canny Douglas found a sly way of warning Neuborne not to be he’s filing papers in this lawsuit, and in the German lawsuit. I asked him Dtoo hopeful, that even his blessing could be futile. “Mr. Neuborne,” a couple of weeks ago if he was on steroids. He’s absolutely brilliant.” the judge asked, “what happened when I was asked to intercede 20 Neuborne has the balding, bespectacled look of a stereotypical years ago?” scholar, but his face is leavened by the kind of chipmunk cheeks that a Neuborne remembered that Julius and Ethel Rosenberg had been mother loves to pinch and the springing steps of a long-distance run- executed in 1953, for spying, a step taken after the full Supreme Court ner who has completed two marathons (New York and Paris) and still overruled a Douglas stay. But Douglas’s pessimism didn’t dissuade jogs five miles a day on the treadmill. His speech has a slight New Neuborne. He anticipated that this time there would not be enough York inflection and his voice something of a Mel Brooks rasp, yet he justices lingering in the steamy capital to overrule Douglas. has an impressive Professor Higgins-like gift for well-parsed sen- Douglas indeed ruled in his favor. But the next day the Supreme tences. Any formality, though, is lightened by a ready smile and a Court held a conference call to reinstitute the stay. Yet it never heard the puckish sense of humor. case on its merits. The Nixon administration, figuring that a Supreme All of these attributes are evidently arrows in his instructional Court hearing might jeopardize its Cambodia policy, simply arranged to quiver, qualities that in 1990 won him the University’s Distinguished have all the pilots honorably discharged. From Neuborne’s point of Teacher award—almost never given to teachers who confront large view, playing after the sun went down paid off once more. lecture classes of 100 or more, as he usually does. “I’m an unrecon- “I verge on the obsessive,” Neuborne said, recalling this episode. “My structed ham,” he said. “That’s why I love being in court, that’s why I wife has a wonderful quote from Santayana that she adapted: ‘My hus- love teaching. I love the performance, the standing up in front of a band is a man who redoubles his efforts once he loses sight of his goals.’ ” group and performing for them. But I also love the intellectual chal- For a man who supposedly loses sight of his goals, Neuborne, 63 lenge of it. There’s something splendid about seeing the material each years old, has managed to carve out a life that has been elegantly coher- year through the eyes of an idealistic and smart student who asks hard ent—of pioneering litigation, teaching, and scholarship that has revolved questions about it.”

18 THE LAW SCHOOL AUTUMN 2004 It may seem paradoxical, but as a professor Neuborne has generally When you ask Neuborne what he likes about teaching, he quotes avoided the topics that have earned him his legal stripes. He spurns John Sexton, who was dean of the Law School between 1988 and courses on the First Amendment or affirmative action or women’s rights, 2002 before becoming University president. “Sexton used to say when topics that as he puts it are “close to my politics.” Rather, he teaches you became a teacher you were blessed because you entered into cycli- workhorse courses in Evidence. cal time instead of linear time. Everything starts fresh all the time. “If I were to teach affirmative action I’d have to be careful not to teach Each new year is a new beginning. This is at least the twentieth time it as a cheerleader,” he explains. “If you’re going to be a teacher and not a I’ve taught Evidence and the novelty is still there. I learn something cheerleader you have to force students to confront, to realize there are rea- new every year.” sonable arguments that can go the other way and force students to develop those arguments. And I can do it. But it’s not something I try to do.” Indeed, when he does teach a rare constitutional law class he will euborne tells of modeling himself on Ruth Bader Ginsburg, often take a contrarian position by, say, advocating censorship. “I force who was head of the women’s rights project at the ACLU at them to argue me off of the position they know I don’t agree with,” he the same time she was a professor at Columbia Law School, said. “The purpose of the classroom is to exercise their minds, not to find arguing six cases before the Supreme Court that changed the out what I think.” He has learned, he said, that “the students have abso- Nway the law treats gender. “I watched how a superb academic could lutely no fear of me and chase me around the classroom.” also be a remarkably effective litigator and actually change things,” he A visit to a run-of-the-mill Evidence class in March, when students said. His teaching, he said, is always enhanced by his work as a lawyer. were just back from their spring break, makes palpable Neuborne’s zest “I’m a good, strong teacher, but I don’t think I could be anything like as a teacher. Neuborne clips a small microphone to his gray V-necked the force I can be in the classroom if I were teaching just abstractions sweater and spends the first 15 minutes of the two-hour class reac- or my reading of what other people did. The fact that I actually do quainting students with the differences between statements made this stuff is what gives me confidence.” assertively and those made more obliquely or through behavior (an Three or four times a year Neuborne moderates a panel of lawyers opened umbrella declares it’s raining, for example). At trial, it’s the and other experts in a role-playing exercise on a controversial issue. In nonassertive statements that can avoid being classified as hearsay. As he February he ran an Anti-Defamation League-sponsored panel at the talks, Neuborne’s voice rises to a singsong. The students seem riveted. Law School on how to handle anti-Semitism on campus. The panel “He’s the best,” said Lauren Smith (’04), who shopped around for included Tom Gerety, a former president of Amherst who is now the teachers by auditing classes. “He’s very clear and he has a kindness and a executive director of the Brennan Center, and S. Andrew Schaffer, sense of humor that comes through in every lecture. He does a good job general counsel of New York University. Neuborne had the panelists of mixing the practical and the theoretical, which not all professors do.” pretend they were students, deans, college presidents, journalists, lawyers, and judges handling a mock case where a campus newspaper prints a cartoon of Israeli Prime Minister Ariel Sharon in an SS uniform with a caption: “Stop Israeli Nazi Apartheid.” NEUBORNE The mock case raised questions about the parameters of free speech, and as he prowled GOES HOLLYWOOD the stage, Neuborne ratcheted the issue up, probing whether hateful speech can be so espite his numerous careers, the unstoppable Burt Neuborne has managed to find time for one more— extreme that it can incite readers or listeners D Hollywood actor. to violence, discussing differences in speech made on public or private college campuses, He appeared on screen for 10 minutes in Milos Forman’s 1996 asking whether it matters if the offensive movie The People vs. Larry Flynt, playing Norman Roy Grut- newspaper is distributed publicly or on the man, a New York lawyer representing televangelist Jerry Fal- well in his lawsuit against the publisher of the skin magazine doorsteps of Jewish students, and consider- Hustler. The Academy Award-winning Czech-born film direc- ing whether it matters if the president is Jew- tor recruited Neuborne after seeing his work as a Court TV ish or not. commentator on the O.J. Simpson trial. Neuborne accepted, Neuborne certainly doesn’t shrink from thinking it would highlight the importance of free speech to controversy. The class-action lawsuit against a mass audience. Swiss banks, aside from being astonishingly The irony in his casting was that Neuborne, as national legal director for the American complicated—some legal papers had to be Civil Liberties Union, had actually filed an amicus brief to the Supreme Court defending translated into 16 languages, for example— Flynt, not Falwell. Falwell contended that he had been the victim of “intentional infliction has also rankled some interested parties. The of emotional distress” because a Hustler parody suggested that he had sex with his suit settled for $1.25 billion, almost $700 mil- mother. Neuborne argued that the Hustler article fell within the bounds of legitimate parody of a public figure protected by the watershed New York Times v. Sullivan case. While a lion of which already has been distributed to lower court sided with Falwell, the Supreme Court upheld Flynt’s First Amendment rights. descendants of bank account holders, inmates of slave-labor camps financed by Swiss banks, But Neuborne the lawyer’s political leanings did not stop Neuborne the actor from being refugees who were turned away from terrier-like in his defense of Falwell. Indeed, he recalls that the script had a courtroom Switzerland, and people whose assets were cross-examination that fell flat and Forman allowed him and actor Woody Harrelson to ad lib their exchanges in a more aggressive fashion. looted by the Nazis and fenced through Swiss banks. A few American survivors or “I was behaving the way I behave in court, pressing Harrelson the way I’d press a reluctant spokesmen like lawyers Thane Rosenbaum witness,” Neuborne said. and Samuel J. Dubbin have assailed the settlement for giving the bulk of the looted-assets At one point, Neuborne complained to Forman that the legal arguments his character was making were rather flimsy, giving the philosophical debate within the movie an imbalance. money to survivors in the former Soviet Forman’s tart response was: “You’ve gotten so Hollywood. All you want is more lines for Union and leaving only a small percentage your character.” for U.S. survivors. In an interview, Neuborne (who took on this case pro bono) contended “The People vs. Larry Flint” © 1996 Columbia Pictures Industries, Inc. All Rights Reserved. Courtesy of Columbia Pictures.

THE LAW SCHOOL 19 Clockwise from top left: Neuborne with Melvyn Weiss (’59) and soon-to-be Senator Hillary Clinton; his wife Helen Redleaf Neuborne; teaching at NYU School of Law; inset: as a baby; father, Sam, with Navy frogman unit in WWII; as prosecutor of George III during a mock trial at an ABA meeting in London in 2000; daughter Ellen with her husband, David Landis, and their children, Henry and Leslie, in 2002; late daughter Lauren in front of Sage Chapel at Cornell University where she delivered a sermon at the Alumni Memorial Service in 1996; in Berlin, Germany at the signing of the agreement creating the German foundation “Remembrance, Responsibility, and the Future.”

20 THE LAW SCHOOL AUTUMN 2004 that the needs of elderly American survivors, protected by this country’s He also gave Neuborne’s father, Sam, a tailor, a job managing his sport- social safety net, were not as profound as those of 135,000 elderly Soviet clothes factory loft. survivors, who lack such basics as food, winter fuel, and emergency med- Sam, who died five years ago, was clearly the strongest influence in ical care. Neuborne’s life. He was the kind of principled individual who after the As if that case were not consuming enough, Neuborne also was a atomic bombing of Hiroshima and Nagasaki returned his war medals principal counsel representing slave laborers owed money by German to the Pentagon. But he was also a more interesting puzzle, a political industry and then became one of two U.S. trustees of the German leftist who at the same time was a crack swimmer and Navy frogman— Foundation, which is now distributing the $5.2 billion in compensation. an underwater demolition specialist—during World War II. In fact, he Both Holocaust cases involved many flights to and from Europe, and had a front-row seat at the D-Day invasion, having been sent into Neuborne admitted in a conversation last February that he was tired Omaha Beach hours before the actual invasion to blow up the spikes and “very rundown.” Germans had planted underwater to tear the bottoms out of Allied How does he conduct two or three careers at once—lawyer, teacher, landing craft. Later, he visited a liberated concentration camp and writer? Neuborne self-effacingly credits the help of his Brennan Center returned from Europe telling Burt that he would “never set foot on the research assis- continent of tants and the Europe again.” computer ac- “We can’t go to a baseball game During the cess arranged war, Neuborne’s for him by because they won’t let black people play,” mother, Sylvia, NYU through promised that which he can Neuborne’s father told him. “We don’t support that.” when his father connect to rele- returned he vant databases But Burt remembers fondly that his dad did would take Burt anywhere in to a Major the world. But take him to see a Negro League game between League baseball he also admits game. But when that he permits the Homestead Grays and the Cuban X-Giants. the chance came his work to his father occupy much of what, to another human being, would be free time. declined. “We can’t go to a baseball game because they won’t let black “I work all the time,” he said. “I cannot remember a weekend I people play,” he told his son. “We don’t support that.” But Burt remem- haven’t worked a very substantial part of the weekend. When I’m bers fondly that his father did take him to see a Negro League game working on a case that I care deeply about it’s the closest thing to me between the Homestead Grays and the Cuban X-Giants. to being creative. I would have given anything in my life to be a Though his dad believed religion did more harm than good, Burt writer or a painter, but the talent that was given to me was to be an remembers being bar-mitzvahed in a storefront Conservative syna- imaginative lawyer—and I put that imagination at the service of gogue as “an affirmation of the right of Jews to continue to exist.” issues I care deeply about.” Whatever his political sympathies, he read a wide assortment of writ- Even when supposedly relaxing at their summer house in the ers; some of Neuborne’s most indelible memories are of reading Dos Hamptons, he and Helen Redleaf Neuborne, his wife of 42 years who is Passos, Steinbeck, Hemingway, and Dreiser with his father. Today, now a senior program officer at the Ford Foundation specializing in Neuborne’s taste in books ranges widely, from Gabriel Garcia Mar- poverty work, have what they call “study dates.” They will sit in the quez to Seamus Heaney to Anthony Trollope. “Till he died there was same room with a fire going and take out their laptops. “And we’ll be always a book the two of us were reading together,” Neuborne said of very happy,” he said. “We spend four or five hours together, close the his dad. “He also got huge pleasure out of my academic career—when computer, go out to dinner and feel terrific.” I became a teacher it was a fulfillment of his wish.” He has been able to continue working this hard despite open-heart surgery in 2002 and a tragedy that has cast a shadow over his autum- nal years. Lauren, one of his two daughters and a rabbinical student at is mother, Sylvia, spent her time caring for her home and giv- Hebrew Union College, died suddenly in 1996 at the age of 27. She ing her children a deep sense of affection. “If I had turned out had a heart condition that required a pacemaker and a misfiring to be a terrorist, my mother would sit on this couch and tell brought on a massive heart shock. For months afterward Neuborne you that terrorism was the right thing to do,” Neuborne said. walked the streets of Greenwich Village, crying. Friends told him to HThe feminist era did not deter her from her traditional convictions. take the Holocaust cases to find something to animate him again, and Neuborne, whose wife, Helen, was the long-time executive director of it was more than a coincidence that those cases connected him to his the NOW (National Organization for Women) Legal Defense Fund, daughter’s interest in Judaism. “The reason friends urged me to take tells of once growing annoyed at seeing his mother fetching his this was I was in despair, I was just in despair,” he said. father’s food and cutting it up at a wedding. Neuborne’s older daughter, Ellen, her husband, David Landis, and “I finally said to him, ‘You don’t have legs? You can’t get up and get two children, Henry, 9, and Leslie, 5, moved from Washington to your own food?’ ” Neuborne recalled. “ ‘Helen is going to kill you.’ ” New York to be near him. “That has been a salvation,” he said. His mother shot back: “Shut up. I don’t need anybody to tell me I The first of four children, Neuborne was born in the Riverdale sec- can’t get my husband’s food.” She died at 86 in 2001, and Neuborne tion of the Bronx on New Year’s Day, 1941, an event he likes to view thinks that the fact his father died two years before was not irrelevant. with a dose of wit. “Even then I was a bad tax planner,” he said. “I “There’s a price to having a great marriage,” he said. “You’re so fused deprived my father of his tax exemption for 1940.” His family soon with the other person you can’t exist without them.” moved to Greenpoint, Brooklyn, and moved again when he was four In his teens, despite the budding concern about the abuse of black years old to Queens. civil rights and the excesses of the McCarthy era, Neuborne was not Young Neuborne was close to his maternal grandfather, Louis politically active. On Sundays, though, he would take an F-train to Danovitch, an immigrant from Odessa, Ukraine, who taught him how Washington Square Park to hear Allen Ginsberg and other Beat poets to read the stock tables and gave him a taste for intellectual seriousness. read at the fountain.

AUTUMN 2004 THE LAW SCHOOL 21 “I thought that was the center of the universe,” he recalled. “There by 1967, he realized he was “intrinsically out of place” in his day job. “I were only two places—Washington Square Park and Paris. There’s a was uncomfortable spending all my energy defending very privileged wonderful sense of closure that I really feel. When I was a boy, if you people in ways that reinforced their privilege,” Neuborne said. (He took had told me that I would some day do what I do, I would say it is so a leave of absence that the firm jokingly extended for 25 years.) far out of my reach that it is utterly incomprehensible. I walk through In those days, the NYCLU and ACLU were both located in a the park every night when I go home.” building in the Flatiron district honeycombed with left-wing organizations. Aryeh Neier was the NYCLU director. Ira Glasser was associate director. Ruth Bader Ginsburg was a director of the ACLU’s women’s is parents had wanted their only son, the first of his family to rights project. “By the second day I knew this was what I was going go to college, to be a doctor, so in 1957 he entered Cornell at to do,” said Neuborne. age 16 as a pre-med. But by junior year, his mediocre science The years between 1967 and 1973, when Neuborne served first as grades and physical clumsiness made him wonder if medicine the NYCLU’s staff counsel and then as the ACLU’s assistant legal Hwas his calling. In a comparative anatomy class, he remembered, he director, were heady times and Neuborne talks about them with reached for a dead shark specimen in a tank filled with formaldehyde. brio. “It was the Vietnam era, the high point of the egalitarian revo- “I was so nervous and tense about being there that I fell into the lutions, and you couldn’t lose. You threw something into court and formaldehyde. I stank for weeks. No matter what I did I couldn’t get you won. We used to sketch things out over lunch in the delicatessen. the smell off.” In organic chemistry, he smashed a glass globe and We developed something—I still remember writing it on the nap- splashed his eyes with sulfuric acid. “I thought, ‘Somebody’s trying to kin—the enclave theory of constitutional justice. What we tried to tell me something.’ ” do was to identify enclaves in American life from which the constitu- He finally told his parents that he couldn’t be a doctor, but that perhaps he would become a lawyer. “My father said, ‘Don’t be a lawyer, you’ll sell insurance for the rest of ON-CAMPUS CAMEO: your life.’ In the Depression, the people he knew who went to law school wound up selling insurance.” New ACLU Student Chapter He chose law because it was an intellectual field that allowed you “to live like a gentleman”—comfortably but not lavishly. Sponsors Lively Debate (He points out that he harbored such he Law School’s newest student group, a chapter of the American Civil Liberties notions before “the Rolex years” of the Union, hosted a debate on campaign-finance reform for its inaugural event this 1980s, when the wave of mergers made T spring. Burt Neuborne, the John Norton Pomeroy Professor of Law and legal director of the Brennan Center for Justice, faced off against long-time friend and col- lawyers wealthy and changed earning expec- league Joel Gora, a law professor at Brooklyn Law School and general counsel to the tations.) He met his wife at Cornell; she New York Civil Liberties Union. was a sophomore and he was a junior who belonged to Tau Epsilon Phi. “We were the The topic: campaign-finance reform and the First Amendment. Professor Neuborne, a squarest pegs in the squarest holes,” he said. national leader in the effort to reduce the role of money in politics who helped craft the Supreme Court brief in favor of the McCain-Feingold campaign-finance reform bill, “My fraternity was the last fraternity to sere- argued that America’s commitment to political equality requires the government to nade a sorority.” And, though his contem- prevent wealth from distorting democracy. He stressed the risks to democracy if noth- poraries included fellow New Yorker ing is done to limit the power of money to buy political influence. “People think voting Andrew Goodman and Cornell classmate doesn’t matter because money talks and they don’t think they can have an impact,” he Michael Schwerner, who went south to reg- said. “If we can’t get public funding, we have to have limits … or we’re going to con- demn ourselves to a slow erosion of democracy.” ister voters and were slain and buried in Mississippi, Neuborne did not participate Professor Gora, a ground-breaker in the fight against restrictions on campaign funding in the civil-rights movement in a full- (which his organization considers a violation of the First Amendment) argued that throated way. America’s commitment to freedom of speech requires the government to stay out of Instead, he graduated in February 1961 regulating political communication. He stressed the dangers of allowing government to regulate something as crucial as campaign speech. “What is the best way to run our and joined the Army Reserves, spending democracy?” Gora asked. “We differ on whether limiting funding is the way to achieve seven months at Fort Dix, where he was it. Free speech and funding First Amendment rights are not the enemy of democracy— known as the “college idiot” because he they’re the engine of democracy.” couldn’t take his rifle apart. He then entered Harvard Law School while his The debate was heated but good-humored. Gora noted that Neuborne had signed the wife, who had better grades and spoke brief in Buckley v. Valeo back in 1976, a case in which the lawyers argued there should be no limit on campaign finance. three languages, went to work as a secre- Neuborne countered by tary to support him. “I loved Harvard,” reminding Gora that one is Neuborne said. “It was a place of great never too old to reject past intellectual excitement.” errors. The two old friends He then joined a small Wall Street firm, closed by agreeing to disagree—and to enjoy Casey, Lane & Mittendorf, choosing tax their exchanges. work because, he confesses, that was the quickest route to a partnership. It was hap- penstance that brought him into civil liberties work—a lawyer in his Reserve unit was active in the NYCLU. Neuborne started doing briefs for the NYCLU at night and,

22 THE LAW SCHOOL tion had been shut out: prisons, schools, mental institutions, the mili- decision that squares with his ideology. As a young lawyer, he was tary. The students’ rights cases came off of that napkin. The mental com- champing at the bit to challenge every wrong that came down the mitment cases. All of the cases dealing with free speech in the military.” pike, but experience has taught him that even a favorable decision He is proudest of the cases that challenged the Vietnam War, doesn’t always work out the way one hopes. Brown, he said, ended because for a long time “they were existential cases: they couldn’t be state-supported apartheid in many areas, but it also showed the limits won, but they had to be brought.” Neuborne also handled school of the law. “You can’t say that it successfully led to school integration,” desegregation cases, writing a Supreme Court amicus brief for the inte- he said. We’re still a society where by and large people are educated gration of the Charlotte-Mecklenburg, North Carolina, school system. with their own race. It’s housing patterns that do it now. So Brown There, too, his father’s influence made itself felt. Neuborne can never was a lesson about what law can’t do, the limits of the law.” forget how as a 13-year-old in 1954 he traveled with his father on a busi- He also takes some nuanced views on more recent issues. In a con- ness trip to Charleston, South Carolina, and there saw black-bordered versation last winter just after the Massachusetts Supreme Court said newspapers announcing the Supreme Court’s ruling in Brown v. that the state would have to marry gays equally with heterosexuals, Board of Education. His Neuborne did not father happened to leap to praise the rul- visit a local black min- “When five percent of the Harvard class ing. “I think I’m get- ister that night and ting old,” he confided. Neuborne remembers was women, we were making it known “I think you must the jubilation. provide some form of “You have to look in the 1970s that we were happy to have relationship for gays at Brown as a symbol,” that is identical to he said. “It sent an a 50-50 class,” Neuborne said. marriage—in terms of enormously important property and any kind message around the world that the law was not what Marx said. Marx of legal formulation. Whether you have to call it marriage is a differ- said that law was a device to keep the weak in place, that the domi- ent story. It may be that marriage has a religiously based connotation. nant economic class would use law as a club to prevent competition. Marriage was a sacrament before it was law. And the notion that the Brown allowed the United States to compete in the Cold War with a law will now turn marriage into something that historically it was not different vision of law—that one could actually change the status quo simply to achieve equality strikes me as at least problematic.” on behalf of the poor and the weak. No one had ever thought about Neuborne doesn’t look back with regret at not having built a law that way. That set off a legal revolution in this country.” career as a fulltime lawyer. The panel discussion on anti-Semitism It was in 1972 that he began teaching as an adjunct at NYU, and by drew powerful lawyers from Wall Street and midtown, yet Neuborne 1974 he was asked to teach Evidence full time. The 20-hour workdays seemed completely in his element. “I’m certainly not intimidated,” he of the previous few years—the Vietnam War and civil rights cases and said. “My career as an academic has also included so much litigation, briefs flowing out of Nixon’s impeachment—helped spur his decision. so much actual lawyering that I move very easily in that world. That’s So did his wife’s graduation in 1974 from Brooklyn Law School. a world where I think people respect me and I respect them. They Neuborne hoped that teaching law would allow him more time with know I know how to do what they do.” his two young daughters while Helen launched her career as a Legal His major regret, he said, is “the unwritten scholarship.” He has Aid lawyer for poor children. He took another leave of absence. “I written perhaps 50 papers, and the piece he is proudest of was one in didn’t tell them about my history of leaves,” he said. 1977 about “The Myth of Parity,” that business between federal and Although he returned to the ACLU as national legal director from state courts shouldn’t be allocated randomly since each set of courts 1982-86, teaching became the center of his work life and has remained so. has certain advantages. But overall, he describes his scholarship as “I love this place,” he said. “It has tolerated what is a quirky career. I “adequate—I give it a B plus, not in quality, but in quantity.” don’t have a traditional academic career in that I don’t spend my time in “For all my talk about being a litigating academic I still believe my office writing law review articles. I actually go into court and try to that the principal and irreducible responsibility of an academic is to put my ideas into practice. Very few schools would have tolerated that. I produce scholarship,” he said. “Our major role is to comment critically would have been told by many of my peers to make a choice.” on the world in which we live.” “I question whether my litigation victories are more ephemeral than hard thinking would have been, and whether putting my energy euborne has been fortunate that during his 30 years at NYU, into the production of serious thought would have changed things the Law School has been on an upward spiral. The school more than winning the lawsuits.” Still, such musings don’t diminish acquired the pasta-making company C.F. Mueller in 1947, his retrospective savoring of his career as a law professor. “To be at and in the late 1970s sold it for $115 million, netting a nice NYU during the years I’ve been here,” he said, “is like being on a Nportion of the profit, even after the University got its share. The Law roller coaster that only goes up.” I School’s administration wisely used the money to provide scholarships for top students, reward deserving faculty, improve its tuition subsi- joseph berger has been a reporter at The New York Times dies and loan forgiveness program, and build more inviting housing. for more than 20 years. berger is also the author The fact that New York became a nicer place to live has not hurt. And of Displaced Persons: Growing Up American After the Holocaust NYU benefited by being among the very first law schools to be gen- (scribner, 2001). uinely open to women. “When five percent of the Harvard class was women, we were illustration: neuborne frog-hunting with his grandson, making it known in the 1970s that we were happy to have a 50-50 henry; as a child in uniform during world war ii; with class,” Neuborne said. “We mined that vein of enormous talent of bruce severy, kurt vonnegut, judith resnik (’75), and women who had missed the boat when it wasn’t possible for them to alan levine in north dakota in 1975 on the eve of trial. get into law school.” neuborne represented severy, a high school teacher, Neuborne is not the reflexive liberal that he may appear to be, nor who had been fired for teaching vonnegut’s Welcome to is he as convinced as he once was of the sweeping power of a legal the Monkey House.

AUTUMN 2004 THE LAW SCHOOL 23

Partners in Crime By Jodi Balsam (’86) Illustration by Marilyn Church

If you were to design a criminal law and justice program from scratch, you might go out and hire the author of the foremost criminal law casebook, a top constitutional scholar, a couple of the world’s leading sociologists of crime and punishment, renowned former defenders and prosecutors, the chief architect of groundbreaking clinical education programs, an economist and expert on business crime, an authority on international criminal law and national security issues, noted experts on Chinese criminal law, a rising sentencing scholar, and acclaimed public interest lawyers who specialize in representing death-row inmates. Or you could just clone the criminal law faculty of the New York University School of Law.

“We have the strongest criminal law faculty in legal academia,” says Professor James Jacobs, the group’s de facto chair and director of the NYU School of Law’s Center for Research in Crime and Justice. Or the most diverse, interdisciplinary, collegial, or innovative faculty, depending on whom you ask. Whichever adjective you settle on, the NYU School of Law offers an embarrassment of riches to students seeking knowledge and training in criminal law. Whether you are interested in combating terrorism or the latest in rehabilitation, leading scholars can be found at NYU.

Along with the world-class faculty are extraordinarily wide-ranging course offerings, research centers, colloquia, and special programs. Policy-makers and practitioners from all over the world regularly converge on Washington Square South to explore critical issues in crime and punishment. Governments and grant-makers routinely single out the NYU School of Law faculty and alumni for important roles in the administration of criminal justice—both here and abroad. The criminal law program and its scholarship has emerged from, and burnishes, the same legacy that brought the NYU School of Law to national prominence during the past 20 years or so.

THE LAW SCHOOL 25 Making the Case for NYU

n the past decade, the NYU School of Law has interaction among faculty at weekly lunches, monthly lectures, welcomed such leading lights as Stephen Schulhofer, and programs put on by the Hauser Global Law School Pro- co-author of the leading criminal law casebook; gram, the Brennan Center for Justice, and the Center on Law David Garland, who virtually invented the field of and Security.” the sociology of punishment; Jerome Skolnick, a David Garland, the Arthur T. Vanderbilt Professor of Law, noted sociologist of policing; Anthony Thompson, who moved with his family from Scotland to join NYU’s founder of the country’s first offender reentry clinic; faculty permanently after several stints as a visitor, finds the JenniferI Arlen, a 1986 graduate, and one of the few law and eco- Law School’s intellectual life intense and energizing: “The Law nomics scholars of corporate wrongdoing; Barry Friedman, an School is like a small university all to itself. The presence of so expert in criminal procedure; Kim Taylor-Thompson, a national many great criminal law scholars and clinicians, and the frequent authority on indigent defense; and Bryan Stevenson, a prominent opportunities for interaction at lunches and colloquia, are a death penalty litigator. Long-time faculty members like Anthony tremendous resource and stimulus.” Garland, a professor of Amsterdam, Paul Chevigny, Harry First, Martin Guggenheim (’71), both law and sociology, is currently working on a study of Randy Hertz, James Jacobs, Holly Maguigan, David Richards, and capital punishment in U.S. culture. He says he cannot imagine Harry Subin are recognized throughout the country as being pre- a better place to conduct his research than here, particularly eminent in their fields as well. Having succeeded in drawing a criti- given the presence of colleagues Stevenson, Amsterdam and cal mass of scholars with a central interest in criminal law, the Law Hertz, all of whom, says Garland, are legendary figures in the School attracts an exceptional group of adjunct faculty. Scholars world of death penalty litigation. and practitioners are keen to visit the NYU School of Law and to As a scholar focused on corporate crime, there were three participate in its lively intellectual community. reasons to come to NYU, says Jennifer Arlen, the Norma Z. It would be difficult to find another law school with such a Paige Professor of Law: “First, NYU has one of the strongest large criminal law faculty, or a group of professors who are so groups of faculty in three areas important to my work: criminal collegial and interested in one another’s work. “We have built law, corporate law, and law and economics. Second, being at a real sense of community among the criminal law and justice NYU gives me access to the excellent cadre of visitors—leading group despite diverse politics, methodologies, and interests,” people in their fields—who come to NYU. You don’t have Jacobs says. “There is great camaraderie and vibrant exchange.” to track people down; eventually the best people come here. Schulhofer agrees: “The NYU School of Law is home to a Third, being at NYU helps me to ground my work in the real variety of academic orientations, offering not just a theoretical world by giving me access to very smart people who practice approach to the law, but also the perspectives of litigation, law in New York, many of whom are involved with NYU as empirical research, community service, and intersecting fields adjunct faculty or participate in events organized by NYU’s like psychology and gender studies. This keeps it stimulating and Center for Law and Business.” One way Arlen takes advantage exciting, especially given the constant opportunities for informal of these resources is by caucusing at top law firms such as

26 THE LAW SCHOOL AUTUMN 2004 Distinguished Criminal Law Faculty

Professor Professor Professor Professor Professor Harry First Professor Jennifer Arlen (’86) Rachel Barkow Paul G. Chevigny Noah Feldman Barry Friedman

Wachtell, Lipton, Rosen & Katz and Skadden, Arps, Slate, clinicians available, allowing for a large program with great Meagher & Flom, sharing academic ideas with some of the best opportunities for interaction in and out of the classroom.” lawyers who handle the most complex cases and obtaining criti- Two of those clinicians are Kim Taylor-Thompson and cal insights into the real-world institutional dynamics and rela- Anthony Thompson. Taylor-Thompson was teaching at Stanford tionships that influence corporate transactions. Law School and Thompson was in private practice when they For Harry First, the Charles L. Denison Professor of Law, got the call from former NYU School of Law dean, now NYU NYU proved itself a top destination when it lured Arlen to join president, John Sexton inviting them to think about a move the faculty. “When Jennifer came here from the University of cross country—something they hadn’t been considering. But Southern California, the NYU School of Law became one of once they took a look at the department, they were hooked. the few law schools in the country to have two full-time faculty “We saw that Randy Hertz presented a high-quality program members who teach business crime,” he says. First served as and we could do some growing professionally,” Thompson says. chief of the Antitrust Bureau in the Office of the New York As if to prove that point, both are working on new books, with State Attorney General Eliot Spitzer from 1999 to 2001, direct- expected publication dates in 2005. ing New York’s antitrust enforcement efforts in cases ranging The newest member of the criminal law faculty, Professor from bid-rigging to Microsoft. He found that the post provided Rachel Barkow, was also attracted by the unusual spirit of innova- “a welcome opportunity to see how the practice of law keeps tion and community at the Law School. Following a clerkship changing and to get a realistic sense of how legal disputes are with U.S. Supreme Court Justice Antonin Scalia, and then a stint resolved, tried, and settled today.” First’s hands-on experience practicing regulatory law at Kellogg, Huber, Hansen, Todd & in antitrust enforcement is a resource that he draws on in his Evans in Washington, D.C., Barkow chose to begin her teaching scholarship and classroom teaching. He is revising his business career at the NYU School of Law in part because the place pio- crimes casebook, in collabora- neered the requirement of tion with Arlen, and intends Being at NYU gives me ACCESS to the administrative and regulatory to deal with the complexity of law in the first-year curriculum. both today’s white-collar crimi- EXCELLENT cadre of VISITORS—LEADING “I came here because I like nal activity and the multiple working with incredibly smart and overlapping responses by PEOPLE in their fields—who come to NYU. people who do not rest on their state and federal enforcement laurels,” Barkow says. “The Law agencies. “More than anything,” You DON’T have to TRACK PEOPLE down; School is full of people who are he says, “I hope that the liveli- leaders in their fields yet who ness and currency of classroom eventually the BEST PEOPLE come HERE. are always interested in what a discussion and case analysis has colleague is doing.” been improved by my stint in - JENNIFER ARLEN (’86) As a teacher of both first- public service.” He anticipates year Administrative Law and even greater strength in NYU’s business crime area with the Criminal Law, Barkow sees important connections between the addition this year of Professor Kevin Davis, formerly of the two: “When you get involved in the criminal justice system, University of Toronto, who was a visiting professor at the Law you are really interacting with an administrative regime.” Given School last year. the list of important criminal justice decisions made outside New York City provides broad opportunities for the Law the courtroom—plea bargains, charging decisions, sentencing School’s clinicians who consider the criminal law clinical offerings guidelines, parole board rulings, among others—Barkow’s the best in the nation. According to Randy Hertz, professor of scholarship has explored the mechanisms of administrative over- clinical law and director of clinical and advocacy programs, there is sight of law enforcement including through jury nullification no place better than New York City to develop innovative clinical and sentencing commissions. As the leading young scholar programs given the variety of defenders’ offices and community- of sentencing law, Barkow recently testified before the Senate based organizations and the city’s diverse populations with strong Judiciary Committee on reforming the Federal Sentencing civic involvement. He credits the NYU School of Law with mak- Guidelines in the wake of the Supreme Court’s decision last ing the most of what New York has to offer: “NYU attracts a solid June in Blakely v. Washington, which casts doubt on the guide- core of public interest law students and consistently hires the best lines’ constitutionality.

AUTUMN 2004 THE LAW SCHOOL 27 The Most Wanted List: The NYU School of Law’s Criminal Law Faculty

Anthony Amsterdam Harry First Stephen Holmes Marshall Miller Stephen Schulhofer University Professor Charles L. Denison Walter E. Meyer Acting Assistant Robert B. McKay Jennifer Arlen (’86) Professor of Law; Professor of Law; Faculty Professor of Lawyering Professor of Law Norma Z. Paige Director, Trade Co-director, Center on Chester L. Mirsky Jerome H. Skolnick Professor of Law Regulation Program Law and Security Professor of Clinical Affiliated Professor of Rachel E. Barkow Barry Friedman K. Babe Howell Law Emeritus Law; Co-director, Center for Research in Crime Assistant Professor of Law Jacob D. Fuchsberg Acting Assistant Ronald Noble and Justice; Claire Professor of Law Professor of Lawyering Professor of Law Paul G. Chevigny Clements Dean’s Chair David W. Garland James B. Jacobs on Leave; Secretary Joel S. and Anne B. Emeritus, University of Arthur T. Vanderbilt Chief Justice Warren E. General, Interpol Ehrenkranz Professor California at Berkeley Professor of Law; Burger Professor of of Law Jamie Orenstein (’87) School of Law Professor of Sociology Constitutional Law and Jerome Cohen Adjunct Assistant the Courts; Director, Bryan A. Stevenson Professor of Law John Gleeson Professor of Law; Center for Research Professor of Clinical Law Adjunct Professor United States Magistrate Shamita Das Dasgupta in Crime and Justice of Law; United States Judge for the Eastern Harry I. Subin Adjunct Assistant District Judge for the David Klem (’94) District of New York Professor of Law Professor of Clinical Law; Eastern District of Adjunct Assistant Emeritus Independent consultant David Patton New York Professor of Clinical Law; with antiviolence Adjunct Assistant Randy Susskind Senior Appellate women’s agencies Praxis Ronald Goldstock Professor of Clinical Law; Adjunct Assistant Counsel, Center for International (MN) and Adjunct Professor Staff attorney of the Professor of Clinical Law; Appellate Litigation Manavi (NJ) of Law; Advisor, Federal Public Defender Managing Attorney, Secretary of State Mei Lin Kwan-Gett Office for the Southern Equal Justice Initiative Kevin Davis of Northern Ireland Adjunct Assistant District of New York Professor of Law Kim A. Taylor- Independent Consultant, Professor of Clinical Law; Richard H. Pildes Thompson Jacqueline Deane (’85) Independent Private Deputy Chief, Criminal Sudler Family Professor Professor of Clinical Law Adjunct Professor Sector Inspector General Division, U.S. Attorney’s of Constitutional Law; Anthony C. Thompson of Clinical Law; Office for the Southern David Golove Faculty Co-director, Professor of Clinical Law Delinquency Training District Professor of Law; Center on Law and Supervisor for the Legal Ping Yu Director, J.D./LL.M. Eunice Lee (’94) Security Aid Society’s Juvenile Research Scholar Program in International Adjunct Assistant Rights Division David A.J. Richards Law; Faculty Co-director, Professor of Law; Edwin D. Webb Tigran Eldred Center on Law and Supervising Attorney, Professor of Law Acting Assistant Security Office of the Appellate Professor of Lawyering Defender Jenny Roberts Martin Acting Assistant Noah Feldman Guggenheim (’71) Holly Maguigan Professor of Lawyering Associate Professor of Professor of Clinical Law Professor of Clinical Law; Law; Faculty Co-director, Faculty Co-Director, S. Andrew Schaffer Sara Gurwitch Center on Law and Global Public Service Adjunct Professor Adjunct Assistant Security Law Project of Law; Senior Vice Professor of Clinical Law; President and Deborah Fins Deputy Attorney-in- Theodor Meron General Counsel, Adjunct Professor Charge of the Office of Charles L. Denison University Office of Clinical Law; the Appellate Defender Professor of Law on of Legal Director of Research and Leave; President, Randy Hertz Counsel Student Services, and International Criminal Professor of Clinical Law; Staff Attorney, NAACP Tribunal for the former Director, Clinical and Legal Defense and Yugoslavia Advocacy Programs Educational Fund, Inc.

28 THE LAW SCHOOL AUTUMN 2004 Center for Research in Crime and Justice

he cornerstone of the community at the NYU pected. Even when a guest or topic being featured at a criminal School of Law is the Center for Research in law group event “seems furthest removed from your work, it Crime and Justice (CRCJ). The Center, co- can turn out to be the most interesting and relevant,” Harry First directed by James Jacobs, the Chief Justice remarks. He recalled a guest who made a presentation on the Warren E. Burger Professor of Constitutional Los Angeles Police Department consent decree, surprisingly rais- Law and the Courts, and Jerome Skolnick, ing issues that overlapped with First’s work on the Microsoft the Claire Clements Dean’s Chair Emeritus antitrust case. at theT University of California at Berkeley School of Law, is the The Center’s monthly Hoffinger Colloquium on Criminal Jus- locus of many of the activities of the criminal law group, spon- tice similarly brings together academic presenters and an audience soring research, hosting events, and making connections among comprised of a cross section of the criminal justice community to faculty, practitioners, and policy-makers. Every Wednesday debate and discuss criminal justice issues. With students sitting side during the academic year, faculty are invited to lunch with an by side with luminaries in the field, the colloquium has featured important decision-maker or practitioner in the criminal justice forays into such subjects as terrorism and the policing dynamic, system who offers prepared remarks followed by the opportu- incarceration trends, sentencing guidelines, and domestic violence. nity for a frank and open exchange of ideas. Recent guests have The colloquium is named for Jack Hoffinger, the dynamic criminal included Samuel Buell (’92), lead prosecutor in the Arthur defense attorney who, for the past 50 years, has been trying cases Andersen case and special attorney for the U.S. Department of ranging from white-collar offenses to the sort that generate New Justice Enron Task Force; New York City Police Commissioner York Post headlines like “Career Girl Murders” and “Subway-Shove Raymond Kelly (LL.M. ’74); Gifford Miller, speaker of the Psycho.” Hoffinger took over funding of the colloquium in 2001, New York City Council; and Margaret Winter, associate director having served on the Center’s advisory board since the 1980s. of the American Civil Liberties Union’s National Prison Project. Although not ordinarily referred to as “typical” in any way, Visitors like these go a long way toward serving the Center’s Hoffinger is nonetheless typical of the audience for the collo- principal goal of making the school a regional and national quium—involved, inquiring, and energetic. His distinguished focal point for the study, discussion, and debate of criminal jus- career as one of the most renowned criminal defense lawyers tice policy. Another luncheon guest, Steven Solow (’85), former in the nation includes a stint as the president of the New York chief of the U.S. Department of Justice Environmental Crimes Criminal Bar Association, and writing and teaching on criminal Section, says of his visit: “It was a great opportunity to sit law issues. Asked why he so avidly supports a law school that is around with extraordinarily thoughtful people and talk about not his alma mater, Hoffinger explains that “The NYU School of the practical and doctrinal implications of the criminal prosecu- Law has the most vibrant and important criminal justice faculty tions I have handled.” and programs in the country today.” When Jacobs was looking The encouragement and connections resulting from everyday for funding to continue the colloquium after the death of its interactions among the criminal law group can lead to the unex- original patron, Alan Fortunoff (’55), Hoffinger did not hesitate:

AUTUMN 2004 THE LAW SCHOOL 29 Applying Classroom Concepts to Crime-Fighting

Steven Solow (’85) credits Professors James Jacobs and Harry First with setting him on the path to becoming a prosecutor: “Through both of them, I developed an interest in how government could use its enforcement powers to regulate and change business activities.” Solow’s career as a prosecutor got off to a quick start because of his experience working with Jacobs and Adjunct Professor Ronald Goldstock on their study of New York City corruption and racketeering in the Professor Jerome Skolnick, right, with Professor Bryan Stevenson, guest speaker at last April's Hoffinger Criminal Justice Colloquium. Stevenson construction industry for the New York State Organized spoke on the topic, “The Politics of Race, Poverty, Culpability, and Harm Crime Task Force. Also formative was his work with Professor in American Criminal Justice.” Anthony Amsterdam on death penalty matters and in the “What the colloquium offers is a fascinating synergy of lecturers clinical program. Solow attributes to his clinical training his who are consistently interesting and provocative, and listeners ability to function as a prosecutor right out of law school: who are staggeringly knowledgeable and engaged. For the aver- “The clinic taught me to self-educate and to reflect on my age practitioner, the colloquium might not have practical use own work and learn from experience.” Describing Amster- today or tomorrow, but you never know when the violin will dam’s catechism of “plan, do, reflect, integrate,” Solow says, play. You never know when something you learn at the collo- “It ingrained in me one of the most valuable tools I have quium will emerge as relevant.” He adds, “It’s not enough to gained from my entire education.” — J.B. be lawyers serving our clients. We should be helping make our criminal justice system and our society a better place, and the colloquium is an integral part of that endeavor.” In addition to the Hoffinger Colloquium, the Center sponsors Program. Cyrille Fijnaut, the leading scholar of European polic- small seminars and workshops frequently to hear from U.S. and ing, was, at the time of his visit, a professor of criminal law and foreign criminal justice scholars who are in New York City for a criminology at the Catholic University of Leuven in Belgium. short time, such as Franklin Zimring, the William G. Simon Pro- Now at the University of Tilburg in the Netherlands, Fijnaut fessor of Law at the University of California at Berkeley School has taught courses on European criminal law and on the com- of Law. The Center has also provided a home and an opportunity parative history, sociology, and politics of policing in demo- for scholars to spend extended periods of time at the Law School cratic societies. Fijnaut is the author of more than 20 books, to further their research efforts and interact with faculty. These including, most recently, Legal Instruments in the Fight Against visitors have included Professor Dirk van Zyl Smit, former dean International Terrorism: A Transatlantic Dialogue, a comprehen- of the University of Capetown (South Africa) Law School and sive volume of international, European, and American legal University of Frankfurt criminologist Henner Hess. materials relating to preventing, investigating, and punishing The CRCJ finds its way into the classroom by luring interna- terrorism. He came to the Hauser Global Law School Program tional scholars to teach specialized seminars to students in the as a result of editing, with Jacobs, a book of essays called upper years, under the aegis of the Hauser Global Law School Organized Crime and Its Containment: A Transatlantic Initiative.

30 THE LAW SCHOOL AUTUMN 2004 Fijnaut is also the founder and editor of European Journal of Crime, Criminal Law, and Criminal Justice, a new English lan- Former NYC Corrections Chief guage journal in European criminal law, and the general editor of the International Encyclopedia of Criminal Law, a series in Argues That Prison Does Not Work comparative criminal law. He plans to publish a volume on the criminal laws of every major country. Renowned Australian political theorist Professor John Braith- waite has been a vital contributor to intellectual exchange among the criminal law faculty. His special interest is business regulation and white-collar crime, and he has focused for more than 20 years on restorative justice and responsive regulatory ideas. Reference to Braithwaite’s work is virtually mandatory in any serious discussion of environmental crimes. As an author, co-author, or editor of numerous books and articles, he has contributed significant research to the application of restorative justice principles to business crime as well as to more traditional forms of juvenile and adult crime. Braithwaite’s 1989 book Crime, Shame, and Reintegra- tion has been highly influential in demonstrating that current criminal justice practice creates shame that is stigmatizing. Restorative justice, on the other hand, seeks to reintegrate the offender by acknowledging the shame of wrongdoing but then offering ways to expiate that shame. The CRCJ also sponsors ongoing research projects in such areas as organized crime and police accountability and integrity, offering opportunities for students to become involved in the scholarly When Arnold Schwarzenegger was elected California’s Deficit community. “Students are vital contributors to the Center’s work,” Terminator, few people anticipated that his tough-on-crime says Jacobs, whose easy and accessible manner has lured many a movie persona would translate into deep budget cuts for the student into a career in crime. “I personally have co-authored two state prisons. Except perhaps Michael Jacobson, a professor of criminology at the City University of New York Graduate Cen- The STUDENTS here GET BETTER EVERY ter and John Jay College of Criminal Justice. Jacobson has spent the last few years charting social and political develop- YEAR, especially in the CRIMINAL LAW ments that are poised to reverse this country’s incarceration field, where they DRAW THEIR boom, which accounts for more than two million imprisoned citizens. Speaking at a recent Hoffinger Colloquium, Jacobson INSPIRATION from the POWERFUL triple drew on his upcoming book Downsizing Prisons: How to Reduce Crime and End Mass Incarceration (NYU Press, 2005), threat of Stephen SCHULHOFER; David to argue that, contrary to popular belief, prison does not work. Jacobson cautions reformers about such structural impedi- and James GARLAND; JACOBS. ments as public corrections unions interested in protecting - JEROME SKOLNICK jobs and privatized prisons interested in protecting market share. But in his view, the sure sign that U.S. sentencing policy is about to turn a corner came in the 2004 State of the Union books and more than a dozen articles with students. It was not address, when President George W. Bush endorsed offender a gift to students to involve them in my work. Rather, students reentry programs as a vital component of crime control: have given me a gift with their energies and research efforts.” “Rehabilitation, redemption, and reentry are back on the Jacobs’ gratitude to his students is more than matched by their appreciation for the opportunities. “Professor Jacobs policy drawing board.” — J.B. and I co-authored an article detailing the role of the congressional hearing in the government’s efforts against organized crime,” says Elizabeth Mullin (’03), now a staff attorney at the Skolnick has similarly involved students in his scholarship on Public Defender Service for the District of Columbia. “Working racial profiling, the blue code of silence, and coercive interroga- with Professor Jacobs was an invaluable experience. He was tion. Skolnick’s article “Guns, Drugs, and Profiling: Ways to an involved and challenging mentor, whose guidance greatly Target Guns and Minimize Racial Profiling” was written with improved my writing skills.” Other Jacobs protégés have similarly law student Abigail Caplovitz (’01). “The students here get better built on their collaboration with him, including Ed O’Callaghan every year,” Skolnick says, “especially in the criminal law field, (’94), an Assistant U.S. Attorney for the Southern District where they draw their inspiration from the powerful triple threat of New York; Coleen Friel Middleton (’97), an Assistant U.S. of Schulhofer, the leading substantive criminal law scholar of Attorney for the District of New Jersey; Robert Radick (’97), his generation; Garland, the leading criminology theorist in the an Assistant U.S. Attorney for the Eastern District of New world; and Jacobs, the leading sociologist of criminal law.” He York; and Elizabeth Joh (’00), professor of law at the University is currently working on an assessment of post-September 11 of California-Davis Law School. organizational changes in the NYC Police department.

AUTUMN 2004 THE LAW SCHOOL 31 The Paper Trail James B. Jacobs’ Books and Articles, Co-written with NYU School of Law Students

“Labor Racketeering: The Maﬁa & the Unions.” Crime & Justice: An Annual Review of Research, 30 (2003): 229-282. (Co-author: Margaret Ellen Peters (’02))

“Extending Brady to Gun Shows and the Secondary Market.” Criminal Law Bulletin, 37(3) (May/June 2001): 248-262. (Co-author Daniel M. Heumann (’01))

“Cosa Nostra: The Final Chapter?” Crime & Justice: An Annual Review of Research, 25 (1999): 129–190. (Co-author: Lauryn Gouldin (’00))

“New York City as an Organized Crime Fighter: The Work of the Trade Waste Com- mission.” New York Law School Law Review 42 (1998): 1069-1092. (Co-author: Gotham Unbound: How NYC Was Liberated Alex Hortis (’99)) “The Drug Testing Society.” European From the Grip of Organized Crime. New Journal of Crime, Criminal and Criminal “Organized Crime” in The Handbook of York University Press, 1999. (Co-authors: Justice, 4(2) (1996): 120-130. (Co-author: Crime and Punishment, Michael Tonry, ed., Coleen Friel (’97) and Robert Radick (’97)) Janet Wieder (’96)) Oxford University Press, 1998: 159-177. Busting the Mob: United States v. Cosa (Co-author: Christopher Panarella (’94)) The Social Construction of a Hate Crime Nostra. New York University Press, 1994. Epidemic.” Journal of Criminal Law & “Tremors on the Racial Fault Line: The 1996 (Co-authors: Christopher Panarella (’94) Criminology, 86(2) (1996): 366-391. Black Church Fires in Retrospect.” Criminal and Jay Worthington (’01)) (Co-author: Jessica Henry (’95)) Law Bulletin, 34(6) (November/December “Mapping the Gun Culture.” Journal on 1998): 497-519. (Co-author: Elizabeth Joh “The Drug Testing Project in International Firearms & Public Policy (forthcoming, Fall (’00)) Sports: Dilemmas in an Expanding Regula- 2004). (Co-author: Domingo Villaronga (’03)) tory Regime.” Hastings International & “Pension Forfeiture: A Problematic Sanction Comparative Law Review, 18 (Spring 1995): “Leadership Development and Prison For Public Corruption.” American Criminal 557-589. (Co-author: Bruce Samuels (’94)) Reform: A Plea for Investment in Human Law Review, 35(1) (1997): 57-92. Infrastructure.” Symposium issue on prison (Co-authors: Coleen Friel (’97) and Edward “The Hate Crime Statistics Act of 1990: reform, Pace Law Review 24(2) (Spring O’Callaghan (‘94)) A Critique.” Criminal Law Bulletin 29(2) 2004). (Co-author: Elana Olitsky (’05)) (1993): 99-123. (Co-author: Barry Eisler (’93)) “Ten Years of Court-Supervised Reform: A Chronicle & Assessment.” California “The Curious Rejection of Drug Testing by Criminal Law Review, 6(3) (2004). America’s Schools.” Columbia Teachers (Co-author: Kristin Stohner (’03)) College Record, 94 (Winter 1992): 208-238. (Co-author: Boaz Morag (’92)) “The RICO Trusteeships After Twenty Years: A Progress Report.” The Labor Lawyer “Enforcing the Criminal Law in State Pris- 19(3) (Spring 2004). (Co-authors: Eileeen ons.” Justice Quarterly, 8 (September 1991): Cunningham (’04) and Kim Friday (’04)) 283-303. (Co-author: David Eichenthal (’88))

“Congress’ Role in the Defeat of Organized Crime.” Criminal Law Bulletin 39(3) (May-June 2003): 269-312. (Co-author: Elizabeth Mullin (’03))

32 THE LAW SCHOOL AUTUMN 2004 Interdisciplinary Perspectives

nother aspect of the scholarship of the of Sociology and the journal Law and Social Inquiry. In addition to criminal law faculty that truly stands out is his Arthur T. Vanderbilt chair at the Law School, he holds a full its interdisciplinary reach. The challenges professorship in the NYU Department of Sociology. currently confronting the criminal justice Over the last academic year, Garland’s preeminence in the system are not the kind that can be resolved field was definitively affirmed by three separate academic con- solely by analyzing the latest U.S. Supreme ferences honoring his work. In September 2003, the Scottish Court slip opinions. The NYU School of Criminology Conference celebrated the 20th anniversary of the LaAw has long recognized that perspectives from disciplines other publication of The Power to Punish, the seminal book edited and, than the law are essential to understanding, for example, how to in part, authored by Garland. As he explains, the book laid out a balance civil liberties against national security needs, or questions program for the development of a new sociology of punishment like: Which policing methods are most effective and how do they and identified the key issues, ideas, and arguments that have measure up in terms of building trust and cooperation in diverse come to define this area. Twenty years later, the conferees assessed communities? What are the consequences of mass incarceration what has been accomplished, mounting a retrospective of scholar- on crime and on American society? Should failings of corporate ship in this field, much of which was influenced by Garland’s governance be resolved by private ordering, civil regulation, or prizewinning studies Punishment and Modern Society: A Study in criminal prosecution? How does one mediate between the uses Social Theory (1990) and Punishment and Welfare: A History of of technology as an instrument of criminality and a crime-fighting Penal Strategies (1985). tool? What are the ramifications of the increasing privatization of Later that same month, the University of York’s biennial con- criminal justice? The job of tackling these and other pressing issues ference on political theory was entirely devoted to a discussion of requires the participation of scholars from the fields of sociology, Garland’s tour de force, The Culture of Control: Crime and Social criminology, psychology, and economics, and New York Univer- Order in Contemporary Society (2001). The book charts important sity offers a top-flight assortment. A sampling: changes in the social response to crime in the United States and Britain over the past 25 years and offers a sociological explanation Professor David Garland: Exhibit A of how we came to rely on mass imprisonment and a pervasive Widely considered one of the world’s leading sociologists of crime culture of control to deal with the risks and insecurities that are and punishment, Garland joined the NYU faculty from Edinburgh part of contemporary social organization. In March 2004, there University. His publications on the sociology of punishment, was a third conference honoring Garland’s work when 400 dele- penal policy, and criminological theory can be found on course gates met at the Universitá degli Studi di Milano-Bicocca to mark syllabi from Amherst, Massachusetts, to Adelaide, Australia. He the publication of an Italian edition of The Culture of Control, and was the founding editor of the interdisciplinary journal Punish- to hear several of Italy’s leading scholars and jurists discuss its ment & Society and is currently on the board of The British Journal relevance to Italy and other contemporary societies.

AUTUMN 2004 THE LAW SCHOOL 33 on an extraordinary range of subjects. In addition to scores of articles, he has written 15 books covering topics like prisoners’ rights, civil-military relations, drunk driving, public corruption, organized crime, hate crimes, and gun control. Jacobs describes his work as “driven from the ground up” he says. “I don’t come to a subject with a preformed ideological framework. My approach to scholarship is sociological, criminological, empirical, and policy-oriented.” Incorrigibly curious and original in his thinking, Jacobs’ interests typically take him ahead of scholarship trends. His book on gun control is a prime example, anticipating the recent flurry of interest in this topic. In researching Can Gun Control Work? Jacobs first spent time learning how guns actually operate and who owns and uses guns, concluding that complete disarmament is not a realistic option for the United States. He next looked at the history of gun control in this country, deducing from the statistical evidence that gun control has not made, and is unlikely to make, a noticeable dent in violent crime. Refusing to align himself with any one political perspective, Jacobs examined Professor David Garland: a sociologist of crime and punishment the various existing and proposed gun controls, refocusing the debate on sensible strategies for reducing gun-related crime. He The Culture of Control’s interpretation of the current scene is reached conclusions that annoyed both gun rights’ advocates (gun grounded in a detailed empirical knowledge of how the criminal shows are impossible to police and should probably be banned justice system works, together with a broad grasp of the social outright), as well as anti-gun activists (a ban on handguns would forces shaping everyday life. Because of its broad range and syn- be just as impossible to enforce as our drug laws). thesizing vision, the book has resonated in many different coun- Jacobs’ unapologetic distaste for absolutes and abstractions tries and in many different fields of scholarship. To date, it has makes it difficult to pigeonhole his view on any particular issue, generated more than 60 reviews in scholarly journals, author- with the result that both sides of the political divide have had occa- meets-critics sessions at several conferences here and abroad, and sion to blacklist him. When former President Bill Clinton convened a forthcoming book—Politics and the Culture of Control, edited a White House conference on hate crime, the U.S. Department of by Matt Matravers—in which other scholars comment on or Justice invited Jacobs to attend, but later rescinded the invitation take issue with its theses. under pressure from activists who did not want the creation of Garland is currently studying the American system of capital hate-crime categories questioned. Similarly, during the Reagan punishment, showing how its specific form and character have administration’s campaign against drunk driving, the National been produced by America’s distinctive governmental structures, Institutes of Health were not allowed to cite Jacobs’ book on drunk political history, and cultural conflicts. He seeks to explain why, driving because he is not categorically in favor of deterrence and even though most Western countries abolished the death penalty punishment as a strategy. Not surprisingly, Jacobs has never testi- in the 1960s, the United States continues to execute offenders. fied before Congress. “I’m not a campaigner or a politician,” he Garland rejects the prevailing view that American culture is says. But people in power pay attention to what he has to say. somehow predisposed toward a punitive response to crime, and Jacobs’ latest work focuses on labor racketeering, which in his argues instead that explanations need to focus upon the specific view “stands at the intersection of two powerful 20th-century institutional features of American law and government, and a institutions—organized crime and organized labor.” Jacobs has detailed history of the political and cultural currents that operate been revisiting the issue of organized crime since the mid-1980s, through them. fascinated by the strength of its position in the country’s economic Just as Garland’s scholarship is enriched by the dual perspec- and political power structure. In writings such as Busting the Mob tives of law and sociology, he enjoys interacting in the classroom with both law students and sociology graduate students. “My sociology grad students are training to be academics: they will write dissertations and make careers in the areas that I teach, so they tend to have a deep and long-term engagement with the issues,” Garland says. “But it’s also exciting to listen to the law students in my seminars on the death penalty, prison law, or sentencing. Many have real, practical experience or detailed policy knowledge in criminal justice. When they bring these perspectives to bear they usually stimulate a terrific classroom dialogue.”

Professor James Jacobs: Godfather of the Department Professor James Jacobs is a prolific and creative legal scholar. Beginning with his 1977 sociology dissertation, Stateville: The Penitentiary in Mass Society, which is still the classic monograph on the social and legal transformation of the prison in post-World War II America, through his recent book Can Gun Control Work? (Oxford University Press, 2002), which provoked nationwide debate on U.S. gun laws, Jacobs has produced thoughtful work Professor James Jacobs: an independent thinker

34 THE LAW SCHOOL AUTUMN 2004 in 1994, and Gotham Unbound: How New York City was Liberated Winter/Spring 2005 semester Professor Jacobs and Adjunct Profes- from the Grip of Organized Crime in 1999, both published by NYU sor Ronald Goldstock will be launching a new seminar on Privati- Press, he has documented and analyzed law enforcement’s attack zation in Criminal Justice, dealing with private police, private on the Mafia, focusing on the systematic purging of crime fami- investigations firms, private prisons, and private dispute settlement lies, with hundreds of mobsters sent to prisons and the major (through restorative justice mechanisms). crime families in most cities rendered dysfunctional. Jacobs finds it remarkable that so few scholars have shown any interest in this Professor Jerome Skolnick: A Life of Crime massive legal campaign. “This is not what stimulates most criminal Professor Jerome Skolnick’s seminars on policing and on the regu- law scholarship in the U.S.,” Jacobs says. “Most criminal law aca- lation of vice also take a nuanced approach, probing the history, demics are more interested in civil liberties issues, are more doctri- sociology, and politics that nally oriented toward what the Supreme Court does.” underlie the law. Although In turning his attention to mobbed-up unions for his new honored for his scholarship by book, Organized Crime & Organized Labor, to be published next just about every major criminal year, Jacobs hopes to illuminate the impact of organized crime on law and justice organization, the labor movement and on U.S. politics. He is also taking a close Skolnick likes to point out that look at the Racketeer Influenced and Corrupt Organizations Act he is not a lawyer. A native (RICO) lawsuits launched against labor racketeering, 19 of which New Yorker, Skolnick’s career have already resulted in the appointment of trustees to purge the path has included sojourns mob and restore democracy in local, regional, national, and inter- writing an award-winning national unions. One example is the trusteeship over the Team- moral philosophy dissertation sters, the country’s largest private union, with 530 union leaders at the City College of New purged since 1989. This litigation crusade “is one of the great York and a groundbreaking episodes of court-ordered reform in the history of American law,” family law casebook while Jacobs says, “and no one is writing about it.” Nor is anyone eval- teaching at Yale Law School, Professor Jerome Skolnick serving in an Army Reserve’s South Asia strategic intelligence [LAW enforcement’s ACTIONS AGAINST unit, and winning a National Science Foundation grant to gather materials for his book-length study of the regulation of casino gam- the MAFIA] is not what STIMULATES most bling in Nevada. Skolnick spent most of his academic career at the University of California at Berkeley where he was the director of criminal law scholarship in the U.S.,” Jacobs the Center for the Study of Law and Society. says. “Most criminal law are Skolnick offers a distinctive sociological perspective on criminal ACADEMICS law and its administration, befitting the former president of the more interested in CIVIL LIBERTIES American Society of Criminology and board member of the Amer- ican Sociological and Law and Society Associations. He is proba- ISSUES, are more DOCTRINALLY bly best known for his classic book Justice Without Trial, which examines how the subculture of the police influences their enforce- ORIENTED toward what the SUPREME ment of the criminal law. For the better part of 30 years, Skolnick has been recognized internationally as a premier expert on demo- COURT does.” cratic policing. His theories of police integrity and accountability, most recently developed in his book Above the Law with James J. — JAMES JACOBS Fyfe (currently the New York City Police Department’s Deputy Commissioner for Training) continue to provide a framework that uating its efficacy, according to Jacobs. After 20 years of a “mas- defines the research in this field, most notably in recent examina- sive experiment in directed sociopolitical change,” he has found tions of excessive force by police racial profiling practices. “The that “very little is known about what works and what does not issue of racial profiling offers an example of how the Law School, work, or even about what court-appointed trustees in union and in particular the Center for Research in Crime and Justice, reform cases actually do.” pulls together diverse interests in the criminal justice area to influ- Jacobs’ teaching schedule is no less energetic. He regularly ence scholarship on a subject,” Skolnick says. Recollecting his takes the lectern in the first-year criminal law course and the interactions with Thomas Tyler, NYU professor of psychology, at upper-level criminal procedure course as well as teaching Federal Center events, Skolnick gratefully acknowledges the debt his cur- Criminal Law and Juvenile Justice courses. He has designed and rent work owes to Tyler’s seminal studies on what makes a society taught more than a half-dozen different seminars through the law-abiding and how practices such as racial profiling undermine years in subjects ranging from sentencing to the drug war. He was police legitimacy and compliance with law. recently inducted into the American Society of Criminology, and Skolnick also credits the Law School’s new Center on Law and his seminars reflect his multidisciplinary approach to subjects in Security for advancing the interdisciplinary approach to issues in criminal law. In a class called The Regulation of Weaponry in a criminal law. A regular last year at the Center’s colloquia on the Democratic Society, he explores whether gun control is bad for legal dimensions of counterterrorism, Skolnick is interested in ter- women. In his Labor Racketeering and Union Democracy semi- rorism as a special type of crime, concentrating police resources nar, students read an analysis of corruption and racketeering in the into international intelligence, risk prevention, and post-attack New York City construction trades. “The reason I took a class with planning. “Crime prevention typically involves community rela- Professor Jacobs,” says Weston Eguchi (’04), “is that he does not tions, targeting high-crime areas, things the police are already let us make any unchallenged assumptions about a subject.” In the doing,” Skolnick says. “How does and should this differ when

AUTUMN 2004 THE LAW SCHOOL 35

Distinguished Criminal Law Faculty

Professor Professor Martin Professor Professor Professor Professor David Golove Guggenheim (’71) Chester Mirsky Richard H. Pildes David A.J. Richards Harry I. Subin

police are expected to prevent and respond to terrorist acts?” The of those terrible crimes that, in fact, some of the principal offend- exchange of ideas stimulated by the Center influenced Skolnick’s ers will not go unpunished, that there is accountability, that it recent thinking and research into the role of the law enforcement really presents an opportunity to put an end, in a some way, to authorities in national security efforts. Skolnick has recently this notion of impunity which has plagued the international written two papers on torture and interrogation. “On Control- community for such a long time.” ling Torture” was published last year in a volume edited by Stanley Although Meron’s schedule does not permit a full-time teach- Cohen and Thomas Blomberg. Skolnick’s paper “American Inter- ing load, he continues to supervise student work, including rogation: From Torture to Trickery” is about to be published in J.S.D. candidates working on dissertations in international an Oxford University Press book on torture, edited by Sanford criminal law. He also exercises his teaching muscles, delivering Levinson with a forward by Ariel Dorfman. the general course on public international law at the Hague Academy this past year, a wide-ranging discourse on the law of war and the criminalization of international humanitarian law, International Dimensions also published in book form as International Law in the Age of riminal law intersects with many other specialties of law, Human Rights. C and many would say this reality is personified in Professor The healthy flow of international visitors is also augmented Theodor Meron as he stands at the crossroads of human rights, by the Hauser Global Law School Program, which every year humanitarian, criminal and international law. A 25-year veteran of sponsors up to 20 leading foreign law professors and judges the faculty, Meron is currently from around the world to teach at the NYU School of Law, rou- on leave serving as president tinely offering a compelling perspective on worldwide adminis- of the International Criminal tration of criminal justice. The Law School’s preeminence in Tribunal for the former the field of international criminal law is epitomized by such Yugoslavia, headquartered distinguished visitors as Richard Goldstone, a retired justice of at The Hague, Netherlands. the Constitutional Court of South Africa, which supervised the This appointment caps off a country’s transition to democracy. Goldstone periodically teaches venerable career in interna- a seminar at the Law School on the Law of War and Interna- tional public service, includ- tional Criminal Courts, which draws on his remarkable career ing his time in the Israeli in the enforcement of international humanitarian law. From 1991 Foreign Service in the 1970s to 1994, he served as Chairperson of the South African Com- and, since then, as an active mission of Inquiry regarding Public Violence and Intimidation, member of the Organization which came to be known as the Goldstone Commission. Later for Security and Cooperation career milestones have spanned the globe; from 1994-96, Gold- Professor Theodor Meron in Europe, the Council on stone served as the chief prosecutor of the U.N. International Foreign Relations, and the War Crimes Tribunals for the former Yugoslavia and Rwanda; International Committee of the Red Cross. Along with being a from 1999-2001, he was chairperson of the International Inde- forceful presence on the international stage, Meron has written pendent Inquiry on Kosovo; and finally, from 2002-03, he served prolifically on human rights, humanitarian law, and international as co-chair of the International Bar Association’s Task Force on criminal law. International Terrorism. Having traveled in his life from a Nazi labor camp in Poland Current Global Law Faculty member Nicola Lacey, professor to the NYU School of Law, Meron was profiled earlier this year of criminal law at the London School of Economics, has taught in The New York Times as a dedicated scholar who is passionate Legal Punishment: Philosophy and Practice during her visits, about the principles of humanitarian law and the quest to avoid examining the institution of legal punishment from wide-rang- the worst excesses of war. (Please see the reprinted article on page ing philosophical and sociological perspectives, with readings 99.) He believes that the Hague tribunal will serve as a model for in political theorists such as Jeremy Bentham, H.L.A. Hart, dispensing international justice for such courts as the International Michel Foucault, and John Braithwaite, who himself was a visiting Criminal Court. More important, Meron believes the tribunal professor at the Law School in 2001. Lacey’s interdisciplinary marks a growing international acceptance that the world must scholarship draws on several fields—criminal law doctrine, reckon with war crimes and other massive human rights abuses. criminology and criminal justice studies, feminist theory, and As he told the Global Policy Forum earlier this year, “The tribunal political philosophy—all of which she applied to research on serves an essential role in the region itself by showing the victims moral blaming and judgments of guilt in criminal law, con-

36 THE LAW SCHOOL AUTUMN 2004 The hosts a steady stream Given the impact of a HAUSER GLOBAL LAW SCHOOL PROGRAM nation’s criminal justice sys- of events and sponsors numerous PROJECTS AND INITIATIVES, many tem on foreign relations, many of the foreign students bearing on issues in international criminal law such as the PROJECT ON who study at the Law School every year, including the spe- TRANSITIONAL JUSTICE, directed by Professor ALEXANDER BORAINE, cially selected Hauser Global Law Scholars and the Global former vice chair of SOUTH AFRICA’S Truth and Reconciliation Commission. Public Service Law Scholars, are engaged in serious scholar- ducted in part during her visits to the Law School. She also ship in criminal law topics. They are drawn to the NYU School of participated in “Our Community’s Response to September 11, Law to exchange ideas and have their work reviewed by the faculty 2001,” on the first anniversary of the attack, delivering a talk on equivalent of a world-class editorial board. Millie Odhiambo (’01), “Civil Liberties in the Face of Terrorism and Problems of Pun- a former state attorney for Kenya, grabbed this opportunity when ishment: The Experience in Other Countries.” she came to NYU to study international human rights law and The Hauser Global Law School Program also hosts a steady comparative criminal law. Working with Holly Maguigan, profes- stream of events and sponsors numerous projects and initiatives, sor of clinical law and a faculty director of the Global Public Ser- many bearing on issues in international criminal law such as the vice Law Project, Odhiambo engaged in a case study on using Project on Transitional Justice, directed by Professor Alexander public interest law to vindicate women’s rights in Boraine, former vice chair of South Africa’s Truth and Reconcilia- Kenya in the area of domestic violence. As tion Commission. Boraine’s project is the first systematic effort to a result, Odhiambo was awarded a combine intellectual and practical approaches to the new field of Global Public Service Fellowship “transitional justice,” which studies how countries are moving from to work with the Children’s authoritarian rule to democracy. Legal Aid Network in The Law School’s full-time faculty also boasts Professor Jerome Nairobi, where she devel- Cohen, an expert in East Asian studies, international business oped a family and juve- transactions, comparative law, and international law. At Harvard nile court manual for University and, since 1991, at NYU, Cohen helped pioneer the indigent clients and introduction of East Asian legal systems and perspectives into the wrote “best prac- United States’ legal curricula. Considered the leading American tices” guidelines scholar of Chinese law, Cohen, assisted by Taiwan-born legal to assist legal aid scholar Ping Yu, teaches a course on Chinese law and society clinics addressing that is consistently overbooked. family law issues. In addition to his many efforts to assist in the successful The interna- integration of China’s burgeoning economy into international tional reverbera- markets, Cohen is increasingly involved in criminal defense work. tions of the In cases that could be seen as the inevitable result of the clash NYU School of between China’s new openness and its powerful and corrupt Law’s criminal bureaucracies, Cohen has found himself serving as counsel in a law program are number of high-profile cases involving China’s illegal detention epitomized by of American-based Chinese scholars and U.S. businessmen of Arun Thiruven- Chinese ethnic descent. gadam (LL.M. ’02, The enormous difficulties facing criminal defense lawyers in J.S.D. ’05), a law pro- China have become a recurring theme in Cohen’s public lectures. fessor from India who is This focus on China’s criminal justice system is just the latest visiting the Law School to twist in his career-long exploration of the extent to which write his doctoral thesis on China’s traditional legal culture presents an obstacle to modern- comparative constitutional law. In ization. In the last year, he has addressed university audiences the early 1990s, he was a member of in Hong Kong on China’s the third graduating class of the National use of the death penalty, in Law School of India University, studying at a Shanghai on Chinese per- time of tremendous intellectual excitement about the law in spectives on corporate fraud India. After practicing and teaching law in India and working and governance, and in Bei- on significant public interest litigation there, Thiruvengadam jing on U.S. criminal law. says he had grown skeptical of the judiciary and courts as mecha- Accompanied on these visits nisms for bringing about social change in India. He decided by Law School reinforce- that he needed to expand his thinking about the law in a pro- ments, including Professors gram with a strong comparative law focus. At the NYU School Jacobs, Skolnick, and Steven- of Law, he says, “I experienced excitement about the law again.” son, Cohen hopes to estab- After completing a one-year LL.M. degree, he was awarded a lish an ongoing dialogue Global Public Service Law Scholarship to pursue his J.S.D. “I with their Chinese counter- was convinced to continue my studies by the level of academic parts in criminal law and inquiry at NYU and the opportunities to interact with scholars Professor Jerome Cohen criminal procedure. from all over the world.”

AUTUMN 2004 THE LAW SCHOOL 37

For Thiruvengadam, his semester in the Comparative Crimi- critical legal areas of our times. Richard Pildes, the Sudler Fam- nal Justice Clinic was a turning point. He won an award for his ily Professor of Constitutional Law, a Center faculty co-director work at the clinic, which primarily involved helping represent and a specialist in legal issues affecting democracy, sees the Cen- an undocumented alien who seriously injured her boyfriend in ter as an example of how scholarship at the NYU School of Law alleged self-defense, fled to Jamaica after the attack, and was is concerned with practical relevance. The challenge of the age ultimately extradicted back to the United States to stand trial. of terror for legal scholars, Pildes says, is “to take the structures, Thiruvengadam’s efforts on her behalf included substantive principles, and values developed in other contexts and make research into the law of extradition, mental competency, and the sense of them in this new context.” admissibility of foreign confessions, as well as participation in “We serve as an educational and informational resource for pretrial criminal law practice ranging from factual investigation anyone interested in the legal dimensions of counterterrorism,” to hearings on discovery and evidentiary matters. His experi- says Karen Greenberg, the Center’s executive director. “We have ences in the clinic, and his sense of the Law School’s overall interacted with the Homeland Security Department, the CIA, commitment to public service, gave him focus for his eventual the NYPD, Scotland Yard, many of President Clinton’s former return to the legal academy in India. “I hope to found a public advisers, the staffs of numerous Congressmen and Senators, the interest law center in India, modeled on the one at NYU, to RAND Corporation, the Manhattan Institute, and the Brookings provide the training, counseling, job opportunities, and finan- Institution, to name a few.” These exchanges often take place cial support necessary to develop career paths in public interest in open forums where the well-informed participants—decision- law,” he says. makers themselves—examine the current legal debate over U.S. students interested in international criminal law similarly counterterrorism. Examples from the Fall semester include have access to transformative learning experiences, including Guantánamo: The Supreme Court Cases and the Extent of U.S. positions as interns at the U.N. International Law Commission Power Over “Illegal Combatants”—What Will It Mean?, The or as judicial assistants at the International Court of Justice at USA Patriot Act: Where Do We Go From Here? and Al Jazeera: The Hague. The Law School has also sponsored students for Propaganda or Investigative Journalism? The Center even hosted clerkships with the Court of Justice of the European Communi- an advance screening of the controversial documentary Uncovered: ties in Luxembourg, the Constitutional Court of South Africa, The Whole Truth About the Iraq War. The Center also collaborates and the Interamerican Court of Human Rights. These clerk- with organizations and agencies engaged in the war on terror, ships with foreign and international courts, which are con- including working with the NYPD’s counterterrorism personnel, stantly being expanded, reflect the Law School’s determination to contribute fresh thinking on how to moderate law enforce- to broaden the global opportunities available to students inter- ment reaction in crisis situations. ested in criminal law. Professor Stephen Holmes’s work also pushes the boundaries as he explores the hot new field of national security law, in particular its connection to international relations and the Center on Law and Security enforcement of international criminal law. With degrees in phi- ince September 11, 2001, constitutional democracy in the losophy and political science, Holmes is a specialist on the S United States has had to confront legal issues regarding history of European liberalism and on legal change in Eastern national security and policing that present completely novel Europe and Russia after communism. His latest work focuses questions. The expertise that exists on these issues is over- on the evaluation of efforts by institutions, such as the World whelmingly concentrated in New York City. The NYU School Bank, to promote the “rule of law” in transitional and develop- of Law’s Center on Law and Security, funded by a grant from ing countries, and on the global implications of antiterrorism the U.S. Department of Justice, is a research and policy pro- measures. As a faculty co-director of the Center on Law and gram that fulfills a dire need for information, scholarship, policy Security, he brings his legal and historical acumen to scholarship advice, and debate on counter-terrorism and peace-keeping, the involving the apprehension and punishment of terrorists. This year, his students will get a taste of this interdisciplinary framework in his Political Trials: Dilemmas of International Crimi- nal Law seminar. The Center on Law and Security’s main initiative since its creation in 2003 has been the Program on Law and Secu- rity, led by the Center’s four co-directors—Professors Noah Feldman (author of After Jihad: America and the Struggle for Islamic Democracy), David Golove, Stephen Holmes, and Richard Pildes. The Center convenes policy-makers, law enforcement officials, and scholars who discuss and make recommendations on security issues, including the rules and regulations of information sharing among agencies; the role of international organizations in rebuilding Iraq; democracy and Islam; preparedness in New York Former Deputy Attorney General and Brookings Institute Senior Fellow Larry Thompson speaks at the “Are We Safer?” conference as Lee Wolosky, former Director for Transnational Threats at the National City and other urban areas nationwide Security Council, looks on.

38 THE LAW SCHOOL AUTUMN 2004 and abroad; international codes for apprehension and punish- To carry out the Program on Law and Security, the Center has ment of terrorists; and secrecy in government and the media. As embarked on an ambitious project called the Colloquium on Law might be expected, criminal justice themes reverberate through- and Security, which gathers law students, faculty members, and out the Programs’ efforts, which include study of the legal interested guests on a weekly basis to delve into the issues and cur- framework for investigating terrorism, law enforcement meth- rent state of the debate over specific topics in counterterrorism. ods at home and overseas, the challenge posed by international Last fall, the colloquium was run by Professors Holmes and collaboration in the prosecution of terrorists, and constructing a Pildes. Guest speakers have included noted Middle East scholar security apparatus for new democracies. As evidence of the Cen- Rohan Gunaratna on Al Qaeda’s global network of terror; Daniel ter’s relevance, it is worth mentioning that last year Holmes, Benjamin, senior fellow in the International Security Program at and this year Pildes, were selected for the prestigious Carnegie the Center for Strategic and International Studies on the current Scholar grant—the first time a law school’s faculty has been cho- war on terror; Jack Goldsmith, then the Assistant U.S. Attorney sen two years in a row. General for the Ofﬁce of Legal Counsel, who is an expert on U.S.

Constitutional Scholars Debate Guantánamo Bay Detentions

In a world where the with “total war” situa- traditional rules of war tions of the American became obsolete on Civil War and World September 11, 2001, War II, during which how should a country much of current U.S. founded on the rule of jurisprudence on mili- law deal with captured tary detention was foreign nationals? The developed. Courts Center on Law and should reject a wartime Security at the NYU model for the Guantá- School of Law hosted The Center on Law and Security’s open forum on Guantánamo Bay brought together a namo cases, he argued, panel of experts to discuss the implications of Supreme Court cases and the extent of U.S. renowned constitu- power over ‘unlawful combatants’. because of the likeli- tional law scholars to hood of bystanders debate whether and how U.S. courts should the United States, had sovereignty over the being mistaken for belligerents, the indefinite assess the procedural rights of suspected Al base and U.S. courts cannot assert jurisdiction duration of the war on terror, and the Qaeda members detained at a Navy base in over the detainee’s claims. unclear nationalities of terrorists whose Guantánamo Bay, Cuba. The NYU School of Law’s Professor Rachel actions do not necessarily implicate their At the time of the February 2004 debate, E. Barkow warned against deploying formalis- country of citizenship. more than two years of incommunicado cap- tic arguments in resolving the detainees’ Ruth Wedgwood, professor of interna- tivity had elapsed for the 600-plus detainees claims. Having read the wide-ranging amicus tional law and diplomacy at the John Hopkins held in Cuba. The U.S. executive branch and briefs filed in the Guantánamo Bay cases, School of Advanced International Studies, military assert that the detainees are “unlaw- Barkow concluded that the U.S. Supreme countered that the September 11 attacks were ful combatants” under international law, who Court’s own legitimacy and the credibility of recognized by NATO, the United Nations, and may be held indefinitely with only the mini- U.S. rule of law was at stake. She cited a brief Congress as acts of war, and that Congress mal procedural protections afforded by mili- filed by members of the British Parliament, authorized the use of force against the Taliban tary tribunals. Lawyers for two groups of which urged the Supreme Court to consider and Al Qaeda. Wedgwood insisted the U.S. detainees are attempting to challenge their how a ruling denying judicial access would military provided due process when it whit- detention before a U.S. civilian court. (In June, appear to the rest of the world. A consortium tled the original 10,000 Al Qaeda captives the Supreme Court rejected the government’s of international diplomats echoed this plea in down to 600. Nothing in international law claim that it can hold “enemy combatants” an amicus brief declaring that dismissal of the subjects this process to further appeal, she without giving them a day in court.) detainees’ claims on narrow jurisdictional asserted, adding that “you can’t have Article For a case that appeared to reside at the grounds would sabotage diplomatic efforts. III judges roaming the battlefield.” crossroads of personal liberty and national Professor David Golove, a faculty co- The panel took place during a week when security, the legal issue at the heart of the director of the Center, described two models aides discovered poisonous ricin powder in Guantánamo Bay proceedings sounded rather for dealing with detained foreign nationals— the offices of the U.S. Senate majority leader technical: Did the United States in fact have peacetime and wartime—and characterized and terrorists bombed a Moscow subway— jurisdiction over the Navy base, which it has the Bush administration as “extremely proving the event to be a timely and essential leased from Cuba for more than 100 years? aggressive” in adopting a wartime posture. exploration of the proper legal response to Lower courts had ruled that Cuba, and not Golove contrasts the current war on terror 21st-century methods of war. — J.B.

AUTUMN 2004 THE LAW SCHOOL 39 civil litigation and international terrorism; and William Wechsler, former director for transnational threats at the National Security Council, on cutting off terror financing. With required readings posted on the Center’s Web site, the colloquium brims with dialogue and debate. This intellectual exchange is at the core of the Center’s mission of facilitating discussion across borders, professions, and perspectives as to how to fight the war on terror. “As we implement our program,” Pildes says, “I can see the Center making special policy recommendations or assisting in designing new institutional structures such as special terrorism courts.” In addition, the Center hosts two major conferences each year. The one held in November 2003, “Are We Safer? Transfor- mations in Security After September 11,” discussed how to resolve the tension between civil liberties and the need to Rohan Gunaratna, flanked by Professors Richard Pildes (left) and Stephen Holmes, gird our national security. The other, at the Center on Law and Security’s Fall 2003 Colloquium. held in June 2004, gathered antiterrorism experts for two days of intense talk branches of government as they each struggle to delimit and at NYU’s La Pietra campus in Florence. deploy the tools of counterterrorism. A frequent commentator on (Please see full story on page 57.) the intersection of domestic and international legal institutions, What Karen Greenberg, the Center’s Pildes recently published “Conflicts Between American and Euro- executive director, has been gratified to pean Views of Law: The Dark Side of Legalism” in the Virginia learn is that no side of the debate on Journal of International Law. He has shared his scholarship on

Professor Stephen antiterrorism has a monopoly on respect domestic institutional handling of terrorism cases with gatherings Holmes for the law. Despite how the media reports of federal judges, organized by the Law School’s Institute of Judi- on the Patriot Act, Greenberg believes that cial Administration. These types of efforts to assist policy-makers, “law enforcement ofﬁcials, including in the Bush administration, government officials, think tanks, and the media are extended are hesitant to bend the law to accommodate hysteria about terror- through the Center’s online reading lists and reference materials, ism. They have respect for the law and for their profession and are including such topics as civil liberties issues, bioterrorism, and struggling with these issues as much as anyone.” ethno-territorial minorities in Western Europe. The Center also sponsors research and scholarship in coun- Opportunities for student involvement extend beyond the terterrorism topics, such as Golove’s and Holmes’ article on ter- Center’s colloquium and other public events. Each summer, the rorism and accountability, published in the Center’s quarterly Center helps support Law School students whose internships review. Holmes has also been widely published in journals are connected with counterterrorism, either on a domestic or such as The Nation, The London Review of Books, and the website a global level. These internships facilitate the development of Salon.com. Rarely has serious legal scholarship so quickly been informed next-generation leaders who can address the issues converted into meaningful policy discussion. of counterterrorism with a depth of knowledge and a wealth of The same could be said of Pildes’ work on the processes experience. Meg Holzer (’05) spent part of her first law school of democratic discussion and decision-making within the three summer as an intern at the Organization for the Prohibition of Chemical Weapons in The Hague. She assisted in information dissemination about the importance of the Chemical Weapons Convention, in operation since 1998, including the treaty’s ban on chemical weapons and its goal of encouraging peaceful uses of chemistry. Each summer a student from the NYU School of Law is selected for an internship at Interpol in Lyon, France. The Center also recently announced a new postgraduate fellowship, the Fellow- ship in Global Counterrorism at Interpol. Sheridan England (’04) is the first and current fellow. He is working in the Ofﬁce of Legal Affairs at the agency’s offices in Lyon.

Latham & Watkins partner Alice Fisher defended the Patriot Act at the Center for Law and Security’s Open Forum on the subject. Seated to her left are moderator Tom Gerety, executive director of the Brennan Center for Justice, and Professor Stephen Schulhofer.

40 THE LAW SCHOOL AUTUMN 2004 Brennan Center’s Criminal Justice Program On Leave for a Noble Cause he still-developing Criminal Justice program at the NYU T School of Law’s Brennan Center for Justice provides a much- needed outlet for practical advocacy. Part public interest law firm, part think tank, and part advocacy organization, the Program has pursued diverse projects under the leadership of Professor Stephen Schulhofer and the program’s director Kirsten Levingston. The Program challenges popular assumptions about crime and punishment through careful analyses of criminal justice policy and practices, and concerted action to effect reform. Its work thus far centers on effective assistance of counsel, the fair enforcement of the criminal law, and crime and punishment. The Program’s flagship project is the Community Justice Institute (CJI), a resource for community groups, activists, and defenders working to improve policies at the local, state, and national levels. In designing the Institute, Levingston works to move private and public criminal defense practitioners from political isolation to more active involvement in communities. The Institute addresses the increasing alienation experienced by low- Professor Ronald Noble has been on leave since 2000 while income communities as a consequence of criminal justice practices, he serves as secretary general of Interpol, the 181-country such as “community policing,” that often ignore the views of international police organization that deals with issues of the communities they purport to protect. Using a methodology international terrorism, drug trafficking, money laundering, known as “community-oriented defense,” the Institute encourages illegal immigrants, and cyber crimes. When at the Law the development of partnerships among community organiza- School, Noble teaches courses on federal criminal law, gun tions—like schools, churches, and social service agencies—and control and gun rights, money laundering, and evidence. their local indigent defense service providers, so that they might While serving in the Clinton administration as undersecretary jointly identify mutual concerns and aspirations. The Brennan Center strives to elevate community voices in the of the Treasury for enforcement, he also managed to get back courtroom through its Community Amicus Practice. Using amicus to New York City each week to co-teach a seminar on The procedures, the Center files briefs in local prosecutions that have Regulation of Weaponry in Democratic Society with Professor policy implications beyond the case at hand, raising issues that the James Jacobs. At the Treasury, Noble oversaw such critical parties may not otherwise bring to the fore. The Center partnered crime-fighting agencies as the U.S. Secret Service; U.S. Cus- with the Seattle-King County Public Defender’s Office to file an toms Service; Financial Crimes Enforcement Network; Bureau amicus brief in State of Washington v. Lonnie McKinney, on behalf of Alcohol, Tobacco, and Firearms; and Criminal Investigation of criminal defense lawyers in the state of Washington contesting Division of the Internal Revenue Service. His career in public the random running of license plates by law enforcement officers. service has also included a job as an assistant U.S. attorney in The brief argued that the practice should be unconstitutional because it entails the exercise of infinite officer discretion, which Philadelphia, where he ran the criminal division. can lead to racially-biased policing. Although running license As Interpol’s chief executive officer, Noble is responsible plates based on a traffic violation or reasonable suspicion of crimi- for the day-to-day work of international police cooperation. nal activity may be a reliable police practice, the brief argued that Recent accomplishments include an investigation to retrieve the Washington state constitution protects its citizens’ privacy items stolen from a Baghdad museum during the war in Iraq; interests from government “fishing expeditions.” a new international notice for warning police, public institu- The Center also submitted an amicus brief on behalf of 100 tions, and other international organizations about potential Blacks in Law Enforcement Who Care, an advocacy group, in threats posed by disguised weapons, parcel bombs, and other People v. Glenn, urging the New York Court of Appeals to maintain dangerous materials; and the launch of a state-of-the-art its longstanding prohibition against illegitimate traffic stops, in which police claim to stop motorists for a traffic violation but global communication system called I-24/7, which provides instead are interested in investigating other activity. Partnering with the capacity to instantly reach law enforcement contact points lawyers at Schulte, Roth & Zabel, the Brennan Center filed an ami- across the globe and permits police to communicate a range cus brief in the U.S. Supreme Court in HUD v. Rucker, a case chal- of information, including photographs, fingerprints, and even- lenging the U.S. Department of Housing and Urban Development’s tually video and audio transmissions. “one-strike” policy. Under this policy, public housing authorities Noble maintains strong ties with the Law School. He was may evict tenants and their families if a family member or guest the moderator at the recent antiterrorism conference held engages in criminal or drug activity, on or off the public housing in Florence at NYU’s La Pietra campus (please see story on premises, even if the tenants did not know about the activity. page 57), he gave the Law School’s 2002 commencement In its monthly Conversation Series, the Brennan Center has touched on many other important criminal justice themes, such speech, and he moderated a panel on post-September 11 as the status of female offenders and the collateral consequences national security for the 2003 Reunion. — J.B. of mass imprisonment. A conversation held in 2003 featuring

AUTUMN 2004 THE LAW SCHOOL 41 In Fisher’s view, the Patriot Act has unjustifiably become “the bogeyman for civil libertarians,” mischaracterized as privacy-invading and rights-denying despite full congressional and judicial oversight of its implementation. Schulhofer responded with the argument he has made in his book The Enemy Within and in his testimony before the National Commission on Ter- rorist Attacks Upon the United States (the 9-11 Commission): “The legal issues concerning the scope of the Patriot Act are much less important than people on either side of the debate think.” The main obstacles to effective counterterrorism efforts, Schulhofer says, “are agency culture; human deficits; and budgetary, technological, and organizational deficits that prevented our national security apparatus from using the legal tools they had.” He pointed out that federal law enforcement authorities had identified Zacharias Moussaoui as a risk before September 11 and even had legal authority to search his computer, “but they dropped the ball.” Since then, many legal experts have been saying that to fight Professor Stephen Schulhofer: a champion for civil rights during wartime terrorism we need to shift the balance between liberty and security. This analysis is misguided, Schulhofer says, and diverts us from Dr. Paul Street, vice president of research and planning for the more important needs like upgrading technology, improving train- Chicago Urban League, illuminated the contrast between the ing and communications, and resetting law enforcement priorities. massive public, media, and policy-maker attention given to wel- Although conceding that some aspects of the Patriot Act were fare reform and the virtual neglect of racially disparate mass helpful and inoffensive, Schulhofer asserted that there have been incarceration and felony-marking. Street’s talk explored the “more than a dozen initiatives since 9/11 that impair freedom and direct and indirect social, economic, and political damage are not relevant to fighting terrorism.” In his view, maximizing inflicted on U.S. communities of color by mass incarceration, security does not require more surveillance laws; it requires more including its impact on the census, voting power, and budget resources to protect soft targets like ports, chemical plants, and allocation. Lectures like this pull in students as well as practi- weapons facilities. tioners and policy-makers. In the long run, according to Schulhofer, it is more critical to the U.S.’s national security that it uses its power responsibly and Stephen Schulhofer: Voice of Reason consistently with the rule of law. He sees overbroad and invasive Stephen Schulhofer, the Robert B. McKay Professor of Law, counterterrorism measures as “purchasing short term gains at the finds the Brennan Center’s research support indispensable to his price of fostering animosity of recent immigrants, Muslims work on civil liberties and the war on terrorism, including his abroad, and democratic nations everywhere.” recent contributions to amicus briefs in the Korematsu and Guantánamo Bay prisoner rights cases in the U.S. Supreme Court. Research assistance funded by the Brennan Center laid the foundation for much of the briefs’ historical review of U.S. civil liberties violations during wartime. Fred Korematsu first appeared at the U.S. Supreme Court during World War II when he refused, as an American citizen of Japanese descent, to be interned. He was prosecuted and convicted at the time, only to have his conviction thrown out decades later, and to be awarded the Presidential Medal of Freedom. Korematsu stepped forward again last year on behalf of military detainees being held without charge or access to counsel to argue that the United States must “respect the principle that individuals may not be deprived of their liberty except for appropriate justifications that are demonstrated in fair hearings.” As part of its ongoing efforts to bring moderation to debates on tactics deployed in the name of counterterrorism, the Center on Law and Security hosted “The USA Patriot Act: Where Do We Go From Here?” The event featured Schulhofer and Alice Fisher, partner in the litigation department of Latham & Watkins and former deputy assistant attorney general of the U.S. Department of Justice Criminal Division, and was moderated by Tom Gerety, executive director of the Brennan Center for Justice.

42 THE LAW SCHOOL AUTUMN 2004 This op-ed by Stephen Schulhofer was originally published on July 3, 2003. Since its publication, the U.S. Supreme Court has reviewed cases concerning the detention of terrorism suspects, including the Padilla case discussed here. Although a definitive ruling on the Padilla case was sidestepped, in a sister case concerning the detention of Louisiana-born Yaser Esam Hamdi, the Court ruled that U.S. citizens and foreign nationals held at Guantánamo Bay may challenge their treatment in U.S. courts, and should be allowed access to attorneys. Ultimately, the Court’s rulings largely uphold the position that Schulhofer argues for in this piece, though the decisions left open many details about exactly what the limits on presidential power would be.

American Injustice

In times of war, can the president Yes. We are not concerned here with This is not a partisan political point. imprison someone indefinitely, with no abstract principles or legal fine points. Britain, when it faced devastating terrorism access to the courts or to anyone in the Checks and balances are the foundation of in Northern Ireland, extended executive outside world? constitutional government. Without them, detention beyond the usual 48 hours. The That’s the power that the Bush admin- it’s not just outsiders and those who are European Court of Human Rights, which istration has claimed once again. Its actions different (in this case Muslim-Americans) has power to review antiterrorism mea- have drawn scant attention or protest. Yet who pay a steep price. Secrecy and uni- sures in the European Union, upheld the they lie far outside the accepted bounds of lateral executive power invariably breed special measures, but only because deten- constitutional democracy, by our own tra- official arrogance, incompetence, discrimi- tion without a hearing could not exceed ditions and the contemporary standards of nation and corruption. seven days and detainees were guaranteed all other Western nations. Secrecy and unilateral executive power an absolute right to consult a solicitor 48 Ali Saleh Kahlah al-Marri, a student sow division and mistrust. Probably no hours after arrest. in Peoria, Ill., was being held for trial on chief executive in our history was more Turkey went too far when it detained charges of lying to the FBI, but the Bush fully trusted and revered than George terrorism suspects without access to administration declared him an “enemy Washington. Yet the Founding Fathers, led lawyers for 14 days. The European court combatant” June 23 and transferred him by Washington, insisted that presidential found Turkey’s more extreme measures to a Navy brig in South Carolina. Relying power be subject to the check of an inde- impermissible, even in response to lethal on undisclosed sources, the president pendent judiciary. terrorist attacks that had claimed more determined that Mr. al-Marri associated Fortunately, we need not choose than 4,000 civilian lives in its Kurdish bor- with al-Qaida and therefore should be between unchecked terrorist threats and der region. The Council of Europe has reaf- held incommunicado indefinitely, with unchecked dangers of executive abuse. firmed, post-Sept. 11, that prompt judicial no detour for the formality of a trial. National emergencies call for fine-tuning control over detention is essential to the Mr. al-Marri came here from Qatar, but our due process system, but we need not rule of law. Yet Mr. Padilla has been held the administration claims the same power abandon trials altogether. Judges and incommunicado for more than a year. over American citizens. Jose Padilla, an defense counsel can be subjected to There should no longer be confusion American arrested in Chicago in May 2002, security clearances, and evidence can be or equivocation about Bush administration is being held in the same Navy brig. For screened in closed hearings to protect claims of power to detain alleged “enemy more than a year, he has had no contact secret material. We have used such safe- combatants.” The erosion of checks and with the outside world. Like Mr. al-Marri, guards for years without difficulty in sensi- balances, through pervasive secrecy and Mr. Padilla is suspected of having plotted tive national security cases. efforts to shield executive action from with al-Qaida, but neither he nor his Throughout our history, even in wartime, scrutiny by Congress, the courts, the public lawyer has been allowed to respond to that the Supreme Court has insisted that deten- and the press, destroys accountability and charge and no court has examined the tion be under the control of independent weakens law enforcement far more than basis for it. civilian courts, except when dealing with it protects us. These are glaring departures from ordi- acknowledged members of our own or an No less than other nations, the United nary rules of law. But Americans largely enemy’s armed forces. To treat suspected States has the strength to fight terrorism like and trust President Bush. So, compared enemies the same way is to assign infallibil- effectively without abandoning our com- with the risk of a devastating terrorist ity to presidential assessments of raw intelli- mitment to constitutional government. attack, are safeguards against government gence and to assume away the reason for By Stephen J. Schulhofer abuse all that important? having courts in the first place. Copyright © 2003, The Baltimore Sun

AUTUMN 2004 THE LAW SCHOOL 43 The Curriculum Is Criminal

or breadth of subject matter and depth of acy, and defenses such as necessity, duress, self-defense, and inquiry, the NYU School of Law’s criminal law insanity. In addition, the syllabus explores the theoretical under- and justice curriculum is exceptional. The pinnings of such topics as justifications for punishment, grounds required first-year course in Criminal Law is just for exculpation, culpability for inchoate and anticipatory crimes, the first chapter of a fascinating exploration of and group criminality. What truly distinguishes NYU’s criminal criminal law and procedure jurisprudence and law course is the passion its faculty brings into the classroom. policy. Upper-year courses, colloquia, and semi- Professor David Richards, who has taught the subject matter for narsF offer a wide range of perspectives on criminal law, including almost 30 years, explains how he continues to ignite his students’ theoretical, sociological, empirical, and international. Students interest: “As a teacher you have to frame things from your gut, who are interested in criminal law practice can enroll in clinics from what really interests you.” where they apply their classroom learning to hands-on work for Two other first-year courses offer valuable skills and perspec- defense counsel, prosecutors, law enforcement, social services tives to students interested in pursuing careers in criminal law. providers, or community outreach programs. “My experiences The required first-year course on the Administrative and Regu- with the criminal law program were fantastic,” says Nathaniel latory State equips students to evaluate critically the many “Nik” Kolodny (’04). Kolodny’s accumulated experiences in his important criminal justice decisions that are made outside the first-year criminal law class, Professor S. Andrew Schaffer’s crimi- courtroom and in administrative settings, for example, initiating nal procedure class, and Professor Anthony Thompson’s Offender a criminal investigation, drafting the charge, plea bargaining, Reentry Clinic led to his third-year writing project on the collat- establishing sentencing guidelines, managing correctional insti- eral civil consequences of criminal behavior. “This is an amazing tutions, and ruling on and monitoring parole. The first-year criminal justice department,” says Professor Thompson. “No other Lawyering Program, with its closely structured, collaborative law school offers the range and strength of NYU’s program.” experiences of law in use, is especially critical to the training of a criminal lawyer, a career which typically allows for only the briefest apprenticeship before a young lawyer is thrust into positions of life-or-death responsibility. Many of the lawyering The First Year’s Core Curriculum faculty are specialists in criminal law, and regularly participate he first-year introductory course in Criminal Law covers the in the criminal law group’s programs. Faculty members include T general principles and elements of criminal liability and Jenny Roberts (’95), a staff attorney and trial trainer at the New defenses. Learning the basics of criminal law in the 21st century York City Legal Aid Society’s Criminal Defense Division; Mar- does not entail paging through the penal code and memorizing shall Miller, a former Assistant United States Attorney for the the definitions of particular crimes. Rather, the course is orga- Eastern District; Tigran Eldred, a criminal defense lawyer who nized by general concepts that cut across all criminal conduct: has worked at the Criminal Appeals Bureau and the Federal act and omission, causation, mental state, attempt, and conspir- Defenders Division of the Legal Aid Society, and at Appellate

44 THE LAW SCHOOL AUTUMN 2004 Advocates; and Babe Howell (’93), who was a criminal defense lawyer in Legal Aid’s Criminal Defense Division and the Neigh- borhood Defender Service of Harlem. A View from the Aisle Advanced Coursework It is 2004 in a packed classroom on Washington Square, but The Upper Years’ Foundational Courses the students inside are back on the streets of 1930’s Brooklyn. tudents interested in criminal law usually begin their second “Violence, greed, and sex,” Professor Stephen Schulhofer S year by taking Evidence and one or more of several advanced announces to the first-year law students about to embark on a courses in specific areas of substantive and procedural criminal semester in crime, listing the three reasons for illicit behavior. law. The most essential of these is a course in criminal procedure. The class proceeds to dissect the first reading assignment While most law schools offer a single, basic survey course in of the course, the 1930 case of People v. Zachowitz. The facts criminal procedure, NYU law students can choose among a vari- are suffused with two of the three reasons: the defendant ety of approaches to the subject. A comprehensive survey course shot a man who had insulted his wife. But Schulhofer quickly is taught by Adjunct Professor S. Andrew Schaffer, a former assistant U.S. attorney in Manhattan and general counsel for New dispatches any misapprehension among his 120 would-be York University. This class examines all of the investigative and Ellenor Frutts or Jack McCoys that studying criminal law will adjudicatory stages of the criminal process, through trial, includ- resemble a season of The Practice or Law & Order. ing an analysis of constitutional and statutory provisions and “The purpose of criminal law,” he says, “is to take highly judicial decisions governing the various procedural steps in the charged, volatile social dynamics and impose systematic rules administration of criminal justice in federal and state courts. so that society’s responses to its worst impulses, to violence, Drawing on Professor Schaffer’s knowledge of how the criminal greed, and sex, are predictable, consistent, and fair.” Criminal justice systems works at ground level, the course covers arrests, law, explains Professor Schulhofer, is the study of the rela- stops and frisks, searches and seizures (including wiretapping), tively detailed, technical rules society has developed to control interrogation, grand jury proceedings, and trial-related problems such as competence of counsel, the requirement of proof beyond crime, to satisfy social demand for punishment, and to control a reasonable doubt, guilty pleas and plea bargaining, discovery the government’s response to crime. Criminal law may start and the prosecutor’s duty to disclose exculpatory evidence, and off sounding intrinsically interesting because of the powerful jury selection. emotions involved, but its purpose is to reduce those emo- A second option for students interested in criminal proce- tions to abstractions in the pursuit of justice. dure is Criminal Procedure 1: Police Investigations, which cov- So, rather than discussing how angry, indignant, or out- ers the first half of the criminal process—police investigation of raged Zachowitz was when he pulled the trigger, the class crimes. Taught alternatively by Professor Stephen Schulhofer or debates whether the trial court should have admitted evi- Barry Friedman, the Jacob D. Fuchsberg Professor of Law, who is a prominent constitutional scholar, this course deals with the dence of the defendant’s gun collection to show his propen- federal constitutional limits on government authority to gather sity to commit the crime. They also analyze Judge Cardozo’s evidence and investigate crime. It covers Fourth Amendment decision overturning the conviction and delineating the rules limits on search and seizure, arrest, electronic surveillance, the for admissibility of evidence showing dangerous disposition. Fifth Amendment privilege against self-incrimination, and the Passion nonetheless finds its way into Schulhofer’s classroom Sixth Amendment right to in the voices of students hashing out the precepts of the basic counsel, especially in their rule of evidence that determines admissibility by weighing relation to police interroga- probative value against unfair prejudice. Along the way they tion and identification pro- discuss the types of evidence relevant to a defendant’s men- cedures such as lineups. While it emphasizes current tal state, why a defendant is allowed to introduce character law and the evolution of evidence when the prosecution is not, and why criminal law Supreme Court doctrine, focuses on acts and not character. the course also considers As much as Schulhofer emphasizes the need to divorce related policy questions criminal law from the passions that underlie criminal con- as well as approaches duct, his students’ enthusiasm is to similar problems in undiminished as they other countries and in swarm the lectern the emerging interna- after class to continue tional human rights jurisprudence. the debate. Criminal law’s roots in our primal emotions and its centrality to the purpose of government is plainly sufficient to sustain law student fascination with the course, and to beckon a good number of NYU law graduates into the field. — J.B.

AUTUMN 2004 THE LAW SCHOOL 45 Alternatively, or in connection with the Police Investigations course, students may take Professor James Jacobs’s Criminal Pro- Making a Federal Case cedure: Bail to Jail. This course covers criminal procedure from the point of the suspect’s first appearance in court, through the appointment of counsel, charging, discovery, plea bargaining, trial, sentencing, appeals and habeas, and finally, defense and As a federal prosecutor for the past 10 years, Samuel Buell prosecutorial ethics throughout the process. Students also can (’92) speaks from practical experience—and as a supervisor take Jacobs’ Federal Criminal Law, a substantive criminal law and colleague of many recent Law School graduates. Buell was course that examines the jurisprudence of a whole range of com- on special detail to the U.S. Department of Justice’s Enron Task plex federal crimes, including mail fraud, securities fraud, RICO Force from January 2002 to March 2004, commuting back and and Hobbs Act infractions, money laundering, criminal civil forth to his home in Boston where he had been serving as an rights violations, and corruption and bribery. Attention is also assistant U.S. attorney in the Organized Crime Section. His vic- devoted to the federal sentencing guidelines. An overarching theme of the course is the proper role of federal criminal law tory in the Enron-related Arthur Andersen trial followed on a and federal law enforcement agencies. Students explore such string of successes prosecuting violent drug gangs in Brooklyn topics as how to account for the inexorable expansion of federal and the notorious Winter Hill gang in Boston. criminal law, and what are the consequences for this expansion. Buell came to the Law School thinking that he would use In his popular course Juvenile Justice, Jacobs covers the his law degree to go into government in some capacity, but full range of criminal procedures applicable to juveniles. These with no idea of a specific path. He quickly became excited include: searches and seizures, pretrial interrogation, confidential- about criminal law in Professor James Jacobs’ first-year course ity, intake and diversion, pretrial detention, transfer to adult court, with its orientation toward the law enforcement apparatus and right to counsel, sentencing, and conditions of confinement. Stu- the sociology of crime and punishment. “I found criminal law dents augment casebook study with scrutiny of juvenile criminal records, analysis of empirical studies and materials on juvenile cases much more interesting than other areas of law,” Buell crime and the handling of juvenile offenders in other countries. says. “Criminal law is the subject where the rubber meets the The course takes students beyond recent sensational headlines of road in terms of government interaction with citizens.” He also high school shootings and child prostitution to the jurisprudential studied criminal litigation with Professor Anthony Amsterdam, and sociological underpinnings of juvenile crime and the possible whose “lawyering” approach to the subject, with in-class simu- legal and policy alternatives that are available. lations of criminal proceedings, paid off for Buell in practice. Rounding out the substantive foundational courses is Busi- “The great strength of NYU’s criminal law program is how it ness Crime. NYU is one of the few law schools in the country strikes the optimal balance between theoretical grounding in that offers this course on a regular basis, with two faculty members on hand to teach it—Professors Jennifer Arlen and Harry the law and preparation to put it to use in practice,” he says. First. The two are now collaborating on a casebook dealing After a summer interning at the U.S. Attorney’s Office for with this topic, as mentioned earlier. The course examines the the Eastern District of New York, Buell was hooked. He spent substantive and procedural law problems associated with high- four more years in the Eastern District after law school and impact economic crime committed by corporations and their still becomes animated talking about the Brooklyn federal managers. An overarching topic of the course is the question courthouse, where he found a unique working culture fed by of whether criminal liability is appropriately imposed on organi- a steady diet of cases supplied by organized crime, drug zations for economic behavior. On the substantive side, topics gangs, and airport customs violators. Assigned to the district’s include discussion of the basic federal criminal laws used against Violent Criminal Enterprises initiative, Buell and his colleagues economic crime (including mail and wire fraud, and violations of RICO and the Sherman Act), principles for imposing individ- pioneered using the RICO statute outside the organized crime ual and corporate criminal liability under these statutes, and context to attack drug-related gang violence. the sanctions that can be imposed under the federal sentencing But Buell says the nastiest courtroom battles he has guidelines. On the procedural side, topics include constitutional fought occurred in Houston, when he found himself up and common law corporate privileges, the grand jury, immu- against Arthur Andersen’s bulldog lead defense attorney, nity, and government evidence gathering. In the wake of the Rusty Hardin. Courtroom exchanges that the national press recent wave of high-profile prosecutions for securities routinely described as “open warfare” were peppered with and accounting fraud relating to Enron, Tyco, personal attacks on Buell as a “whiner” and “boy scout.” As and Worldcom, among Buell tries increasingly high-profile cases, he has received others, the Business Crime course has high marks for maintaining a professional demeanor in the been fully sub- face of “win at all costs” approaches. Buell recommends scribed and that no matter where you want to end student inter- up practicing law, start in New York est in the City: “Once you’ve tried criminal subject matter cases in New York, you’ve passed only continues the litmus test and you can get to intensify. hired anywhere.” — J.B.

46 THE LAW SCHOOL AUTUMN 2004 poses to society and to traditional law enforcement techniques. Seminar Offerings Goldstock tries “to get the students to think about the practical eminars offered by the Law School’s adjunct faculty have problems of controlling organized crime, using the law as a means, S shown particularly strong appeal, starting with Corruption and not an impediment, to breaking up criminal organizations.” In Corruption Control taught by adjunct professor Ronald Gold- simulated investigations, Goldstock and his students explore how stock. Goldstock can count among his many accomplishments in search and seizure law, physical and electronic surveillance tools, the field of criminal justice the creation of the Independent Private documentary evidence, undercover investigations, and grand jury Sector Inspector General Program, through which business orga- proceedings can be used to gut the mob. At one point, students nizations are required to hire private sector watchdogs to monitor examine a recalcitrant witness before the grand jury. The RICO their affairs for unethical and illegal conduct. His seminar analyzes statute is also explored in detail as are a variety of noncriminal the types of corruption that exist in both the public and private remedies including forfeiture and court-imposed trusteeships. Stu- sectors, the means by which a variety of criminal and nontradi- dent papers written for this seminar have ranged from defining tional remedies may be used to reduce the frequency and impact probable cause to the comparative jurisprudence of electronic of corrupt activities, and the constitutional and statutory problems surveillance in the United States and Japan. that are implicated by such schemes. Goldstock journeys through With Professor Jacobs, Goldstock will be teaching a new semi- the various provinces of corruption—each of the three branches nar this year, Privatization of Criminal Justice. In recent years, of government and assorted sectors of industry. “I want the stu- there has been a trend toward private firms providing guard and dents to think about why vulnerabilities to corruption exist, and protective services, building and managing penal institutions, and the types of controls that would work in each setting,” he says. providing mediation and conciliation services as a substitute for With his experience as director of the New York State Orga- the state-run legal system. Even those of us who have little interac- nized Crime Task Force for 13 years, and as a consultant to the tion with the criminal justice system experience the effects of its Northern Ireland Organized Crime Task Force, it is no surprise increasing privatization in the form of gated communities, private that Goldstock also teaches the seminar on Organized Crime Con- video surveillance, business loss prevention methods, office build- trol. This class explores the variety of challenges organized crime ing security, and citizen foot patrols and radio-alert networks. This

A Clash of Conscience and Responsibility

When Jamie Orenstein (’87), who was sworn in as a magistrate inquiries arising from the incident at the Branch Davidian com- judge last spring, worked as a prosecutor, he helped convict mob pound near Waco, Texas. He also advised former Attorney General boss John Gotti. Later, Orenstein was detailed to Denver to serve as Janet Reno on criminal law matters, including the death penalty. one of the prosecutors who convicted Oklahoma City bombers “Janet Reno is personally opposed to the death penalty but sought Timothy McVeigh and Terry Nichols. During his years in the Eastern it more than any other attorney general in history because she did District U.S. Attorney’s Office, he rose to the position of deputy chief her job in good faith,” Orenstein says. “That’s the tough part of of the Organized Crime and Racketeering Section. public service.” The Oklahoma City bombing case, more than any other, high- Orenstein eventually returned to New York City, his hometown, lighted the tension between public duty and private conscience for for a stint as a partner at Baker & Hostetler doing white-collar crimi- Orenstein, an opponent of the death penalty, who frequently writes nal defense work and corporate investigations. Orenstein also and speaks on the topic. “When I signed up for the system, I signed rejoined the Law School’s adjunct faculty, where he co-teaches the up for its rules,” he says of his stint as a federal prosecutor. Even popular Complex Federal Investigations seminar with former East- though he thinks the death penalty is a bad choice for society, given ern District colleague, and now U.S. District Court Judge, John Glee- that the Oklahoma City bombing was, at that point, the single most son. Many of the crowd that sparked Orenstein’s interest in criminal horrible criminal act committed on U.S. soil, it was important to law are still here, like adjunct S. Andrew Schaffer and the Edwin P. pursue the death penalty against McVeigh and Nichols; otherwise, it Webb Professor of Law David Richards, and he is impressed by the would be difficult ever again to seek the death penalty in some less current diversity of faculty and course offerings. Reflecting on his heinous case. A prosecutor cannot selectively opt out of the system academic experience, Orenstein comes back to the professors who he is defending, he notes. “seemed to really enjoy teaching and were interested in the law as Orenstein’s thoughtful approach to his duties as a prosecutor something that can and should make sense, that is an active force garnered him numerous awards and commendations, including in society, not just a set of rules on the back of the game board.” twice receiving one of the Justice Department’s highest honors, the Reminiscing about Schaffer’s criminal procedure class, Orenstein Attorney General’s Award for Distinguished Service. Following his recalls the excitement being palpable. “I was sitting in class on the Denver assignment, Orenstein served in the Department of Justice’s day that John Gotti beat his first criminal case on March 13, 1987,” (DOJ) Office of Legal Counsel, advising the president and the attor- Orenstein says, “and all I kept thinking was I hope this guy is ney general on constitutional law. From 1999 to 2001, he served as around when I’m a prosecutor so that I can get a piece of him.” associate deputy attorney general and chaired the DOJ’s working Five years later, the jury was issuing a guilty verdict in the Gotti group handling the civil litigation and internal and congressional case—tried by Orenstein and Gleeson. —J.B.

AUTUMN 2004 THE LAW SCHOOL 47 seminar looks at the ramifications of outsourcing to private firms through the defense and prosecution theories of the case at both the various functions of criminal justice administration that have the suppression motion and the trial, and conduct simulated traditionally been the exclusive domain of the state. Students are witness examinations at both proceedings. encouraged to consider the comparative effectiveness of the private Of the full-time faculty, Professor Jacobs has offered the most versus state-run criminal justice system. eclectic group of seminars over the years, in addition to the ones he The seminar Complex Federal Investigations is taught by the co-teaches with Judge Gleeson and Goldstock, reflecting his diverse two former federal prosecutors who convicted John Gotti: Judge interests in criminology. Fans of his highly acclaimed book Can Gun John Gleeson of the Southern District of New York, and Jamie Control Work? can search for answers in Gun Control: The Regula- Orenstein (’87), who also helped convict Oklahoma City bomber tion of Weaponry in Democratic Society. In this seminar, Jacobs Timothy McVeigh and who is now a magistrate judge in the East- takes a wide-ranging and interdisciplinary look at the regulation of ern District of New York. In examining the problems and issues weaponry. Time is spent first discussing the nature of the problems that arise in complex federal investigations, the seminar addresses that can arise out of private gun ownership. Then, the course exam- topics such as the powers and use of the federal grand jury, including recent efforts to reform it; the Even those of us who have LITTLE INTERACTION with the criminal investigative use of immunity, contempt, and perjury; the use of justice system EXPERIENCE THE EFFECTS of its increasing privatization bugs, wiretaps, and confidential in the form of gated communities, , informants; the negotiation of PRIVATE VIDEO SURVEILLANCE cooperation agreements and the business methods, office building security, and use of accomplices witnesses; LOSS PREVENTION investigative contacts with persons citizen FOOT PATROLS and radio-alert networks. represented by counsel; the various ways such investigations can intrude upon the attorney-client relationship (including through ines the conception, implementation and enforcement of federal law attorney subpoenas and disqualification); the joint defense privi- (for example, the Brady law) that seeks to keep firearms out of the lege; and the fundamentals of the RICO statute. wrong hands, and of other gun controls like the assault rifle ban and Judge Gleeson also teaches the popular seminar Sentencing. efforts to ban “Saturday Night Specials.” Time permitting, Jacobs This course looks at the purposes of the federal sentencing guide- also looks at the regulation of knives, chemical weapons, and explo- lines and the extent to which they actually inform sentencing today. sives. The seminar examines the way that criminal sentencing law The seminar examines the sentencing reform movement of the 1970s handles crimes committed with deadly weapons and deals with ques- and 1980s that resulted in the United States Sentencing Guidelines, tions of federalism and the Second Amendment. It also covers tort which students study in great depth. Current themes in sentencing suits against gun manufacturers and a range of new proposals includ- reform also surface, including the issues of sentence bargaining and ing smart-gun technology, trigger-locks, and one-gun-per-month. judicial discretion under the guidelines. Drawing on Judge Gleeson’s Anticipating his next book, Jacobs also teaches a seminar on wide contacts in the criminal justice system, the seminar involves the Labor Racketeering and Union Democracy, which covers the rela- various participants in the sentencing process: judges, prosecutors, tionship between organized crime and organized labor. Jacobs and defense attorneys, probation officers, and inmates. his students examine the range of labor racketeering schemes includ- Professor Randy Hertz, the director of the Law School’s clinical ing extortion of employers (labor peace) and union members, thiev- program, teaches a seminar entitled Criminal Litigation, which uses ery from the union, pension and welfare fraud, violence against a simulated criminal case to explore the ways in which lawyers use dissidents, and the policing of employer cartels. The seminar also substantive criminal law, criminal procedure, and the rules of probes governmental responses to labor corrup- evidence in the course of prosecuting or defending a criminal tion and racketeering, including the Anti-Rack- case. The focus is on litigation planning, particularly the develop- eteering Act of 1934, the Hobbs Act, the ment of a coherent theory of the case and strategies for implement- Taft-Hartley Act, ERISA (Employee Retire- ing that theory. Students research applicable law, ment Income Security Act), the Landrum investigate facts (by planning and conduct- Griffin Act, and the use of civil RICO ing a series of investigative inter- (and court-appointed trustees) to purge views), devise an overall racketeers from mobbed-up unions. litigation strategy Jacobs encourages his students to think (including a independently on these issues: “I want my stu- suppression dents to analyze whether union democracy is a viable motion), strategy for combating labor racketeering.” think As co-director with Jacobs of the Law School’s Center for Research in Crime and Justice, Jerry Skolnick keeps pace in mounting seminars that excite and edify. In Police, Law and Society: Issues in Democratic Policing, he brings 30 years’ experience studying the history, sociology, and politics of the police. The course explores the origins of democratic policing in law and politics, and the way police departments are organized and function. Students are encouraged to ask why law enforcement officials act the way they do—in patrolling, searching, seizing, and interrogating—and what are the occasions, explanations, and

48 AUTUMN 2004 remedies for police brutality, corruption, and perjury. As the nation’s leading expert on police integrity and accountability, Skolnick is Criminal Law Seminars uniquely situated to guide his students in a dialogue about the kind of rules, organizations, and institutions that are appropriate and effective for maintaining police accountability in a democratic society. In Skolnick’s seminar on the Regulation of Vice, he brings his measured professionalism to bear on such raw subjects as the sex- trafficking trade and heroin addiction. The course starts off asking what vice is, and how it differs from crime, and then moves on to explore a range of vices involving gambling, sex, and drugs—legal and illegal. Skolnick digs beneath the penal code definitions to inquire into the etiology of deviant behaviors and the sociological underpinnings of morals legislation. The students weigh the pros and cons of decriminalizing vice, and whether and how to regulate it if it does not violate the penal code. “I am less interested in the specific laws governing the prosecution of vice crimes,” says Skol- nick, “than in the social and cultural developments that account for fluctuations in public and law enforcement interest in such crimes.” David Garland Professor Bryan Stevenson teaches two of the most popular L The Death Penalty: Social and Historical Perspectives seminars in criminal law. In Race, Poverty and Criminal Justice, the class examines the influence of race and poverty in the admin- Judge John Gleeson istration of the criminal justice system. The seminar explores the L Sentencing effects upon the criminal justice system of conscious and uncon- Judge Gleeson and U.S. Magistrate Jamie Orenstein (’87) scious racism and a variety of mechanisms that disadvantage the L Complex Federal Investigations poor. The subjects covered in the course include racial disparities in charging, discretionary judgments in the prosecution of crimi- Ronald Goldstock nal cases, and the formulation of crime policy in the United States. L Corruption and Corruption Control The course considers the effectiveness of anti-discrimination law L Organized Crime Control in the area of crime and punishment. Stevenson, a nationally renowned capital defender who teaches Judge Richard Goldstone the Law School’s Capital Defender Clinic in Alabama, also teaches L The Law of War and International Criminal Courts a seminar entitled Capital Punishment Law and Litigation, which examines the constitutional and legal structure of capital punishment Randy Hertz and the procedures regulating capital trials, appeals and post-convic- L Criminal Litigation tion litigation. The seminar explores the factors that may affect the Stephen Holmes use of the death penalty, including political considerations, percep- L Political Trials: Dilemmas of International Criminal Law tions of crime, race, and poverty. The course appraises the degree to which litigation strategies have and have not succeeded in respond- James Jacobs ing to problems in the administration of the death penalty. L Gun Control: The Regulation of Weaponry Professor of Law Emeritus Harry Subin’s course on Sex Crimes in Democratic Society allows students to explore in depth the complex and sensitive issues L Labor Racketeering and Union Democracy that arise when the criminal law is used to prevent and deter what might most inclusively be called unwanted sexual conduct. The James Jacobs and Ronald Goldstock course reviews developments in statutory and case law defining sex L Privatization of Criminal Justice crimes, with particular emphasis on the crime of rape. Students also explore problems of proof that impede prosecution in sex crime Youngjae Lee cases, and the evidentiary reforms designed to address those prob- L Criminal Law Theory and the Constitution lems. In addition, the seminar examines the efforts of mental health professionals to identify and treat sex offenders suffering from vari- Stephen Schulhofer ous forms of mental disorder, as well as the constitutional and policy L Indigent Legal Defense issues surrounding various preventive sanctions, including civil com- Jerome Skolnick mitment, chemical castration, and sex offender registration laws. L Police, Law and Society: Issues in Democratic Policing Subin also teaches Federal Criminal Practice, a study of the pro- L Regulation of Vice cess by which a federal criminal case is developed and resolved by prosecutors and defense attorneys. Students scrutinize a hypothetical Bryan Stevenson case from the point at which the initial decision to prosecute is made L Capital Litigation through each stage of the process, to disposition by trial or plea and L Race, Poverty & Criminal Justice sentencing. Students interested in continuing beyond doctrinal analysis of criminal procedure and evidence law appreciate the seminar’s Harry Subin emphasis on how the rules are applied in practice and on the written L Federal Criminal Practice and oral advocacy skills required of lawyers. L Sex Crimes David Garland teaches The Death Penalty: Social and Histori- cal Perspectives, an in-depth analysis of the institution of capital

AUTUMN 2004 THE LAW SCHOOL 49 punishment. Using historical and sociological research, students Crimes casebook. Eguchi also signed up for the two-semester crimi- first explore how the forms, functions, and social meanings of cap- nal procedure sequence, taking Police Investigations with Professor ital punishment have changed over time, and what social forces Friedman and Bail to Jail with Professor Jacobs. The two criminal have driven these changes. The class then focuses on the modern law seminars taught by Judge John Gleeson also made it onto American death penalty, and the specific characteristics of the insti- Eguchi’s schedule—Sentencing and Complex Federal Investigations. tution that have taken shape in the post-Furman era. “I was most impressed with his credentials as a practitioner,” says With the richness of these substantive course offerings, three Eguchi, explaining why he double-dipped in Gleeson’s classroom. years of law school is simply not long enough to exhaust NYU’s “It’s important to experience the practical-minded approach of a criminal law curriculum. Students seeking to construct a “major” in judge and a prosecutor, which is where the decisions are made in substantive criminal law from NYU’s course offerings might con- the criminal justice system.” Although Eguchi plans to practice sider modeling their schedule on Weston Eguchi’s (’04) transcript. bankruptcy law after graduation, he credits his criminal law course- Building on the first-year criminal law course, Eguchi studied Busi- work with preparing him to deal with the similarly complex proce- ness Crimes with Professor First, for whom he later worked as a dural environment of bankruptcy proceedings, where the lawyer’s research assistant, helping update the fraud section of First’s Business role is often to help reconcile multiple opposing interests.

Putting the Law into Practice: Fieldwork Clinics in Criminal Law

Capital Defender Clinic–Alabama The clinic focuses on representing death-row prisoners on appeal and in post-conviction proceedings. Students work in Montgomery, Alabama, on pending cases currently managed by the Equal Justice Initiative of Alabama. Capital Defender Clinic–New York Students in this clinic work with clinical faculty and staff attorneys of the NAACP Legal Defense Fund on death penalty cases, as well as matters relating to capital punishment, habeas corpus, and the criminal justice system. Community Defender Clinic Working as consultants to teams of Legal Aid Society lawyers and supervisors, students identify issues regarding criminal justice policy that might be addressed through community outreach, legislative

reform, and media advocacy and explore ways that defender offices Gabrielle Prisco (’03), argues to a jury in a simulated trial in the Juvenile/Criminal Defense Clinic. Clinic Professor Randy Hertz can play a more effective role in the criminal justice community. plays the judge. Comparative Criminal Justice Clinic Students examine how different nations use criminal law to combat Juvenile/Criminal Defense Clinic domestic violence. Some students work in New York City’s criminal Under the supervision of faculty members and staff attorneys in the defense offices and advocacy organizations. Others are placed in New Legal Aid Society’s Criminal Defense Division and Juvenile Rights York City offices of United Nations agencies, non-governmental organi- Division, students take the position of defense counsel in criminal zations, and other not-for-profit agencies that work transnationally. cases in New York Criminal Court and juvenile delinquency proceedings in New York Family Court. Criminal Appellate Defender Clinic Students work with the Office of the Appellate Defender on appeals Offender Reentry Clinic of felony convictions in the New York Supreme Court, Appellate Students assist individual clients on the complex problems faced by Division, First Department. They write briefs and handle oral argu- individuals returning from prison to the community, such as suing ments in the Appellate Division. to reinstate employees wrongfully terminated due to prior convictions, and also work at the systemic level to reform policy, for Federal Defender Clinic instance, seeking changes in parole supervision policies. Students work with the Legal Aid Society’s Federal Defender Division in the Eastern District of New York on misdemeanor offenses such as Prosecution Clinic drug possession, simple assault, weapons possession, and petty theft. Conducted in conjunction with the Criminal Division of the U.S. Clinic students also assist federal defenders with felony cases in the Attorney’s Office for the Southern District of New York in Manhattan, U.S. District Courts for the Eastern and Southern Districts of New York. students assist in the prosecution of criminal cases in federal court.

50 THE LAW SCHOOL AUTUMN 2004

Practical Experience Going the Extra Mile for he NYU School of Law’s clinical offerings are unparalleled. T From established clinics such as the Juvenile/Criminal Defense Death Penalty Defendants Clinic to groundbreaking programs in capital punishment and offender reentry, the Law School enables students to put their legal education to work while helping people with real problems. The clinical program is premised on the three-tiered vision of University Pro- fessor Anthony Amsterdam, one of the nation’s leading law teachers and advocates. The NYU School of Law’s first-year Lawyering Program, upper-level simulation courses, and fieldwork clinics are the The Law School’s criminal law faculty is graced with four of building blocks for constructing a practical the leading thinkers on the death penalty. education in the law. As Randy Hertz, Professors Anthony Amsterdam and Bryan Stevenson Professor Anthony professor of clinical law and director of Amsterdam clinical and advocacy programs, puts it, are nationally renowned for their litigation in the area and “Clinics and simulation courses place stu- both have won numerous awards including the prestigious dents in role so that they can analyze every legal, factual, or strate- MacArthur Foundation Fellowship Prize, also known as the gic issue from the perspective of how it will affect the individual “genius award.” They teach courses on capital litigation and case and the individual client.” Clinics teach students a variety of have written highly influential articles on the subject. Amster- lawyering skills, including problem-solving, working with facts, dam’s 1972 Supreme Court victory in Furman v. Georgia developing a theory of the case, and making decisions in collabora- struck down all capital punishment statutes of the time. tion with the client. Stevenson recently represented a death-row inmate before the Fieldwork clinics take newly gained Supreme Court in Nelson v. Campbell, where he successfully lawyering skills to the streets, where in the unsheltered, unpredictable world of legal argued that a prisoner could challenge the means of execution practice, they start to make sense. “Three through a section 1983 action. Professor Randy Hertz, director years of law school realistically is too short of the Law School’s clinical program, is the co-author of the to learn all the skills a lawyer needs to country’s leading treatise on federal habeas corpus practice function,” Hertz remarks. “The best we can and procedure, which is regularly used by capital defenders do is teach students cognitive skills, how in challenging convictions and sentences. Professor David to work with the law and the facts, and Garland, who is known for his landmark work in criminology how to learn from experience.” Law School and the sociology of law, teaches and writes about the death graduates credit the dynamic structure of Professor Randy Hertz the clinical program with allowing them penalty and American culture. (Professor Philip Alston’s recent to “hit the ground running” when they appointment by the U.N. Commission on Human Rights as joined a public defender’s office or prosecutorial staff after gradua- Special Rapporteur on extrajudicial, summary, or arbitrary tion. “I cannot imagine a criminal law program that better prepares executions adds even more depth to the Law School’s exper- one for the day-to-day practice of criminal law,” says Robert Radick tise on issues of capital punishment.) (’97), assistant U.S. attorney for the Eastern District of New York. The Law School offers two capital defender clinics. In one, Students with this kind of training are hot commodities when taught by Amsterdam with Deborah Fins, an NAACP Legal they graduate. In the Bronx Defenders office, six of 20 public Defense Fund attorney, students work on capital cases defenders in the community-based alternative defense office are throughout the country, drafting briefs for use in the federal graduates of the clinical program who get to put their training to the test each day. The Public Defender Service for the District of courts, including the U.S. Supreme Court. In the other—which Columbia, universally regarded as the best defender office in the works in conjunction with the Equal Justice Initiative (EJI), the country and the most difficult one at which to get a job, currently Alabama-based organization headed by Stevenson—students employs no fewer than 10 Law School clinic alumni, including work on Alabama capital cases with Stevenson and EJI manag- five graduates of the Juvenile/Criminal Defense Clinic. ing attorney Randy Susskind, who is on the Law School’s A distinctive feature of the NYU School of Law’s clinics is that adjunct faculty. Students spend an entire semester in the faculty who teach them are tenured or tenure-track professors Alabama, finding witnesses, gathering facts, and drafting whose sole professional interest is the research and teaching they do pleadings on behalf of death row inmates. at the Law School. Most tireless among these is probably Hertz, Inspired by their exposure to these professors’ teaching and who in addition to directing the clinics, runs the innovative Clinical Law Review, serves on numerous bar association and court commit- writing, the students of the Law School acted on their own ini- tees, and teaches a triple course load most years. Hertz, who has tiative to create Law Students Against the Death Penalty, a been with the program since 1985—and was awarded the American student-run organization that brings in speakers, disseminates Association of Law Schools’ William Pincus Award for Outstanding information, and provides assistance to capital defender Service and Commitment to Clinical Legal Education last year—is offices in New York and around the country. quick to deflect attention from himself: “The superiority of the clini-

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areas of New York occupational law prohibit ex-offenders from obtaining licenses to work in a range of jobs. As Thompson, a for- Saving the Children mer public defender and private criminal lawyer, became interested in the challenge of representing such a client base, he realized that students could benefit from clinical training in the subject. “Stu- dents need to be prepared for the full range of challenges they Derwyn Bunton (’98) wasn’t from Louisiana. He wasn’t an would face as lawyers representing ex-offenders,” he says. expert, of all things, on the Louisiana juvenile justice system. Thompson has become well known in the reentry field as other But when Bunton graduated from the Law School and took law schools have begun to identify the issue as key to practical a job with the Juvenile Justice Project of Louisiana, he chal- problem-solving for criminal justice clients. He has even helped lenged, fought, and ultimately changed forever the nature another law school set up a smaller version of his clinic. The NYU and quality of Louisiana’s juvenile justice in six short years. School of Law, he says, offers a unique advantage: “The best crim- Upon his arrival at the Juvenile Justice Project as a staff inal justice faculty in the country is on hand to speak to the students, faculty members like David Garland, whose work on penal attorney (he is now the senior staff attorney), Bunton said that theory embodies exactly the approach that resonates with reentry he wrote letters to Governor Mike Foster documenting the programs.” Above all, what Thompson wants his students to take appalling level of abuse reported by his clients inside Louisiana’s away from their clinical experience is a “sense of balance.” Students juvenile prisons. When he got no response, Bunton sued. in the reentry clinic are taught that “they have to be sensitive to Once the suit commenced and discovery proceedings at legitimate concerns employers and others have about folks with the prison sites began, Bunton was shocked to discover the criminal records,” Thompson says. “We teach students a nuanced extent to which the institutions used physical repression, vio- approach to convincing people that their biases about ex-offenders lence, chemical restraints administered by untrained staff, and are causing them to make bad policy decisions.” corporal punishment to subdue and dehumanize the children. The worst, he said, was the Tallulah juvenile corrections facility Bryan Stevenson: Advocate for the Condemned Few clients are in as bad straits as those on death row in Alabama. where he found numerous children with untreated broken Professor Bryan Stevenson believes that there are too many problems jaws from beatings. of fairness and reliability with American’s criminal justice system to Tallulah was closed in June of 2004. Furthermore, during the permit capital punishment, especially in a state like Alabama, where Tallulah suit, Louisiana opened another juvenile corrections facil- he founded and directs the Equal Justice Initiative of Alabama (EJI). ity that also generated intense complaints of abuse. Bunton filed In windowless offices in a concrete building, 200 yards from where another suit, and closed the new prison down in just six weeks. slaves were auctioned 150 years ago, Stevenson and his students in the Capital Defender Clinic—Alabama, work on death-row cases in a state that has no public defender system. “My interest in doing this is to provide the poor with legal assistance,” cal program derives from the fact that the NYU School of Law con- Stevenson says. “I am not just bringing stu- tinues to hire the best talent available, who teach what they are dents down here for the sake of training interested in. We are not filling niches here; we are constantly inter- them, but to meet a critical legal need.” acting and learning from each other. It is an amazing experience to There they engage in fieldwork repre- be working with my colleagues on the clinical faculty.” senting death-row clients in appellate and collateral litigation filed in the state appel- Anthony Thompson: Life Guide for Ex-Offenders late courts, federal district and appellate Anthony Thompson, one of Hertz’s many accomplished clinical col- courts, and the U.S. Supreme Court. leagues, founded and supervises the first-of-its-kind Offender Reentry Students find themselves frequently on Clinic, which focuses on the complex problems faced by individuals the road to Alabama’s three maximum- returning from prison to the community. (Please see page 73 for an security prisons, interviewing death-row Professor Bryan excerpt of Thompson’s recent piece, Rethinking the Justice System: clients. They also travel the state inter- Stevenson Crime and the Community.) Students represent individual clients and viewing clients’ family members and other potential mitigation also work to reform policies that, on the basis of a criminal record, witnesses; reviewing local court files; examining state documents deny many ex-offenders public housing, certain kinds of jobs, public and evidence; and collecting information from jurors, trial assistance, educational student loans, and voting rights. The clinic lawyers, and other critical bystanders. “Most of the students are grew out of Thompson’s experience work- in a completely unfamiliar setting,” Stevenson says, “and they ing with the U.S. Department of Justice in learn the importance of understanding cultural context, and the the late 1990s, when it started focusing on dynamics of race, class, and language.” the imminent return of large numbers of ex- Students also help to prepare briefs, petitions, motions, and on offenders to communities with limited occasion, work on impact litigation designed to reform the environ- resources to provide them safe, affordable ment in which capital cases are litigated. Stevenson is justly proud of housing or viable employment. These indi- the results: “The clinic is the perfect nexus of legal training and edu- viduals frequently faced the painful irony cation while helping defendants that are literally dying for representa- that the training they received in prison to tion. No other law school offers a program where students spend an pave their way to a law-abiding life was ren- entire semester handling a death penalty case at these close quarters.” dered useless because of state law occupa- For Stevenson, the opportunity to involve the Law School in the tional bars. In New York, for example, most work of EJI counters the isolation and alienation of working in an Professor Anthony prisons offer vocational training, but many (continued on page 54) Thompson

52 THE LAW SCHOOL AUTUMN 2004 Turning the Tables in Tulia With tenacity and a sense of outrage, Vanita Gupta took on racism and the “war on drugs” to free 35 wrongly convicted men and women.

Fresh out of law school, and just three weeks into her job with the ciary, the Texas Court of Criminal Appeals ruled in William’s favor. NAACP Legal Defense Fund in New York, Vanita Gupta (’01) asked In the meantime, however, Judge Self, who had presided over most to be sent to Texas. Gupta had learned from a television documen- of the original trials, had made public comments to the Tulia Herald tary about a travesty of justice in a small Panhandle town called that suggested the defendants would not receive an impartial hear- Tulia. The film described a 1999 drugs sting in which ten percent ing in his courtroom. In November 2002, the LDF team upped the of the town’s black population was arrested and convicted on the pressure by filing for his recusal. Two days later Self stepped down, uncorroborated testimony of an undercover cop named Tom Cole- and was replaced by Judge Chapman. In March 2003, the case for man. It turned out that Coleman was prone to using racist language the prosecution dramatically collapsed as Officer Coleman crumbled and himself had been arrested for both theft and professional mis- on the stand. Finally, on August 22, 2003, Texas Governor Rick conduct while carrying out his investigation. “The documentary pre- Perry granted full pardons to all of the defendants. sented facts that were almost too outrageous to believe,” said Gupta. Gupta, who went to law school intending to do just this sort By the time Gupta arrived in Tulia in 2001, direct appeals by her of work, was in her element. She applied for a Soros Justice Fel- 35 clients had already been denied. In short, they had been convicted lowship with the LDF specifically “to work toward reform of a and were without legal representation. After her initial fact-finding broken system,” she says. Even with that perspective, says Gupta, mission, Gupta went back to New York, organized a team of top “Tulia took my pre-existing concerns to a whole new level.” pro bono attorneys from around the country, and returned as the “There were a couple of moments,” she admits, “when I felt that LDF’s lead counsel for the cases. Nonetheless, the situation looked due to the state of the courts, and the unwillingness of anyone in the bleak. “The Texas Court of Criminal Appeals is not known to be a justice system to see that an injustice had taken place, we would just progressive court,” said Gupta, “and in any case it had already never get our clients out of prison.” But Gupta says the clinical train- affirmed the convictions. So we really needed to blow open the ing that she received at NYU gave her crucial preparation. “The expe- case and expose the law enforcement officials for what they were.” rience of having clients and discussing strategy in a classroom setting It may have been temerity for a 26-year-old to take on Texas, was invaluable in giving me the skills I needed. In my opinion, NYU but for someone who had grown up in a leafy suburb in southern is unique in having such a strong commitment to clinical education.” England, Gupta proved to have the Awarded the 2004 Reebok Human tenacity and resourcefulness of a coyote. Rights Award in May for her role in coor- She realized she was going to have to dinating the Tulia trial, Gupta says that the turn up the heat on the Panhandle; so accolade came with mixed emotions. On Gupta went to the media. In a series one hand, she says, “I felt so humbled to of ten articles over eleven months, be honored alongside such outstanding New York Times columnist Bob Herbert individuals from Brazil, Afghanistan and described a justice system that seemed Nigeria.” But, she adds, “I thought it was little more than a cruel farce. incredible that racial injustice in our The attention of the national press criminal justice system should be seen as forced the Texas media into action. an international human rights issue. We Local papers that had been effusing continually look outside our boundaries

over Tom Coleman’s status as Texas Vanita Gupta, with Senator Rodney Ellis, faces the press. for human rights violations, yet they are lawman of the year were suddenly taking place here on our own soil.” shamed into doing some reporting. The cartel of Tulia drug deal- Adam Levin (’97), another NYU School of Law graduate, ers, it turned out, included a fork-lift driver, a pig farmer and a worked alongside Gupta and became a key advocate during the number of young moms with small children who didn’t know hearing. At the time, Levin was senior associate in the pro bono what hit them. The dawn-raid arrests produced no drugs, money department of Hogan & Hartson in Washington D.C. He went or weapons. Officer Coleman, on whose sole testimony the convic- on to lead the civil rights litigation that brought their clients a $6 tions were based, made frequent mistakes in identifying suspects, million settlement, and instigated the disbanding of the Panhandle used racist language in reference to the defendants, and was in the Regional Narcotics Task Force. habit of writing down evidence on his leg. And yet, on his In October 2003, the Black Allied Law Students Association unsubstantiated testimony, Gupta’s clients were sentenced to (BALSA) and the Law Student Drug Policy Forum invited both such brutal prison terms that many of them would have died in Gupta and Levin back to the Law School for the first time since jail. One defendant received 341 years. Governor Perry pardoned their clients. “My favorite audience Intense media pressure outside the courtroom was vital, but it when I speak about the case is law students,” says Gupta, who had to go hand in hand with an iron-clad argument in front of the clearly hopes that the trial will inspire others to do criminal bench. Judge Ron Chapman was struck by how well Gupta’s team defense and social justice lawyering. “It’s wonderful to talk about handled the appeal. “Very impressive,” said Judge Chapman. “They the possibility of changing people’s lives, and to have them hear stayed with this case for years when others would have given up.” from someone who has just graduated and is making a difference.” Gupta and her team were nothing if not relentless. The first peti- But there’s still one more twist to the tale of Tulia; Paramount tion was filed in January 2002 on behalf of Jason Jerome Williams. Studios is due to make the trial into a 2006 feature film. Who In it were the key arguments that would bring Coleman to court, will play Vanita Gupta? Halle Berry. and eventually undermine all 35 wrongful convictions. In September, with the glare of the national media full in the face of the Texas judi- —Dan Bell Photograph by L. Scott Mann L. Scott by Photograph

AUTUMN 2004 THE LAW SCHOOL 53

(continued from page 52) The other half of the students in the clinic are assigned to com- underserved area with few colleagues or peers. The collaboration has munity-based organizations or government agencies that assist bat- allowed him to think critically about his work while “connecting tered women who are complainants in criminal cases. Organizations with a community of inspiring and talented scholars and lawyers.” that have collaborated with the Clinic include Sanctuary for Fami- Aaryn Urell (’01), a staff attorney at the EJI, is grateful: “I lies, New York Asian Women’s Center, and STEPS to End Family cannot imagine another criminal law faculty capable of rivaling Violence. Often the assistance offered by the clinic develops into a the Law School’s in the manifest commitment of its professors strategic alliance to devise and implement new strategies for deal- to social justice and passion for preparing young lawyers to do ing with domestic violence. The year Irina Taka (’03) enrolled in meaningful, innovative work in the criminal justice field.” the clinic, she was assigned to assist Mayor Bloomberg’s domestic violence initiative, known as the Domestic Violence Response Holly Maguigan: Gender Defender Team Program or DiVERT. Taka sat in on meetings among city How the criminal justice system serves and disserves battered women agencies and law enforcement officials wrestling with the problems is the concern of the Comparative Criminal Justice Clinic: Focus on of improving coordination and availability of resources to battered Domestic Violence. Taught by leading battered women’s advocate women. She helped mediate among overlapping and sometimes and Clinical Professor Holly Maguigan conflicting agency mandates, developing protocols for handling along with Ehrenkranz School of Social domestic violence cases. The program ultimately decided to focus on Work Professor Shamita Das Dasgupta, the high-risk precincts, improving coordination with the city’s Housing clinic has three components: fieldwork Authority and Administration of Children’s Services. Taka says, “I based in New York City representing bat- wanted to be in on the ground floor of a project like this because I tered women who are complainants and am going back to my native country Greece to work on these issues. defendants in cases involving domestic vio- Even if the Mayor’s initiative fails, I will have learned something.” lence; simulations in which students take on the varying roles and perspectives of Kim Taylor-Thompson: Cultural Translator attorneys, social workers, and clients in a Kim Taylor-Thompson’s Community Defender Clinic takes a dif- domestic violence situation, coming to ferent tack in providing defense services to local communities, by Professor Holly Maguigan understand how to handle the often con- partnering with local agencies. Police departments have been flicting agendas each brings to the table; experimenting with new forms of crime and a comparative look at the utility of criminal justice interventions prevention that emphasize community- in domestic violence cases in the United States and in India. based strategies, prosecutors’ offices have For the fieldwork component, half of the students work with begun to acknowledge the importance of court-appointed attorneys or public defenders representing women maintaining relations with the communi- who have been charged with a crime, typically in the context of ties in which they operate, and the judi- defending themselves against their abuser. When he represented a ciary has created drug and youth courts woman charged with felony assault against her abuser, Arun Thiru- to address recurring problems in a more vengadam (LL.M. ’02, J.S.D. ’05) commented: “This case provided targeted way. The Community Defender me with a fascinating window into the workings of the U.S. legal Clinic is similarly premised on the propo- system, including from the perspectives of criminal law, comparative sition that public defender offices need to

constitutional law, and the immigration control regime. I partici- emerge from their isolation and engage Professor Kim pated in the full range of pretrial criminal law practice from con- in the political and social dialogue about Taylor-Thompson ducting factual investigations to attending hearings on discovery criminal justice policy. Says Taylor- and evidentiary matters.” Thompson: “Comprehensive representation of people charged with crimes means paying attention to the communities from which they come and to which they will ultimately return.” Taylor-Thompson’s experiences before entering academia lend A Clinical Victory special weight to her words. She spent a decade working in the Public Defender Service for the District of Columbia, the last three as director of the office, supervising 75 lawyers and 75 staff. More recently, she served as a consultant to the Administrative Office of Kathleen Guneratne (’04), as part of the Juvenile/Criminal the U.S. Courts’ federal defender program, working on ways to Defense Clinic, represented a juvenile charged in a chain- provide more comprehensive representation of individuals charged snatching case in which the defense had a strong argument of with crimes in the federal system. She helped organize and develop mistaken identity. Guneratne handled a suppression hearing conferences and training sessions on what it means to provide excel- and a bench trial in the case: “The clinic gave me my first lence in public defense. A 2003 conference focused on issues such as chance to try a case and it was truly a rite of passage. At first the various meanings of excellence in terms of individual representa- the judge kept trying to shut me down and it was intimidating tion, and collaborating with state defender systems for clients who are charged with both federal and state crimes. Attended by judges trying to put on our defense, which was a solid one based on and representatives of 50 public defender offices across the country, many unexplained inconsistencies in the complainant’s story. the conference helped develop a network of people and expertise But you don’t have the luxury of stopping to think, so I just that federal defenders could go to for advice and information. kept pushing our theory of the case. In the end, after the judge Taylor-Thompson also has consulted for the United Nations’ announced the ‘not guilty’ verdict, he turned to me and said, Working Group of Experts on People of African Descent. She tes- ‘Counselor, you are going to make a memorable lawyer.’” tified before the working group on the issue of race in governance and judicial systems, drawing lessons from the issues facing African-

54 THE LAW SCHOOL AUTUMN 2004 Americans in the U.S. criminal justice system. Her testimony has Law School as guests of the Law Student Drug Policy Forum and dealt with effective assistance of counsel, racial demographics of pub- the Black Allied Law Students Association (BALSA) to discuss lic defender offices, and the role of the jury. The recurring theme of their work overturning the infamous Tulia, Texas criminal cases Taylor-Thompson’s presentations is that judicial systems need to where one-tenth of a town’s African-American population was reflect the diversity of the population, or at least provide training so convicted of trumped-up charges. The NYU Review of Law and that judges from different racial or ethnic backgrounds are sensitized Social Change presented a colloquium on the 50th anniversary of to other communities to bring considered judgment to the case at the landmark desegregation case Brown v. Board of Education, hand. “Decision-makers in criminal justice systems must be sensitive including a panel on what its legacy of equal protection jurispru- to racial and ethnic differences and how those differences may affect a dence has to say about community policing and racial profiling. fact-finder’s understanding of how a person reacted in the situation at At the colloquium, Liyah Brown (’04) joined Lieutenant Eric issue, whether the behavior was justified in some way, whether pun- Adams, co-founder of 100 Blacks in Law Enforcement Who Care, ishment is necessary, and what would be a just punishment,” she says. and Lawrence Rosenthal, deputy corporation counsel for the City of Chicago Department of Law, to examine the effect of the Brown decision on U.S. policing strategies. The subject matter was anything Beyond the Courses and Clinics but theoretical for Brown, an African-American who grew up in the ean Richard Revesz’s monthly roundtable lunches with alumni, Bedford-Stuyvesant neighborhood of Brooklyn—“Bed-Stuy” as it is Dincluding criminal law practitioners, inject even more stimulat- popularly known, especially through rap songs that use it as short- ing discussion into this mix. The 2003-04 schedule included a hand for murder and mayhem. Brown remembers it differently: “My lively conversation with Stephen Hammerman (’62), deputy com- neighbors were and still are poor, hard-working people, struggling missioner of legal matters for the New York City Police Depart- to get by.” She returned to that community after spending the latter ment, essentially serving as the police commissioner’s general half of the 1990s in Washington, D.C., first obtaining her B.A. from counsel. Hammerman, who went to law school at night so that Georgetown University and then working for the Japanese Ministry he could work a job to support his young family, inspired the stu- of International Trade and Industry and a public interest law firm. dents with his obvious love of the law. Selected students are also Brown appreciates the transformation of Bed-Stuy, where the murder invited to the Center for Research in Crime and Justice’s weekly rate has decreased by more than 70 percent since she was a teenager luncheons featuring guests speaking on criminal law topics. The there. But she still sees an economically desperate community, vul- Root-Tilden-Kern Scholarship Program’s Monday Night Speaker nerable to a police force that has not yet weeded out all officers who Series on Public Interest Law routinely invites scholars and practi- cross the line. She explored the question of how community policing tioners who work in criminal justice. Last year, speakers included can be a means of achieving racial justice in her note, written while the Law School’s death penalty expert Bryan Stevenson; G. Dou- she was still in school, Officer or Overseer?: Or Why Integration of glas Jones who revisited “The Prosecution of the Birmingham 16th Police Forces Has Failed to Improve Policing in Inner Cities. Street Baptist Church Bombing Cases”; and Derwyn Bunton (’98), Adams, a 20-year veteran of the New York City Police Depart- senior staff attorney of the Juvenile Justice Project of Louisiana, ment, offered the perspective of a watchdog cop active in challeng- who described the horrifying conditions he discovered in the juve- ing police practices that may offend civil liberties. But Rosenthal nile prisons there, and what he did about them. drew on Chicago crime-fighting experiences to counter that inner- The activities of several student organizations also intersect with city residents would rather have the city send more police into criminal law topics. In 2003, the Law Student Drug Policy Forum their neighborhoods than redeploy cops to wealthy enclaves. He hosted a symposium, which featured panels on such topics as the described the dramatic reduction in violent crime rates over the collateral consequences of the war on drugs, drug crimes sentenc- past 10 years as a triumph of sociology over jurisprudence. ing, and federal constraints on state drug-policy innovation. The Brown doubted the efficacy of community policing methods, group also seeks to create internship and volunteer opportunities pointing out that experts disagree on the reasons for declining for students, and to collaborate with local drug policy organiza- crime rates. Clearly passionate about criminal justice, Brown tions and student organizations in local political activities. will clerk for a U.S. district judge and plans to work for a public Law Students Against the Death Penalty, formed in response to defender’s office. When one panelist reported that a U.S. Depart- the passage of New York State’s death penalty law in September 1995, ment of Justice survey found that 76 percent of African-Ameri- offers assistance in fighting the death penalty both in New York and cans are satisfied with their neighborhood police, Brown around the country. Members do legal research and review trial tran- announced, “I am not satisfied.” And she intends to scripts for organizations, such as the Louisiana Crisis Assistance Cen- do something about it. ter, the Georgia Resource Center, and the NAACP Legal Defense Brown, and others like her, is a suc- Fund. The student group also sponsored a symposium on the future cessful reflection of the NYU criminal of the death penalty movement, featuring the Innocence Project’s law faculty’s dedication to nurturing a Peter Neufeld (’75) and Donald Paradis, a former death-row inmate. sense of mission in their students. The Prisoners’ Rights and Education Project provides inmates in The program is part of a proud New York state prisons with legal research skills. Each semester, it NYU School of Law tradition, conducts a seven-week course at prison libraries, mirroring what one of mixing practical goals first-year law students learn in the Lawyering Program. about working to right wrongs Other student organizations find fertile ground at the Law with intellectual engagement in School to create programs with a connection to criminal law and the theoretical underpinnings of justice. Over the past academic year, the NYU chapter of the Fed- the profession. When it comes to eralist Society hosted a half-day conference on “Enforcing Corpo- the practice of criminal law at its rate Responsibility Through Criminal Law,” debating the extent to finest that really means, essen- which criminal law should be used as a tool for business regula- tially, trying one’s best to help tion. Alumni Vanita Gupta (’01) and Adam Levin (’97) visited the deliver justice for all. I

AUTUMN 2004 THE LAW SCHOOL 55 ENVIRONMENTAL 2003 Past Feature Updates

Regulating Regulators new safeguards like the World Bank did in environmental When the U.S. Immigration and Naturaliza- the early 1990s, when it set up an independent lawyer with tion Service denies refugee status to an indi- inspection panel to review environmental expertise in vidual, the agency is required to follow certain compliance issues after a controversy about working with administrative procedures, including giving the proposed Narmada dam in India. grassroots orga- notice and holding hearings. Disappointed “It’s starting to happen, but people aren’t nizations, Mei- applicants can obtain some judicial review, connecting the dots,” Stewart said. I jer is an ideal albeit limited. fit. “The idea But what happens when a similar sce- Danube Clean-up of the project is nario unfolds at the global level, when the When the Berlin Wall fell in November 1989, to assist in setting up legal and United Nations High Commissioner for environmentalists saw an opportunity to practical measures on public participation Refugees issues such a denial? The applicant knock down another wall—the one that kept that will actually work in these five coun- has no opportunity for independent review. the public from environmental information tries,” said Meijer. “We want people to see Similar problems arise in such diverse areas about their beloved, albeit polluted, Danube it as their project, so that basically by the as capital requirements for banks, condi- River. “Once the Wall came down, a lot of end of the project we can just tiptoe away tions attached to third world development information about the status of the environ- and progress will continue without us.” funding and the setting of product safety ment in Eastern Europe became available,” To that end, Stewart and Meijer and their standards. All too often, global administra- said Jane Bloom Stewart (’79), director of partners at the REC and RFF will start this tive bodies “are not subject to much in the the NYU School of Law’s International Fall by meeting with public officials, environ- way of accountability,” says Professor Environmental Legal Assistance Program. mental organizations, and concerned citizens Richard Stewart, the John Edward Sex- from the five countries to determine their pri- ton Professor of Law, and the director of orities. If there’s legislation in place, why isn’t the NYU School of Law’s Center for it working? “Is it because the laws are unclear Environmental and Land Use Law. or because people don’t know what to do Stewart, along with his colleague with them?” asks Meijer. The project will Benedict Kingsbury, the Murry and Ida continue through November 2006. I Becker Professor of Law, who directs the Institute for International Law and Jus- Bait and Switch? tice, launched the Global Administrative Professor Katrina Wyman is particular about Law Project to start a dialogue that they her fish. She won’t eat endangered Chilean hope will lead to changes in the way both sea bass or snapper. No salmon unless it’s wild formal and informal international agen- from Alaska, as she doesn’t like to eat farmed cies do business, in order to protect rights fish. And unless she’s hungry enough to swal- and provide greater public participation low her principles, her halibut must come and accountability. This spring, they from Alaska too, where its catch is regulated by hosted a colloquium inviting a dozen a quota system based on tradable permits. speakers from the U.S. and abroad to Jane Stewart (’79), left, and Ernestine Meijer. For the past two years, Wyman, who joined address these issues, including Israeli the NYU School of Law faculty in June 2002,

author, law professor and human rights But government officials weren’t sure has been researching the question of why the y permission. advocate Eyal Benvenisti, a member of the what information to provide to the pubic, U.S. was first to use tradable permits to regu- Law School’s global faculty, and Oxford and citizens didn’t know where to go or late air pollution, but has lagged behind her University’s Bronwen Morgan, an expert on what questions to ask to get information. native Canada in adopting individual trans- reshaping regulatory laws. Also planned are Stewart’s program, to be undertaken ferable quotas (ITQs) for the fishing industry. a project website, a workshop at Oxford in jointly with the Regional Environmental In an ITQ program, government regula- Used b eserved. October, and conferences in Italy and at the Center for Central and Eastern Europe and tors cap the amount of fish per species that NYU School of Law next year. Washington-based Resources for the Future, can be caught. That amount is divided up

“The question is, what rules govern how recently received a substantial grant from and allocated through permits that fishermen 1. All rights r 7 global agencies decide?” said Kingsbury. the Global Environment Facility to improve can sell to one another. In this way, fishermen . 19 Until recently, for example, the U.N. Secu- public access to environmental information are assured a certain percentage of the catch, rity Council could direct states to freeze the about the Danube and increase public partici- eliminating the frantic fishing races that exist bank account of anyone suspected of financ- pation in clean-up efforts in five Danube- when governments restrict when, where and ing terrorist activities without giving the basin countries: Croatia, Serbia-Montenegro, how much can be caught. In the long term,

subject an opportunity to say: “I’m the Bosnia-Herzegovina, Bulgaria, and Romania. ITQs should guard against overﬁshing. L.P s Enterprises, wrong guy,” said Stewart. The grant comes on the heels of a successful “Given the crisis in our ﬁsheries, why While they’re not advocating a separate pilot program in Slovenia and Hungary that haven’t policy makers adopted these market- court to oversee global agencies, Kingsbury NYU and its partners conducted in 2002. based approaches, which economists have and Stewart suggest that national courts This time around, Stewart will be aided been advocating for three decades?” Wyman

need to create new practices for administra- by Ernestine Meijer, who joined NYU as a asked. Only 11 ﬁsh species, which represent Seus ax . ™ & © Dr. tive cases that are international in origin; and senior research fellow at the Center on Envi- 24 percent of the ﬁsh taken in federal waters, or he L

more international agencies need to develop ronmental and Land Use Law. A Dutch are regulated by ITQs. I T

56 THE LAW SCHOOL AUTUMN 2004 INTERNATIONAL 2002

security. “Interna- panelists sug- NYU’s Florence Campus Hosts tional cooperation gested using is a priority not the incentive Experts on Global Terrorism only in Europe but structure of the also with all the International countries in the Atomic Energy world,” said Judge Commission as Bruguiere, “espe- an example, cially the United perhaps by cre- States.” ating a fund to The conference help develop- attendees have ing nations been involved in with technical the war against capabilities. terror—either by Other participants rejected radical Islamists or the idea of a new organization; rather, they on the part of insisted that the legal mechanisms in place national liberation needed to be improved. groups—for Meanwhile, the panelists said law-enforce- decades. Behind ment ofﬁcials face the persistent and adapting the headlines, it is strategies of terrorists on a daily basis. their work that At each of the sessions, stories of missed YU’s sun-drenched La Pietra cam- thwarts the terrorists on a daily basis. The arrests and miscommunications mingled pus, with its fragrant lemon trees general consensus of the gathering was that with reports of daring escapades and novel amid a peaceful Tuscan landscape, the terrorists remain strong; that the war captures. Much remains to be done, according was a sometimes jarring backdrop in Iraq has greatly harmed the cause of to Bruguiere and others. Speaking of the for the somber discussions held counterterrorism globally by diverting challenges faced by Britain, Scotland Yard’s N during the Center on Law and resources, radicalizing a new recruitment Peter Clarke pointed out the changes that Security’s June conference, “Prosecuting Ter- base for Al Qaeda and enhancing anti- have taken place in capturing terrorists. “Irish rorism: The Global Challenge.” Americanism; and that the expectation of terrorism was by and large domestic. Obvi- Karen J. Greenberg, executive director chemical warfare is real and growing, par- ously we are now facing a global threat and of the center, along with faculty co-directors ticularly in regions such as Chechnya. in order to investigate it we have to oper- Stephen Holmes and David Golove, pulled The group agreed that bilateralism, ate globally…We are now looking at much together prominent legal experts, law-enforce- which has been the trusted method of infor- looser networks,” he said. “If we take one ment officials and policymakers. The group mational exchange among law-enforcement or two leaders out, they are very quickly included Judge Jean-Louis Bruguiere, the ofﬁcials, is not enough to counter growing replaced and the network is re-formed.” chief prosecutor for terrorism in France; threats. Daniel Benjamin, now a senior fel- Across the board, participants expressed Armando Spataro, one of the leading Italian low at the Center for Strategic and Interna- concern about the need for legal systems to prosecutors for terrorism; Ronald K. Noble, tional Studies, recommended the creation of adapt rapidly to the needs of law enforce-

, Japan. the secretary general of Interpol and ment in counterterrorism. Sugges- a member of the Law School’s factions included more detention time ersity ulty; Peter Clarke, the head of the prior to formal charges, better coor- antiterrorist branch at New Scot- dination of data at the international land Yard; Dov Lutsky, the com- level, expansion of the parameters , Tenri Univ , Tenri mander of security for the Northern around covert operations, and more Galilee subdistrict of Israel; and a creative methods of penetration into group of former national security terrorism groups. “Of course, catch- al Library advisers from the Bush and Clin- ing a suicide bomber alive is like a ton administrations, including treasure for all those who try to

enri Centr Roger Cressey, Daniel Benjamin understand terrorists’ motives,” said and Steven Simon. Israel’s Dov Lutsky. The gathering discussed ways Despite the bleak subject matter, to remove the impediments to the meeting was an exercise in com- countering terrorism and the pos- ing together to examine the prob- sibility of forming a multilateral lems faced by the global community. body, and what those changes Amid the fear of brewing terrorist ed with permission of T ed with permission might mean for the Middle East. plots, the experts agreed that thwart- Karen Greenberg, executive director of the Center on Law and Security, and In the wake of the Madrid bomb- Judge Jean-Louis Bruguiere, chief prosecutor for terrorism in France. ing the enemy is possible, but that it ing on March 11, 2004, partici- takes conviction, a sense of reality, a zu . Reprint o pants were eager to consider the merits of a multilateral counterterrorism organization genuine willingness to collaborate and a greater communication and more formalized that monitors terrorist activities such as commitment to worldwide policing. “There methods of cooperation among nations. If money laundering and arms trafﬁcking. It are a lot of us thinking about this,” said one premise underlay the talks, it was that was also suggested that the organization pro- Greenberg in summing up. “Therefore we national security for any one nation no vide incentives for membership in such a do have some chance of having a more stable ankoku Sekai Igy Sekai ankoku

B longer exists independently of international group, including economic support. Some world in the future.” I

AUTUMN 2004 THE LAW SCHOOL 57 Faculty Focus

f the backbone of a law school is its fac- explanation for rampant liberal anxiety over “community prosecution” and identifies ulty, then the strength of the NYU judicial activism. Professor David Golove a key impediment to its success in It Takes School of Law’s spine is evident from the argues in The New Confederalism that the A Community to Prosecute. breadth and quality of its professors’ U.S. should not shy away from international Be sure to peruse the index too: scholarly work. We are pleased to excerpt engagement due to a mistaken belief that Consider John Edward Sexton Professor of I and showcase five notable pieces that pre- certain treaties are unconstitutional. His Law Richard Stewart’s book, Reconstructing viously appeared in top journals. Good Reads, historical review of the Founders’ intentions Climate Policy: Beyond Kyoto, written with an index of all the books, articles, chapters and indicates our forebears didn’t want to limit Jonathan B. Wiener. Or Professor Noah shorter works published by our faculty in the U.S. engagement with the rest of the world. Feldman’s After Jihad: America and the last year follows, along with reviews of some George T. Lowy Professor of Law Marcel Struggle for Islamic Democracy. We’ve also of those books. Also, scattered throughout the Kahan refutes the conventional wisdom tucked Professor Linda Mills’ New York magazine, you’ll find reprints of faculty-writ- regarding how to stave off unwanted corpo- Newsday op-ed about women and violence ten op-ed pieces. In this section, in addition, rate takeovers in How I Learned to...Love the into the Good Reads section. She offered we profile new professors joining the school, Pill. An-Bryce Professor of Law Deborah her considered opinion on human nature along with the 2004-2005 visiting, global and Malamud delves into the nuances of New around the time that the shocking photos in-residence faculty, and fellows who will be Deal policy in Who They Are—Or Were: of U.S. troops abusing Iraqi prisoners were joining for a term or more. Middle Class Welfare in the Early New Deal, released. Giving voice to what so many were In his excerpted piece, The Birth of an to discover how personal biases play into the thinking, she asked: How could a woman Academic Obsession, Jacob D. Fuchsberg best-intentioned policymaking. Professor of commit this sort of violence? “Gender is Professor of Law Barry Friedman, a leading Clinical Law Anthony Thompson analyzes irrelevant,” Mills answered. “The truth is federal courts scholar, unravels the historical the popular trend in law enforcement called women can be as violent as men.”

58 THE LAW SCHOOL AUTUMN 2004

sent-day political preferences in light of an faculty scholarship inherited intellectual tradition. Seen in that light, the academy ought to be able to free itself from the rhetorical grasp of the coun- Academic Obsessions, termajoritarian difficulty and devote itself to a constitutional theory that is less a response Liberal Anxieties, and the to immediate judicial decisions, captures more accurately the role judicial review actu- Supreme Court ally plays in society, and is more enduring. Barry Friedman traces the historical roots of e often assume that the countermajoritarian problem that obsesses constitu- society's discomfort with judicial review. W tional theorists has been with us always, but that is not the case. It is true that judicial n our system of government, judges review has been criticized on and off since have the power to strike down laws or at least 1800 on the ground that it interferes executive actions found to be inconsis- with popular will. But it is important to dis- tent with the Constitution. This power tinguish a criticism that is leveled at courts in of “judicial review” frequently is contro- public debate on the occasions when circum- I versial. Both its challengers and its stance seems to warrant it from the intellec- defenders struggle to explain why unelected tual problem of justifying judicial review that and ostensibly unaccountable judges should has gripped the academy nonstop since the have such power in a democracy. In his early 1940s. In truth, although the criticism famous work The Least Dangerous Branch, of constitutional judges as unaccountable Alexander Bickel termed the problem of rec- was leveled as early as 1800, it was not preva- onciling judicial review and democratic gov- lent for the next roughly 100 years, largely ernance the “counter-majoritarian difficulty.” because concepts of judicial supremacy were This article is part of a broader project not extant through that period, and thus designed to persuade scholars to consider there was no particular problem of unac- judicial review in different terms. Although countable judges trumping popular will. judicial power is different than other govern- Political actors during the Jacksonian era mental power, it is not necessarily true that defied the Supreme Court; during recon- For at least a century, intellectual thought has it is any less accountable. Many non-judicial struction they threatened its existence. In embraced both popular (majoritarian) democracy government actors are not directly account- the early republic, there was not much of a and the protection of constitutional safeguards. able to the people. More important, when countermajoritarian problem. But these two values seem to conflict in judicial rhetoric is put to one side it is clear that It was only during the Populist-Progres- review. To solve this scholars have tried to define there are political constraints on the judiciary sive Era, at the turn of the 20th century, that democracy in a way that is less tied to majority as well. The judiciary depends on the politi- the countermajoritarian problem found full rule, or insist that a precondition for democracy cal branches to enforce its judgments, and voice in public debates, but at that time it is that certain kinds of rights be respected. In politicians unhappy with judicial actions made abundant sense. First, there were this excerpt from “The Birth of an Academic have the power to level attacks at the judi- instances in which the courts plainly attacked Obsession: The History of the Countermajori- ciary, including jurisdiction stripping, court laws with wide majoritarian support, such tarian Difficulty,” published in the Ywale La packing, impeachment, and budget cutting. as the invalidation of the income tax and the Journal, Professor Barry Friedman, NYU’s In short, the classic formulation of the coun- overturning of child labor legislation. At Jacob D. Fuchsberg Professor of Law and one of termajoritarian problem lacks the nuance to the least, these were measures that had made the country’s leading constitutional theory and make it an accurate statement of the relation- their way through legislative bodies, only to federal courts scholars, argues that the conflict ship between judicial review and democratic be struck down in relatively short order by between democracy and judicial review is more governance in our society. the courts. Second, there was a democratic apparent than real. Tracing its roots to social The point of this article is to demonstrate fervor sweeping the country at the time, conflict in the early 20th century, he says the con- that the countermajoritarian difficulty that and legislatures were deemed to be infinitely cern over the “countermajoritarian difficulty” is obsesses the legal academy is not some time- more responsive to the popular will than actually an academic obsession rather than a real less problem grounded in immutable truths. judges, who were seen as class-biased ideo- problem. According to John Ferejohn, a visiting What everyone recalls about The Least Dan- logues manning the barricades against what professor of law at NYU, Friedman reveals the gerous Branch is Bickel’s stunning attack on conservatives viewed as the mob. Add to this “liberal anxiety about unelected courts thwarting the legitimacy of judicial review. Too easily the realization that the Constitution was democrative legislatures” to be false. That instead, forgotten is the fact that the book actually capacious enough for constitutional cases “the Courts, no less than other political institu- was a defense of judicial review, one especially to come out either way—indeed, different tions, are accountable in various ways to public attuned to the circumstances of the time in judges often saw them quite differently—and opinion, and that judicial disagreement with which Bickel wrote. Bickel was simply trying it became perfectly sensible to express con- popular bodies or even judicial legislation is not to justify a set of jurisprudential outcomes he cern that often-unelected judges were trump- inherently undemocratic.” Indeed, adds Ferejohn, favored personally, within the limits of the ing the will of the populace. No wonder that “Professor Friedman’s article is important work: intellectual structure handed down to him by the period between 1890 and 1925 saw courts it shows that…there is no real problem of political his teachers. The academic fixation with the criticized as acting contrary to popular will justification at present.” countermajoritarian problem represents—as more often than at any other time in history. it almost always has—a need to justify pre- During the Progressive Era, such “counter-

AUTUMN 2004 THE LAW SCHOOL 59 FACULTY FOCUS

will assume the role of a third legislative ed. chamber and when it will limit its authority

to keeping Congress and the states within eserv their accredited authority.” The prominence of these individuals was such that leading academics viewed this line—from Thayer to Holmes to Hand to om. All Rights R Frankfurter—as the tradition within which c they had no choice but to work. In delivering the Cooley Lectures at the University of Michigan in 1969, Philip Kurland would happily identify himself as “one of those antediluvians from the University of Chicago who purportedly live entirely on the intellectual sustenance of Felix Frankfurter and Adam Smith.” The Legal Process school “treated Frankfurter as the symbol of judicial

restraint and the integrity of the legal pro- cartoonbank. from 4 Joseph Mirachi 7 cess.” “Felix Frankfurter’s inﬂuence was felt at Harvard,” explains William Wiecek, “long after he left for Washington.” The names Holmes, Frankfurter, Hand (Frankfurter), ollection 19 Thayer (still more Frankfurter) fairly leap er C off the pages of Bickel’s The Least Dangerous ork majoritarian criticism” captured accurately he thesis of this article is that the Branch. Martin Shapiro, hardly a sycophant

the problem with judicial review that pro- countermajoritarian problem that came of the Legal Process school, would explain Y he New

gressives experienced. T to grip the legal academy during the in the preface to his path-breaking Law and © T By mid-century, however, the world mid-20th century was a result of historical, Politics in the Supreme Court: “The one truly looked quite different than it had during the professional, and intellectual forces that, as moving episode of my graduate education Progressive Era, calling into question just a cultural matter, simply were unavoidable was hearing Learned Hand deliver the how apt the earlier era’s criticism really was. for many academics (even though they Holmes Lectures, and my thinking about the In contrast to the Progressive Era’s judicial seemed to matter little to those beyond the Supreme Court has been largely an attempt overruling of democratically-supported leg- professoriate). History can help us to see to grapple with the ideas of Hand, Justice islative actions, many saw mid-century as a this. The task here is to recreate the academic Frankfurter, and Professor Wechsler.” time of legislative stasis and judicial interven- world in the mid-20th century, so we can tion as a necessary force to solve the problems see where the modern obsession with the econd, the countermajoritarian difficulty neglected elsewhere. Many of the Warren countermajoritarian problem was born. as we know it today is primarily a prod- Court’s projects had popular support. And First, the formulation of the problem of S uct of liberal anxiety at mid-century to popular support persisted despite widespread judicial review as inconsistent with democ- reconcile what seemed to them an intractable understanding that judges often “made” the racy was an inherited intellectual tradition tension in their own way of thinking. The law. Yet, despite the fact that, quite unlike that scholars at mid-century and today have countermajoritarian difficulty represents the Progressive Era, popular opinion during found difficult to shake, even if it makes little a deeply felt dilemma, unique to political the Warren Court did not see a difficulty sense. The countermajoritarian problem was liberals, one that became salient when for with the role of judicial review, this is pre- framed by figures such as James Bradley the first, and perhaps only, time in history cisely when the present academic obsession Thayer, Learned Hand, Felix Frankfurter, the Supreme Court—under the leadership with the countermajoritarian problem and perhaps Oliver Wendell Holmes and of Earl Warren,—took on a liberal cast. For found full voice. Louis Brandeis as well. Their philosophy was much of its history (and particularly since That academic fixation and popular formed in the Progressive Era, when it was the beginning of the 20th century) the opinion diverged is quite evident from a appropriate. But as the Court changed hands Court’s attackers have been liberal; the comparison of academic and popular reac- and the world changed around them, some defenders, conservative. On those occasions tion to two of the Warren Court’s most of these figures—Hand and Frankfurter, in when liberals attacked judges for interfering noteworthy projects. The Supreme Court’s particular—were unable or unwilling to with popular will, conservative defenders reapportionment decisions in the 1960s met make the turn to a new post-war understand- responded that the role of courts was to with great public support and approval, but ing of judicial review. “Throughout the ’20s serve as a check on democracy. When the the academic tradition discussed here criti- and ’30s, Frankfurter had decried the Court’s tables turned in the 1950s and 1960s, how- cized them specifically on the ground that it strangulation of liberal social legislation…. ever, liberals were hoisted on their own was inappropriate for judges to trump popu- Yet in the area of jurisprudence that was in petard. How could they approve of the lar will. Conversely, by the time of the deci- fact to become the main preoccupation of results of Warren Court decisions, while sion in Miranda v. Arizona, the Supreme the post-1937 Court—civil liberties and civil still retaining what they claimed was a Court’s criminal procedure decisions were rights—Frankfurter was unprepared for what longstanding commitment to democratic under broad popular attack on the grounds was to come.” For Hand, the problem was government and disapproval of judicial that they interfered with popular preferences, so insoluble that he recommended extreme review as inconsistent with it? As another but scholars approved of those decisions. deference to legislative judgments just shy commentator observed, “[O]ne is struck by of judicial abdication. “I cannot frame any the irony that liberals and conservatives have definition that will explain when the Court today adopted views completely the reverse

60 THE LAW SCHOOL AUTUMN 2004 of those each held in the constitutional insured public support for the institution The promise of a Court protective of liberty crisis of the 1930s.” that represented each of them. This dual- was dear to them, but they were sure such an The switch from a conservative Court ism…helps account for a good deal that institution inevitably would run afoul of pop- focused on economic rights to a liberal seems baffling in later history…. ular opinion and were skeptical that such an Court with an individual rights agenda Many liberals seemed genuinely torn institution could exist or survive public disap- was easy enough for conservative critics of by this apparent choice between democratic proval. Thus, Alexander Bickel’s “counter- Warren Court decisions. After all, conserva- principles and judicial results. Perhaps the majoritarian difficulty”—the problem of tives had always believed (or at least since most famous example of this was Herbert justifying judicial review in a democracy. it started to matter in the 1800s) that the Wechsler’s public denunciation of Brown v. Constitution, as interpreted by the Supreme Board of Education, not only for failing to ver since Franklin Roosevelt appointed Court, properly tempered the will of the enunciate a neutral principle underlying the enough justices to the Supreme Court mob. For the most part, conservatives simply opinion, but also because Wechsler himself Eto change its politics to the left of the could attack the Supreme Court’s decisions could not identify one. This, despite Wech- political spectrum, liberal legal academics on the merits, not having to confront any sler’s personal belief that the decision and have struggled to justify judicial review. For particular tension with their earlier views others like it “have the best chance of making them, the courts held the promise of equality about judicial review. In other words, with- an enduring contribution to the quality of and individual liberty, and the trick was to out attacking the institution, they could still our society of any that I know in recent explain judicial review as the locus for those argue that its decisions were wrong as a years.” Thus, Brown stood “for one of my desired ends while maintaining fidelity to matter of constitutional law. persuasion” as “stir[ring] the deepest conflict democratic values. Today, the courts seem But for academic liberals—those who I experience in testing the thesis I propose.” the last place to look for liberalism, and aca- approved the results of the Court’s deci- Wechsler was hardly alone: Philip Kurland demics have begun to engage in a new round sions—the switch posed a deeper intellectual advanced withering attacks on the Court, all of Supreme Court-bashing—oddly reminis- problem. Inevitably, judges “had to explain the while approving its role “to protect the cent of the Progressive Era—questioning, their acceptance of an essentially unlimited individual against the Leviathan of govern- rather than justifying, the democratic pedi- government in the economic domain, yet ment and to protect minorities against gree of the judiciary. Perhaps now, as the also…to allow them to enforce limits on oppression by majorities.” worm turns yet again, it would be useful to government in the domain of civil rights and The problem for latter-day (as opposed step back and gain some perspective, to civil liberties.” It was natural for Progressive to Progressive Era) liberals, of course, was understand the historical context in which Era critics to criticize judicial review as that they professed belief both in the results these arguments have been made before. undemocratic and leave it at that. Most of of the Warren Court and in the democratic Such perspective might even lead constitu- what the old Court was doing was unaccept- creed that formed the basis for attacking tional scholars to a new kind of constitu- able to them. But a Court that eschewed judicial review. Some of this was inherent tional theory. I regulation of the economy and focused on in the work the Warren Court itself was equality and individual liberty, that was a doing; because “the Supreme Court under Endnotes Alexander M. Bickel, The Least Dangerous Branch 16 different matter. It was more difficult for Warren…was under attack not for its lack (1962). liberal scholars to consign that Court to a of democracy, but for its democratic zeal,” H.N. Hirsch, The Enigma of Felix Frankfurter 132-33 role of blind deference to majoritarian deci- the internal tension was inevitable. But even (1981) (discussing Frankfurter's early development as a sion-making. It is precisely in this shift from when the Court arguably was rendering Progressive). a conservative to a liberal Court that much countermajoritarian decisions, such as strik- Learned Hand, The Bill of Rights: The Oliver Wendell Holmes Lectures 55 (1958). of the following generation of liberal legal ing down laws restricting the rights of com- Philip B. Kurland, Politics, the Constitution, and the scholars got caught. munists, liberals agreed with the results. In Warren Court xi (1970) (arguing that the statute actually Mid-century academics found it difficult these cases, both halves of the liberal faith “did more to bulwark than to limit the Jencks ruling”). to reconcile their approval of Warren Court were put to the test: the long-standing pro- Laura Kalman, The Strange Career of Legal Liberalism judicial review with the paradigm of “demo- gressive creed in noninterference with demo- 30 (1996). cratic faith” that they had inherited. Even if cratic legislative results, and the newfound William Wiecek, Jurisprudence After the War 10 (Mar. 8, the Court was doing things that might be liberal belief in individual liberty. 2002) (unpublished manuscript, on file with author). “beneficial,” still, “doubts are rooted in the Martin Shapiro, Law and Politics in the Supreme Court vii (1964). democratic faith, which holds that society at he third, and perhaps most poignant, J. Patrick White, The Warren Court Under Attack: The large ought to participate in the venture of reason for the obsessive hold that the Role of the Judiciary in a Democratic Society, 19 Md. L. governing itself.” The writings of liberals, T countermajoritarian problem had on Rev. 196 (1959). Court critics and defenders alike, focused these liberal academics was their need to Mark Tushnet, Members of the Warren Court in Judicial (one might say fixated) on this inherent imagine a countermajoritarian Court, even Biography: Themes in Warren Court Biographies, 70 N.Y.U. L. Rev. 748, 750 (1995). tension of liberal democracy. In The Least if one did not exist. For a public that had Bickel, supra note 1, at 105. Dangerous Branch, moving from supposed seen the ugly face of totalitarianism during Bickel, supra note 1, at 27. description to theory, Bickel observed, World War II and its aftermath, there was Robert G. McCloskey, The Modern Supreme Court 13-14 “Democratic government under law—the broad support for an institution in a democ- (1972). slogan pulls in two opposed directions….” racy dedicated to protecting minority rights. Herbert Wechsler, Toward Neutral Principles in Consti- And this tension was at the heart and frame The same was true among many academics. tutional Law, in Principles, Politics, and Fundamental of Robert McCloskey’s classic work (pub- But in light of their progressive ancestry— Law 37 (1961). lished in 1960) The American Supreme Court: which, recall, had threatened to discipline Wechsler, supra note 13, at 37. The bifurcation of the two values in the the Supreme Court by packing it during the Philip B. Kurland, Toward a Political Supreme Court, 37 U. Chi. L. Rev. 45 (1969). American mind impellingly suggested that New Deal—mid-century liberals lived with Kurland, supra note 15, at 30-31. the functions should be similarly separated. the anxiety that the public itself ultimately J. Patrick White, The Warren Court Under Attack: The And the devotion of Americans to both would turn on the Court and endanger a Role of the Judiciary in a Democratic Society, 19 Md. L. popular sovereignty and fundamental law set of results these academics approved. Rev. 196-97 (1959).

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perspective. Their concern is not with the International Entanglements: conditions for the exercise of legitimate authority by international bodies, but with Are They Illicit? the consistency of exercises of international authority, whether legitimate or not, with David Golove says no. He makes the case for the the principles of national democracy rooted in the domestic Constitution. Putting aside legality—and importance—of active engagement the specific constitutional questions that with the rest of the world. different treaties raise, there is a common theme that runs throughout the burgeoning domestic constitutional literature: Is there a fundamental “postulate” implicit in the democratic structure created by the Consti- tution—call it the principle of exclusive national democracy—that prohibits the federal government from delegating any governmental authority over U.S. citizens to officials who are not accountable, directly or indirectly, exclusively to the American electorate? A growing body of U.S. constitutional law scholars seems to think so, and their views are, in this respect, reflective of a wider public concern about delegating U.S. “sovereignty” to international institutions. If these constitutional scholars are correct, then U.S. participation in any international regime involving the delegation of governmental authority is inherently constitutionally suspect. It should thus be evident that their approach would profoundly inhibit the abil- Recently, some scholars have claimed that the ne of the most notable develop- ity of the United States to engage construc- principles of democracy that underlie the U.S. ments accompanying globalization tively in the developing globalization process. Constitution preclude the United States, even by has been the revitalization of the I am deeply skeptical that there are any treaty, from entering into agreements in which confederal form of governance— persuasive normative grounds for such a international institutions will govern rules for what I call the New Confederal- sweeping principle. The most persuasive conduct of U.S. citizens. NYU Professor O ism. This development is normative underpinnings of democracy David Golove, the director of the J.D./LL.M Program evidenced most dramatically by the Euro- and of popular sovereignty seem to entail in International Law, argues persuasively pean Union, but also by the World Trade the opposite view. At least sometimes—on against such thinking in the following excerpt Organization, the North American Free matters like global warming, for example— from his article, “The New Confederalism: Trade Agreement, the International Criminal the inclusiveness of international decision- Treaty Delegations of Legislative, Executive, Court, and many other new international making on the confederal model may offer and Judicial Authority,” published last year in bodies. The immediate precedents for this the only workable basis for realizing the pos- The Stanford Law Review. Through his scholar- development are the international organiza- itive values of equality and self-government ship, notably “Treaty-Making and the Nation: tions formed as part of the League of that underpin the democratic ideal. The Historical Foundations of the Nationalist Nations and United Nations systems. But In any case, it is quite unclear, as a Conception of the Treaty Power,” (Michigan Law the idea of confederations actually goes back constitutional matter, where support for Review, 2000) and “Is NAFTA Constitutional?” much further, to the ancient confederacies the exclusivist principle might be found. (with Bruce Ackerman, Harvard Law Review, of the Greek city-states; the early modern It certainly does not appear in terms in the 1995), Golove has secured a reputation as one of Dutch, German, and Swiss confederacies; constitutional text—on the contrary, there the most original and promising scholars in con- and the utopian schemes of Henry IV and are strong textual grounds for reaching stitutional law. Here, he shows that the Constitu- the Abbé St. Pierre, which inspired both the opposite conclusion, though I will not tion’s drafters never meant to limit the United Jean Jacques Rousseau and Immanuel Kant. rehearse the technical arguments here. States’ ability to enter into international relation- These and related developments, and Scholars who endorse the principle have, ships. Commenting on the article, Richard H. the future possibilities they auger, undoubt- therefore, looked in some surprising places— Pildes, an NYU colleague and the Sudler Fam- edly raise fundamental normative questions for example, in the principles concerning ily Professor of Constitutional Law, praises Golove about the legitimacy of the emerging system domestic delegations of legislative, executive, for engaging critical issues at the intersection of of international governance. Most scholarly and judicial authority and in the judicial American constitutional law, foreign affairs, and consideration given to these questions, at doctrines arising out of the Appointments international relations. “Professor Golove’s work least in the United States, has tended to view Clause. But these principles and doctrines reflects the view that serious grappling with the them largely through an international lens, are primarily concerned with the separation problems of our moment requires…understand- asking about the conditions of legitimacy of powers among the branches of the federal ing the ways in which present possibilities are for the exercise of authority by international government and, secondarily, with the larger shaped by past choices. No scholar brings more institutions. But more recently, domestic principles of domestic democracy. As a result, depth of knowledge and insight into the history constitutional law scholars have begun to they offer limited guidance on the questions of constitutional thought and experience.” ask similar questions, only from a different raised by international delegations of author-

62 THE LAW SCHOOL AUTUMN 2004 ity. The considerations that are relevant It is not surprising, then, that Americans, plated receiving and, in fact, received only to structuring the forms of domestic demo- versed in the received categories of the day, legislative ratifications. Indeed, it was only cratic government can provide, at best, only would understand their own confederation the failure of the Rhode Island legislature to a starting point in thinking about how to as based on a treaty or compact among ratify, in one instance, and of the New York structure the relationships that the nation “independent” and “sovereign” states, and legislature, in another, that blocked, under conducts with other sovereign states for the the Confederate Congress as “a diplomatic the unanimity rule of Article XIII of the purpose of carrying out cooperative projects assembly.” The express language of the Arti- Articles of Confederation, the adoption of serving mutual interests and addressing cles itself strongly encouraged this under- major proposed amendments. common concerns. standing. The states were, it proclaimed, The precedent of legislative ratification The constitutional scholars who entering into “a firm league of friendship of the Articles of Confederation, together endorse the exclusivist principle seem to with each other” in which “[e]ach state with Article XIII’s unanimity rule, presented assume that it is somehow inherent in the retains its sovereignty, freedom, and inde- the Framers in Philadelphia with a serious idea of popular sovereignty, at least as that pendence.” This understanding persisted, dilemma. As a practical matter, there was idea was embodied in the Constitution by moreover, throughout the founding debates. little or no prospect that all 13 states would the Founders in 1789. On the contrary, how- At a number of pivotal moments, James ratify the Constitution. It was this, in part, ever, a serious examination of the founding Madison, for example, emphasized that the that led them to adopt Article VII, which of this country reveals the fallacy of this Articles were “nothing more than a treaty” provided that the Constitution would be claim. The Founders were neither committed and that the Confederation Congress was effective upon the ratification of only nine to the principle of exclusive national democ- but “a league of sovereign powers” governed states and which called for state ratifying racy nor did they believe that treaty-based by the law of nations. conventions instead of state legislative delegations of governmental authority to For present purposes, however, what approval. But it was not only real politique international bodies comparable to those is crucial is not simply the label attached to that led the Framers in this direction. At that characterize the New Confederalism the confederation but the underlying under- stake was also a matter of high principle: were constitutionally problematic. standings about the source of its legal valid- What was the proper method for establish- The Founders were, in fact, quite familiar ity. Was it the work of the state legislatures ing a constitution of government like that with the phenomenon of confederations. In exercising ordinary treaty or legislative which they were proposing? Was legislative the Articles of Confederation, they had cre- power or did it have the direct imprimatur ratification by the states making up the new ated one and had lived under it for a number of the people? Most state constitutions, in federation sufficient, as it had been for the of years. Especially as they contemplated fact, said little or nothing about the confed- Articles, or did the principle of popular replacing the articles with a new constitution eration, and what is more, they typically sovereignty require a reference directly to creating a genuine government, they devel- contained provisions—not found in the the authority of the people? oped a normative framework to explain when U.S. Constitution—broadly proclaiming As a practical matter, of course, the delegations of sovereign authority by ordinary the principle of popular sovereignty in Framers’ answer to these questions was treaty or compact were permissible and when they required the approval of the people acting in their original or constituent capacity, that is, by constitutional amendment. The Founders were neither committed to Confederations—or leagues, as they were commonly called—were a well-known form the principle of exclusive national democracy with which the founding generation was widely familiar. Modern theorizing about nor did they believe that treaty-based confederations began with the breakdown of the universal institutions of the Middle delegations of governmental authority to Ages and the emergence of the modern nation-state and, especially, with the birth international bodies comparable to those of the doctrine of absolute sovereignty in the writings of Jean Bodin and Thomas Hobbes. that characterize the New Confederalism In this new context, the existing German, Dutch, and Swiss confederations appeared as were constitutionally problematic. anomalies, and writers on the law of nations, like Samuel Pufendorf, followed by political theorists like Charles-Louis Montesquieu and terms that might reasonably be construed as Article VII. Among the delegates in Philadel- Jean Jacques Rousseau, struggled to develop inconsistent with any such delegation. It is phia, however, there was by no means unani- an account of this phenomenon that was con- striking, then, that the state legislatures uni- mous agreement that legislative ratification sistent with their fundamental theoretical formly approved the Articles of Confedera- was insufficient, and some delegates who premises. Confederations, they argued, were tion without obtaining any further authority supported state conventions were apparently not cases of divided or shared sovereignty. from the people. Except in a few states that swayed not by any perceived necessity in Rather, they were leagues of independent and gave constitutional sanction to the confeder- principle for referring the matter to the peo- sovereign states formed by treaty, and their ation, the validity of the Articles rested solely ple but on purely pragmatic grounds. Still, institutional embodiments were not govern- on legislative authorization. And it is equally for many, there was a point of fundamental ments but congresses or diets of diplomatic striking that on the numerous occasions principle involved. As Madison explained, it representatives. The very term “confedera- when Congress proposed amendments was improper to provide for mere legislative tion” (or its then equivalent “federation”) significantly extending the powers of the ratification of the Constitution because “the was derived from the Latin term foedus, confederation—to give it the power to Legislatures were incompetent to the pro- which means “treaty.” impose and impost, for example—it contem- posed changes.” The Constitution, if

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genuinely confederal. As a result, while it was ed. perfectly consistent with constitutional princi-

ple for the Articles of Confederation to have eserv been approved solely by the state legislatures, the Constitution could only be approved by the people themselves. This understanding of the founding was om. All Rights R conﬁrmed by leading constitutional authori- c ties during the great debates, provoked by the North/South divide, over the location of sovereignty in the U.S. constitutional system. Chief Justice John Marshall, for example, explicitly afﬁrmed in McCulloch v. Maryland, that “To the formation of a league, such as was the confederation, the State governments were certainly competent.” Whereas, in contrast, when “it was deemed necessary to change this alliance into an effective government, possessing great and sovereign powers, and acting directly on the people,

the necessity of referring it to the people, cartoonbank. from ollection 1988 Dana Fradon

and of deriving its powers directly from er C

them, was felt and acknowledged by all.” It ork adds weight to this view that it was shared by John Calhoun, the most profound constitutional theorist of the states’ rights school. Y he New adopted, “would make essential inroads on “treaty” and a “national” government? The powers “of the confederacy,” he wrote, © T the State Constitutions, and it would be a No single criterion, nor even a single set of “were derived from the governments of the novel and dangerous doctrine that a Legisla- criteria, were agreed on. Madison, however, several States. It was their work throughout; ture could change the constitution under noted five that had been frequently asserted and their powers were fully competent to it.” But which it held its existence.” in the course of the founding debates: Leagues the Constitution was an entirely different Madison did not specify the respects and governments differed, he noted, first, in matter. “[T]he governments of the several in which the Constitution would make the foundation of their authority—whether in States were wholly deficient in the requisite “essential inroads” on the state constitutions. the consent of states, on the league model, or power to form a constitution and govern- Nevertheless, his thinking is fairly clear. Leg- the consent of individuals, on the national ment in their stead. That could only be islative ratification of the Articles as a treaty government model; second, they differed in done by the people.” or league had not involved the “novel and the nature of their systems of representation— It is also noteworthy that the confedera- dangerous doctrine” that a legislature could whether representatives were appointed by the tion established by the Articles was not the change its own constitution. After all, how states on the principle of state equality, or were only confederation that arose during the could the doctrine be “novel” if the validity elected by the people on the basis of propor- period leading to the Constitution. It is highly of the confederation itself depended on it? tionate representation; third, they differed in revealing that U.S. diplomats felt perfectly In contrast, the proposed constitution the operation of the government—whether on comfortable initiating and promoting the crossed the line that separates a league or the members in their collective capacities or idea of a limited treaty of confederation treaty, within legislative competence, from directly on individuals; fourth, they differed in between the United States and friendly a genuine “Political Constitution,” creating the substantive scope of their powers; and, fifth, European powers and that, when the idea a government, which requires approval they differed in regard to the authority by was brought to the attention of Congress, directly by the people. The Constitution which amendments could be made. Even these it was widely viewed as a sensible proposal, simply involved too great a delegation of distinctions, however, were not understood as raising no constitutional concerns. authority, in terms of both the extent of affording inflexible rules. Federalists pointed The immediate spur to action were federal jurisdiction granted and the mode out, rather, that both the historical practice the attacks on commercial shipping in the in which it was to operate, to be properly of actual confederations and the theoretical Mediterranean by the so-called Barbary ratified as a league. By delegating so much accounts of the form simply could not be pirates. In response, Thomas Jefferson, then authority, and thereby substantially dimin- reduced to any rigid set of formal criteria. This on diplomatic duties in France, boldly pro- ishing their own authority, the state legisla- was nowhere more true than in regard to the posed a formal concert of European powers. tures would be making “essential inroads” Articles of Confederation themselves, which, For this purpose, he developed a draft con- on their own constitutions. Nor was Madi- in fact, had many mixed characteristics and, federation of states, the purpose of which son alone in holding the view that legislative yet, uncontroversially retained its character as was to combine the naval forces of interested ratification of a league was proper. Patrick a confederation. It was therefore impossible nations to confront the Barbary threat. The Henry, for example, went so far as to insist to draw any bright lines. The Constitution proposal, which he explicitly called a “confed- that “the people have no right to enter into would transform the nature of the federal eration,” is strikingly modern in conception, a leagues, alliances, or confederations…States polity not because there was anything entirely kind of incipient international anti-terrorism and sovereign powers are the only proper novel in it from a purely formal point of view, organization. It called on all participating agents for this kind of Government.” but because the import of the various changes states to contribute forces in accordance with What, then, was the difference, in the taken as whole created a genuine “govern- agreed-on quotas, and created a “council” founding view, between a “league” or ment” out of a system that before had been whose function was to carry the confederacy

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into effect. States would be represented in the I have already noted that the Founders to obtain compliance with their lawful council by their diplomatic representatives, did not believe that there was a single crite- decisions, international officials will remain voting would be computed in proportion to rion that defined the difference between a entirely reliant on the good faith cooperation the quota of each state, and the majority, so league and a government, and, moreover, of the U.S. government. There is nothing computed, was to prevail on all questions there was, in fact, considerable contempora- inconsistent, then, between the confederate within the scope of the confederacy. More- neous support for the claim that the resolu- form and the principle of self-execution in over, the council would have the power to tions of the Articles of Confederation itself U.S. constitutional law. A self-executing appoint officers to carry out the functions were at least sometimes self-executing. It is confederation falls well within the treaty- of the confederacy, including serving on true, however, that there were many who making power of the United States, at board member state vessels. did emphasize that one typical difference least as a treaty power was understood No one appears to have objected to the between a confederation and a government by the Founders. plan on constitutional grounds, and, indeed, was that a confederation regulates the mem- Congress was apparently favorably disposed ber states in their collective capacities but *** to idea of a confederacy. It came to nought not, or at least not directly, the individuals only because the Confederate Congress was, of which each member state is composed. I do not believe that this early history by that time—on the eve of the Philadelphia Even this claim had to be qualified, however, provides a full answer to the constitutional Convention—virtually bankrupt and barely because in numerous respects, the Articles challenges that have been raised in response able even to maintain the forms of its institu- of Confederation gave Congress the power to delegations of governmental authority to tional existence. That Jefferson conceived of directly to regulate individuals. In any case, contemporary international organizations. such a plan is certainly strong evidence that it is a mistake to think that this distinction At a minimum, however, it does dispel any there was no inherent clash between treaty- corresponds to the distinction between self- extant myth that the Founders were some- based delegations of governmental power executing and non-self-executing regulations. how inveterately hostile even to confederate and the founding generation’s conception Rather, what was crucial in the minds of arrangements involving far more extensive of popular sovereignty or of fundamental those who emphasized this point was that a delegations than have thus far been seriously constitutional principle. confederation did not have the legal capacity proposed on the international plane. The Before concluding, it is worthwhile to to enforce its own laws through its own mag- Founders simply did not embrace the princi- consider one objection to the understanding istracy—most importantly, through its own ple of exclusive national democracy. There is of this history that I have offered. I call this executive officials and courts—and that it was therefore a heavy burden of justification on objection the non-self-execution interpreta- therefore reliant on the cooperation and for- those who would engraft that principle onto tion of the founding. Under this view, the bearance of the member states, which could the contemporary Constitution. crucial difference, in the minds of the effectively block implementation of confeder- The early history also has a more Founders, between a confederation, subject ate regulations if they so chose. Indeed, at affirmative significance. The experience of the confederation period reflects an early recognition in our constitutional tradition of the need for a pragmatic approach toward There is nothing inconsistent, then, between the structuring of institutional arrangements among “independent” and “sovereign” the confederate form and the principle of states, and it provides a vivid illustration of the imperative reasons for adopting that self-execution in U.S. constitutional law. A approach. Although painfully aware of the costs to be paid in terms of democratic self-executing confederation falls well within accountability and autonomy, the founding the treaty-making power of the United generation nevertheless recognized that imperative considerations of principle and States, at least as a treaty power was interest could justify the legislative decision to confederate, in their case in order to win understood by the Founders. independence from the world’s dominant power. Although in the 200-plus years since then, the context has changed immeasurably, but we too face similar choices. In order to approval as an ordinary treaty, and a gov- one point, Alexander Hamilton declared to obtain the benefits of economic growth ernment, which requires constitutional that it was this which “may be considered through free trade, international peace and approval, is that the regulations of a confed- as forming the characteristic difference security through collective security and eration are, in contemporary parlance, non- between a league and a government.” verifiable arms control and non-proliferation self-executing. That means that the It should be clear that self-execution, regimes, and environmental protection resolutions of the confederate body do not at least as it is understood in U.S. law, is in through international cooperative mecha- have effect as law within the member states no way inconsistent with this conception nisms, to name but a few, we must also make until implemented by each member state of the confederate form. Even when a treaty painful trade-offs in terms of democratic separately through an act of its own legisla- obligation, or a regulation of an international accountability and autonomy. Nothing in ture. In contrast, the resolutions of a gen- organization, is self-executing, Congress our constitutional law does, or ought, rigidly uine government, whether it be styled a remains entirely free to block its implementa- to constrain us from making the same kinds “national” or “federal” government, are tion by the simple act of adopting an incon- of pragmatic compromises that the founding directly enforceable by courts without the sistent statute. Domestic courts will then give generation was itself willing to embrace. I need for any further legislative implementa- effect to Congress’ later-in-time statute, not tion in the member states. the international obligation. Thus, in order

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topping activity in 1988 by more than 400 The Truth Emerges About percent in dollar terms and by more than 300 percent in the number of deals. Hostile (Corporate) Toxicity bids continued to be made. Responding to the “just say no” defense, such bids were Marcel Kahan questions the conventional wisdom often accompanied by the threat of a proxy contest to replace the incumbent board. about the efficacy of so-called poison pills. Moreover, the line between “friendly bids” and “hostile bids” became blurred. Unlike in wenty years ago, a wave of hostile the 1980s, in the latter part of the 1990s hos- takeovers burst on the scene. In tile bids and friendly bids were made by simi- response, target managers took resort lar companies, were financed in similar ways, to a variety of exotic sounding defen- were made for similar reasons, and the bid- sive tactics, ranging from “shark ders were represented by similar law firms T repellants” to “greenmail” and from and investment banks. Studying takeover “white knights” to the “Pacman” defense. activity, a prominent finance professor con- Quickly, however, a new weapon in the defen- cluded that the hostility in takeovers is mostly sive arsenal—the “poison pill” —rendered “in the eyes of the beholder” and that the dif- most other defenses moot. Compared to other ferent types of bids made reflect tenuous dis- defenses, the poison pill had several important tinctions in negotiating strategies and in the advantages for target managers. A pill could be timing of the disclosure of takeover talks. adopted by any company at any time without What is one to make of this? What is the shareholder approval; adoption of a pill did relationship between legal doctrine and the not entail significant transaction costs and did world of takeovers? Our conclusion is that not, apart from its effect on takeovers, affect the role of courts is far less central than the the conduct of the company’s business; and, partisans in the takeover debate assumed. most importantly, a pill makes a company Even the most important of the Delaware takeover-proof unless it is redeemed by the Supreme Court decisions turned out, in ret- target board. The pill, in short, or so it was rospect, to be little more than a small piece thought, enabled target managers to “just of an overarching re-equilibrating mecha- say no” to an unwelcome bid. nism that adjusts to perturbations. During this period, prominent commen- Assume, arguendo, that many market The following essay was drawn from “How I tators painted the world in which a “just say participants disapproved of the takeover Learned to Stop Worrying and Love the Pill: no” defense was valid in dark colors. They standards set by the Delaware courts. There Adaptive Responses to Takeover Law” by accused courts of “shirking their responsibil- are three strategies that market participants Professor Marcel Kahan, George T. Lowy ity to safeguard shareholder value” and of could pursue. First, they could seek to Professor of Law, and Edward Rock, Saul A. sanctioning “corporate treason.” On the flip change the law. Most importantly, market Fox Distinguished Professor of Business Law at side of the coin, when a ruling by the participants could seek legislative action. the University of Pennsylvania, and published Delaware Chancery Court appeared to reject They could lobby the Delaware legislature to in The University of Chicago Law Review. the “just say no” defense, Martin Lipton (’55) pass a law changing the takeover standards Kahan’s courses and award-winning research— of Wachtell, Lipton, Rosen & Katz sent a set by courts; they could lobby Congress; or, including “Do Bondholders Lose from Junk Bond notorious memorandum to his clients char- in some cases, they could urge the Securities Covenant Changes?” (with Bruce Tuckman), acterizing the ruling as a “dagger aimed at and Exchange Commission to pre-empt which won the Merton Miller Prize for the best the hearts of all Delaware corporations” Delaware law with federal regulations. paper submitted to the Journal of Business— and advising them that they may have to Alternatively, market participants could try focus on corporate governance, securities fraud consider reincorporating in a different state. to modify the law through the common law and bondholder rights. In this essay, Kahan Beleaguered target managers, thus, must process, by having Delaware courts overturn, makes a convincing case that pills are not that have breathed a collective sigh of relief when limit, or modify their prior decisions. poisonous. Kahan’s colleague, Robert Daines, the Delaware Supreme Court in Paramount Second, market participants could induce until recently a professor at the NYU School Communications, Inc. v. Time, Inc. (Time- individual companies to reincorporate or of Law, and now the Pritzker Professor of Law Warner) issued an opinion that was widely change their governance structure through and Business at Stanford’s law school, focuses read as endorsing the “just say no” defense. charter or bylaw amendments. For companies on corporate finance issues in his scholarship Although it seemed, at the time, that the that are already public, reincorporations and too. Daines says “How I Learned to Stop issues facing the Delaware courts—whether charter amendments require the approval by Worrying and Love the Pill is the first article a poison pill was legal; whether managers both shareholders and directors, while bylaw to examine and emphasize investors’ responses could “just say no”—had decisive impor- amendments typically require the consent that might neutralize or counteract the pill, thus tance, somehow, in retrospect, they do not of either the board or shareholders. For unsettling the comfortable conventional wisdom seem to have mattered quite so much. None companies that go public, the board typically about pills and throwing open the policy options.” of the parade of horribles predicted by the determines the content of the initial public Professor Kahan’s contributions, Daines adds, partisans came to pass. While merger and offering (IPO) charter and bylaws, taking “are rare and valuable partly because he has acquisition activity declined sharply around into account the effect of these provisions not only an excellent theoretical background, the time of the Time-Warner decision, it on the IPO share price. but good empirical skills as well.” resumed as the economy rebounded. In the Third, market participants could seek to millennial year 2000, it reached a volume of modify the corporate governance and man- $1.3 trillion on more than 10,000 deals, thus agerial incentive structure in other ways.

66 THE LAW SCHOOL AUTUMN 2004 The various elements of the governance and as a result of either shareholder pressure or defense to further shareholder interests incentive structure interact with each other, directorial judgment, many Pennsylvania with a flat-out prohibition of takeover often in complex ways. A change in the legal companies opted out of the state’s anti- defenses). More generally, because adaptive standard or an exogenous shock (such as an takeover regime, which was enacted to pro- devices come in many forms, with different increase in the risk of hostile takeovers) can tect a politically powerful local employer. approval requirements and different eco- upset the balance between a legal standard Second, opt-outs may be more effective if nomic effects, they greatly increase the and the other elements of the incentive struc- firms are heterogeneous and the desired flexibility of market participants. ture. One way to re-establish the balance is rule varies from company to company. How, then, do the last 20 years of merg- to modify the other elements to create a new Adaptive devices, as well, may be pursued ers and acquisitions relate to this framework? equilibrium. Adaptive devices that rebalance either because they are easier to implement In the 1980s, an exogenous shock hit the cor- the governance and incentive structure can or because they are more effective. Adaptive porate law system: In the space of a few take multiple forms, including changes in devices may be easier to implement because years, hostile takeovers became common- the compensation regime, changes in board the requisite action necessary for adoption place and engendered changes in Delaware’s composition, changes in the shareholder does not require formal legislative, board, or takeover jurisprudence. How did the corpo- composition, or changes in the capital struc- shareholder approval. Adoption may also be rate world respond—and not respond— ture. Depending on the device, adoption easier for other reasons: for example, because to these developments? may require formal approval by the board the device is less visible and therefore gener- First, Delaware did not change its statu- and/or shareholders, approval by outside ates less opposition (compare informal pres- tory law significantly, for example, by pass- directors, actions by corporate officers, or sure to redeem a poison pill with a formal ing a law on whether and when a board may actions by a subgroup of shareholders. bylaw amendment requiring redemption); employ a poison pill. Delaware’s principal In drawing a distinction between legal because its effect is more ambiguous or less legislative effort—the adoption of its moder- change, opting out, and adaptive devices, well understood (an employee stock owner- ate anti-takeover law, codified as Section 203 we are trying to draw attention to different ship plan can serve as an anti-takeover device of the Delaware General Corporation Law, modes of response. Legal change requires or as a bona fide benefits plan); because it in 1988—was largely moot by the time it was action by the legislature, a regulatory agency, has a greater claim to legitimacy (it is hard enacted. It appears that there was no or the courts. Opting out requires private to oppose more independent directors); or sufficiently broad political consensus that action, but in a formal, state-created, regula- because it utilizes carrots rather than sticks Delaware takeover law was wrong or, if tory framework. By contrast, adaptive devices (contrast the incentives from executive com- wrong, how it should be changed. can take a variety of forms, many of which pensation with the incentives from the threat Second, and strikingly for many critics are more graduated and less formal than of legal liability). Setting aside ease of imple- of Delaware’s approach, market participants legal change and opt-outs. mentation, an adaptive device can enable did not induce many companies to opt out How does one choose among strategies parties to achieve their goals more effectively of Delaware law through charter provisions. for responding to change or, for that matter, than legislative change or opting out by Such charter provisions could have, as rec- decide whether to respond at all? Broadly offering more flexibility and fine-tuning ommended by commentators, either speaking, from the perspective of a group of (compare a board composed by more inde- restricted poison pills directly or made them dissatisfied market participants, strategies dif- pendent directors who would use a takeover ineffective by ensuring that shareholders fer along two dimensions: their effectiveness in rectifying a problem and the ease with which they can be implemented. For legislative reversal, dissatisfied market participants ed. must possess the political power to get a

eserv new law enacted. This may be the case when there is a broad consensus among market participants how the present law could be improved. Most amendments to the corporate code in Delaware are the product of om. All Rights R c such a consensus. Legislative reversal may also occur when one interest group or a coalition of groups captures the political process. Some commentators interpret the anti-takeover statutes passed by several om cartoonbank. states, albeit generally not the one passed by Delaware, as resulting from the capture orenz fr orenz of the legislative process by a few large local

ee L employers, possibly in coalition with employee representatives. Opt-outs, in turn, have two potential advantages over legal change. First, opt-outs may be easier to implement. Opt-outs require ollection 1985 L either the governance powers to obtain board er C or shareholder approval for an opt-out by an ork existing public company or the pricing powers to induce managers to opt out when they take a company public, rather than the politi- he New Y he New cal power to induce legislative change. Thus, © T

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could replace directors in between annual tenure is less secure independent of any embraced the pill. What shareholders meetings. With already public companies, takeover bid. As a result, a CEO has less to could do, however, they did do: They one might argue that such opting-out did gain by fighting to stay on. Better, a CEO largely prevented the passage of new not happen because Delaware law requires may reason, for one’s pocketbook and repu- takeover-inhibiting charter amendments, board approval (in addition to shareholder tation to depart with the rich send-off of a and if a precatory resolution to redeem a pill approval) to amend the charter. Managers sale than run the risk of being fired ignomin- is on the ballot, they voted for it. Beyond opposed to such amendments may thus have iously by a restive board. that, shareholders had to compromise with been able to prevent their passage. In other There is substantial evidence that these managers, offering them huge piles of instances, however—most notably in devices were effective in neutralizing manage- money to buy off their opposition to unso- response to Pennsylvania’s anti-takeover rial opposition to unsolicited bids. Most licited bids and subjecting them merely to law—the board’s power to block charter importantly, the high level of merger and the less-threatening discipline of independent amendments did not prevent massive opt- acquisition (M&A) activity indicates that there directors rather than to the less-forgiving outs. In any case, the requirement of board are no significant barriers to deals. And poison takeover market. Shareholders then do not approval does not explain why takeover-facil- pills are mostly used by target boards to buy love the pill, but they have learned to live itating provisions were not included in the time, and bargaining power, in order to nego- with the pill. We will refer to this explana- charters of companies that go public, when tiate a higher price with the raider or to find tion as the “implementability hypothesis.” pre-IPO owners have incentives to adopt a white knight, rather than to “just say no.” What is most striking about the recent governance provisions that maximize the Our framework suggests that there are history of takeovers is that, regardless of price at which they can sell shares to the two plausible explanations for the failure to which hypothesis is correct, the use of adap- public. To the contrary, to the extent that pursue seriously a strategy seeking opt-outs tive devices seems to work reasonably well IPO charters contain special provisions, they or legislative change in response to the for the participants. The level of M&A activ- inhibit hostile takeovers. The failure by the takeover standard developed by Delaware. ity, the percentage of friendly-versus-hostile vast majority of companies to opt out to First, the ultimate complex takeover deals, the decline in efforts to adopt “show- make Delaware law more takeover enhanc- regime—combining the power of the board stopping” charter amendments like dual-class ing, whether by charter amendments or in to block a bid (and to threaten to block a recapitalizations, and the failure of states an IPO, suggests at a minimum that market bid to extract a higher price), financial incen- offering extreme anti-takeover measures such participants regard the board’s ability to “just tives for target managers to accept one, and as dead-hand pills to attract incorporations say no” (unlike, for example, Pennsylvania’s oversight by outside directors with increased all suggest that the intensity of managerial law) as not seriously detracting from com- substantive independence—may indeed insecurity has been tempered and, with it, pany value, and possibly as enhancing it. reflect an equilibrium that is superior to the managers’ opposition to selling the company. Rather than by changing the law or opt- one that could be achieved by opt-outs or For buyers, the current state seems satis- ing out of it, market participants principally by legal change establishing a blunt “let factory: payments owed managers under adjusted to Delaware takeover law through shareholders decide” regime. Shareholders, incentive compensation contracts can be adaptive devices. As noted earlier, we find in other words, may have learned to love budgeted into the price; the amounts, while large for CEOs, are of the same order of magnitude as investment banking fees and amount to a relatively small percentage of In the 1980s, an exogenous shock hit the deal price; and market participants generally assert that deals that make economic the corporate law system: In the space sense get done. For target shareholders, the current state likewise seems satisfactory: of a few years, hostile takeovers became managers have largely adopted “shareholder value maximization” as their mantra; M&A commonplace and engendered changes in activity soared in the 1990s; and target shareholders earn significant premia in friendly Delaware’s takeover jurisprudence. How deals. Finally, the current state suits most potential target managers: they stand to get did the corporate world respond—and rich on their options, and their “golden not respond—to these developments? parachute” packages should they be made superfluous by an acquisition. Overall, political controversy over takeovers has died down and the more hyper- much higher magnitudes of stock options the pill. According to this explanation, occa- bolic claims by the partisans—that permitting granted to executives, with features such as sional shareholder pressure to remove pills a board to block a bid amounts to “corporate accelerated vesting upon a change of control. is concentrated in the companies that failed treason” or that preventing the board from Such compensation devices provide substan- to adopt effective adaptive devices. We will blocking a bid constitutes “a dagger aimed at tial incentives to managers to accept an refer to this explanation as the “effectiveness the hearts” of corporations—have vanished unsolicited takeover bid. In addition, outside hypothesis.” from the public debate. In other words, the directors play an increasing role in the gover- Alternatively, shareholders may have system regulating takeovers as a whole, unlike nance of public corporations. For the most lacked both the political power to change many other aspects of today’s corporate gov- part, these outside directors are not mere the law and the governance power to achieve ernance structure, is in equilibrium with no lackeys of management. They may refuse to opt-outs. According to this explanation, substantial pressure for radical change. I go along with a chief executive officer’s deci- shareholders exert only half-hearted pressure sion to reject an unsolicited offer. Moreover, to remove pills because they realize the futil- their greater power means that a CEO’s ity of that strategy, not because they

68 THE LAW SCHOOL AUTUMN 2004 employment and its relevance, or lack Middle-Class Welfare thereof, to the program in question. If there had been, in the period, a clear societal con- During the Depression sensus that the color of one’s collar was the key marker of one’s social class, the govern- Deborah Malamud reveals that the New Deal mental focus on the collar-color line would be relatively uninteresting. But no such con- didn't offer everyone the same deal. sensus existed. During the early and mid- 1930s, lower-paid white-collar workers and higher-paid, skilled blue-collar workers were each engaged in battles (not necessarily with each other, a point to which I will return in closing) over their status and their class alliances. Through their public statements and official actions, administrators validated some groups’ self-perceptions and belittled others’. In doing so, administrators made two significant interventions into the social process of defining the American middle class. They placed the Roosevelt Administra- tion’s imprimatur on a vision of the Ameri- can middle class in which white-collar work was the most salient determinant of middle- class status. And they helped to ensure that both middle-class values, as they understood them, and the hierarchy that valorized those values would survive the downward-leveling threat of the Great Depression.

he problem of unemployment loomed large during the Depression. Already- T poor black agricultural workers, An-Bryce Professor Deborah Malamud’s article, t numerous points in modern unskilled blue-collar workers, skilled blue- “Who They Are—Or Were: Middle-Class Welfare American history, actors within the collar workers, and white-collar workers at in the Early New Deal,” excerpted here from The legal system have been required by all levels faced dire economic conditions: University of Pennsylvania Law Review, helps their programmatic interests to unemployment followed by the eventual us understand how the depression prompted well- develop a working understanding exhaustion of their economic resources, if meaning government officials to create systems A of middle-classness. The New Deal they were fortunate enough to have had any, of welfare for middle-class workers. These officials is a particularly fertile ground for the study and then by poverty. Their economic needs were concerned about how formerly prosperous of the middle classes and the law. During the presented the government with the question and self-sustaining people would handle sudden New Deal, Congress adopted numerous of whether distinctions based on past (for the unemployment. They worried that large numbers social programs that put government actors impoverished unemployed) or present (if of newly unemployed workers might pose a dan- in the position to make vital decisions about past status survived unemployment) social ger to national stability. Says Sarah Barringer what it means to be middle class. Just as and economic status should be the basis for Gordon, a widely recognized scholar on the role David Roediger has documented “the wages differential treatment in the delivery of unem- of religion in American public life and the separa- of whiteness” in America—the societal value ployment relief. The key program for these tion of church and state, and a Professor of Law of whiteness and how it was fought for and purposes is the unemployment relief program and History at The University of Pennsylvania won—I aim to show how the crafters and administered by the Federal Emergency Law School, “The importance of Professor Mala- administrators of New Deal social programs Relief Administration (FERA) and its succes- mud’s new work lies not only in its contribution had, and took, the opportunity to define the sor agencies, all of which were under the to our understanding of the depression and its “wages” of middle-classness. The central authority of the legendary Harry Hopkins. effects on workers, it also helps us rethink how question is how key governmental actors When Harry Hopkins joined President laws play into, and are themselves manipulated decided what middle-class status was worth, Franklin Delano Roosevelt’s administration by, individual actors and government agencies.” not merely in terms of money (though, of as head of FERA, he was no stranger to the Gordon, who is currently working on a new book course, money was crucial to all concerned), problem of white-collar unemployment. As about religion and litigation in the twentieth but also—and most importantly—in terms New York’s administrator of relief, he helped century, The Spirit of the Law, adds; “Professor of dignity and honor. pioneer the governmental development of Malamud is a careful and thoughtful researcher In deciding who needed or was entitled work relief for the employable unemployed. and writer. She is innovative, but she backs up to receive the benefit of these federal pro- While working together in New York, Hop- her insights with attention to the real world. This grams, administrators focused on the similar- kins and then-Governor Roosevelt had both is a rare and extremely valuable combination ities and differences between different kinds been horrified by the demoralization caused of commitments.” of jobs or between the types of people who by traditional indoor (poor house) and out- hold them. Most often, the administrators’ door (mostly in-kind grants of commodities, discourse and practice turned on the distinc- e.g., food and coal) relief methods, and tion between blue-collar and white-collar developed a preference for work relief. That

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work relief was significantly more expensive were not. The specialness of the white-collar the recipient was found to be no longer in than direct relief because of the cost of mate- worker was, for them, simply obvious. need (perhaps because someone else in the rials, supervision, and administration was household had secured a “real” job). an accepted fact at that time. Moreover, it efore we examine the Hopkins adminis- The CWA Period (November 1933-May was not the social value of the product that tration’s treatment of white-collar work- 1934): As the winter of 1933 approached, was its main selling point. Rather, the value B ers more closely, it is useful to establish a Hopkins persuaded FDR that it was time was the moral value of work to the workers basic chronology of the activities of FERA to try a new approach to work relief. FDR themselves. Hopkins developed the theory and related agencies in the early years of the created the Civil Works Administration that white-collar workers (all white-collar New Deal. While we are dealing here with (CWA) by executive order on November 9, workers, regardless of their previous levels different agencies, there is great continuity 1933. The declared mission of the CWA was of income) had an especially great need to over time: Hopkins was always at the helm, to create “regular work”—real jobs, not on have relief tailored to their special needs. and his long-serving core administrative staff a work-relief basis—for four million of the They, more than other unemployed workers, was allocated to different positions as needs unemployed. CWA wages were considerably needed to be provided work relief instead developed. We are dealing with the same higher than FERA work-relief wages. Half of of direct relief; they, more than other unem- minds directed toward the same basic task. these jobs were to go to individuals on relief ployed workers, needed to be protected from The First FERA Period (May-November as of November 1933; half were to go to the indignities of the welfare system, both 1933): FERA was created by statute on May individuals who were unemployed but not for their own sakes and for the sake of the 12, 1933, and Harry Hopkins was appointed on relief. To get one of the two-million non- country’s future. For them, to adopt the to head the new agency on May 20. FERA relief jobs, a person merely needed to show vocabulary of debates raging in our day, funded and had an administrative hand in that he or she was unemployed. There was equal treatment required special treatment. both direct and work relief, but work relief to be no investigation of an individual’s eco- The archival record suggests that Hop- was Hopkins’s greatest area of personal con- nomic need (for example, to make sure assets kins and his staff recognized that the special cern. From the very beginning, FERA began had been spent down) and no investigation dignitary status of white-collar workers was to solicit work-relief projects from the states of whether other members of the family not universally accepted within American and approve them for federal funding. Appli- were working. society. Indeed, FERA administrators made cants for relief would apply to local relief Additionally, during the CWA period, efforts to mask the favored treatment of offices (under state jurisdiction) with author- Hopkins and his staff initiated a separate pro- white-collar workers from public view. They ity to dispense FERA assistance, and office gram, the Civil Works Service (CWS), which feared that the objections of organized, staff would determine their eligibility for was specifically aimed at generating more skilled blue-collar workers would, if these relief and establish, based on questioning jobs for white-collar workers than the states privileges were disclosed, lead to their undo- and home investigation, a relief “budget” were otherwise willing to generate under the ing. This was not simply a matter of normal for each household—a total amount of aid CWA program. For technical reasons relating interest-group politics, of handing out the needed “to prevent physical suffering and to the funding source for these jobs, all spoils and then hiding the act behind smoke to maintain minimum living standards.” It required the job recipient to be on relief. and mirrors. White-collar workers, especially was then up to the relief office to determine those not in the professions, were essentially whether the applicant would receive aid (up he CWA was enormously popular with unorganized in the early 1930s. Furthermore, to but not necessarily reaching budget levels, large segments of the American public, in normal politics, all groups’ claims are depending on the office’s funding level) in T and Hopkins was deeply committed to equally legitimate, but inevitably some groups the form of direct relief or work relief. Work- it. But it was expensive, and ultimately CWA

win and some groups lose. In contrast, we relief jobs were not “real” jobs. The jobs were (and CWS) lost FDR’s support. ed. will see that the (often unstated) claims of not full time, they paid less than the hourly The Second FERA Period (April 1934- eserv white-collar workers were seen by FERA rates for similar work in the “real” job mar- May 1935): With the return of FERA, work- ofﬁcials as legitimate; the anticipated objec- ket, and they were temporary: They ended relief jobs were to go exclusively to relief tions and claims of skilled blue-collar workers when the project ended, or even sooner if clients. The transition from CWA to FERA created a need to determine the relief eligi-

bility of millions of workers in the shortest om. All Rights R c possible time. Applicants were required to prove both their own indigency and the unavailability of support from relatives inside and outside the household. An uproar went up about the indignities of being asked to sign the “pauper’s oath.” egory from cartoonbank. egory from hat privileges were accorded white- collar workers in the design and x Gr W implementation of federal relief? I will address this question by proceeding thematically rather than chronologically.

Eff orts to Create White-Collar ollection 2004 Ale

Work Projects er C

Whenever the subject of work relief was on ork the agenda, Hopkins and his staff made special efforts to generate projects that would he New Y he New hire substantial numbers of white-collar © T

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workers to do white-collar work. As a econd there were perceived differences a dangerous threat to morale—but especially general rule, federal relief administrators between white- and blue-collar work that to the morale of the white-collar worker. relied on the states to generate work-relief S were used to justify higher budgets for For workers able to secure CWA jobs projects. During the CWA period, the states white-collar workers. Whenever work relief without going on the relief rolls, the CWA did utilize white-collar workers, dispropor- was needs-tested, the extent of a worker’s had solved the problem of the humiliating tionately using the states’ allotment of non- need determined the number of hours he relief-application process. But for those apply- relief jobs on them. They were hesitant to or she could work. Much relief work was, ing for the 50 percent of CWA jobs reserved do more: There was some truth to local officials’ concerns that the white-collar workers receiving jobs under CWS programs The (often unstated) claims of white-collar were not in as dire need as were many blue- collar, direct-relief recipients who had lost workers were seen by Federal Emergency out in the competition for scarce CWA jobs. Notwithstanding these concerns, Hopkins Relief Administration officials as legitimate; was convinced that the states were not meeting the full extent of the need for white- the anticipated objections and needs of collar jobs, and he created a special Federal Projects program to solicit white-collar skilled blue-collar workers were not. projects from federal agencies. Given the chaotic conditions of the demobilization of CWA in the spring of 1934, many therefore, part time. But very early on it was for those on relief or for CWS jobs, CWA CWA workers, white- and blue-collar, were decided that certain kinds of work could did nothing to change the relief-application being removed from relief jobs who might only be done properly on a full-time basis— process. For the white-collar workers forced well have proven eligible for relief work under that certain jobs could not be divided among to apply for needs-based work relief, Hop- stricter FERA standards. Hopkins’s concern multiple workers. At first, this claim was made kins and his staff struggled to design a dig- with white-collar workers was so great that only for supervisory relief work. Soon, how- nity-preserving application process that he was willing to create 5000 new white-collar ever, all white-collar work came to be seen as could be implemented without drawing neg- jobs while at the same time eliminating the presumptively nondivisible. This perception, ative attention from those excluded from it. CWA jobs of the “labor people” and moving in turn, made the states more reluctant to Local relief offices were given a good deal of them to the most humiliating form of direct design white-collar work projects. leeway to experiment in finding ways to take relief—the grocery order—all on the condi- Hopkins and his Washington-based staff white-collar workers “out of intake”—in tion that it be done secretly. responded to this problem by instructing other words, to certify them for relief under local-level relief-office workers that they a friendlier application process. In addition, Relief Budgets should consider white-collar workers’ previ- Hopkins’ office made clear that it wanted Both for purposes of direct relief and of ous standard of living in determining their local offices to allow professional associa- FERA needs-tested work relief, a central need (and, therefore, in setting their work- tions to certify their members’ relief eligibil- question raised by the task of relief adminis- ing hours). In addition, when Hopkins’ staff ity. No similar arrangements were made for tration was how to determine how much lobbied agencies to create white-collar relief labor unions to certify the eligibility of relief each family or person needed. The jobs in federal agencies, they emphasized the their members. rhetoric of federal relief was that each family fact that white-collar budgets were high The greatest pressure for finding an alterna- (or person, if the recipient was single) enough to permit full-time work. Not only tive way to certify the need of white-collar would receive enough to live at a minimum did this policy lead to more white-collar jobs workers emerged in the CWA demobilization standard of decency, but no more. There and higher relief grants to white-collar work- period, when thousands of white-collar work- was no mention by Hopkins and his staff in ers, it also allowed white-collar workers ers would face the normal relief-application their public statements that this minimum more readily to believe they were being process for the first time. When demobilization standard of decency would differ depending given “real” jobs rather than relief—a belief began, Hopkins had the following exchange on the prior occupation of the applicant. Yet that the agency perceived as necessary to the at one of his frequent press conferences: consistently, and for the most part silently, preservation of their dignity—even when, federal relief policy was to set family bud- in fact, jobs were needs-based. Mr. Hopkins: gets higher for white-collar workers than One of the most important groups is the for blue-collar workers, regardless of their The Relief Certification Process white-collar crowd, all over the country. I prior incomes. There was a very strong rhetoric in all of think that you have to determine that need The two main reasons for the award of Hopkins’s public speeches that being through a different type of investigation as to higher family budgets to white-collar work- required to apply for relief was an injury to need, than you do with the run of families. I ers are hard to disentangle. One was that dignity for all workers, but even more so for am inclined to think that it should be done in white-collar workers were a different, and white-collar workers. The most traumatic a separate office for professional people, and better, kind of person. The other was that element of going on relief was understood in that office to have people who are of the white-collar jobs were a different, and better, to be the relief investigation itself. Applicants professions, perhaps, to interview and to see kind of job. Both pointed in the same direc- would wait in long lines, often outdoors and these people and to talk with them, and I tion: more money for white-collar workers. in foul weather; they would be asked highly think it can be done. In fact, I know it can be First, white-collar government officials personal questions about why they lost their done and in a way that will not offend the could see the dignitary loss that would come jobs, about their finances and those of any dignity of an unemployed person, on the one from failing to consider past living standards relatives who might be able to support them, hand, and will, at the same time, protect our for white-collar workers but failed to see that and about their remaining assets. This very interests by not throwing away public funds loss for blue-collar workers. process, Hopkins and his staff thought, was on people who do not need it.

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So I think we must have machinery that is Indeed, it might seem that Hopkins and his staff made value judgments of not class distinction, but work distinction. I was simply engaged in a “hierarchy-neutral” their own about who was entitled to pre- do not believe in setting up two relief offices, approach to governmental action—one in serve a heightened sense of dignity through but it seems to me that this white-collar which it is the job of governmental actors to the horror of the Depression. By using the group constitute a different problem. If you understand the class system well enough to collar-color line as the dignitary line, Hop- are going to have, say, newspapermen, engi- assure that their programs do nothing funda- kins reinforced one view of the American neers, architects, doctors, or draughtsmen mentally to change it. If that is the case, his class system—but not the only reasonable ask for relief, it calls for a new technique. special concern for white-collar workers disap- view of the American class system. pears into a neutral principle of treating each Query: group exactly according to its desert under rom the perspective of the most powerful But when they get onto the basis of need, the rules of the existing social order. This elements within the society as a whole, they are no longer white-collar men, are they? hypothesis, however, fails to fully account for F the experience of the New Deal social the historical record for four main reasons: programs I am studying contributed to the Mr. Hopkins: Hopkins’s position regarding black and Mexi- shaping of a class system built around the That does not change the type of work they can workers; his interventions on behalf of special salience of the collar-color line. The are fitted for and are looking for. working women; his treatment of skilled “hot spot,” the contested arena for the main- “blue-collar” workers; and the method of tenance of that system, is the point at which nce again there was a call for differential defining the “white-collar” category itself. lower-level white-collar workers and upper- treatment to protect white-collar dig- During her investigatory visits to the level blue-collar workers meet and their life O nity. Indeed, Hopkins’ field investigators South, Lorena Hickok forcefully argued that chances intersect and, at times, change places. predicted dire results from any failure to pro- FERA should acknowledge the traditionally But the beneficiaries of Hopkins’ assertions tect white-collar workers: Many, investiga- lower standard of living for blacks and Mexi- of white-collar privilege were not themselves tors reported, would rather starve than go cans and treat them accordingly. There is no organized to participate in any sort of project through the relief-application process on evidence, however, that Hopkins ever of class conflict, and by and large they experi- these terms. But key field investigators, such embraced this view as a desideratum. When it enced their own battleground as being psy- as Lorena Hickok, predicted that skilled came to blacks, Hopkins’ Washington-based chological rather than social. Similarly, blue-collar workers, through their unions, staff accepted hierarchy-neutrality only as polit- unionized blue-collar workers’ efforts were would strenuously object to any efforts to ically necessary, when they accepted it at all. directed at maintaining the dignitary distinc- remove white-collar workers from the stan- Similarly, Hopkins’ interventions in favor tion between their position and that of the dard intake process without also according of the interests of working women—includ- unskilled. It was unskilled workers they that privilege to them. ing single, white-collar working women— encountered in the relief workplace, and it Despite the heightened risk of political bear more of a relationship to his and his was descent into the category of the unskilled controversy during the intense CWA mobi- aides’ own experiences in the female-heavy they most feared. However, the fact that lization period, Hopkins continued under field of social work than to any conservative these two key groups did not experience FERA the process of allowing professional sense of hierarchy-preservation. themselves as competing with one another organizations to vouch for their members’ In addition, Hopkins’ treatment of does not mean they were not in fact compet- relief eligibility, and instructed FERA work skilled, often unionized, blue-collar workers ing with one another. They in fact were com- projects to give work relief to white-collar seems to reflect a vision of the social order peting, seen from the standpoint of the class workers whom they determined to be relief- that was hotly contested by those workers and system as a whole rather than from the stand- eligible but who were not on the relief rolls. their unions and that was hard to see as hier- point of their own direct experience of it. archy-neutral. In the pre-New Deal period, Dignity is not a scarce commodity when Educational Programs for the the claim of the skilled industrial worker to a each group within a society is free to define College-eligible superior position within the industrial hierar- its own dignity in its own terms. It becomes One additional privilege to consider is the chy would have to have been recognized by a scarce commodity when some groups have creation of special programs under the fed- anyone operating on a principle of pure hier- more social, cultural, and political power eral relief operation for advancing the college archy-neutrality. Instead, FERA policy-makers than others and can represent their views education of college-eligible, unemployed never embraced the status claims of skilled as the views of the country as a whole—or youth…In the absence of programs that workers as entitled to protection. at least of those who really count. That is subsidized advanced skill training for young Finally, there is the question of the precisely what Hopkins succeeded in doing blue-collar workers, the college education “white-collar” category itself, as defined for white-collar workers through his relief program established unequal starting points through practice within FERA and the programs. Hopkins proclaimed what it for Depression-era young adults with blue- CWA. The Hopkins approach to the white- meant to be the best kind of American, collar versus white-collar trajectories. collar classes was to treat all levels of white- and his model of the best American was the collar workers the same way, unless white-collar worker. Skilled blue-collar work- n the Hopkins picture of class in the early administrative necessities made it impossible ers lost status and relatively unskilled white- 1930s, all white-collar workers enjoyed a to do so. There is no way that a hierarchy- collar workers gained status, and it happened I status superior to that of all blue-collar neutral approach could have failed to miss without a blow or a word being exchanged workers. Hopkins, I am sure, would not have the fact that lower-level clerical workers were between them. This is class conflict in a dif- seen anything controversial in his picture of generally poorly paid (paid less than skilled ferent voice, perhaps, but it is class conflict the class system. For Hopkins, preserving artisans, by and large) and that their stan- all the same—with government actors serv- legitimate claims to dignitary difference was dard of living had little in common with ing as umpires. They call it like they see it the same thing as helping people to resist that of high-level professionals. and, by doing so, help to shape what it is. I the demoralizing effects of the Depression, The real operating principle, then, behind copyright © 2003 university so that American moral and social capital special privileges for white-collar workers of pennsylvania law review; would remain intact. was not pure hierarchy-neutrality. Hopkins deborah c. malamud

72 THE LAW SCHOOL AUTUMN 2004 These efforts have sought to augment the Rethinking the Justice System: traditional notions of the prosecutor. It remains unclear precisely how much this Crime and the Community transformation flows from a desire to be self-critical about the conventional role of Anthony C. Thompson looks at how behavioral prosecutor rather than an instinct to ride the contemporary tide toward including the standards are enforced, and analyzes a new take community in the operations of the criminal on the prosecutor’s role in society. justice system. But, whatever the reason, the phenomenon of community prosecution has taken hold in offices across the country, encouraged and accelerated by the availability of federal funding. The “community prosecution” label is now widely used and broadly applied. It is not at all obvious, however, what the term “community prosecution” actually means. At a minimum, the term would appear to connote a decentralization of authority and accountability, with the ultimate aim of enabling an office to anticipate and respond to community problems. Such a model presumably would place an emphasis on preventive measures for controlling crime instead of the reactive, case-driven approaches that tend to characterize traditional prosecution efforts. Assuming the accuracy of this description, and given the degree of change in focus and approach that it represents for an entity that wields tremendous power in the criminal justice system, one would expect This article, adapted from “It Takes a Community he past decade has witnessed a funda- a widespread, explicit discussion of the peno- to Prosecute,” published in The Notre Dame mental shift in the ways the major logical, practical, and even ethical implica- Law Review, identifies a key problem as the players in the criminal justice system tions of such a sea change in the conception police, judges, prosecutors and defenders partake define their roles. Police departments of a prosecutor’s role and functions. But in the national trend toward community collabo- have eased away from a traditional there has not as yet been a comprehensive ration and away from reactive law enforcement— T reliance on reactive forms of law analysis of the new community-based model namely that a coherent vision to guide those enforcement toward community policing of prosecution. In the absence of such a experimenting with community prosecution efforts that emphasize collaboration with the detailed analysis and common understanding, is lacking. Anthony Thompson, Professor of community. Judges have launched problem- there is a risk that individual prosecutors’ Clinical Law, has extensive practical litigation solving courts in a number of jurisdictions, offices may develop ostensibly “community- experience from working as a deputy public both to target recurring criminal justice oriented” strategies that ultimately fail to defender for nine years before joining the NYU problems and to devise ways that courts improve their collaboration with—and School of Law. He is the former director of the might work more actively with communities responsiveness to—the communities that Prosecution Clinic, a year-long seminar that to develop treatment plans for offenders. they hope to serve. places students in the District Attorney’s Offices Public defender offices have, albeit to a lesser My own informal observations of in Manhattan and the Bronx to allow them extent than these other entities, begun to community prosecution efforts have offered to see firsthand how race, ethnicity and class open community offices or specialized units graphic evidence of both the promise and influence discretion in the civil justice system. designed to focus on community justice ini- potential problems of the new shift to a com- “Professor Thompson here supplies the essential tiatives. Although the activities of these crim- munity orientation. Some of the new com- ingredient that was missing from the early inal justice players may differ in various munity prosecution programs have begun to efforts to inject a community-based approach respects, a common thread is apparent: Each forge exciting new working partnerships with into prosecution work: a theoretical conception has recognized the need to fashion a role communities in preventing and addressing of what a community orientation should seek to that is less reactive and more participatory crime and in defining justice. But when one accomplish and how it should differ from the train relation to the communities with which— considers the gamut of initiatives as a whole, ditional definition of the prosecutorial function. and in which—they operate. What these it becomes apparent that what is lacking is a He melds a rigorous, theoretical analysis with a efforts evidence is a core appreciation for coherent vision that will systematically guide pragmatic diagnosis of the actual workings of the an invigorated role for the community in offices as they experiment with varying ver- criminal justice system,” says Randy Hertz, an defining and enforcing standards of conduct. sions of community prosecution. NYU Professor of Clinical Law and the director To varying degrees, prosecutors also have Of course, experimentation may well of Clinical and Advocacy Programs. “Professor taken nascent steps to reinvent themselves in be a virtue in imagining and giving life to Thompson’s scholarship perfectly realizes the Law the midst of this changing environment. In constructive relationships between prosecu- School’s vision of ‘clinical scholarship,’” says Hertz, ever increasing numbers, prosecutors’ offices tors and the communities that they serve. “in that it grows directly out of the author’s have launched, or are on the verge of launch- Especially if detailed accounts of different practice experience and clinical teaching.” ing,” community prosecution” programs. experiments are disseminated, digested, and

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The prosecutor’s constituency is gener- ed. ally understood to be “the people” of the

geographical division that the prosecutor has eserv been elected or appointed to represent. In this regard, the prosecutor’s role is a unique one, for she serves as both advocate and “minister of justice.” As the U.S. Supreme om. All Rights R Court has observed, “the American prosecu- c tor” plays a “special role ... in the search for truth in criminal trials” because the prosecutor is the representative not of an ordinary party to a controversy but of a sovereignty whose obligation to govern impartially is as compelling as the obligation to govern at all, and whose interest, therefore, in a criminal prosecution is not that it shall win a case but that justice shall be done. In defining the prosecution function, the Model Rules of Professional Conduct and the American Bar Association Standards for Criminal Justice similarly articulate a model of an advocate who must take into cartoonbank. Michael Maslin from ollection 2002 account considerations that seem fundamen- er C tally at odds with the very notion of adver- ork sarial advocacy. As minister of justice, the prosecutor must endeavor to represent the he New Y he New interests of society as a whole, including © T the interests of those individuals who have run afoul of the law. Yet, the very concept of serving “the peo- debated, prosecutors’ offices can learn from things that are right.” Others, offering more ple” is inevitably imprecise, even amorphous. each other, tracking the possibilities, trade- measured accounts, describe the prosecutor Prosecutors certainly initiate prosecutions in offs, and challenges implicated in various as having a special mandate and set of obli- the name of “the people” and maintain a models of community prosecution. However, gations within the criminal justice system. trustee’s obligation to safeguard the people’s too much of what now passes for deliberate Yet even these more sober accounts typically interest. But the extent to which prosecutors experimentation seems to be only haphazardly are fragmentary rather than thorough. actually serve the people themselves or instead designed and implemented, not regularly or As a general matter, it seems both feasi- serve the government remains unclear. By carefully studied and not well understood ble and essential to articulate a coherent imposing standards of conduct and applying either by those interested in learning from the vision of prosecutorial practice that cap- laws against offenders, prosecutors necessarily experiments or even by the offices actually tures the essential philosophy underlying act as an enforcement arm of the government engaged in the experimentation. the thinking and actions of prosecutors. against the people. And when one filters pros- Serious treatment of the concept of com- Indeed, the very advent of a community ecution through a pragmatic political lens, it munity prosecution would seem to require prosecutors’ movement suggests the viabil- seems obvious that decisions about whom deeper thinking about the goals, values, and ity of such a project: Those within the prosecutors serve and how they serve them optimal methods of a community-oriented movement are reacting against a certain will inevitably be influenced—and at times approach than is currently apparent. idea, philosophy, or vision of prosecution determined in part—by legislative funding that they regard as incomplete or perhaps choices. In a world of limited resources, The Conventional Vision of the too myopic. This new vision seeks to prosecutors must act in accordance with Prosecutorial Function broaden the role of the prosecutor and the priorities of their funding authorities. Prosecutors do not frequently find question the limits of the conventional That rationing of services and targeting of themselves having to define their vision of charge-convict-sentence paradigm that pro- problems may determine and limit whom practice. Like most lawyers and most profes- pels most offices. The implicit premise of prosecutors actually serve. sionals of any field, prosecutors think mainly this exchange of views is that there is, in Yet, in trial arguments and sentencing in terms of routines, tasks, and deadlines and fact, a conventional vision of prosecutorial colloquies, prosecutors regularly, almost rarely about the “big picture” that frames their practice that can be articulated well enough reflexively, invoke the people’s name and day-to-day labors. This almost inevitable to debate. Thus, before commencing our authority. In so doing, they seem to intend micro-focus typically results in insufficient exploration of the wisdom of replacing the that their positions be accorded special attention being paid to any aspects of the existing approach with a new, community- weight because they convey the backing of practice that are tacit or inchoate. If pressed oriented model, it is useful to first identify the general public. Assuming this rhetorical for a conceptual assessment of the nature of the contours of the currently dominant stance is adopted in good faith, the question the practice, working prosecutors characteris- vision of prosecutorial practice. Given our inevitably arises: To what extent is a prosecu- tically offer earnest yet incomplete accounts. focus on the subject of community prosecutor obliged to maintain close contact with the A fair number invoke images of a crusader or tion, it seems fitting to begin by consider- community she serves, consult representatives even a gladiator. Some depict themselves as ing the conventional model’s vision of the of that community on relevant matters, and “carnivores” or as pursuing “only those constituency to be served. provide members of the community with an

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opportunity to offer input on exercises of But concerns began to surface about influence policies and practices. Moreover, prosecutorial discretion? prosecutions by victims. Some worried that the neighborhoods that most often experi- The traditional prosecutor tends to victims were often at the mercy of shrewd ence the greatest incidence of crime tend to maintain distance from the constituency she defendants. Repeat offenders, who had pro- participate least in the electoral process. This has been elected or appointed to represent. ceeded through the criminal justice system disenfranchisement—some self-imposed and Many, perhaps most, prosecutors who adopt at least once, often gained an advantage over some not—often fuels both the perception this stance would say that distance is a neces- first-time victims because the offenders had and reality of a gap in policy goals between sary precondition for the independence that amassed a certain procedural knowledge from the prosecutor’s office and the neighborhood prosecutors need in order to perform their previous experiences. Critics of the private in which it operates. functions. Prosecutors seem to depend on prosecution approach also expressed concerns distance as a means of maintaining perspec- about abuses of justice stemming from collu- s the police, courts, and defense lawyers tive as the arbiter of right and wrong and as sion between the parties. The accused and the have found ways to collaborate with the “mediator” between broad legislative pro- accuser would often meet and settle out of A communities in the exercise of their scriptions and the equities of individual cases. court for a negotiated percentage of the functions, there has been mounting pressure Such distance is hardly mandated by penalty. This practice, in turn, threatened on prosecutors to follow suit. Victims’ rights political theory, however. Indeed, one could the financial solvency of the courts. groups have been particularly vocal in regard close, regular contact with those Such criticisms and concerns led to an demanding greater prosecutorial attention who are being served as elemental to the dis- effort to distance the prosecution function to community concerns. These groups have charge of a prosecutor’s obligations. Over from the victim of the crime. In 1704, Con- drawn attention to—and, at times, enacted the years, some have faulted the prosecutor’s necticut became the first colony to eliminate legislation to correct—what they perceive as traditional stance of detachment on this the system of private prosecution entirely. a tendency on the part of prosecutors to be ground. They have urged that “serving the The statute of 1704 created a position for a insufficiently sensitive to victims’ needs. people” must mean something more than professional to “prosecute and implead in Similar criticisms of prosecutors have been merely election-driven activities. Instead, the law all criminals.” In 1832, Mississippi voiced by communities of color. There is a it has been said, prosecutors and their con- became the first state to include in its consti- perception in some communities of color stituents should aim to achieve a relationship tution a provision for the popular election that prosecutors’ offices—which, in most that mutually informs and shapes their agen- of local district attorneys. The concept of an regions of the country, tend to be staffed by das and their strategies. But the difficulty of elected prosecutor eventually caught on and, predominantly white lawyers—are inatten- persuading others to join in this effort has by 1912, most states had provided for locally tive to (and sometimes even suspicious of) had the net effect of reinforcing the hold that elected prosecutors. victims of color. the conventional wisdom has on the minds The responsibility of the public prosecu- Some prosecutors’ offices have responded and actions of most prosecutors. The con- tor dramatically altered the prosecution to such expressions of mistrust by reaching ventional view of a prosecutor’s legal and function. Rather than simply serving as an out to the communities they have been political obligations has come to feel not advocate for the victim, the public prosecutor elected or appointed to serve. For example, just correct but natural. was the representative of the government. Eric Holder, the first African American to The American system of criminal justice To complement and supplement the tradi- serve as U.S. attorney for the District of traces its roots to the English system. In the tional advocate’s role, the public prosecutor Columbia (a position that involves oversight early Middle Ages, England had no formal received both the authority and the consider- of local prosecutions in the local District system of criminal justice. The community able resources of the state. Consequently, of Columbia courts as well as the district’s and the individual victim were directly she could make discretionary decisions about federal courts), responded to longstanding involved in the apprehension and prosecution how and when she should deploy those community criticisms of his predecessors by of the offender. The victim of a crime would resources in actions brought against an indi- embracing the mandate to develop better assume the role of police officer when orga- vidual. And the public no longer could make ties with the African-American community. nizing a patrol, typically relying on family and the decision to prosecute. Yet the public Some community groups have been friends to pursue and capture the offender. nonetheless maintained a role, although explicitly critical of the degree to which If the victim succeeded in apprehending the obviously more limited, in the prosecution prosecutors are physically removed from the guilty party, the community ensured that the function—through its voting power. communities they represent. Prosecutors have perpetrator was physically punished for the Or so it appeared. The advent of the responded by promising to reach beyond the crime and then required to provide restitution locally-elected professional prosecutor has confines of their own offices in defining and to the victim. Until 1897, England had no led to an unexpected dichotomy. On the one fighting crime. Montgomery County (Mary- public officer or court official charged with hand, some argue, the electoral process has land) State’s Attorney Douglas Gansler has the responsibility of prosecuting crimes. forged a system of direct accountability to divided his office into districts and encour- Although the king’s attorney (the early ver- the people in an increasingly bureaucratic aged his attorneys to become active in the sion of the attorney general) had official society. On the other hand, many insist that community to which they are assigned. duties, all such duties fell within the rubric the desire for neutrality has driven a wedge Prosecutors in other regions have simi- of protecting the king’s interests. between prosecutors and those individuals larly sought to decrease the distance and The criminal justice system of the and communities that need their services. Of detachment of the office by attending neigh- colonies reflected the influence of the British course, at a minimal level, the community borhood events and meetings held by other system, although that system certainly was can maintain a voice in prosecution through institutions. Some prosecutors have taken the not adopted wholesale. As in the English the electoral process: The public can approve even larger step of placing prosecutors’ offices system, the American criminal justice system or disapprove of a prosecutor’s track record within the community itself in storefronts, consisted of actions brought by individuals or stated agenda by electing a candidate to police precincts, and housing projects. who had been victimized. Actions were that office or by voting a prosecutor out of Some of the prosecutors who have taken brought by “sheriff prosecutors,” who were office. But during the prosecutor’s term, the such remedial measures may be partly or later replaced by deputy attorneys general. voting public has little or no ability to even predominantly motivated by self-inter-

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est: They perceive that vocal community being the most common. But precisely how would consider themselves regularly and criticisms can result in a loss in the next close do they mean these partnerships to be? fully accountable to their constituency for election for the position of district attorney. Should community residents now be under- their choices, just as communities would Other prosecutors may be acting on the stood as having fully equal voting powers on regard themselves as accountable to their basis of a professional vision of prosecutors prosecutorial policies and decisions? What elected prosecutors for the obligations they as elected officials who have a fiduciary obli- constitute the terms of the partnership? would arguably impose on prosecutorial gation to respond to the complaints of their For all their populist rhetoric, not even work and for the consequences their views constituents. Still others may appreciate that those prosecutors who are deeply committed would have on the community as a whole. communities have skills, information, and to community prosecution would endorse a Under such a model of prosecutorial ser- knowledge that would be useful to tap. model that cedes control to the community vice to “the people,” elections would remain Even those prosecutors who are not initially or even treats the community as a full voting central events. But they would no longer driven by the desire to draw on community partner. Because communities almost always serve as largely isolated instances of commu- expertise often come to recognize this are divided, neither of these formats is feasible nity participation and prosecutorial account- fundamental benefit of collaborating as a practical matter, at least when it comes to ability. Instead, an election would be one of with community members. daily decision-making. The danger that one a series of regular events or occasions that segment of a community might choose to use define the relationship between the prosecu- ust as successes of community policing enforcement power against another, less pow- tor and the community and provide oppor- programs led some community groups to erful segment has too many discomforting tunities for the entities to share their views J demand greater access to and involvement historical precedents to be ignored. of crime, criminal justice, and prosecutorial in the work that prosecutors do, so too the Even if communities were more mono- policies and programs. Such events would successes that existing community prosecu- lithic and single-minded, few adherents of form the bases for an ongoing relationship tion programs have enjoyed now foreclose the community prosecution model would in which both entities would do their best conventional prosecutors from maintaining champion the view that communities should to understand (and, over time, get better at that the community has no meaningful role control prosecutorial decisions or have a understanding) the aspirations, concerns, and constraints of the other. A relationship of this sort requires that A relationship of this sort requires that both both parties take risks and accept compromises. The prosecutor must be willing to parties take risks and accept compromises. accept the greater vulnerability that an open relationship entails. She must be willing to hear frank opinions of her actions, her judg- in the work of a prosecutor’s office. Prosecu- fully equal vote in such decisions. Such ment, and even her suitability for the job. tors no longer can treat conversations with models evoke the specter of vigilantism— She must be mature enough to accept criti- voters at election time as an adequate vehicle or perhaps a return to earlier, crude forms cism without anger and without engaging in for communicating with constituents. of prosecution that more closely resembled counterattacks or reprisals. The experience What is not yet apparent, however, is mob justice than professional prosecution. often will be far less comfortable than hiding what new kind of relationship should be Perhaps there are those among victim-rights behind a mask of detached professionalism forged. Those within the community prose- groups or within particular low-income and expertise, but the personal risks are cer- cution movement—even the best among urban neighborhoods who, for contrasting tainly justified by the potential benefits of them—have not yet determined what they reasons, yearn for some absolute or at least better informed and more effective fulfillment should substitute for the traditional prosecu- more effective ways to exert influence over of a prosecutor’s responsibilities to the public. tor-constituent relationship. The existing local prosecutors. But they themselves have The members of the community, for their experiments, which are inspired by an image not yet fully elaborated their impulses. In part, must accept certain harsh truths, most of political and legal relationships, reveal a any event, not many would seem to find the notably that they will not always, or even shared aim: They strive for a robustly partici- view politically and morally compelling. often, get their way. They must learn to patory role for the constituents. But to And equally important, any arrangements tolerate a relationship that promises them describe relationships as participatory, for all approaching full partnership would seem no more than an opportunity to have their its evocative power, opens more possibilities inappropriately to delegate the prosecutor’s voices heard. They must also come to appre- than it closes. Mapping those possibilities duties and to abdicate her responsibility as ciate that the prosecutor operates within a and frankly marking preferred routes then a minister of justice. web of political and legal constraints, and becomes a central concern. The type of relationship that would that even prosecutors of good will may not Those informed by a vision of commu- seem best-suited to accomplish the general be able to make certain promises or accom- nity prosecution believe that prosecutors goals of community prosecution without plish certain ends. Like the prosecutor, they should make regular efforts to learn from running afoul of one of the foregoing prob- must come to understand that the benefits those they serve, to explain choices they may lems would seem to be a hybrid relationship that stem from such a relationship often are be considering or find themselves pursuing, or loose partnership. This sort of partnership accompanied with considerable frustrations and to hold themselves more transparently imagines that both prosecutor and commu- and disappointments. accountable for their policies, decisions, and nity would be mutually informed and mutu- The ultimate process, which is one of record. They search for ways for prosecutors ally accountable. Prosecutors would retain mutual learning, has the potential to change and their constituents to make themselves final authority over broad policies and daily virtually every aspect of the relationship more immediately available to and in touch decisions. At the same time, they would between prosecutors and their constituencies. with one another. In the course of describing regard community input as central to their It opens up highly promising, if frighteningly these general ambitions, they even label the thinking, just as the community would unfamiliar, possibilities in all one considers relationships they believe themselves to be regard the prosecutor’s views as central to elemental to a prosecutor’s practice. I forging—“problem-solving partners” perhaps the opinions they express. And prosecutors

76 THE LAW SCHOOL AUTUMN 2004 Pildes, Richard Good Reads The Law of Democracy: Legal Structure of the Political Pro- By the full-time, visiting, cess. 2nd edition. New York: Foundation Press, 2002 global, and library faculty (with Samuel Issacharoff and Pamela S. Karlan). October 1, 2002, through September 30, 2003. (Short pieces have been omitted.) Rakove, Jack The Federalist: The Essential Essays by Alexander Hamilton, James Madison, and John Keizaitougou, Kokusaikigy- Books Jay, with Related Documents. ouhou, Hou no Chousei Abel, Richard L. Boston: Bedford, 2003. (Economic Integration, English Lawyers Between International Company Law, Market and State: The James Madison and the and Harmonization of the Politics of Professionalism. Creation of the American Law). Tokyo: Chuo New York: Oxford Republic. New York: University Press, 2002. University Press, 2003. Longman, 2002 (with Oscar Handlin). Estreicher, Samuel Adler, Barry E. Labor Law: Cases, Materials, Foundations of Bankruptcy Redlich, Norman and Problems. 5th edition. Law. New York: Founda- Constitutional Law. 4th edi- New York: Aspen, 2003 Insult to Injury: Rethinking Our tion Press, 2002. tion. Newark: Lexis-Nexis, (with Michael Harper 2002 (with John Attansio Responses to Intimate Abuse and Joan Flynn). By Linda G. Mills Allen, William T. and Joel K. Goldstein). Published by Princeton University Press Commentaries and Cases on Feldman, Noah $19.95 the Law of Business Organi- Schenk, Deborah After Jihad: America and the zation. New York: Aspen Federal Income Taxation: Struggle for Islamic Democ- There was a time when police and prosecutors did Publishers, 2003 (with Principles and Policies. racy. New York: Farrar, not take domestic-violence allegations all that seri- Reinier Kraakman). Revised 4th edition. New Straus, and Giroux, 2003. York: Foundation Press, ously. But has the pendulum swung too far in the opposite direction? Perhaps so, suggests Professor Alston, Philip 2002 (with Michael J. Gillers, Stephen Linda G. Mills in Insult to Injury. The United Nations and Graetz). Regulation of Lawyers: “Study after study conﬁrms that arrest, prosecu- Human Rights: A Critical Problems of Law and Ethics. tion and incarceration do not necessarily reduce the Appraisal. Oxford: Schill, Michael New York: Aspen Law and problem of domestic violence and may even be mak- Clarendon, 2002. State of New York City’s Business, 2003 (with Roy Housing and Neighborhoods. ing the problem worse,” writes Mills, Vice Provost of D. Simon). New York: Furman Center University Life and Interdisciplinary Initiatives and Baker, John H. Professor of Social Work and Affiliated Professor at The Oxford History of the for Real Estate and Urban Gillette, Clayton the NYU School of Law Laws of England. Volume 6. Policy, 2003 (with Denise Editor. The Creation and Mills challenges many of the assumptions behind Oxford: Oxford University Wallin and Glynis Daniels). Interpretation of Commercial the lock-em-up initiatives, including the belief “that Press, 2003. all violence warrants a state response and that Law. Burlington: Ashgate Shaviro, Daniel women want to leave rather than stay in their abu- Publishing Co., 2003. F ederal Income Taxation. Benvenisti, Eyal sive relationships.” 13th edition. New York: Sharing Transboundary She also argues that at least some women in Lacey, Nicola Aspen Publishers, 2003 Resources: International Law abusive relationships can themselves be aggressive— Reconstructing Criminal Law. and Optimal Resource Use. (with William A. Klein and one consequence of mandatory arrest policies is 3rd edition. London: Butter- New York: Cambridge and Joseph Bankman). that more women than ever end up arrested. For worth, 2003 (with Celia University Press, 2002. instance, she writes, in Los Angeles in 1987, a total of Wells and Oliver Quick). Stewart, Richard B. 340 women and 4,540 men were arrested for The Welfare State, Global- Reconstructing Climate State Punishment: Political domestic violence; in 1995, the number of women ization, and International Policy: Beyond Kyoto. Wash- Principles and Community arrested had nearly quadrupled to 1,262, while the Law. New York: Springer, ington: AEI Press, 2002 Values. Electronic edition. number of men arrested was 7,513—not even double 2003. (with Jonathan B. Wiener). London; New York: the 1987 ﬁgure. “What if,” asks Mills, “some part of Routledge, 2002. the reason women are being arrested is because Bruner, Jerome Stone, Geoffrey R. they are involved in a dynamic of intimate abuse?” La fábrica de historias: The First Amendment. Mills, Linda G. Ultimately, Mills argues in favor of healing the family derecho, literatura, vida. 2nd edition. New York: Insult to Injury: Rethinking with a therapeutic approach or restorative justice—in Buenos Aires: Fondo de Aspen Publishers, 2003. which participants work to resolve the underlying prob- Our Responses to Intimate Cultura Económica, 2003. lem—rather than invoking the traditional punishment- Abuse. Princeton: Prince- Editor. The Supreme centered machinery of the criminal justice system. ton University Press, 2003. Dorsen, Norman Court Review 2002. Chicago: Comparative Constitutional- University of Chicago Mirsky, Chester L. ism: Cases and Materials. Press, 2003 (with Dennis Megamall on the Hudson: Weiler, Joseph H. H. Editor. Integration in an St. Paul: West Group, 2003 Hutchinson and David A. Planning, Wal-Mart, and Strauss). La Costituzione dell’ Europa. Expanding European Union: Grassroots Resistance. Victoria, Bologna: Il Mulino, 2003. Reassessing the Fundamen- Ebke, Werner F. British Columbia: Trafford, tals. Oxford: Blackwell, Die Arbeitspapiere des Tyler, Tom R. Editor. European Constitu- 2003 (with David Porter). Trust in the Law: Encourag- 2003 (with Iain Begg Wirtschaftspruefers und tionalism Beyond the State. and John Peterson). Steuerberaters im Zivilprozess. ing Public Cooperation with New York: Cambridge Nelkin, Dorothy Cologne, Germany: Dr. the Police and Courts. New University Press, 2003 Un’ Europa Cristiana: (deceased). The Molecular Otto Schmidt Verlag, 2003. York: Russell Sage Founda- (with Marlene Wind). Un saggio esplorativo. New Gaze: Art in the Genetic Age. tions, 2002 (with Yuen J. York: NYU School of Law New York: Cold Spring Huo). Jean Monnet Center, 2003. Harbor Laboratory Press, 2003 (with Suzanne Anker).

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Chapters and “Wirtschaft und Recht im Supplements Zeichen der Global- isierung,” in Festschrift fuer Boraine, Alexander Jean Nicolas Druey. Zurich, “T ruth and Reconciliation Switzerland: Schuldhess, in South Africa: The Third 2002. Men Have no Monopoly on Violence Way,” in Out of and Into Authoritarian Law. András Estreicher, Samuel Sajó, editor. Hague: Kluwer Labor Law: Selected Statutes, By Linda G. Mills International Press, 2002. Forms and Agreements. New York: Aspen, 2003 May 18, 2004 Dreyfuss, Rochelle C. (with Michael Harper “Commodifying Collabo- and Joan Flynn). The now notorious photograph of Pfc. Lynndie R. England holding a leash around a rative Research,” in The naked Iraqi prisoner's neck shocks us for another reason few are talking about: Eng- Commodification of Informa- Eustice, James land is a woman. tion. N. Elkin Koran and Federal Income Taxation of The photograph stuns because the conventional wisdom is that men are violent, and N.W. Netanel, editors. Corporations and Sharehold- it is women who are their victims. Women simply don't behave the way England is behav- Boston: Kluwer, 2002. ers. 7th edition. 2002, 2003 ing. Violence, brutality, degradation—it's not a part of the feminine vocabulary. supplements. Boston: War- Yet, the truth is women can be as violent as men. More than 100 studies now Dworkin, Ronald ren Gorham and Lamont. confirm that women and men commit equal amounts—about 12 percent—of phys- “Hard Cases,” in Philosophy ical violence in their intimate relationships. of Law and Legal Theory: Federal Income Taxation of In a 1997 New Zealand study of young adults, 24 percent of women admitted An Anthology. Dennis Corporations and Sharehold- to perpetrating severe physical aggression. In contrast, only 8 percent of men Patterson, editor. Oxford: ers. 7th edition. Study admitted to committing severe physical aggression. Blackwell Publishers, 2003. Problems and Instructor’s Although men cause more physical injury to their female partners, it has been Manual. Boston: Warren shown that girls and women draw on their well developed emotional strength to “Law as Interpretation,” Gorham and Lamont, 2003. express aggression. in Philosophy of Law and This begs the question: When and how did women become so violent? Legal Theory: An Anthology. Ferejohn, John The truth is that neither gender has a monopoly on violence. Male and female Dennis Patterson, editor. “Constitutional Courts as aggression is a reality. The more interesting question is how people become violent in Oxford: Blackwell Deliberative Institutions: the first place. Publishers, 2003. Toward an Institutional Theories about why and how people become violent abound, and it is clear that Theory of Constitutional violence doesn't occur in a vacuum. In most cases, women, like men, learn savagery. “The Model of Rules,” Justice,” in Constitutional Although there is some emerging evidence that violent tendencies can be inherited in Philosophy of Law and Justice East and West. Woj- or traced to injuries to the brain, the most common cause of violence in adults is Legal Theory: An Anthology. ciech Sadurski, editor. rooted in what they learned as children. Dennis Patterson, editor. The Hague: Kluwer Law Sociologist Lonnie Athens describes the process of learned aggression as Oxford: Blackwell International, 2002 (with "coaching," which almost always begins in childhood. An abuser is set on a tragic Publishers, 2003. Pasquale Pasquino). path of violence by an abusive parent or other adult who exposes that child to a “Law, Morality, and Equal- series of assaults. “Madisonian Separation of ity,” in Constructions of Prac- The impressionable child is encouraged by the violent adult to react in kind, Powers,” in James Madison: tical Reason: Interviews on rather than walking away or backing down. The message is clear. Violence is The Theory and Practice of Moral and Political Philoso- encouraged; it is an acceptable and appropriate way to solve problems. Republican Government. phy. Herlinde Pauer-Studer, My own view of women's violence extends these observations one step further. Sam Kernell, editor. Stan- editor. Palo Alto: Stanford Women can be coached toward violence by abusive partners, especially if they ford: Stanford University University Press, 2002. marry at a young age. They can also learn to become violent through coaching by Press, 2003. other influential role models—including superiors. The little we know about Lynndie England's background suggests that the seeds Ebke, Werner F. “Rule of Democracy and for violence may have been planted early on. Although England's parents seem “Exchange Controls and Rule of Law,” in Democracy unaware of it, hunting animals—apparently a common practice in England's family— the Conflict of Laws,” in and the Rule of Law. Jose may have contributed to their daughter's lessons in aggression. Staudinger Kommentar zum Maria Maravall and Adam My guess is that the military possibly finished what England's family started. At BGB, Art. 34 EGBGB Przeworski, editors. New 17, when England joined the reserves, she was still impressionable and poised for Anhang Internationales York: Cambridge Univer- further coaching. Devisenrecht (13th edi- sity Press, 2003. The fact that we expect England, or for that matter anyone in the military, to tion). Munich, Germany: resist coaching defies what we know about war and what we expect from our sol- Sellier, 2002. First, Harry diers. Military personnel are taught—in fact, coached—to kill. They are taught to Antitrust Statues, Treaties, “The Impact of Trans- value their own American lives over others. Regulations, Guidelines, and parency Regulation on Brig. Gen. Janis Karpinski, in defending her role as commander of the 800th Mil- Policies. 2003-04 supple- Company Law,” in Capital itary Police Brigade, has said publicly that she believes the military police were ments. New York: Founda- Markets and Company "coached" into abusive acts by military intelligence officers. Indeed, the reason that tion Press, 2003 (with John Law. Klaus Hopt and the military works is because young, impressionable minds can learn aggression. J. Flynn and Darren Bush). Gender is irrelevant to the process. Eddy Wymeersch, editors. Perhaps the most important lesson we can take from these disturbing photos Oxford: Oxford University Franck, Thomas is that it is easier for men and women to learn to become violent than it is for them Press, 2003. “Comments on Chapters to unlearn it. That's why, when it's war we're contemplating, we'd better be sure it's “KMU und Globalisierung,” 7 and 8 (Part III) on Use worth the fight. in Rechtsfragen rund um die of Force,” in United States Hegemony and the Founda- Copyright (c) 2004, Newsday, Inc. KMU. Zurich, Switzer- land: Schuldhess, 2003. tions of International Law. Michael Byers and Georg Linda G. Mills, author of Insult to Injury: Rethinking Our Responses to Intimate Abuse, is a professor of social work and affiliated professor of law Nolte, editors. Cambridge: at New York University. Cambridge University Press, 2003.

78 THE LAW SCHOOL AUTUMN 2004 Garland, David Hershkoff, Helen “People and Boundaries: “Governmentality and 2003 Civil Procedure Supple- An ‘Internationalized the Problem of Crime,” in ment for Use with All Plead- Public Law’ Approach,” Criminological Perspectives: ing and Procedure Casebooks. in States, Nations, and Bor- Essential Readings. E. St. Paul: West, 2003 (with ders: The Ethics of Making McLaughlin, et al., editors. John J. Cound, Jack H. Boundaries. Allen Buchanan London: Sage, 2003. Friedenthal, Arthur R. and Margaret Moore, edi- Miller, and John Sexton). tors. New York: Cambridge “Penal Modernism and University Press, 2003. Postmodernism,” in Punish- Hertz, Randy ment and Social Control. “The Defense Attorney’s Law, Sylvia 2nd edition. Thomas Perspective on Youth “Commercial Sex: Blomberg and Samuel Violence,” in Securing Beyond Decriminaliza- Cohen, editors. New York: Our Children’s Future: tion,” in Feminist Legal Aldine de Gruyter, 2003. New Approaches to Juvenile Theory: An Anti-Essentialist “The Rise of Risk,” in Risk and Youth Violence. Gary Reader. Nancy E. Dowd and Morality. R. Ericson, Katmann, editor. Washing- and Michelle S. Jacobs, editor. Toronto: University ton: Brookings Institution, editors. New York: New of Toronto Press, 2003. 2002 (with Barbara Fedders York University Press, 2003. and Stephen Weymouth). After Jihad: America and the Geistfeld, Mark Malman, Laurie. Struggle for Islamic Democracy Federal Habeas Corpus The Individual Tax Base, “Escola v. Coca Cola Bot- Practice and Procedure. 2002 By Noah Feldman Cases, Problems, and Policy tling Co.: Strict Products supplement. Charlottesville: Published by Farrar, Straus, and Giroux in Federal Taxation. 2003 Liability Unbound,” in Tort LexisNexis, 2001 (with $24 update. St. Paul: West, Stories. Robert L. Rabin James S. Liebman). and Stephen D. Sugarman, 2003 (with Linda Sugin, “Can democracy be made to flourish in the lands Lewis D. Solomon and editors. New York: Foun- Jacobs, James B. where Islam prevails?” asks NYU School of Law Pro- Jerome Hesch). dation Press, 2003. “Gun Shows and Gun fessor Noah Feldman in his first book After Jihad. Controls,” in Guns, Crime, Feldman, who was the senior adviser for constitu- Nagel, Thomas. Gillette, Clayton and Punishment. Bernard tional law to the Coalition Provisional Authority in “Rawls and Liberalism” in Municipal Debt Finance Harcourt, editor. New Iraq last year, is optimistic that the answer is yes. Law. 2003 cumulative The Cambridge Companion “Contrary to what is sometimes believed in the U.S., York: New York University to Rawls. Samuel Freeman, supplement. New York: Press, 2002. Islam is not inherently committed to the overthrow of Aspen Publishers, 2003. editor. New York: Cam- Western ideals,” he argues. “Labor Racketeering: bridge University Press, In After Jihad, Feldman examines other countries Golove, David The Mafia and the Unions,” 2003. with large Muslim populations, including Turkey, Pak- “Philosophy of Interna- in Crime and Justice: An istan, Iran and Indonesia, to show how democracy tional Law,” in Td he Oxfor Annual Review of Research. Pildes, Richard and Islam can be compatible. “Islamic organizations Handbook of Jurisprudence Volume 30. Michael Tonry, “Democracy and the in Indonesia played an important role in bringing and Philosophy of Law. editor. Chicago: University Representation of Minority about greater democracy there,” he writes, adding Jules Coleman and Scott of Chicago Press, 2003 Interests,” translated into that although Indonesia isn’t “an Islamic state,” the Shapiro, editors. New (with Ellen Peters). Spanish in Fundamentos– country “shows how a flexible Islam can participate in York: Oxford University Cuadernos Monográficos democratic development and democratic politics.” Press, 2002 (with Kahan, Marcel de Teoría del Estado, Derecho The timely book takes a hopeful stance on ques- Allen Buchanan). “An Institutional Innova- Público e Historia Constitu- tions currently troubling many leaders and foreign tion to Reduce the Agency cional. Oviedo: Junta policy specialists. While some see the terrorist Guggenheim, Martin Costs of Public Corporate General del Principado attacks of 2001 as proof of extremism in the Muslim de Asturias, 2003. world, Feldman argues here for another interpreta- “Ethical Consideration Bonds: Changing the Rule tion: “September 11th and the sporadic attacks which in Child Welfare Cases: of the Trustee,” in Capital “The Inherent Authori- have followed,” he writes, “are the last, desperate The Law Guardian’s Per- Markets and Company Law. tarianism in Democratic gasp of a tendency to violence that has lost most of spective,” in Child Abuse, Klaus J. Hopt and Eddy Regimes,” in Out of and its popular support.” Neglect, and the Foster Care Wymeersch, editors. Oxford: Into Authoritarian Law. System 2003: Effective Social Oxford University Press, András Sajó, editor. The Work and the Legal System. 2003 (with Yakov Amihud Hague: Kluwer Interna- New York: Practising Law and Kenneth Garbade). tional Press, 2002. “In Extremis: Are There “Is the U.N. Charter a Institute, 2003. Legal Principles Applicable Constitution?” in Verhan- “Legal Capital Rules The Law of Democracy: to the Illegal Use of Force?” deln fur den Frieden. Jochen Hansmann, Henry and the Structure of Legal Structure of the in Man’s Inhumanity to Abr. Frowein, et al., editors. Ownership Form and Corporate Law: Some Political Process. 2003 Man: Essays on International Berlin: Springer, 2003. Trapped Capital in the Hos- Observations on the Dif- supplement. New York: Law in Honour of Antonio ferences Between European “The Use of Force in pital Industry. Cambridge: Foundation Press, 2003 Cassese. L.C. Vohrah et al., National Bureau of Eco- and U.S. Approaches,” in (with Samuel Issacharoff editors. The Hague: Kluwer the Struggle Between Capital Markets and Com- Humanity and Unreason,” nomic Research, 2002 and Pamela S. Karlan). International, 2003. (with Daniel P. Kessler pany Law. Klaus J. Hopt in Humanizing Our Global and Eddy Wymeersch, “Interpretation and Order: Essays in Honour of and Mark McClellan). Revesz, Richard editors. Oxford: Oxford Environmental Law Change in the Law of Ivan Head. Obiora Okafor Property, Contract, and University Press, 2003. Humanitarian Interven- and Obijiofor Aginam, edi- and Policy, Statutory and Verification: The Numerus Regulatory Supplement. tion,” in Humanitarian tors. Toronto: University Clausus Problem and the Kingsbury, Benedict Intervention: Ethical, Legal, of Toronto Press, 2003. New York: Foundation Divisibility of Rights. “The International Legal Press, 2003. and Political Dilemmas. E J. Cambridge: Harvard Law Order,” in dThe Oxfor L. Holzgrefe and Robert School, John M. Olin Cen- Handbook of Legal Studies. O. Keohane, editors. New ter for Law, Economics, Peter Cane and Mark York: Cambridge Univer- and Business, 2002 (with Tushnet, editors. New sity Press, 2003. Reinier H. Kraakman). York: Oxford University Press, 2003.

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Rubinfeld, Daniel L. Upham, Frank. Allen, William T. Davis, Peggy C. Dreyfuss, Rochelle C. “Maintenance of Monopoly: “An Introduction to “Conflicts of Interest in “Reconstructing Law “Principles of Governing U.S. v. Microsoft (2001)” in the Principles of Private Corporate and Securities and Marriage.” 11 The Jurisdiction, Choice of The Antitrust Revolution: Land Ownership, Transfer, Law—Threats and Safe- Good Society 57 (2002) Law, and Judgments in Economics, Competition, and and Control in the United guards in the Determination (with Carol Gilligan). Transnational Disputes.” 2 Policy. 4th edition. John E. States,” in Land Law in of Auditor Independence.” Computer Law Review Inter- Kwoka Jr. and Lawrence J. Comparative Perspective. 80 Washington University “We Can Do Better.” 14 national 33 (2003) (with White, editors. New York: M.E. Sánchez Jordán and Law Quarterly 519 (2002) Yale Journal of Law and Jane C. Ginsburg). Oxford University Press, A. Gambaro, editors. (with Arthur Siegel). Feminism 263 (2002). 2003. London: Kluwer Law Dworkin, Ronald M. International, 2002. Alston, Philip Dorsen, Norman “Equality, Luck, and Hier- Schenk, Deborah “Resisting the Merger “John Marshall Harlan II, archy.” 31 Philosophy and Federal Income Taxation: Weiler, Joseph H. H. and Acquisition of Human Associate Justice of the Public Affairs 190 (2003). Principles and Policies. 2003 “Europe’s Dark Legacy: Rights by Trade Law: A Supreme Court 1955-1971: supplement. New York: Reclaiming Nationalism Reply to Petersmann.” 13 Remembrances by his “Sovereign Virtue Revis- Foundation Press, 2003 and Patriotism,” in Darker European Journal of Inter- Law Clerks.” 27 Journal of ited.” 113 Ethics 106 (2002). (with Michael J. Graetz). Legacies of Law in Europe: national Law 815 (2002). Supreme Court History 138 The Shadow of National (2002) (with Amelia “Story of Kirby Lumber: Socialism and Fascism over Arkoun, Mohammed Newcomb). The Many Faces of Dis- Europe and Its Legal Tradi- “Rethinking Islam Today.” charge of Indebtedness tions. C. Joerges and N. 588 The Annals of the Amer- Income,” in Tax Stories: An Singh Ghaleigh, editors. ican Academy of Political In-depth Look at Ten Leading Oxford: Hart, 2003. and Social Science 18 (2003). Federal Income Tax Cases. The People Themselves: Popular Constitutionalism and Paul L. Caron, editor. New “Introduction: Europe’s Baker, John H. York: Foundation Press, Fateful Choice,” in Euro- “Roman Law at the Third Judicial Review 2003. pean Constitutionalism University of England.” 55 By Larry D. Kramer Beyond the State. Joseph Current Legal Problems 123 Published by Oxford University Press Schill, Michael H. H. Weiler and Marlene (2002). $29.95 “Regulatory Barriers to Wind, editors. New York: Housing Development in Cambridge University Been, Vicki Today, it’s pretty much taken for granted that the the United States,” in Land Press, 2003 (with “Does an International Supreme Court has the last word on controversial Law in Comparative Perspec- Marlene Wind). ‘Regulatory Takings’ issues—be they affirmative action, sodomy laws or tive. María Elena Sánchez even recounting votes in a presidential election. “Rewriting Van Gend Doctrine Make Sense?” Jordán and Antonio Gam- 11 New York University But previous generations weren’t so sure. baro, editors. The Hague: and Loos: Towards a In The People Themselves, Professor Larry Kramer, Normative Theory of E.C.J. Environmental Law Kluwer Law International, Journal 49 (2002). former associate dean for academics and research at 2002. Hermeneutics,” in Judicial NYU School of Law, traces the history of constitu- Discretion in European Per- “The Global Fifth tional interpretation and the rise of the Supreme Schulhofer, Stephen J. spective. O. Wiklund, editor. Amendment? NAFTA’s Court’s power. Drawing from early cases as well as “No Checks, No Balances: The Hague: Kluwer Inter- Investment Protections essays, newspaper articles, and other writings dating Discarding Bedrock Con- national, 2003. and the Misguided Quest back more than 200 years, Kramer, now dean of Stan- ford Law School, shows that it was neither inevitable stitutional Principles,” in “Un ensayo tipológico. for an International ‘Regu- nor intended for the Court to become as powerful as The War on Our Freedoms: Abraham y Sara, sin amor,” latory Takings’ Doctrine.” it is today. Civil Liberties in an Age of in La Democracia Constitu- 78 New York University Law His analysis includes a reexamination of Marbury v. Terrorism. Richard C. tional. M. A. Reyes, editor. Review 30 (2003) (with Madison, the case that supposedly paved the way for Leone and Greg Anrig Jr., Madrid: Centro de Estu- Joel C. Beauvais). editors. New York: Public judicial review of laws, and concludes that recent inter- dios Politicos y Constitu- preters have overstated that case’s role in legal history. Affairs, 2003. cionales, 2002. Bruner, Jerome “The Language of Educa- Kramer makes the case that the Supreme Court’s Schwind, Michael A. tion.” 49 Zeitschrift Fur current power is a form of elitism—a development “Liability for Obligations Articles Padagogik 485 (2003). that would make at least some of the architects of the Constitution turn in their graves. “The question Amer- of the Inheritance,” in Abel, Richard L. icans must ask themselves,” he writes, “is whether International Encyclopedia “Choosing, Nurturing, Chase, Oscar they are comfortable handing their Constitution over of Comparative Law. Tübin- Training, and Placing Pub- “A ‘excepcionalidade’ to the forces of aristocracy: whether they share this gen: J. C. B. Mohr (Paul lic Interest Law Students.” americana e o dereito lack of faith in themselves and their fellow citizens, or Siebeck), 2002. 70 Fordham Law Review processual comparado.” whether they are prepared to assume once again the 1563 (2003). 110 Revista de Processo 115 full responsibilities of self-government.” Shaviro, Daniel (2003). “Endowment and “Judges Write the Darnd- Inequality,” in Tax Justice est Things: Judicial Chevigny, Paul Reconsidered: The Moral Mystification of Limita- “Conflict of Rights and and Ethical Bases of Taxa- tions of Tort Liability.” 80 Keeping Order.” 2 Crimi- tion. Joseph Thorndike Texas Law Review 1547 nology and Public Policy 155 and Dennis Ventry, editors. (2002). (2002). Washington: Urban Institute Press, 2002. Adler, Barry E. “The Populism of Fear: “The Aftermath of Politics of Crime in the “Story of Knetsch v. United North Lasalle Street.” 70 Americas.” 5 Punishment States and Judicial Doctrines University of Cincinnati and Society 77 (2003). Combating Tax Avoidance,” Law Review 1225 (2002) in Tax Stories: An In-depth (with George G. Triantis). Daines, Robert Look at Ten Leading Federal “The Incorporation Income Tax Cases. Paul L. “The Law of Last Resort.” Choices of IPO Firms.” Caron, editor. New York: 55 Vanderbilt Law Review 77 New York University Foundation Press, 2003. 1661 (2002). Law Review 1559 (2002).

80 THE LAW SCHOOL AUTUMN 2004 “Taking Human Rights “Constitutional Review “Electing the Supreme Seriously in China Today.” in the Global Context.” 6 Court.” 78 Indiana Law 1 Esprit 129 (2003). New York University Journal Journal 1 (2002) (with of Legislation and Public Anna Harvey). Ebke, Werner F. Policy 49 (2002-03). “The ‘Real Seat’ Doctrine “The History of the Coun- in the Conflict of Corpo- “Playing with House termajoritarian Difficulty, rate Laws.” 36 International Money: Patriot Dollars Part Two: Reconstruction’s Lawyer 1015 (2002). Considered.” 91 California Political Court.” 91 George- Law Review 685 (2003). town Law Journal 1 (2002). “Private Vermoegens— und Vorsorgeplanung durch “Rational Choice Theory Garland, David Steuerberater,” 2002 Die and Social Explanation.” 18 “Lucha contra el crimen Steuerberatung 112 (2002). Economics and Philosophy 211 y modernidad tardía en (2002). EE UU y Gran Bretaña.” 55 “Neuere Entwicklungen Archipielago: Cuadernos im US-amerikanischen Fox, Eleanor de Critíca de la Cultura Handels- und Wirtschaft- “Can We Solve the (2003). Reconstructing Climate Policy: Beyond Kyoto srecht,” 48 Recht der Inter- Antitrust Problems of By Richard B. Stewart and nationalen Wirtschaft 541 Globalization by Extraterri- Geistfeld, Mark Jonathan B. Wiener (2002). toriality and Cooperation? “The Analytics of Duty: Published by AEI Press Sufficiency and Legitimacy.” Medical Monitoring and $20 Ellen, Ingrid G. 46 Antitrust Bulletin 355 Related Forms of Eco- “Housing Production (2003). nomic Loss.” 88 Virginia Pollution is a worldwide problem but, so far, the Subsidies and Neighbor- Law Review 1921 (2002). world has not been able to agree on a solution. In hood Revitalization: New “Globalization and Human Rights: Looking Out for Reconstructing Climate Policy, commissioned by the York City’s Ten Year Capi- “Negligence, Compensa- American Enterprise Institute, NYU School of Law tal Plan for Housing.” 9 the Welfare of the Worst tion, and the Coherence of Off.” 16 New York University Professor Richard B. Stewart and Duke University Economic Policy Review 71 Tort Law.” 91 Georgetown Professor Jonathan B. Wiener tackle the impasse (with Michael Schill, Amy Journal of International Law Law Journal 585 (2003). and Politics 201 (2002). over a strategy to reduce greenhouse gases. Schwartz, and Ioan Voicu). Stewart and Wiener take the position that the Gillers, Stephen “Revitalizing Inner-City “International Antitrust Kyoto Protocol is still a workable solution—just not as “Lessons from the is. But, they argue, with modifications, the protocol Neighborhoods: New York and the Doha Dome,” 43 Multijurisdictional Practice could result in a much-needed, wide-scale buy-in. City’s Ten Year Plan.” 13 Virginia Journal of Interna- Commission: The Art of What can bring the United States, China and Housing Policy Debate 529 tional Law 911 (2003). Making Change.” 44 other countries on board? They argue that the ulti- (2002) (with Michael “Mergers in Global Mar- Arizona Law Review 685 mate costs of compliance remain highly uncertain, Schill, Amy Schwartz, kets: GE/Honeywell and (2002). so the vagueness of the requirements is an invitation and Ioan Voicu). the Future of Merger for countries to stall for as long as possible. The “Speak No Evil: Settlement Control.” 23 University of authors propose that any agreement should spell Estreicher, Samuel Pennsylvania Journal of Agreements Conditioned out clear rules for determining emissions reduction “Affordable Justice Through International Economic on Noncooperation Are and whether countries are within bounds. In other Arbitration.” 57 Dispute Law 457 (2002). Illegal and Unethical.” 31 words we need to, well, turn up the heat. Resolution Journal 8 (2002) Hofstra Law Review 1 (with Matt Ballard). “We Protect Competition, (2002). You Protect Competitors.” Golove, David (2002) (with Reinier “Arbitration and Class 26 World Competition 149 Gillette, Clayton “Export/Import: American Kraakman). Actions after Bazzle—An (2003). “Reputation and Interme- Civil Justice in a Global Analysis of the Supreme diaries in Electronic Com- Context.” 52 DePaul Law Hershkoff, Helen Court’s Most Recent Deci- “What is Harm to merce.” 62 Louisiana Law Review 579 (2002). “Positive Rights and the sion and the Implications Competition? Exclusionary Review 1165 (2002). for Drafters of Arbitration Practices and Anticompeti- Evolution of State Consti- “The Implications of Agreements.” 58 Dispute tive Effect.” 70 Antitrust tutions.” 33 Rutgers Law Gilligan, Carol Crosby for Federal Exclu- Resolution Journal 12 (2003) Law Journal 371 (2002). Journal 799 (2002). “Reconstructing Law and sivity in Foreign Affairs.” 21 (with Michael J. Pluma). Marriage.” 11 Good Society 57 Berkeley Journal of Interna- Holmes, Stephen Franck, Thomas M. (2002) (with Peggy C. tional Law 152 (2003). “A European Doppelstaat?” Feldman, Noah “Inspections and Their Davis). “Book Review: Constitu- Enforcement: A Modest “Military Tribunals, 17 East European Politics and Societies 107 (2003). tions in a Non-Constitu- Proposal.” 96 American Goldberg, John C. P. International Law, and the tional World by Nathan Journal of International “Unloved: Tort in the Constitution: A Franckian- “Why International Justice Brown.”1 I- CON: Interna- Law 899 (2002). Modern Legal Academy.” 55 Madisonian Approach.” 35 Limps.” 69 Social Research tional Journal of Constitu- New York University Journal “The Use of Force in Inter- Vanderbilt Law Review 1501 1055 (2002). tional Law 390 (2003). of International Law and national Law.” 11 Tulane (2002). Politics 363 (2003). Jacobs, James B. “Non-Sectarianism Journal of International and “Unrealized Torts.” 88 “Congress’ Role in the Reconsidered.” 19 Journal Comparative Law 7 (2003). Virginia Law Review 1625 “The New Confederalism: of Law and Politics 65 (2002). Treaty Delegations of Leg- Defeat of Organized “What Happens Now? (2002) (with Benjamin islative, Executive, and Crime.” 39 (3) Criminal “Political Equality and the The United Nations after Zipursky). Judicial Authority.” 55 Law Bulletin 269 (2003). Islamic State.” 30 Philosoph- Iraq.” 97 American Journal “What Clients Are Owed: Stanford Law Review 1697 ical Topics 253 (2002). of International Law 607 Cautionary Observations (2003). Kahan, Marcel (2003). on Lawyers and Loss of a “The Myth of State Com- Ferejohn, John Chance.” 52 Emory Law Hansmann, Henry petition in Corporate Law.” “Commitment and Consti- Friedman, Barry Journal 1201 (2003). “Property, Contract, and 55 Stanford Law Review 679 tutionalism.” 81 Texas Law “The Birth of an Academic Verification: The Numerus (2002) (with Ehud Review 1929 (2003) (with Obsession: The History of Clausus Problem and the Kamar). Lawrence Sager). Countermajoritarian Divisibility of Rights.” 31 Difficulty.” 112 Yale Law Journal of Legal Studies 373 Journal 153 (2002).

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“Rethinking Corporate 49 Journal of Monetary Rubinfeld, Daniel L. “International Family “Patching up the Abduc- Bonds: The Trade-Off Economics 237 (2002) “Merger Simulation: A Law.” 2002 American tion Convention: A Call Between Individual and (with Alex Clukerman Simplified Approach with Society of International Law: for a New International Collective Rights.” 77 and Bilin Neyapti). New Applications.” 69 Proceedings of the Annual Protocol and a Suggestion New York University Law Antitrust Law Journal 883 Meeting 193 (2002) (with for Amendments to Review 1040 (2002). “Commentary: On the (2002) (with Roy J. D. Marianne Blair, Ratna ICARA.” 38 Texas Interna- Costs of Justice.” 80 Texas Epstein). Kapur, and Mark W. Janis). tional Law Journal 41 (2003). Kamm, Frances M. Law Review 2115 (2002). “Brain Death and “Competing Bids in Class Schill, Michael Spontaneous Breathing.” Actions Settlements.” 31 “Housing Production Sub- 30 Philosophy and Public Hofstra Law Review 633 sidies and Neighborhood Affairs 297 (2002). (2003). Revitalization: New York City’s Ten Year Capital Plan Kapur, Ratna “Payment of Expenses in for Housing.” 9 Economic “Sacrificing Legitimacy Securities Class Actions: Policy Review 71 (with in the Search for Justice.” Ethical Dilemmas, Class Ingrid Gould Ellen, Amy 24 Harvard International Counsel, and Congres- Schwartz, and Ioan Voicu). Review 42 (2002). sional Intent.” 22 The Review of Litigation 557 “Revitalizing Inner-City “Unveiling Women’s Rights (2003). Neighborhoods: New York in the ‘War on Terrorism.’” City’s Ten Year Plan.” 13 9 Duke Journal of Gender Mills, Linda G. Housing Policy Debate 529 Law and Policy 211 (2002). “When Is the Personal (2002) (with Ingrid Gould Professional in Public Ellen, Amy Schwartz, and Kingsbury, Benedict Child Welfare Practice? Ioan Voicu). “Foreword. Neo-Madiso- The Influence of Intimate nian Global Constitution- “State of New York City’s A Christian Europe Partner and Child Abuse Housing and Neighbor- alism: Thomas M. Franck’s Histories on Workers in By Joseph H.H. Weiler, Joseph Straus Democratic Cosmopolitan hoods: An Overview of Domestic Violence Cases.” Recent Trends.” 9 (2) Professor of Law and Faculty Chair, Prospectus for Managing 27 Child Abuse and Neglect Diversity and World Order Economic Policy Review— Hauser Global Law School Program 319 (2003) (with Mieko Federal Reserve Bank of Published by Biblioteca Universale Rizzoli in the 21st Century.” 35 New Yashihama). York University Journal of New York 5 (2003) (with Euro 7.50 International Law and Glynis Daniels). Nelson, William E. In A Christian Europe, Joseph H. H. Weiler, Joseph Politics 291 (2003). “Authority and the Rule of Schulhofer, Stephen J. Straus Professor of Law and Faculty Chair of the Law in Early Virginia.” 29 Hauser Global Law School Program, displays his char- Kornhauser, Lewis “At War with Liberty: Post Ohio Northern University acteristic brilliance, generosity of spirit, and literary flair “The Domain of Prefer- 9-11 Due Process and Secu- Law Review 305 (2003). in defense of the idea that Europe’s Christian identity ence.” 151 University of rity Have Taken a Beating.” and religious sensibility have a vital role to play in the Pennsylvania Law Review 14 (3) American Prospect A5 Neuborne, Burt construction of a united Europe. 717 (2003). (2003). “Holocaust Reparations Weiler criticizes European Christians as enclosed in “Preference, Well-Being, Litigation: Lessons for “Rape Law Circa June an intellectual “ghetto,” isolated from public discourse and Morality in Social the Slavery Reparations 2002: Has the Pendulum by walls that have been constructed both internally by Decisions.” 32 Journal of Movement.” 58 New York Swung Too Far?” 989 self-censorship and externally by a dominantly secular Legal Studies 303 (2003). University Annual Survey of Annals of the New York mentality. For one of the world’s preeminent scholars American Law 615 (2003). Academy of Sciences 276 of European law—and an Orthodox Jew of European Kramer, Larry D. (2003). heritage—to speak of a ghetto is a sign of the gravity “Preliminary Reflections with which he regards the question of Christianity’s “On Finding (And on Aspects of Holocaust- Losing) Our Origins.” 26 Shaviro, Daniel place in the history and future of European civilization. Era Litigation in American Weiler’s book is a plea to tear down the walls Harvard Journal of Law “The Growing U.S. Fiscal Courts.” 80 Washington between religious and secular Europeans, with exam- and Public Policy 95 (2003). Gap.” 2 World Economics University Law Review 795 Journal 1 (2002). ples of how Christian Europe’s moral and intellectual (2002). resources can play a part in paving Europe’s future. Maguigan, Holly “Money on the Table? Weiler has a nuanced appreciation of the dynamic “Wading Into Professor “Supreme Court of India.” Responding to Cross- tension between unity and pluralism in Europe, thus Schneider’s ‘Murky Middle 1 I-CON: International Border Tax Arbitrage.” 3 his plea for the recognition of Europe’s Christian Ground’ Between Accep- Journal of Constitutional Chicago Journal of Interna- dimensions is not an assertion of exclusivity but rather tance and Rejection of Law 476 (2003). tional Law 317 (2002). rests on a full affirmation of the diversity of European Criminal Justice Responses cultures. He initiates a dialogue between the funda- to Domestic Violence.” 11 Pildes, Richard Siegel, Stanley mental meaning of European integration, the telos, of American University Journal “Formalism and Function- “How to Tame Health European integration and Christian thinking about of Gender, Social Policy, and alism in the Constitutional Care Costs.” 196 (2) Journal human dignity, freedom, reason and democracy. the Law 427 (2003). Law of Politics.” 35 Con- of Accountancy 83 (2003). Weiler refers to the book as “an exploratory essay,” necticut Law Review 1525 but it is a unique sort of exploration. G. K. Chesterton Malamud, Deborah C. (2003). Silberman, Linda once described a wayward British yachtsman who dis- “ ‘Who They Are—Or “Comparative Jurisdiction covered England under the impression that it was a Were’: Middle-Class Wel- Rosenbloom, H. David in the International Context: new South Seas island, and he envied the man’s simul- fare in the Early New “Response to ‘U.S. Tax Will the Proposed Hague taneous experience of the joy of homecoming and the Deal.” 151 University of Treatment of Foreign Judgments Convention Be fascination of traveling to unknown lands. Weiler’s Pennsylvania Law Review Source Income Earned Stalled?” 52 DePaul Law “exploration” seeks just that combination of virtues, 2019 (2003). in Developing Countries: Review 319 (2002). discovering anew Europe’s home through an astonish- Administration and Tax ing encounter with its own “ghettoized” heritage. Miller, Geoffrey P. Treaty Issues.’” 35 George “Central Bank Reform, Lib- Washington International — Paolo Carozza, Associate Professor of Law, eralization, and Inflation in Law Review 401 (2003). Notre Dame Law School Transition Economies—An International Perspective.”

82 THE LAW SCHOOL AUTUMN 2004 Steines, John “Can Treaty Law Be “The Court and the Uni- Holmes, Stephen Nelson, William E. “Foreign Tax Credit Supreme, Directly Effec- versity (Reply to Stanley “Must Democracy Wait?” “In Memoriam: Byron R. Reform.” 31 Tax Notes tive, and Autonomous— Rothman).” 50 (13) New 14 (6) American Prospect 51 White.” 116 Harvard Law International 1213 (2003). All at the Same Time? York Review of Books 56 (June 2003). Review 9 (2002). (An Epistolary Exchange).” (2003). Stevenson, Bryan A. 34 New York University “Why We Need Europe.” Neuborne, Burt “Crime, Punishment, Journal of International Estreicher, Samuel 14 (4) American Prospect 47 “Annals of Constitutional and Executions in the Law and Politics 729 (2002) “Foreword. Human (April 2003). Courts.” 1 I-CON: Interna- Twenty-First Century.” 147 (with R. Stith). Behavior and the Economic tional Journal of Constitu- Proceedings of the American Paradigm at Work.” 77 New Jacobs, James B. tional Law 475 (2003) Philosophical Society 24 Wishnie, Michael York University Law Review “Gun Laws and Policies: A (with Lorraine Weinrab). (2003). “Immigrants and the Right 1 (2002). Dialogue.” 18 (2) ABA/Focus to Petition.” 78 New York on Law Studies, Spring 2003. “Informal Remarks on the Stewart, Richard B. University Law Review 667 Feltes, Gretchen Limits of Facial Review in “Hate Crimes: Criminal Complex Cases.” 6 Univer- “Administrative Law in (2003). “Review. Jefferson Digital Law and Identity Politics.” the Twenty-First Century.” Archive.” 17 (5) Reference sity of Pennsylvania Journal 6 Theoretical Criminology of Constitutional Law 101 78 New York University Law Yermack, David Reviews 63 (2003). 481 (2002). Review 437 (2003). “Litigation Exposure, (2003). Capital Structure, and Fox, Eleanor “Off Target.” Legal Affairs, S tone, Geoffrey R. Shareholder Value: The “Book Reviews: Cases and January/February 2003, p. 18. Pildes, Richard “Above the Law—Research Case of Brooke Group.” 9 Materials on E.C. Compe- “Less Power, More Methods, Ethics, and the Journal of Corporate Finance tition Law by Valentine “Right to Bear Arms’ Influence.” New York Times, Law of Privilege.” 32 Socio- 271 (2003) (with Sandeep Korah.” 39 CML Review Decision Would Improve August 2, 2003, p. A15. logical Methodology 18 Dahiya). 1455 (2002). Gun Control.” USA Today, (2002). December 16, 2002, p. 15A. Roznovschi, Mirela Zimmerman, Diane L. Franck, Thomas M. “Book Review: The Inter- “Abraham Lincoln’s First “Authorship Without “Inspections and Their Kapur, Ratna national Criminal Court Amendment.” 78 New York Ownership: Reconsidering Enforcement: A Modest “Monsoon in a Teacup.” and the Transformation of University Law Review 1 Incentives in a Digital Proposal.” 96 The American Legal Affairs, September/ International Law Justice (2003). Age.” 52 DePaul Law Review Journal of International Law October 2002, p. 46. for the New Millennium 1121 (2003). 899 (2002). by L. N. Sadat.” 31 Interna- “Judge Learned Hand and Lowenfeld, Andreas tional Journal of Legal Infor- the Espionage Act of 1917: “Foreclosing on Fame: “Buchbesprechungen— mation 120 (2003). A Mystery Unraveled.” 70 Garland, David Exploring the Uncharted “‘Judicial Lightning’ International Economic University of Chicago Law Boundaries of the Right Law.” 58 Aussenwirtschaft: Schulhofer, Stephen J. Review 335 (2003). Review of Banner’s The of Publicity.” 77 New York Death Penalty: An Ameri- Zeitschrift für internationale “ American Injustice.” The University Law Review 1322 Wirtschaftsbeziehungen 154 Baltimore Sun, July 3, 2003, Taylor-Thompson, Kim can History.” Times Literary (2002) (with Melissa B. Supplement, October 25, (2003) (with Andreas R. p. 21A. “States of Mind/States Jacoby). Ziegler). of Development.” 14 2002. “Bush Just Talks the Talk on Stanford Law and Policy Security.” Los Angeles Times, Miscellaneous Gillers, Stephen Miller, Geoffrey P. Review 143 (2003). “Three Myths About May 28, 2003, p. B13. Bruner, Jerome “Conflicted about Martha?” Central Banks.” Federal “Tuning Up Gideon’s “Book Review: The Cul- American Lawyer, Septem- “President on Security: Reserve Bank of Cleveland. Trumpet.” 71 Fordham ture of Control: Crime and ber 2003, p. 71. Tough Talk, Soft Funding.” Economic Commentary, Law Review 1461 (2003). Social Order in Contempo- The Miami Herald, May “Court-Sanctioned November 2002, p. 1. rary Society by David Gar- 30, 2003. Secrets Can Kill.” Los Thompson, Anthony C. land.” 50 (14) New York Angeles Times, May 14, Murphy, Liam “Supreme Court Must Be “It Takes a Community to Review of Books 44 (2003). Prosecute.” 77 Notre Dame 2003, p. B13. “T ax Travesties. Bush is Extra Vigilant in Wartime.” “The Colorado Sympo- Wrong: It’s Not ‘Our Chicago Tribune, October Law Review 321 (2002). “It’s an MJP World: Model sium: Prelude to the Money.’” Boston Globe, 9, 2002, p. 23 (with Geof- Rules Revisions Open the Cognitive Revolution.” 32 January 26, 2003, p. H1 frey R. Stone). Tyler, Tom R. Door for Lawyers to Work Journal of Psycholinguistic (with Thomas Nagel). “A Four-Component Outside Their Home Juris- Model of Procedural Research 589 (2003). Siegel, Stanley dictions.” 88 ABA Journal Nagel, Thomas “Corporate Disability Buy- Justice: Defining the 51 (December 2002). Meaning of ‘Fair’ Process.” Dorsen, Norman “John Rawls and Affirma- Ups.” 194 (6) Journal of 29 Personality and Social “My Classmate Gerry “Make a List.” New York tive Action.” 39 Journal of Accountancy 86 (2002). Psychology Bulletin 747 Gunther.” 55 Stanford Law Times, June 11, 2003, p. A31. Blacks in Higher Education (2003) (with Steven Blader). Review 657 (2002). 82 (Spring 2003). Stone, Geoffrey R. “Upholding the Law as Pre- “Supreme Court Must Be “The Psychology of the “Norman Dorsen Pays trial Publicity Goes Global.” “Book Review: Truth Extra Vigilant in Wartime.” Social Self.” 48 Contempo- Tribute to John Sexton.” New York Times, April 27, and Truthfulness: An Essay Chicago Tribune, October rary Psychology 515 (2003). New York University Law 2003, Section 4, p. 14. in Genealogy by Bernard 9, 2002, p. 23 (with School Magazine 10 (2002). Williams.” The New Repub- Stephen J. Schulhofer). “What Constitutes Fairness “Why Judges Should Make lic, October 21, 2002, p. 26. “Tribute to Lawrence H. in Work Settings? A Four- Court Documents Public.” Tyler, Tom R. Tribe.” 59 New York “Tax Travesties. Bush is Component Model of Pro- New York Times, November “The Psychology of the University Annual Survey Wrong: It’s Not ‘Our cedural Justice.” 13 Human 20, 2002, p. A17. Social Self.” 48 Contempo- of American Law 3 (2003). Money.’ ” Boston Globe, Resource Management rary Psychology 515 (2003). Review 107 (with Steven Hertz, Randy January 26, 2003, p. H1 Blader). Dworkin, Ronald “Building External Con- (with Liam Murphy). “Trust Within Organiza- “The Court and the Uni- sensus: Alumni, Profes- tions.” 32 Personnel Review Weiler, Joseph H. H. versity.” 50 (8) New York sional Organizations, and Nelkin, Dorothy 556 (2003). “Back to the Future: Review of Books 8 (2003). the Practicing Bar.” 2002 (deceased). “Communicat- Europe as a Community.” Journal of Legal Education ing Risk—Once Again.” 19 28 Collegium 43 (2003). 212 (2002). Political Communication 461 (2002).

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additions to the roster

The New York University School of Law is pleased to welcome ﬁve eminent scholars to its full-time faculty, and to introduce to the Law School community a diverse and distinguished group of 33 visiting faculty and fellows. These scholars and teachers hail from 10 wide-ranging countries, including Finland, Japan, and Spain.

Batchelder worked as the director goals. He began in familiar territory as an New Faculty of community affairs for New York State assistant professor at the University of Senator Marty Markowitz and managed Toronto, but soon journeyed to the Univer- Lily Batchelder his 1996 campaign. She has served as a sity of Southern California Law School, A rising scholar in the field of tax policy and research associate with the New America where he was a visiting assistant professor social welfare, the NYU School of Law’s new Foundation and has held summer positions and John M. Olin research fellow. After Assistant Professor of Law Lily Batchelder at the Boston Consulting Group; the Har- being tenured at the University of Toronto, has always had a fasci- vard Center for International Development Davis spent time as a visiting fellow at Cam- nation with the inter- in Nairobi, Kenya, and Cambridge, Mas- bridge University’s Clare Hall and as a visit- play between social sachusetts; the Office of the Deputy Attor- ing lecturer at the University of the West issues and economic ney General; the New York-based law firm Indies in Jamaica. He came to the NYU ones. “I’ve been inter- Cleary, Gottlieb, Steen & Hamilton; and School of Law as a visiting professor in ested in low-income the Tax Section of the U.S. Senate Com- 2003, and says he is delighted to spend more and poverty issues for mittee on Finance. time in an educational environment that “has as long as I can remem- This wide range of practical experience such a buzz about it.” ber,” she said. “And I’m motivated Batchelder to supplement her “A big part of the draw to NYU is the interested in tax in part skills with deeper academic backing. She city,” he said. “The global dimension of the because the tax system received an M.P.P. with a concentration in Law School is also very attractive. It’s just a is increasingly used to human services and applied microeconomics really vibrant intellectual community.” construct social policy.” Batchelder, a recent in 1999 from Harvard University’s John F. Davis is currently working on a book graduate of Yale Law School, has been Kennedy School of Government, where she with University of Toronto colleague employed as an associate at Skadden, Arps, was a Kennedy Fellow and President of Michael Trebilcock, tenta- Slate, Meagher & Flom for two years. the Kennedy School Student Govern- tively titled Law, Institu- Batchelder explored the relationship ment. After Harvard, she went on to get tions and Development between tax policy and social welfare in her her J.D. in 2002 from Yale Law School, Reconsidered, which will article, “Taxing the Poor: Income Averaging where she received the Clifford L. Porter top off the ten articles, Reconsidered,” Harvard Journal on Legisla- Prize for Best Paper on Taxation in 2001 five manuscripts, six tion (2003). She argues that the current and 2002. Additionally, she served as essays, and five govern- income-tax system places undue burdens on founder and director of the Pro Bono ment agency and industry those with volatile incomes, and makes the Network, editor and book reviews editor group reports he has seldom-acknowledged point that income of the Yale Law Journal, executive editor already authored or co- volatility not only occurs more often in poor of the Yale Human Rights & Development authored since 1996. families than middle- and upper-income Law Journal, and director of the Lowen- While he plans to con- families, but it is also more onerous from a stein International Human Rights Project. tinue this focus on law and development by tax standpoint for low-income families. As a looking at the English-speaking Caribbean solution, Batchelder proposes a progressive Kevin Davis and the theoretical aspects between law and tax policy that averages incomes over a two- A widely published writer on issues relating social welfare, his interests do not stop there. year period. to nonprofits, contracts and commercial law, “I’ve typically been interested in topics on This concern for the challenges facing the and law and development, Kevin Davis joins the boundary between commercial law and poor led Batchelder to take on various jobs the NYU School of Law as professor of law. criminal law,” he said. “For example, the lim- in the social service sector. She received her He was formerly a tenured member of the its of commercial morality, and what should B.A. in political science in 1994 from Stan- faculty at the University of Toronto. count as immorality or fraud in the commer- ford University, where she was a director of Davis received his B.A. in Economics cial world.” the Stanford Homelessness Action Network. from McGill University in 1990. After gradu- A passionate teacher, Davis tries to show After graduating with honors and distinction ating with an LL.B. from the University of his students not only “how to think like a from Stanford, she worked as a client advo- Toronto in 1993, he served as Law Clerk to lawyer and understand how to engage in cate at Neighbors Together Corporation in Justice John Sopinka of the Supreme Court legal reasoning,” but, beyond that, “to recog- Brooklyn. There, she served as a social worker of Canada and later as an associate in the cor- nize that they don’t always have to take legal for inner-city residents, helped manage a porate department of Torys, a well-known rules as given. Some rules vary across time soup kitchen, and organized a community Canadian law firm. and place; they’re malleable. I want my stu- self-help group. She then became secretary Since receiving his LL.M. from Columbia dents to see that there’s room for debate of the board of directors, and continues to University in 1996, Davis has traveled widely around the margins, while still recognizing serve as a member. in pursuit of intellectual and educational the boundaries.”

84 THE LAW SCHOOL AUTUMN 2004 Moshe Halbertal creation of ‘language rights,’ or rights to use in the possibility of a bilingual public sphere A prominent Jewish Studies scholar, Moshe one’s mother tongue in certain contexts and and a non-monolingual conception of Halbertal focuses on hermeneutics, the inter- under certain circumstances,” offering exam- national, political, and cultural identity, and pretation of Jewish law. He will teach at the ples from around the world, like the right for I’ve always been attuned to the ways in NYU School of Law for the third time this Anglophones and Francophones in Canada which people use language to identify social fall, and recently secured a five-year appoint- to have laws enacted in their language. and economic status, as well as to establish ment, for one semester per year, at the Law Rodríguez, who grew up in a bilingual effective ties.” At the Law School, Rodríguez School. He has also family in largely bilingual South Texas, began hopes to continue her work in language served as Gruss Profes- her work in the area of language rights as a rights while expanding her repertoire to sor at the Harvard and Reginald F. Lewis Fellow at Harvard Law include issues related to religious accommo- University of Pennsyl- School during the 2001-2002 academic year. dation, international human rights, and vania law schools. Last She pursued a range of writing projects on immigration law. year, he gave the Caro- U.S. language law and policy while auditing line and Joseph S. classes at Harvard Law School. Last spring, Sally Engle Merry Gruss lecture on Talmu- as an Alexander Fellow at NYU, she taught a A leading scholar in anthropology, law, and dic civil law. seminar on Language and Cultural Rights. society, Sally Engle Merry has accepted a joint “I find the NYU Rodríguez earned her B.A. in history appointment to the Institute for Law and Law School an intellec- magna cum laude from Yale, then went on Society at the NYU School of Law and tually exciting and alive to Oxford University as a Rhodes Scholar. NYU’s Department of Anthropology. She will place,” Halbertal said. He is attracted to “the She finished at Oxford with a Master of join the faculty in Fall 2005. Merry comes to wonderful component at the Law School Letters in Modern History, writing her NYU from Wellesley College where she was which examines the relationships between thesis on the role of trans-Atlantic female the Marion Butler McLean Professor in the law and philosophy, mainly political theory, abolitionists in the development of anti- History of Ideas and a professor of anthropol- ethics, and hermeneutics.” Halbertal’s schol- slavery beliefs in the ogy, as well as the co-director of the Peace and arship is focused on investigating the con- United States. Justice Studies Program. She is the first fac- nection between Jewish law and legal theory. After Oxford, ulty appointment to the Institute for Law and “What can we learn from Jewish law about Rodríguez returned Society, a joint venture between the Faculty of the concept of law?” to Yale for her J.D., Arts and Science and the Law School. As an ATalmud instructor at the Hartman Insti- where she served innovative leader in the field, she will both tute of Advanced Jewish Studies in Jerusalem, as articles editor of increase the international and national reputa- Halbertal has published several books to criti- the Yale Law Journal tion of the Institute and foster the intellectual cal acclaim both in Israel and the United and lent her time to environment of NYU faculty members with States. In 1999 he was a recipient of the the Yale Law School interests in law and society. Michael Bruno Award given by the Roth- Workers’ Rights “Sally Merry’s appointment is a very schild Foundation in Israel. It is modeled after Project. Rodríguez important one for the Institute and for law the MacArthur “genius awards” and given to worked as a professor’s research assistant and social science scholarship here at NYU,” pioneering Israeli scholars under the age of 50. for two years, investigating the history of said David Garland, Arthur T. Vanderbilt Pro- Halbertal looks forward to imparting his desegregation and civil rights law and help- fessor of Law at the Law School. “Sally’s work knowledge to students who may never have ing to revise portions of a constitutional is varied and wide-ranging, but she has a way studied Jewish law. “Students can gain a great law casebook. of bringing cutting-edge theoretical deal from a comparative perspective on Before coming to the Law School, approaches to bear upon issues that are of diverse concerns and problems of the law, Rodríguez was a law clerk for the Honorable great public concern—and of discovering drawn from the study of the rich and complex David S. Tatel of the U.S. Court of Appeals, strategic sites in which these issues can be stud- tradition of Jewish law.” for the District of Columbia Circuit, and the ied empirically. This, together with her capac- Cristina Rodríguez A pioneer in the field of language rights, “A big part of the draw to NYU is the city. Cristina Rodríguez joins the faculty as assistant professor of law after spending the last The global dimension of the Law School is year here as an Alexander Fellow. She is currently working on “Language Rights: Four also very attractive. It’s just a really vibrant Fundamental Questions,” a four-article pro- gression exploring the principal theoretical intellectual community.” —KEVIN DAVIS questions that she believes should direct the creation of language law and policy worldwide. Rodríguez hopes to use this piece and Honorable Sandra Day O’Connor of the ity to sustain a conversation across different her other work-in-progress, a comparative U.S. Supreme Court. disciplines, will make her a great addition to study of American and Canadian legal Rodríguez says she has always had an the NYU School of Law community and a real approaches to language diversity, as the heart interest “in the effects of immigration on inspiration to the Institute’s students.” of a future book. society and culture and on the strategies dif- Merry, who received her doctorate in Rodríguez’s academic work concerns how ferent societies adopt to absorb immigrant anthropology from Brandeis University in the law and public policy should approach a populations—hence the interest in how to 1978, has written extensively about the inter- linguistically diverse society. She suggests manage linguistic diversity.” Because of this sections between law and culture, law and that “one way to deal with the demands long-standing interest and her personal colonialism, and law and international made by linguistic minorities is through the upbringing, she says, “I have always believed human rights. Her recent book, Colonizing

AUTUMN 2004 THE LAW SCHOOL 85 F ACULTY FOCUS

Hawai’i: The Cultural Power of Law (Prince- Adam Pritchard. A number of his articles, ton University Press, 2000), integrates and Visiting Faculty including “The Unfounded Fear of Regula- applies her long-term theoretical interest in tion S: Empirical legal pluralism. Merry has long argued for Sir John Baker Evidence on Off- understanding the interrelation among mul- A leading authority on the development of shore Securities tiple legal systems within a society, which English legal institutions, Sir John Baker is Offerings,” Duke is both especially evident and particularly the Downing Professor of the Laws of Eng- Law Review (2000) important in colonial land at Cambridge University. and “Market societies. The book, In addition to his appointment as a Lessons for Gate- which received the Senior Golieb Fellow at the Law School, Sir keepers,” Northwest- 2001 J. Willard Hurst John was also a fellow of the British Academy ern University Law Prize from the Law in 1984 and a fellow of St. Catharine’s Col- Review (1998), were and Society Associa- lege, Cambridge University, in 1971. He recognized by the tion, studies the legal received the Ames prize from Harvard Law Corporate Practice systems and patterns School, and an honorary LL.D. from the Commentator as among the best corporate of social control in University of Chicago. The author of more and securities law articles of the year. Hawaii prior to its for- than 25 books and 100 articles, Sir Baker is Much of Choi’s current research uses mal annexation. In Get- the general editor of the Oxford History of the empirical data to investigate whether it is ting Justice and Getting Laws of England and general editor of the possible to reduce frivolous private securi- Even: Legal Consciousness Among Working Cambridge Studies in English Legal History. ties lawsuits without consequentially deter- Class Americans (University of Chicago Press, He has held positions at Yale Law School, ring worthy claims of fraud. “There is 1990), Merry offered the first full-length Harvard Law School, the Huntington no magic bullet that can eliminate only study of the attitudes of litigants and judges Library, the University of Oxford, and the frivolous litigation while allowing more in local district courts, small claims courts, European University meritorious suits to go forward,” says Choi. and mediation services. Institute in Florence, He became interested in this issue after the Exploring the discrepancy between the Italy. He is returning Private Securities Litigation Reform Act was aims and aspirations of litigants and the to the NYU School enacted in 1995, which, in an effort to reduce treatment they receive in the courts, the of Law after serving frivolous suits, raised the costs of litigating a book reveals widespread legal entitlement on the Global Law securities claim. among working-class Americans, as well as Faculty. “It is a privi- Choi taught as an assistant professor at a tendency for lower courts to deflect these lege to teach at one the University of Chicago Law School from claims and convert them into moral or psy- of the leading law 1996 to 1998, and he was a visiting profes- chological problems. In her first book, schools in the United sor at Yale Law School from 2000-2001. As Urban Danger: Life in a Neighborhood of States, and to intro- a student at Harvard Law School, Choi was Strangers (Temple University Press, 1981), duce selected stu- the supervising editor of the Law Review, Merry focused on an ethnically mixed dents to the legal heritage shared with and graduated first in his class in 1994. He Boston community’s response to and per- England,” he says. is a recipient of the Fay Diploma, the Sears ception of crime, arguing that an individ- Sir John was knighted in the Queen’s Prize, and the Irving Oberman Memorial ual’s sense of danger is culturally mediated Birthday Honours in June 2003 for his signif- Award. He received his Ph.D. in economics and shaped by perceptions of racial differ- icant contributions to English legal history. A from Harvard University in 1997. ence. Recently she completed a book called note from Parliamentary proceedings illus- Global Law: Women’s Human Rights and the trates Sir John’s prominence in British law: John Duffy Meanings of Culture. It examines the pro- “In the matter concerning the attire of judges John Duffy is known for his unique perspec- duction of a global human rights law and and barristers, Parliament shall make recom- tive on the patent and trademark office. He its appropriation in several Asia/Pacific mendations subject to the approval of Her is currently focused on reconciling the law countries. She is currently launching a new Majesty, the Queen, and Dr. John Baker.” and economics of 20th National Science Foundation-funded research century industrial regula- study on human rights and local legal con- Stephen Choi tions with those of 21st sciousness based on case studies of women’s Stephen Choi, one of the nation’s preemi- century intellectual prop- use of human rights discourse in India, nent securities law scholars, is visiting erty. “Much of the wis- China, Nigeria, and Peru. from the University of California at Berke- dom from this earlier The author of nearly 100 scholarly articles ley School of Law, where he is the Roger body of legal and eco- and reviews, Merry’s other books include J. Traynor Professor of Law. nomic thought has direct Law and Empire in the Pacific: Hawai’i and Choi’s research combines creative the- and interesting applica- Fiji (co-edited with Donald Brenneis, School oretical work with empirical analysis of tions to intellectual of American Research Press, 2004) and The corporations and capital markets and the property,” he says. More Possibility of Popular Justice: A Case Study of actual effect of securities law reforms. His narrowly, he is interested American Community Mediation (co-edited numerous articles about the regulation of in the application of the patent system on with Neal Milner, University of Michigan securities markets have appeared in a litany pharmaceuticals. Press, 1993). She is past president of the Law of prominent law review publications. Duffy wrote the casebook Patent Law and Society Association and the Association Among his most notable recent published and Policy (3rd ed. 2002), with Robert for Political and Legal Anthropology. Merry works are “How to Fix Wall Street: A Patrick Merges and is most well known for received her master’s degree from Yale Univer- Voucher Financing Proposal,” Yale Law Jour- his article, “Rethinking the Prospect The- sity in 1967, a year after she graduated from nal (2003), and “Behavioral Economics and ory of Patents,” Chicago Law Review (2004), Wellesley College. I the SEC,” Stanford Law Review (2003), with which reexamines a traditional justification

86 THE LAW SCHOOL AUTUMN 2004 for patent law and provides new insights Daniel Hulsebosch Richard Pildes and Pamela Karlan and arti- into how the law operates to accelerate the Daniel Hulsebosch explores the ways in cles in this field have contributed to the cre- time at which inventions reach the public. which legal culture integrates societies ation of a vibrant new area of constitutional Another of his major articles, “Administra- across space and time. He has traced the law. Two of his most high-profile works, tive Common Law in Judicial Review,” expansion of legal norms throughout the “Gerrymanders and Political Cartels,” Har- Texas Law Review (1998), received the British Empire, into the American colonies, vard Law Review (2002), and “Politics as Annual Scholarship Award from the ABA and across the new Markets: Partisan Lockups of the Demo- Section on Administrative Law and Regula- states, bringing a cratic Process,” Stanford Law Review (1998), tory Practice. new perspective to with Richard Pildes, have been central to A reputation as an exciting teacher has the field of English the evolving debate over democratic gover- followed Duffy from the Cardozo School of Legal History, nance. Another article, “Governance and Law to William and Mary Law School and which he will be Legitimacy in the Law of Class Actions,” to his current position on the faculty at teaching at the Law Supreme Court Review (1999), touches on the George Washington University Law School. School this fall. area of law that he will be teaching this fall He was also a Visiting Professor of Law and “I try to discover at the Law School. an Olin Fellow in Law and Economics at how migration itself A recently elected Fellow of the Ameri- the University of Chicago Law School. He changed the way can Academy of Arts and Sciences, is a former law clerk to the Honorable people understood Issacharoff also serves as the reporter for the Stephen F. Williams, United States Court of what was meant by a constitution, as well newly created Project on Appeals for the District of Columbia Cir- as what they believed constitutions should Aggregate Litigation of cuit, and to Justice Antonin Scalia of the provide and protect,” Hulsebosch says. the American Law Insti- U.S. Supreme Court. Hulsebosch helped draft an amicus tute. He is a former clerk brief that was submitted to the Supreme to the Honorable Arlin William Eskridge Jr. Court in connection with a habeas corpus M. Adams of the United A long-time faculty member of the Law case from Guantanamo Bay. Signed by States Court of Appeals School’s Institute for Judicial Administra- Law School Professor Michael Wishnie— for the Third Circuit, and tion, William Eskridge Jr., is now the John the “motor force behind the brief”—and has also served on the A. Garver Professor of Jurisprudence at Yale almost two-dozen other legal historians, Lawyers’ Committee for Law School. the brief analyzed the question of whether International Human His main areas of expertise are legisla- the founding generation would have Rights and the Lawyers’ tion; sexuality, gender and the law; civil pro- believed that the writ of habeas corpus Committee for Civil Rights Under Law. cedure; and constitutional law. Eskridge is extended to the military base at Guantanamo Professor Issacharoff was editor of the the co-author of the leading casebooks, Leg- Bay. The most important service that a legal Yale Law Journal, where he received his J.D. islation: Statutes and the Creation of Public historian can provide, says Hulsebosch, is to in 1983. He is currently finishing a book on Policy (2001), with P.P. Frickey and E. Gar- offer guidance to decision-makers about the civil procedure for the Foundation Press rett, now in its third implications of legal history for current prac- Concepts and Insights series. He is also in edition, and Sexuality, tice. He has also done research and consult- the nascent stages of a large project on the Gender, and the Law ing in relation to Native American land use of constitutions to consolidate demo- (1997), with N.D. claims, which require scholars to interpret cratic government in ethnically divided soci- Hunter, now in its sec- treaties and patents that date from the colo- eties. He is excited to visit the Law School ond edition. He has nial or early national period, and which must because it “clearly has established itself as one written several mono- be analyzed in the context they were written. of the most interesting and vibrant centers graphs, including Hulsebosch wrote the book Constituting for serious inquiry into the issue of how to Dynamic Statutory Empire: New York and the Transformation of stabilize democratic governance in compli- Interpretation (1994) Constitutionalism in the Atlantic World, 1664- cated and diverse settings.” and The Case for Same- 1830, (University of North Carolina Press, Sex Marriage (1996). 2003). He has also written articles on both Ehud Kamar He and Law School faculty member John Anglo-American constitutional history and An associate professor at the University of Ferejohn are now working on a new mono- 19th century private law. As a professor, Southern California Law School, Ehud graph, Super-Statutes. Hulsebosch is known for his dynamic energy Kamar will teach Corporations, Mergers and Professor Eskridge clerked with Judge in the classroom. He was editor of the Law Acquisitions, and Edward Weinfeld of the U.S. District Court Review at Columbia University where he Securities Regula- for the Southern District of New York and received his J.D., and received his A.M. and tion this spring. served as an associate at Shea & Gardner Ph.D. degrees from Harvard University. Kamar began his before joining the University of Virginia legal career in Israel, Law School as an assistant professor in Samuel Issacharoff obtaining his LL.B. 1982. He moved on to Georgetown Univer- Samuel Issacharoff, the Harold R. Medina (1991) and his LL.M. sity Law Center from 1988 to 1998 before Professor in Procedural Jurisprudence at (1995) from the joining the faculty at Yale Law School. Columbia Law School, applies a diverse set Hebrew University Eskridge has been a visiting faculty member of disciplines to the law, including eco- of Jerusalem. After at the law schools of NYU, Stanford and nomics, psychology, political science and graduating summa Yale as well as at Harvard University. He game theory. cum laude and first in received his B.A. from Davidson College, Issacharoff is a pioneer in the law of his class, he worked as a lieutenant prosecutor his M.A. from Harvard, and his J.D. from political process, and his casebook, Law of in military courts, dealing with more than 150 Yale Law School. Democracy (Foundation Press, 2001), with cases. He then went on to become captain,

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deputy director of prosecution in the military versity, and his Ph.D. in History of American Evans, a case challenging the 2000 Census court of appeals in Israel, supervising 20 pros- Civilization from Brandeis University. He “imputation” process used in creating appor- ecutors and evaluating appellate applications. balances academic interests with music. A co- tionment totals. He is also a widely pub- In 1996 he served as a Fulbright Scholar founder of the Chicago folk group Hip lished writer on the topics of legal regulation at the Columbia University School of Law, of political parties and the 2000 Census and and subsequently a Lawrence A. Wien Fel- redistricting process. low and a John M. Olin Fellow. He gradu- “To teach corporate At the Law School, Persily will teach ated from Columbia with an LL.M. in Contemporary Issues in Law and Politics, Corporate Law in 1998, and with a J.S.D. in law in New York is which “deals with hot topics in the law, such 1999. Kamar joined the USC Law School as terrorism, gay marriage, affirmative action, faculty in 2000. A widely published scholar, like teaching cooking and issues surrounding the upcoming elec- Kamar is currently co-authoring Price Dis- tion.” He will also be working on two arti- crimination in the Market for Corporate Law in Paris or samba in cles on campaign finance reform, two on with NYU Law Professor Marcel Kahan. redistricting, one on the census, and one on Kamar relishes his visiting professorship. Rio de Janeiro.” direct democracy. With this heavy workload, “To teach corporate law in New York is like Persily is hoping for some good luck to see teaching cooking in Paris or samba in Rio —EHUD KAMAR him through. “As a specialist in election law, de Janeiro.” I may be quite busy in the months leading up to November 2,” he said. “Let’s just hope William Novak Fetish, he has played “Happy Birthday” for that the election ends on that date this time.” A leading scholar in U.S. legal and constitu- Chicago Mayor Richard Daley and “Hail to tional history, William Novak is a history the Chief” for President Bill Clinton. “If I Roberta Romano professor at the University of Chicago. His have any time after meeting and becoming The Alan Duffy/Class of 1960 Professor of focus is on issues of liberalism, state-build- familiar with the writings and research inter- Law at Yale Law School, Roberta Romano is ing, and public law. This fall, he will teach ests of the members of this community, I an internationally prominent corporate-law the Administrative and Regulatory State and would want to take in as much live music scholar, focusing particu- Readings in American Legal History at the as possible,” says Novak. larly on the dynamics of NYU School of Law. American corporate law. Until 2001, Novak Nathaniel Persily One of her books, The was the director of the A renowned expert on election law, Genius of American Corpo- University of Chicago’s Nathaniel Persily was in high demand as a rate Law (1993), about the Center for Comparative commentator during the 2000 election. He decentralized structure of Legal History and was a has drawn districts for the Georgia House American corporate law, founding member of the of Representatives and Senate, the legisla- was a landmark in schol- Human Rights Pro- tive districts of Maryland State, and the arship. She is also the gram. He is also a congressional districts of New York State. author of The Advantage research fellow at the He also served as an expert witness for of Competitive Federalism American Bar Founda- the 2002 reevaluation of the California State for Securities Regulation (2002) and Founda- tion, where he co-edits Senate and Congres- tions of Corporate Law (1993). the journal Law and sional redistricting Romano is an empiricist who has con- Social Inquiry. His first book, The People’s Wel- plans, and was out- ducted a number of sophisticated studies fare: Law and Regulation in Nineteenth-Cen- side counsel to the of the characteristics and effectiveness of tury America, documents the longstanding Miami-Dade County American corporate law. In one of her most U.S. tradition of governmental activism, and Attorneys Office renowned articles, “The Shareholder Suit: Lit- won the American Historical Association’s Lit- involving their 2000 igation Without Foundation?” Journal of Law, tleton-Griswold Prize. redistricting process. Economics and Organization (1992), Romano In a new book he expects to complete in The NYU School studied the effectiveness of shareholder litiga- 2006, The Creation of the American Liberal of Law is a familiar tion and found, rather surprisingly to many in State, 1877-1937, Novak examines how the institution to Persily, her field, that it is difficult to find any benefi- Western world evolved from a common-law as he was an associ- cial consequences of that system. state of self-regulation (what Novak calls a ate counsel at the Law School’s Brennan Cen- Romano’s “Empowering Investors: A “well-regulated society”) to its 20th century ter for Justice from 1999-2001. While there, Market Approach to Securities Regulation,” incarnation: a centrally regulated administra- he represented Senator John McCain in a Yale Law Journal (1998), called for interjuris- tive state. “I’m very interested in the process challenge to the New York Republican pri- dictional competition in securities regula- through which the U.S. has become one of mary ballot access rules, and co-wrote amicus tion, both domestically and internationally. the most powerful legal-economic and geo- briefs in Bush v. Gore and California Demo- This article has been reprinted in several political entities in world history while cling- cratic Party v. Jones. Persily also worked on the other prominent publications, and was ing to a political mythology that emphasizes Democracy Program, focusing on issues of selected as one of the 10 best corporate and individualism, private rights, and negative census policy, legislative redistricting, repre- securities Articles for 1998 by a Corporate liberty,” he said. “I think we need some new sentation, ballot access, and legal regulation Practice Commentator annual poll. She was story-lines to make sense of the immense of the political process through scholarship, selected for this honor again in 2001 for her scale and scope of the American state in the conferences, litigation, and policy analysis. article, “Less is More: Making Institutional early 21st century.” In 2002, Persily enlisted his Constitu- Investor Activism a Valuable Mechanism of Novak received both his B.A. and M.A. tional Law class to assist him in writing a Corporate Governance,” Yale Journal on Reg- in history from Case Western Reserve Uni- Supreme Court amicus brief in Utah v. ulation (2001).

88 THE LAW SCHOOL AUTUMN 2004 Romano received the Yale Law Women Harvard, and went on to work as an associate behalf of Fred Korematsu, who challenged Teaching Award in 1997. She arrived at Yale attorney at Covington & Burling. After clerk- the constitutionality of the internment of from Stanford Law School and served as a ing for U.S. Supreme Court Justice John M. Japanese-Americans during World War II law clerk to the Honorable Jon O. Newman, Harlan in 1962, Shapiro returned to Harvard and is represented by Stephen Schulhofer, United States Court of Appeals for the Sec- Law School as an assistant professor, rising to the Robert B. McKay Professor of Law. ond Circuit. As a student at Yale Law School, professor in 1966, A graduate of the University of Pennsylva- where she received her J.D. in 1980, Romano and has held his cur- nia’s Wharton School, Stone obtained his law was note editor of the Law Journal. She rent post since 1984. degree from the University of Chicago Law received her M.A. from the University of He was also associate School. He then went on to serve as a law Chicago in 1975. dean of Harvard clerk to Judge J. Skelly Wright of the U.S. Law School from Court of Appeals for the District of Columbia, Herwig Joachim Schlunk 1971 to 1976. From and Justice William J. Brennan Jr. of the U.S. A professor of law at Vanderbilt University 1988 to 1991, Shapiro Supreme Court. He returned to the University Law School, Herwig Schlunk will be teaching served as Deputy of Chicago Law School as a professor in 1973, Federal Income Tax at the Law School this Solicitor General in and served as its dean from 1987 to 1993. From spring. His scholarship has focused primarily the U.S. Justice 1993 to 2002, he was provost of the University on corporate taxation, and he is looking for- Department, which of Chicago. The author or co-author of ward to spending a semester in New York City. gave him “the opportunity to brief and argue numerous books, Stone’s latest, Perilous Times: “For a tax person, what doesn’t attract a wide range of challenging and important Free Speech in Wartime From the Sedition Act of me to NYU?” Schlunk said. “NYU has a very cases in the Supreme Court, and to learn 1798 to the War on Terrorism, hit bookstore good tax faculty, it’s located in a city which firsthand something of the incredibly com- shelves in November 2003. has by far the most advanced tax-practitioner plex operations of the federal government.” base in the country, and in the spring it has Shapiro has taught at schools around Mark Tushnet the best tax colloquium in the country.” the country, including the University of Mark Tushnet, the Carmack Waterhouse Pro- Prior to teaching at Vanderbilt, Schlunk Pennsylvania Law School, Stanford Law fessor of Constitutional Law at the George- was Director of Mergers and Acquisitions at School, the University of Arizona James E. town University Law Center, spent last spring Koch Industries in Wichita, Kansas. He spent Rogers College of Law, and University Col- at the NYU School of Law and returns again several years at Kirk- lege at Oxford. But the NYU School of this fall. Over the past year land & Ellis in Law holds a special place: “The school he completed numerous Chicago, first as an has become an important part of my pro- essays on comparative con- associate and later as fessional life,” Shapiro said, “and I espe- stitutional law, which he a partner in the tax cially enjoy renewing on each visit the plans to incorporate into department, where many friendships I have made there and both his course in the fall he specialized in participating in the consistently interest- and the book he is writing. mergers and acquisi- ing and valuable colloquia that are so much Tushnet helped to tions, principally a part of the institution.” develop the discipline of those involving pri- Critical Legal Studies in vate equity. He spent Geoffrey Stone the 1970s and 1980s. He more than a year in A preeminent scholar on the First Amend- served as secretary of the Germany as a German Ministry of Justice fel- ment, Geoffrey Stone, the Harry Kalven Jr. Conference on Critical Legal Studies from low studying comparative law, and then as an Distinguished Service Professor of Law at 1976 to 1985, and continues to use the Criti- exchange attorney practicing at Bruckhaus, the University of Chicago Law School, will cal Legal Studies tradition in his scholarship. Westrick & Stegemann in Dusseldorf, and visit the NYU School of Law this fall. He Tushnet has co-authored three casebooks: Boden, Oppenhoff, Rasor & Raue in Cologne. has taught many courses on constitutional Federal Courts in the 21st Century: Cases and Schlunk also spent a year as a law clerk to law, civil procedure, evidence, criminal pro- Materials (2nd ed. 2002); Constitutional Law Judge Richard A. Posner before teaching as an cedure, contracts, and regulation of the com- (4th ed. 2001); and Comparative Constitu- adjunct at the Chicago-Kent College of Law. petitive process. tional Law (1999), the first casebook in a gen- Of his New York sojourn, Schlunk had this Stone’s current research is focused on eration on comparative constitutional law. plan in mind: “Part of my time will be spent civil liberties in wartime. In the past, he has After receiving his B.A. from Harvard teaching, part will be spent going to colloquia, researched such sub- and his M.A. and J.D. from Yale, Tushnet and part of my time will be spent going to the jects as freedoms of served as a clerk to U.S. Supreme Court Jus- Metropolitan Opera as often as I can,” he said. speech, press, and tice Thurgood Marshall. He then became a “Provided that I can find other faculty mem- religion; the consti- member of the law faculty of the University bers to go with me, which I imagine I can.” tutionality of police of Wisconsin at Madison until joining the use of informants, Law Center faculty at Georgetown in 1981. David Shapiro the privilege against He is the 2003 president of the Association David Shapiro, the William Nelson Cromwell compelled self- of American Law Schools. Professor of Law at Harvard Law School, will incrimination; the Tushnet’s previous visit leaves him relishing spend this spring at the NYU School of Law. Supreme Court; and the fall: “My [Regulatory State class] pushed This is his fourth semester visiting, and he the F.B.I. Last Octo- me hard in ways that improved the course,” he plans to teach Introduction to the American ber, Stone was the says. “The intellectual environment at the Law Judicial System: Civil Procedure. primary author of an amicus brief to the School, particularly in the areas of comparative Shapiro’s research has centered on federal- Supreme Court arguing that the executive constitutional law and European law, was ism, civil procedure, and statutory interpreta- detentions of prisoners in Guantanamo Bay extremely stimulating. And, of course, the tion. He obtained his B.A. and LL.B. from is unconstitutional. The brief was filed on food and theater in New York was terrific.”

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Albert Yoon Political Science Association’s Fenno Prize the American Psychiatric Association for his Albert Yoon will be visiting the Law School for best book in legislative studies, and books The Clinical Prediction of Violent this fall from Northwestern University, where the Riker Award for best book in political Behavior (1982) and Rethinking Risk Assess- he serves as an assistant professor of law. He economy. The article he co-authored, “Do ment (2002). Monahan has won the Isaac spent the past year as a fellow at Princeton Majority-Minority Districts Maximize Black Ray Award of the American Psychiatric University, writing a book about tort reform. Substantive Representation in Congress?” Association, and received an honorary Doc- His diverse expertise includes tort reform, was cited in Ashcroft v. Georgia, a major re- torate of Law from the City University of corporate and securities law, federal courts, districting case in New York. He was elected a member of the political parties and federalism, local govern- the Supreme Court Institute of Medicine of the National ment law, and juvenile justice. last year. Academy of Sciences, and served on the Yoon is drawn to the Law School because Since complet- National Research Council’s Committee on it is at the “forefront of interdisciplinary ing fellowships at Law and Justice. He also serves as a reporter research, and because it attracts a student the Hoover Institu- body that contributes to the intellectual tion and the Brook- exchange of ideas in the classroom, creat- ings Institution, “From an intellectual ing an environment where professors often Cameron is now a learn as much as their students.” scheduled fellow at perspective, the Some of Yoon’s most notable publica- the Center for the tions include “Mandatory Arbitration and Advanced Study in NYU School of Law Civil Litigation: An Empirical Study of the Behavioral Sciences at Stanford Univer- Medical Malpractice Litigation in the West,” sity. He received his M.P.A. and Ph.D. possesses an American Law and Economics Review (2004); from the Woodrow Wilson School of Public “Love’s Labor’s Lost: Judicial Tenure among Service and International Affairs at Prince- extraordinarily Lower Federal Court Judges,” California Law ton University. Before joining the Prince- Review (2003); and “The Consequences of ton faculty, Cameron served as director of deep bench.” National Parties and Corporate Money for the M.P.A. program at Columbia Univer- ‘Political Safeguards,’” Northwestern University sity, where he was a tenured professor in —CHARLES CAMERON Law Review (2002). the department of political science. At the After receiving his J.D., Yoon served as a Law School, Cameron looks forward to on the Committee on Rights and Engage- clerk to the Honorable R. Guy Cole Jr., of exchanging ideas with his NYU colleagues. ment for the President’s New Freedom the U.S. Court of Appeals for the Sixth Cir- “Many of the faculty enjoy perspective Commission on Mental Health, and is a cuit, and then went on from the social sciences and are generous member of the National Scientiﬁc and Pol- to conduct research in sharing their expertise with social scien- icy Advisory Council of the Hogg Founda- on civil litigation as a tists,” he says. “From an intellectual per- tion for Mental Health. Robert W. Johnson spective, the NYU School of Law possesses Formerly the director of the MacArthur Scholar at U.C. Berke- an extraordinarily deep bench.” Foundation’s Research Network on Mental ley in 1999. Yoon Health and the Law, Monahan currently received his M.A., J.D. John Monahan directs the Foundation’s Research Network and Ph.D. from Stan- The leading scholar of violence risk assess- on Mandated Community Treatment. His ford University. He was ment, John Monahan is the Henry and Grace findings have been used in various state the senior articles edi- Doherty professor, professor of psychology and U.S. Supreme Court cases. He has tor of the Stanford Law and psychiatric medicine, and Class of 1941 been awarded a MacArthur grant to study Review, and acted as a research professor at the University of Vir- the legality of requiring people with mental consultant in the criminal justice division of ginia School of Law. At the Law School this disorders to receive treatment in the com- the Rand Corporation, analyzing federal and year, he plans to study the use of social science munity. “With its unquestioned strengths state truth-in-sentencing policies. I research by courts, in criminal justice and social welfare,” and the legal regula- Monahan says, “NYU is an ideal place to tion of treatment for examine how law is used as leverage to Faculty in mental disorder. regulate behavior.” Monahan has Residence also been a visiting Seana Shiffrin scholar at the Amer- A professor at the School of Law and ican Academy in the Department of Philosophy at UCLA, Charles M. Cameron Rome, Harvard Law Seana Shiffrin is also an associate editor of A prize-winning scholar of American poli- School, All Souls Philosophy and Public Affairs. Her research tics, Charles Cameron comes to the Law College, and Oxford encompasses the First Amendment, Con- School from Princeton University, where he University. He has tracts, Substantive Jurisprudence, Ethics, is a professor of politics and public affairs. been a Guggenheim Fellow, and has held Political Philosophy, and Intellectual Prop- His research focuses on political institutions fellowships at the Center for Advanced erty Theory. and policymaking, and his work has appeared Study in the Behavioral Sciences, Stanford Shiffrin received her J.D. magna cum in journals of political science, economics, Law School, and Harvard Law School. The laude from Harvard Law School, where and law. founding president of the American Psycho- she was an editor of the Harvard Law His book, Veto Bargaining: Presidents and logical Association’s Division of Psychology Review. Her bachelors and doctorate the Politics of Negative Power (Cambridge and Law, Monahan is also a two-time win- degrees, both in philosophy, came from University Press, 2000), won the American ner of the Manfred Guttmacher Award of Oxford University, where she was a Mar-

90 THE LAW SCHOOL AUTUMN 2004 shall Scholar specializing in political and James White moral philosophy. As an undergraduate at James White is professor emeritus at Indiana the University of California at Berkeley, University, Indianapolis and also consultant Alexander Fellow Shiffrin was awarded a medal as the most emeritus on Legal Education to the Ameri- distinguished student. can Bar Association. His Youngjae Lee A widely published writer, her scholarship focuses on Alexander Fellow Youngjae Lee returns to the NYU School of Law this year to com- research has appeared in the NYU Law comparative law and the plete the second half of his fellowship. Review and Constitutional Law Stories. She legal profession. Lee spent his first year writing an article looks forward to visiting the Law School: Formerly dean for examining the concept of proportionality “NYU has a wonderful faculty and I espe- Academic Planning and in the Supreme Court’s recent jurispru- cially enjoy the prospect of interacting Development at Indiana dence on excessive punishments. This year he will look at the Court’s articula- with the faculty who work on constitu- University—Purdue Uni- tion of the distinction between punish- tional law, jurisprudence, intellectual versity Indianapolis, White ment and regulation in various contexts. property and contracts.” While in resi- also served as special assis- His research and teaching will intersect in dence, Shiffrin will spend her time writ- tant to the chancellor. At the spring seminars ing and reading for a few projects about the University of North when he plans to freedom of association, intellectual property Dakota School of Law, White served as an teach Criminal Law Theory and the Con- and incentives, and the relationship between assistant professor and director of the Agricul- stitution. contracts and promises. tural Law Research Program before moving Comparative con- up to assistant dean. He received his B.A. and stitutional law also Barry Weingast J.D. from the University of Iowa, and his piques Lee’s interest, An expert in U.S. politics, regulation, politi- LL.M. from George Washington University. as he is actively focusing on the Constitu- cal economy and public policy, and the polit- He completed a Carnegie Post-Doctoral Fel- tional Court of Korea ical foundation of markets and economic lowship in University Administration at the and its increasingly important role in reform, Barry Weingast is the Ward C. Krebs University of Michigan, Ann Arbor. South Korean society. Family Professor in the Department of Polit- White holds honorary degrees from a Lee earned his B.A. with high honors ical Science at Stanford University. dozen schools and has received a variety of majoring in philosophy with a minor in economics from Swarthmore College, Weingast is also a Senior Fellow at the awards, including the Texas-St. Thomas where he was elected to Phi Beta Kappa. Hoover Institution, as well as a fellow of More Award from St. Mary’s University in He was a Fulbright Scholar at the Depart- the American Academy of Arts and Sciences. San Antonio, Texas; the Thomas M. Coo- ment of Philosophy of Seoul National Uni- His residence in ley Law School’s Louis A. Smith Distin- versity before attending Harvard Law New York this fall guished Jurist Award; and the Kutak School, where he was an editor of the Harvard Law Review, a recipient of the presents new inter- Award Medal from the American Bar Asso- Heyman Fellowship for government ser- disciplinary oppor- ciation Section of Legal Education and vice, and a magna cum laude .graduate tunities. “NYU is Admissions to the Bar. Lee served as a law clerk for Judge Judith one of the most A member of the Iowa Law Review’s W. Rogers of the U.S. Court of Appeals exciting law schools Board of Editors, White is also a life fellow for the District of Columbia Circuit. He was an attorney in the Federal Programs in the country, and of the American Bar Foundation and the Branch of the Civil Division in the U.S. there is a signiﬁcant Indianapolis Bar Foundation, as well as a Department of Justice, and at Jenner & interest in social sci- member of the Order of the Coif. He is an Block in Washington, D.C. ence and the use of honorary fellow of the Society of Advanced An active participant in the Law economics and Legal Studies in the United Kingdom, and School’s colloquia, Lee says, “In every encounter, I am struck not only by the political science to study aspects of law,” has served as chairperson of the Fulbright intellectual richness of the discussions, Weingast says. Awards in Law Committee and secretary but also by the supportive and welcom- A former fellow at the Center for of the American Bar Association Section ing atmosphere among the faculty, which Advanced Study in the Behavior Sciences, of Bar Activities. White is a trustee of the has certainly made the process of inte- Weingast is a prolific writer who has Indianapolis Museum of Art, the John Mar- gration into the academic community a real pleasure.” received numerous awards for his work. shall Law School in Atlanta, and Butler The American Political Science Review University in Indianapolis. I awarded him the Heinz Eulau Award for titution. Best Paper in 1987, and, with Charles Stew- Experience the Best in er Ins art, he received the Award for Best Paper in v Political History from the American Politi- Professional Legal Education cal Science Association in 1994 and 1998. Announcing Along with Kenneth Schultz, he also received

y of the Hoo the Franklin L. Burdette Ward for Best Paper es Presented at the 1994 Political Science Asso- The Amicus Program ourt ciation Meeting. Weingast’s most recent

t c at New York University papers are “The Self-Enforcing Constitu- School of Law tion: With an Application to Democratic Stability in America’s First Century” and “The Political Economy of Law” with AMICUSwww.law.nyu.edu/amicus McNollgast, forthcoming in the Handbook o of Barry Weingas of Law and Economics, edited by A. Mitchell

Phot Polinsky and Steven Shavell.

AUTUMN 2004 THE LAW SCHOOL 91

F ACULTY FOCUS

sively about the privatization of information policy, copyright law, and democratic theory; the effects of cyberspace on the economic analysis of law; the regulation of search engines; liability of information intermedi- aries; and the significance of the public domain. She is co-editor of The Commodifica- tion of Information (Kluwer Information Law Brian Arnold Sabino Cassese Olivier De Schutter Niva Elkin-Koren Franco Ferrari Series, 2002) and this year published “Law, Economics, and Cyberspace: The Effects of Cyberspace on the Economic Analysis of Hauser Global Law Faculty Law” (co-authored with Eli M. Salzberger). She received her LL.B. from the Tel-Aviv Brian Arnold role of independent administrative authorities, University School of Law, her LL.M. from Brian Arnold is with Goodmans LLP, Toronto, and the administrative structure of the Euro- Harvard Law School, and her J.S.D from and is a professor emeritus at the Faculty of pean Union. He has frequently been a visitor Stanford Law School. Law, University of Western Ontario, where he to law schools and research centers in the taught tax law for 28 years. A graduate of Har- United States, United Kingdom, and France. Franco Ferrari vard Law School, he is a consultant to the Franco Ferrari is chaired professor at Verona Canadian Department of Finance and the Olivier De Schutter University School of Law. Previously, he was Office of the Auditor General, and is currently Since joining the University of Louvain in chaired professor at Tilburg University in the an adviser to the Organization for Economic Belgium in 1993, Olivier De Schutter has been Netherlands and the University of Bologna in Cooperation and Development, the Australian working at the intersection of human rights, Italy. After serving as member of the Italian Taxation Office, and the South African Rev- issues of governance, and globalization. In delegation to various sessions of the United enue Service. He teaches international tax 1992-93, De Schutter set up the delegation to Nations Commission on International Trade courses at Harvard Law School and the Fac- the European Union of the International Fed- Law (UNCITRAL), he served as legal officer ulty of Law, University of Sydney. He has eration of Human Rights (FIDH), an interna- at the U.N. Office of Legal Affairs, Interna- written widely on tax matters and is a member tional non-governmental organization now tional Trade Law Branch, with responsibility of the Permanent Scientific Committee of the comprising 142 human rights organizations for numerous projects, including the prepara- International Fiscal Association. worldwide. He was involved in drafting the tion of the UNCITRAL Digest on Applica- E.U. Charter of Fundamental Rights (1999- tions of the U.N. Sales Convention. Ferrari Gráinne de Búrca 2000) and is coordinating the E.U. Network has published more than 120 law review arti- Gráinne de Búrca is professor of European of Independent Experts on Fundamental cles in various languages and nine books in Union law at the European University Insti- Rights, which he established at the request of the areas of comparative law, private interna- tute and co-director of the Academy of Euro- the European Commission and the European tional law, and international commercial law. pean Law in Florence, Italy. Previously, she Parliament to monitor compliance with the He is a member of the editorial board of vari- was a university lecturer in law at Oxford and charter by E.U. institutions and member ous peer-reviewed European law journals a fellow of Somerville College. She studied states. He has written extensively on the (Internationales Handelsrecht, European Review law at University College Dublin and the European Court of Human Rights, where he of Private Law, Contratto e impresa, Revue de University of Michigan, and has been a visit- has litigated on several occasions. De Schutter droit des affaires internationales) and also acts ing professor at the University of Toronto, is preparing a book on globalization and as an international arbitrator. University of Michigan, and Columbia Law human rights and also is editing a book on School. She has co-authored and co-edited a the relationship between social rights and the Dieter Grimm number of books in the field of European internal market. He has written extensively on Dieter Grimm is a permanent fellow at the Union law, and her research has focused pri- the United States Supreme Court, especially Institute of Advanced Study in Berlin and a marily on constitutional issues of European on the promises of public law litigation and former judge of the Federal Constitutional integration. Her recent research has included what it could mean for the European Courts. Court of Germany. After receiving his law projects on the European Union in the World degree from the University of Frankfurt in Trade Organization, human rights law and Niva Elkin-Koren 1962, Grimm continued his legal studies at the policy in Europe and especially in the Euro- Niva Elkin-Koren is a senior lecturer at the University of Paris and Harvard Law School, pean Union, law and civil society in the con- University of Haifa School of Law and a co- where he obtained an LL.M. in 1965. For many text of global economic governance, and the director of the Haifa Center for Law & Tech- years prior to his judicial appointment in 1987, changing modes of governance in Europe. nology. Her research focuses on the legal Grimm was professor of public law at the Uni- institutions that shape the information envi- versity of Bielefeld, Germany, and director of Sabino Cassese ronment. She has written and spoken exten- the university’s Center for Interdisciplinary Sabino Cassese is professor of administrative law at the University of Rome-La Sapienza. Previously, he was director of the Institute of Public Law at the University. He has also held public office, having served in the Italian government as minister for public administration. A prolific scholar and prominent figure in the European legal academy, he has published many books and articles. His areas of interest

include the history of administrative law, the Dieter Grimm Yasuo Hasebe Martti Koskenniemi Michael Lang Ruth Rubio-Marin

92 THE LAW SCHOOL AUTUMN 2004

Research. He has published extensively in Ger- man and English, and has been a visiting professor at Yale Law School and a distinguished Furman Academic Fellows 2004-05 global fellow at the NYU School of Law. Kim Barry (’98) received numerous awards including the Yasuo Hasebe Law Review Alumni Association Award for The first Furman Fellow at the NYU School of achieving the second-highest grade point Yasuo Hasebe is professor of law at the Uni- Law, Kim Barry spent the last year research- average in the class and the Frank H. Som- versity of Tokyo, Japan. He specializes in ing the legal and political dimensions of citi- mer Memorial Award for outstanding schol- jurisprudence, constitutional law, and infor- zenship and international migration. arship, character, and professional activities. mation law, and has published extensively Now in her second year, she is in the She was also notes editor-development for process of analyzing citizenship in “sending in English and Japanese. Hasebe is an active the Law Review, a member of the Latino states,” those developing countries where Law Students Association, and founder and contributor in the International Association many citizens reside in other more devel- director of the Cuban Legal Studies Group of Constitutional Law and the Society for oped nations. Her paper at the Law School. After graduating, she Advanced Legal Studies. on this topic, “Home and clerked for Judge Amalya Kearse of the U.S. Away: the Construction Court of Appeals for the Second Circuit. Martti Koskenniemi of Citizenship in an Emi- As a Skadden Public Interest Fellow, gration Context,” was Maroney worked at the Urban Justice Cen- Martti Koskenniemi, recently elected to the selected for presenta- ter in New York City. She also designed International Law Commission, has been tion at the 2004 Annual and taught an undergraduate course, Law counselor for legal affairs at the Ministry for Meeting of the Canadian & Urban Problems, at the NYU Metropoli- Foreign Affairs of Finland, a position he held Association of Law tan Studies department. Afterward she since 1989. In addition, he has represented Teachers and the Cana- became a litigation associate at the New dian Association of Law Finland on the General Assembly and on the York office of Wilmer Cutler & Pickering. and Society in conjunction with the Law Now Maroney returns to academia. “The United Nations Security Council. He also has Commission of Canada. It will be published fellowship is a gift of space and time for me been an active litigator on the International in French and English by UBC Press. to prepare for this next stage of my career Court of Justice, serving as co-agent of Fin- Barry graduated magna cum laude with as an academic, and I am grateful for it. My land in the case concerning passage through a J.D. from the Law School. She was a friends and colleagues are terribly jealous: a member of the Order of the Coif, an arti- whole year to research and write!” the Great Belt. Despite a busy career in inter- cles editor at the NYU Law Review, and a national diplomacy, Koskenniemi has found Dean’s Scholar. In addition to being a Katz time to write extensively. He has published Fellow and associate counsel at the Bren- Margaret Lemos (’01) nan Center for Justice at the NYU School three books and more than 50 articles and Margaret Lemos obtained her J.D. from the of Law, Barry was also an Arthur Garfield book reviews. He holds a doctor of laws NYU School of Law, and then clerked for Hays Civil Liberties Fellow. Judge Kermit V. Lipez of the U.S. Court of degree from the University of Turku, where After studying at the Graduate Insti- Appeals for the First Cir- he also earned his LL.B. and LL.M., and a tute of International Studies in Geneva, cuit in Portland, Maine. diploma in law from Oxford University. Barry went on to receive her M.A. from She served as a law clerk the Fletcher School of Law and Diplo- and then as a Bristow macy and her B.Sc. from Georgetown Michael Lang Fellow in the Office of University School of Foreign Service. She the Solicitor General in Michael Lang is a professor at the Vienna worked as an associate at Perkins Coie in the U.S. Department of University of Economics and Business Seattle, and clerked for Judge Betty Justice, and spent last Administration in Austria where he created Fletcher of the U.S. Court of Appeals for year clerking for Justice the Ninth Circuit. and directs a graduate program in interna- John Paul Stevens of the Her other research interests include tional tax. He serves as head of the Depart- U.S. Supreme Court. public international law, immigration law, ment of Austrian and International Tax Law. Before coming to NYU, Lemos gradu- and family law. He is also a member of the Permanent Scien- ated magna cum laude and with honors tific Committee of the International Fiscal from Brown University, where she received the Philo Sherman Bennett award for best Association and the Academic Committee of Terry Maroney (’98) thesis in political theory. the European Association of Tax Law Profes- Terry Maroney lives by the words of her At the Law School, she was a member of sors. He has an extensive record of publica- late friend, American University Professor the Order of the Coif and served as senior tions and is widely regarded as a major ﬁgure Peter Cicchino: “As I have struggled with notes editor of the Law Review. She received the question of what makes a good and in the international tax ﬁeld. a Dean’s Scholarship covering full tuition and happy human life, I have fees, and served as a research assistant to become ever more con- Professors Ronald Dworkin and Larry Kramer Ruth Rubio-Marin vinced that struggling and as a teaching assistant to Professor Helen Ruth Rubio-Marin is associate professor of to secure the conditions Hershkoff. Lemos graduated summa cum constitutional law at the University of Seville, for a decent human life laude in 2001, receiving the Law Review for others is a large part Spain. She has held several visiting positions in Alumni Association Award for the third-high- of the answer.” After est grade-point average and the Benjamin F. North America, having been a visiting scholar receiving her B.A. in Butler Memorial Award for unusual distnction at the University of California School of Law at Women’s Studies and in scholarship, character and professional Berkeley, fellow at Princeton University, visit- English from Oberlin activities as well as others. ing professor at Queen’s University in Canada, College, she worked at Excited to return to an academic set- New York Women Against Rape, NENA and adjunct professor at Columbia Law ting, Lemos says, “One of the things that I Health Center, and the NYC Gay and Les- valued most about my time at NYU was School. She has published three books and sev- bian Anti-Violence Project. the opportunity to talk with the faculty eral articles and chapters, and presented papers Graduating summa cum laude with a and my fellow students about the issues at conferences in Europe and North America. J.D. from the NYU School of Law in 1998, that interest me most. The Furman Fellow- Her primary research interests are immigration Maroney was a Root-Tilden Scholar and ship will give me the opportunity to get a member of the Order of the Coif. She law and policy, citizenship theory, nationalism, back to what I really like about the law.” language rights, and minority rights. I

AUTUMN 2004 THE LAW SCHOOL 93

F ACULTY FOCUS Gillers Steps Down as Vice Dean After Five Years

fter five years of tireless dedication, Vice Charles Seligson Professor of Law, will Regents. Clayton Gillette, the Max E. Green- Dean Stephen Gillers (’68) stepped focus on information systems and technol- berg Professor of Contract Law, will A down from his post at the end of the ogy, the law library, matters relating to stu- assume responsibility for programs concern- 2003-04 academic year to return, as planned, dent discipline, class scheduling, and any ing the intellectual life of the Law School, to full-time teaching and research as the Emily issues pertaining to the requirements of the relations with the University that affect Law Kempin Professor of Law. American Bar Association, the New York School students and faculty, and guidance In paying tribute to Gillers, Dean Richard Court of Appeals and the New York State for some of the Law School’s publications. I Revesz said the vice dean “brought to his position a terrific determination to work with faculty, administrators and students to resolve academic and personal problems. Steve is a great leader and colleague, and I cannot imagine how I Make a List would have been able to manage my By Stephen Gillers transition to the deanship without his Politics and ideology are often blamed for Luckily, there is a better model for guiding hand.” giving us poor judges. But neither can be judicial selection. Although the Constitu- The vice dean removed from the judicial selection process. tion gives the president the power to pick oversees the academic The trick is to devise a system that limits all federal judges, senators have long had program at the Law their influence. great influence in the choice of the fed- School—determining Discontent with the current system is eral trial judges who sit in their states. For Stephen Gillers (’68) evident nationally and locally. In the Senate, decades, New York’s Republican and the courses for the Democrats have accused President Bush of Democratic senators have appointed judi- upcoming year, negotiating the teaching choosing nominees with right-wing views cial screening panels, composed of mem- schedule with an extensive faculty, and filling at odds with fair judging. In Brooklyn, the bers of the community, not limited to in holes in the curriculum when faculty are on Democratic Party’s near total control over lawyers, and charged them to recom- sabbatical. In addition to those gargantuan ballot access is said to have led to the elec- mend candidates for the federal trial tion of mediocre state judges of suspect courts in the state. Any lawyer can apply tasks, he plays a large role in advising students. integrity but undoubted party loyalty and for a judgeship. Oscar Chase, Russell D. Niles Professor of the exclusion of capable but politically For each vacancy, the panels compile a Law and co-director of the Institute of Judi- unconnected lawyers. list from which the senator can then rec- cial Administration, who served a term as vice Courts are not free of ideology. In exer- ommend a nominee to the president. This dean before Gillers, listed his successor’s cising their discretion, judges must make tradition has given New York an excellent choices based on their beliefs about the federal trial bench. Lawyers who would be achievements: reducing the size of first-year law, which is another way of saying ideol- excluded from consideration in a world classes, modernizing the first-year curriculum, ogy. Just last year the Supreme Court rec- that demanded political loyalty or ideolog- and implementing a block schedule. “He ognized the relevance of ideology to judging ical devotion have been willing to submit played an extremely important role after when it ruled that candidates for elective their names. September 11, 2001, holding the community judicial office have a First Amendment With some modification, the same right to tell voters their views on disputed system can work for selecting appeals together when everyone was paralyzed with legal or political issues. court nominees and a political party’s shock and sorrow,” Chase said. “Steve really Politics, too, plays a role in judging. candidates for elected judgeships. Work- stepped up to the plate during those difficult Politics must never influence a judge’s ing with the Senate, the president could days, weeks, and months.” Throughout his decision, but it cannot be removed from convene a screening panel of lawyers tenure, Gillers maintained a role as a public the process that selects judges. Instead, and community leaders for each appel- we should encourage the right kind of pol- late vacancy and choose a nominee from commentator on the important ethical issues itics. Lawyers who are engaged in their among the recommendations. Governors of the day (please see his opinion piece in communities will be better judges for the who appoint state judges, and political The New York Times, right), while continuing experience. On the other hand, political parties that nominate judicial candidates, to be an outstanding professor, scholar, activity that is merely party fealty, like could do the same. The idea could even and colleague. fund-raising, is no qualification at all. work for Supreme Court openings. But neither ideology nor political activ- True, even a system that overvalues a Gillers said he was continually helped by ity should be the sole, or even the main, particular ideology or party service can his talented staff, whom he thanked for their criterion in choosing judges. Otherwise, produce some good judges through plain dedication. “This is a nice place to be,” he men and women will serve on the bench luck. But luck is not good enough. The said. “Much of what [former dean, now NYU who may be ideologically or politically system should be designed to create the president] John Sexton meant when he talked acceptable to those who choose them. Yet best chance of getting the best judges. they may lack other attributes—like inde- An inclusive plan that promises all lawyers about community is this idea that despite the pendence, intelligence, energy, an open fair consideration by a credible screening occasional slip, the place is full of good people mind and recognition of the importance of panel is much more likely to reach that who set an example for its students by being the position and public confidence in it. goal. Certainly, candidates who emerge respectful. Community not only defines what Do these qualities seem abstract? Per- from this process will inspire greater con- we have, but what we are constantly trying to haps they are, unless you happen to be in fidence on the Senate floor and in the build—what we aspire to.” court on a case that can change your life. voting booth. Then the last thing you want to hear is that Dean Revesz announced that two of the the judge got appointed as a reward for Originally published in The New York Times Law School’s most distinguished faculty political loyalty. on June 11, 2003. would replace Gillers. Barry Adler, the

94 THE LAW SCHOOL AUTUMN 2004 In Memoriam

On January 8, 2004, former New York University School of Law Professor Herbert Peterfreund died at the age of 90. He was a faculty member at the Law School between 1949 and 1978 as the Frederick I. and Grace A. Stokes Pro- fessor of Law, with emeritus status after 1978. He went on to become a distinguished professor of law at the University of California at San Diego. Professor Norman Dorsen, the successor to the Stokes Chair and Peterfreund’s colleague of 17 years, remembered his predecessor’s “even temperament and practical approach to J.S.D. program director Mattias Kumm, left, with Dean Richard Revesz and J.S.D. candidate Christine Bateup. the law.” Peterfreund was known as an expert in civil procedure and for his J.S.D. Candidates Present Their Work “lively and popular class” on New York Practice. His special contribution to aca- at ‘Turn to Scholarship’ Conference demic life at the Law School earned him the 1968 “Great Teacher Award.” Many of those whom Peterfreund different sort of student confer- Dean Richard Revesz echoed Bateup’s taught have gone on to high-powered ence was held at Furman Hall last hopes for the continued growth and vitality of careers. One successful former student is January, as candidates for the Doc- the J.S.D. program. He also announced that Herbert Wachtell (’54), a founding partner of Wachtell, Lipton, Rosen and Katz, torate of Juridical Science (J.S.D.) students in the J.S.D. program would be tak- one of New York’s most respected firms. degree presented their research to ing over the old offices of the lawyering pro- Wachtell remembered Peterfreund as “a A fellow students and leading aca- fessors at 135 MacDougal Street. The dedicated consummate teacher—exciting, lucid and demic figures in their fields of study. office space, he said, was part of a commit- with a total command of the subject.” Each year, the NYU School of Law ment to the mission of the J.S.D. program. Another former student, Eric Roth (’77), defined Peterfreund’s style as “W.C. admits a small number of academically out- “We’re very proud of our J.S.D. program,” Fields using the Socratic Method.” standing students to candidacy for the J.S.D. the dean said. “Its focus is on producing good Peterfreund was a World War II vet- degree, enabling them to produce a disserta- scholarship that will get people academic jobs eran and was extremely proud of his part tion that will represent a significant and valu- as quickly as possible.” in the European offensive. He left the able contribution to legal scholarship in their Professor of Law and Director of the Law School a bequest of $150,000. chosen field. There are currently 25 students J.S.D. Program Mattias Kumm highlighted in the program, which is the legal equivalent three key components of the students’ work: to the Ph.D. in the arts and sciences. The globalization of perspective and relevance, professor at the Law School and the former research being undertaken by J.S.D. candi- interdisciplinary research, and the intellectu- prosecutor at the International Criminal Tri- dates is extremely diverse, ranging from inter- alization of legal work. bunal of Yugoslavia. national law, jurisprudence and constitutional Among the papers related to international Among the presenters studying law and law to taxation and law and economics. law was Roy Schöndorf’s “A Theory of Inter- economics was Michal Tsur (J.S.D. ’03). In At the “Turn to Scholarship” conference, national Criminal Law as International Legis- his paper, entitled “Anti-Takeover Defenses in 12 doctoral candidates presented their recent lation.” Schöndorf (J.S.D. ’03) said there is a Light of the Peacock’s Tail (Evolutionary legal research in four panels, encompassing need for a “contextual application” of interna- Insights into the Widespread Use of Anti- the areas of International Law, Law and Eco- tional criminal law that takes into account Takeover Defenses),” he argued that much nomics, Law and Gender, and Law and Social national criminal-law systems. like the peacock’s tail that attracts the peahen Change. Each panel provided the opportunity In her paper, “Authority, Legitimacy and but serves little other purpose, anti-takeover for comments and critiques from Law School Participation in International Legal Institu- defenses prevalent in today’s corporate cul- professors and professors from other graduate tions: The Case of the Milosevic Trial,” Maya ture have survived simply because of their schools both at NYU and beyond. Steinitz (J.S.D. ’03) made the case that inter- ability to propagate, not because of their “This has been a tremendous opportunity national law gains more authority through inherent efficiency. for J.S.D. candidates entering the academic the “performance” of a trial that interna- A particular highlight of the conference market to make connections and present tionalizes the process of understanding and was Harvard Law School Professor Janet their research,” said Christine Bateup, one of digesting a terrible event. In his comments Halley’s presentation, “Split Decisions: The- the conference organizers and a candidate in on her paper, Benedict Kingsbury, Murry ories of Sex and Power in Legal Thought the J.S.D. program. Bateup said she hoped and Ida Becker Professor of Law and direc- and Action.” The keynote speaker drew a the conference would be an “important step tor of the Institute for International Law and large crowd and provoked a lively debate toward the J.S.D. program playing a more Justice, noted the presence in the room of regarding the contemporary position of fem- integral role in the Law School.” Professor Richard Goldstone, now a global inist theory within the legal academy. I

AUTUMN 2004 THE LAW SCHOOL 95 F ACULTY FOCUS Six Inaugural Lectures Celebrate New Professorships, Javits Program

he Jacob D. Fuchsberg Professor- Speakers at the inaugural lecture of the its parallels to present-day concerns about ship of Law was endowed by the Jacob K. Javits Distinguished Scholar In- civil liberties in a lecture titled “The End of Fuchsberg family to honor Judge Residence Program paid tribute to the New Free Speech: A Cautionary Tale.” Stone is Fuchsberg (’35), a preeminent trial York Senator’s 24-year career as a champion visiting from the University of Chicago lawyer, supporter of legal education, of social security, civil rights, health-care Law School, where he is the Harry Kalven T and protector of civil liberties on the reform, education, and the arts. Jr. Distinguished Service Professor of Law New York Court of Appeals. The inaugural Javits’s appeal was recalled by his wife, and a former dean and provost. lecture, delivered by Professor Barry Fried- Marian, and his son Joshua, who help direct In his remarks to inaugurate the George man, the Jacob D. Fuchsberg Professor of the Jacob K. Javits Foundation. They told T. Lowy Professorship of Corporate Law, Law, was entitled “The Importance of Being the story of an encyclopedia salesman who Dean Revesz posited that the modern history Positive: The Nature and Function of Judi- never received a bachelor’s degree but saved of the Law School began with the class of cial Review.” Friedman argued that “judicial enough money to attend the NYU School of 1955, of which Law School Trustee George review serves primarily to foster a societal Law as a night student, graduating in 1926. Lowy was a member. “When a school’s gradu- dialogue on the meaning of the Constitution While earning his two-year degree, Javits ates do well, like the class of 1955 did, it makes and constitutional rights.” worked during the day collecting debts for people stop and take notice,” the dean said. Dean Richard Revesz expressed his grati- businesses, attended classes in the evening, The night’s lecture, “Variety in Organiza- tude to the Fuchsberg family—four genera- called his debtors again after class, and then tional Law,” was given by Professor Henry tions of which are Law School alumni, ﬁnally began studying at 10 p.m. His son Hansmann, a leader in the ﬁeld of law and including Law School Trustee Alan Fuchs- noted how much Javits valued his education economics who has returned to Yale after a berg (’79)—for their generosity. “A chaired at the Law School, where he learned the year at the NYU School of Law. professorship is one of the most meaningful powerful skills of lucid explanation and An eclectic crowd—lawyers, academics, gifts that a donor can make,” the dean said, structured thinking from his professors. doctors and a few well-behaved grandchil- noting that such professorships play an To honor the Javits legacy, Professor dren—gathered in Greenberg Lounge in Van- important role in building the NYU School Geoffrey Stone chose to discuss the derbilt Hall to celebrate the establishment of of Law’s extraordinary faculty. McCarthy era’s threat to free speech and the Norma Z. Paige Professorship of Law.

Clockwise, from top left: The dean with Professor Barry Friedman; Professor Geoffrey Stone with Marian Javits and Dean Revesz; Professor Daniel Shaviro (left), and Wayne Perry (LL.M. ’76); Professor Jennifer Arlen (’86); Michael Schill, now dean of UCLA's law school, who gave the Leonard Wilf talk.

96 THE LAW SCHOOL AUTUMN 2004 “Not many professorships have been Then-Professor Michael Schill, now to every community—developers, environ- established by women,” Dean Revesz said. the dean of the UCLA School of Law, inau- mentalists, labor unions, municipalities and “And not many of those have had a woman gurated the Leonard Wilf Professorship in residents. Trustee Leonard Wilf (LL.M. ’77), as their first honoree. Tonight, we celebrate Property Law, giving a speech on “Hous- is the president of Garden Homes Manage- both, as we honor Jennifer Arlen (’86), ing, Markets and Law” in which he dis- ment Corp., one of the largest privately held our first Norma Z. Paige Professor of Law.” cussed the interplay of forces that are vital companies in New Jersey. I The chair is named for NYU School of Law alumna and Law School Trustee Paige (’46), who upon graduation established the law firm Paige & Paige in Manhattan with her husband, Samuel (LL.M. ’52). In 1958, she was elected president of the Women’s Bar Association of the State of New York. She then co-founded Bush Policies Have Put Economy in Deep Peril the Astronautics Corporation of America in Wisconsin, where she served as chairwoman By Daniel N. Shaviro for seventeen years and executive vice president and board member for forty-one years. President George W. Bush’s political fate in this strategy causes inflation and interest The inaugural lecture, “Beyond Vicarious the 2004 elections will likely rise and fall rates to start racing each other like a puppy Liability: Holding Managed Care Organiza- with the state of the economy as voters go dog chasing its tail. tions Accountable for Physicians’ Negligence,” to the polls—but it shouldn’t. Other likely consequences of an was given by Professor Arlen, who received Deciding whether to re-elect a president approaching bond default include bank fail- her J.D. (’86) and a Ph.D. in Economics (’92) based on how the recovery is doing on Elec- ures and rising unemployment, as busi- tion Day is like picking your starting pitcher nesses find it hard to invest in such an from NYU. After examining the liability of for Game 7 of the World Series by playing unstable economic environment. And this managed care organizations (MCOs) for musical chairs in the bullpen. Just how things would not merely be the business cycle at physicians’ negligence, Arlen said corporations stand in the business cycle at the precise work, like our successive “down” economy are held liable only for their employees, not for moment when the music stops and voters in 1992, boom economy in the late 1990s, independent contractors. As a result, MCOs go to the polls is largely a matter of chance, and down economy again over the last over which presidents have little control. three years. It would be a new economic sit- hire physicians as independent contractors to It would make more sense for voters to uation that we would have to live with until avoid liability for their negligence. This is ask how Bush’s policies will affect the we both had placed the federal budget on a true even as MCOs put pressure on doctors to economy over the long term. Here the stable and sustainable course, and per- reduce treatment cost and quality. Arlen said news is likely to be devastating to his re- suaded worldwide capital markets that we litigation that puts MCOs under the umbrella election prospects if it is properly under- really meant to be responsible from now on. stood. By enacting enormous tax cuts How can all this be staved off? Only by of liability forces them “to be responsible for while also sharply increasing government raising taxes and cutting spending so that their own actions. If they influence medical spending, he has headed the national gov- we can meet our bills as a nation. Or rather, care, they should pay for the consequences.” ernment’s finances and, over the long term, only by doing it sooner rather than later, The inaugural lecture of the Wayne the U.S. economy, straight for a cliff. since eventually it will be unavoidable. Perry Professorship of Taxation was given The nation’s fiscal gap, a measure of the Needless to say, none of the Demo- amount by which we currently fall short of cratic candidates for president is eager to by Professor Daniel Shaviro, who focused being able to balance our books over the promote this course, which would likely be on “The Use and Abuse of Fiscal Language” long run, was recently estimated at $44 tril- a political cyanide pill. Indeed, while none in the Bush administration. Professor Shavi- lion. This is more than four times as large as of them bears President Bush’s personal ro argued that the Bush tax cuts have not our entire economy, and more than 10 responsibility for promoting the reckless decreased the size and impact of the govern- times the government’s current debt from fiscal policies of the last three years, it is past borrowing. Anyone who thinks we not clear how much better, if at all, they ment, but have increased America’s fiscal could actually borrow this much (plus inter- would be than he over the next four. gap. The Bush tax cuts, Shaviro believes, est) in the world capital markets—as, if our A Democratic president might also be “shift the burden of taxation from the old to policies do not change, we eventually will more likely to pursue certain types of spuri- the young” because Congress will be forced have to—is drunk or dreaming. ous cures for our economic woes, such as to raise taxes later. He closed by noting the If we stay on the budgetary path on blaming foreign trade or the flight of jobs which Bush has placed us, at some point the abroad, in the face of the consensus by lack of commitment by Congress to deal real- people who buy our government’s bonds most economists that trade and global eco- istically with the consequences of decreasing will start to get very nervous. They will real- nomic integration are good for our econ- taxes and rising entitlement costs. ize that they are unlikely to be repaid unless omy over the long haul. Perry, a Law School Trustee, whose son taxes increase steeply and government Suppose the economy over the next 12 is a student at the Law School, received his spending is slashed—above all, on Social months performs reasonably well, as it cer- Security and Medicare, because their share tainly could since the fiscal dangers accen- LL.M. in taxation in 1976 and went on to of the budget is so huge. tuated by Bush’s budgetary policies lie become a major figure in the cellular tele- Moreover, since this seems unlikely as further in the future. phone industry. He joined the fledging outright default is so painful, prospective It would certainly be ironic if he won McCaw Cellular as the primary legal officer lenders will come to anticipate that our by taking bogus credit for the recovery, in 1976 and rose to the position of Vice- government, like countless improvident whereas his father in 1992 lost based on Chairman by 1989, guiding McCaw through governments before it, will try to buy time the motto “It’s the economy, stupid,” when by inflating the dollar. in fact his father, not he, was the one its merger with AT&T Wireless in 1994. Perry In the short run, this would both devalue whose stewardship of the U.S. economy continues as a chief executive in the cellular the debt that we had already issued by then was basically responsible and did not industry, while pursuing outside activities and make it easier to disguise tax increases place us on a dangerous long-term path. such as leadership roles with the Seattle and spending cuts. Unfortunately, however, as Mariners professional baseball team (manag- countries such as Russia, Brazil and Argentina Originally printed in Newsday, have learned before us, within a short time November 5, 2003 ing general partner) and the Boy Scouts of America (President, Western Region).

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F ACULTY FOCUS

2005 Annual Report of Donors

The New York University School of Law is proud to recognize the annual support of our alumni and friends by including their names in the Law School’s Annual Report of Donors, to be published each fall.

Your Support Counts Annual support enables the NYU School of Dean Richard Revesz with Professor Stephen Perry, the Fiorello La Guardia Professor of Law. Law to respond rapidly to new opportunities and provides funding to essential programs integral to the success of the Law School. Captivating Conundrums Your gift makes a tremendous impact and enables the NYU School of Law to fully real- Law School Hosts the Prestigious ize the goal of becoming the leading law school and the law school that leads in pro- Analytic Legal Philosophy Conference viding social good. Please consider making a gift to the NYU School of Law today. hat is the purpose of charters and sity, who evaluated how precedent cases influ- bills of rights? Can there be demo- ence decision-making by courts, and Professor W cratic jurisprudence? Is there a unity Wil Waluchow of Canada’s McMaster Univer- Join Our Community of virtue as the Greeks espoused? These sity, who argued that charters (or bills) of If you would like to be recognized among questions were at the center of the ninth rights should grow and change along with the our supporters, please consider making a annual Analytic Legal Philosophy Confer- times and circumstances. contribution to the Law School. Your name ence, hosted this year by the New York American participants also tackled some will be listed in the Annual Report of Donors University School of Law. More than 50 tough topics. Professor Jeremy Waldron under the aggregate amount of the dona- scholars were invited to the two-day con- of Columbia delved into the “discomfort” tion you make this fiscal year. A gift at any ference, which has rotated among such between jurisprudence and democracy. Pro- level will be recognized. institutions as the Columbia University fessor Michael Moore of the University of School of Law, Yale Law School, the Uni- Illinois College of Law explored the nature versity of Pennsylvania Law School, and of causal relationships, positing that they Ways of Giving Oxford University. are events rather than facts, and that omis- Contributions can be made to the Law In introducing the conference, Dean sions, or failures to act, cannot be causes. School by using any of the enclosed Richard Revesz pointed out that many faculty Reaching back to ancient times, Professor envelopes you receive throughout the members of the NYU School of Law, including Susan Wolf of the University of North Car- year. For electronic transfers, please call Ronald Dworkin, the Frank Henry Sommer olina tackled the Greek idea of the unity of the Office of Development and Alumni Professor of Law; Liam Murphy, Professor of virtue. Wolf argued that the meaning of Relations at (212) 998-6061, or make your Law and Philosophy; Thomas Nagel, Univer- “virtue as one,” typically thought of as the gift online at www.law.nyu.edu/alumni sity Professor; and Stephen Perry, the Fiorello idea that one cannot have a virtue without and click “Make a Gift to the NYU School LaGuardia Professor of Law, as well as the con- having all others, has been misunderstood. of Law.” Should you wish to make your ference organizer, have made legal philosophy a She proposed instead that virtue is unified gift anonymously, please indicate your core strength of the Law School. The probing based on knowledge. Possessing one virtue, preference along with your gift. insights and thoughtful critiques flowing dur- Wolf said, requires the knowledge that is ing each conference segment exemplified how needed for possession of all the virtues, Make your gift by August 26, 2005, to ensure this distinguished group has contributed to the and in that way, the virtues are unified. intellectual life of the Law School. “The confer- All in all it was a stimulating conference, that your name appears in the Report. ence provided a clear indication that analytical with spirited exchanges between participants. legal philosophy is a flourishing discipline,” said Though each presentation may have gener- Thank you for your support! Associate Professor of Law Mattias Kumm. ated more questions than it answered, the Presenters from abroad included Dr. Grant attendees left happy. After all, now they had Lamond of Balliol College at Oxford Univer- even more to ponder. I

98 THE LAW SCHOOL AUTUMN 2004 faculty in the news The Saturday Profile Weaving the Threads of Law, War and Shakespeare

by marlise simons home, but probably few have directly experi- provided lame pretexts so as not to incrimi- enced the kind of persecution that they hear nate themselves; there are the nobles or mili- The New York Times about at the tribunal. tary commanders concocting alibis; there are November 18, 2003 Judge Meron, now an American citizen the enemy combatants, then and now, who and a professor of international law at New are abused as they are held captive; prisoners t seems fitting that on one side of Judge York University School of Law, currently and civilians are raped and killed, disregard- Theodor Meron’s office walls there are on extended leave, has just been re-elected ing centuries-old codes of doing battle. books about Shakespeare and the medieval to a new term as the tribunal president, a Those codes fascinated him as a scholar of laws of war, and on the opposite side a set post that requires him to serve as an appeals international law and became the subjects of of outsize photographs of men trapped in judge, steer the chambers, schedule cases two books of which he is evidently proud: I a modern wartime concentration camp. and act as a diplomat. Inevitably, crimes “Henry’s Wars and Shakespeare’s Laws” The books on Shakespeare Judge Meron (Oxford University Press, wrote himself. The large black-and-white 1993) and “Bloody Con- images, showing forbidding fences and hol- straint: War and Chivalry low-eyed prisoners, are of Manjaca, a Ser- in Shakespeare” (Oxford bian-run camp of the early 1990’s when war University Press, 1998). raged in Bosnia. Judge Meron’s eyes Drama, barbarity and accountability light up as he turns to are very much the threads that have run what is clearly his passion: through Judge Meron’s life, from the time the principles of humani- he was a teenage prisoner in a Nazi camp, tarian law—the quest to to when he became a scholar of interna- avoid the worst excesses of tional law in New York, and now, as the war—which appeared in president of the United Nations war crimes early texts and became part tribunal that deals with the atrocities of the of the modern Geneva former Yugoslavia. Conventions, other inter- In conversation, he does not like to national protocols and dwell on his troubled Jewish youth in his even the statutes of the tri- native Poland or on the four harsh years he bunal itself. spent in Czestochowa, at a Nazi labor camp. He declines to discuss He waved away the subject each time he was the current trial of the asked, as if anxious to avoid any suggestion court’s most famous defen- that his past would somehow affect his tasks dant, Slobodan Milosevic, as chief judge. the former Yugoslav presi- But yes, he conceded, those years in the dent, or cases against oth- Nazi camp had unquestionably propelled ers here charged with him to study law in order to “explore the massacres or widespread means to avoid mistreatment, to focus on abuse, or both. He would ways to protect human dignity.” Judge Theodor Meron standing before stark images of a Serbian war camp. also not comment on the Less hesitant now, he continued: “From against humanity, like those he witnessed fate of other prisoners of more recent wars. age 9 to 15, I did not go to school at all. There as a young man, appear in his own and in “As a judge, it would not be appropriate were tremendous gaps in my education. It the tribunal’s daily workload. for me to refer to any current case,” he said. gave me a great hunger for learning, and I But there are other unexpected ways in “But the fact is that before this tribunal we dreamed that one day I could go to school. which now, at age 73, he sees parts of his life see the same type of age-old human ten- “It is of course even more poignant that coming together. dency, of leaders and commanders washing someone with my background can become a Judge Meron also brought to the court their hands. It was already of great concern judge here, and even the president of this the uncommon perspective of having studied in Shakespeare’s time, and it remains at the body,” he said. “I find it daunting.” the evolution of the laws of war, above all by very center of war crimes today. At the tribunal, with its sober headquar- using medieval chronicles and the plays of “Shakespeare’s dialogues that touch on ters near the wooded outskirts of The Shakespeare. It is here at the tribunal, as he the moral and legal duties of leaders, their Hague, all the 16 permanent judges come watches its trials unfold, that he finds remark- accountability, their attempt to evade blame, from different corners of the world and able parallels, the dilemmas and moral doubts will resonate in the ears of anyone who lis- widely varied backgrounds. But none have that are as much a part of long-ago conflicts as tens to the major trials going on here.” made quite the zigzagging route from a the recent civil wars that tore up Yugoslavia. Certainly, it is hard not to think of the labor camp in Poland to Israel, then to the Similarities are manyfold, he says: there trials at the tribunal that deal with the 1995 United States. Some of his colleagues here are the ancient kings and the modern politi- massacre of more than 7,500 people, almost have had to cope with political pressures at cal leaders who avoided signed orders or all Muslim men and boys, around Srebrenica

AUTUMN 2004 THE LAW SCHOOL 99 F ACULTY FOCUS

in Bosnia when Judge Meron invokes a passage from “Henry V,” the scene at Agincourt, Study Disputes View of Costly France, in 1415. In the scene, the invading English troops have won the battle and are Surge in Class-Action Suits holding uncounted French soldiers as prisoners. Then, to the consternation of some of his ofﬁcers, Henry orders all the French pris- by jonathan d. glater nies spend millions of dollars each year to oners of war to be killed. defend against class-action lawsuits—money “‘Tis expressly against the law of arms,” The New York Times that should be used to expand, develop new says one of Henry’s captains. The king even January 14, 2004 products and create jobs.” summons yeomen not bound by chivalric But the new study undermines some of codes to join the slaughter. Such a call has new study has concluded that both those criticisms. It covers the biggest sample an echo here at the tribunal. Some trials the average price of settling class- to date of class-action cases, ranging from deal with the actions of particularly violent action lawsuits and the average fee civil rights violations to securities fraud. Its paramilitary gangs, employed to hound paid to lawyers who bring them results, published in a new law publication, and kill non-Serbian civilians in Bosnia. have held steady for a decade, the Journal of Empirical Legal Studies, and In another part of “Henry V,” Judge A even though companies have said already circulating, will certainly be used by Meron points to a revealing scene outside the suits are driving up the cost of doing lawyers trying to head off such legislation. the French town of Harﬂeur, long under business, hurting the economy and lining “This empirical study comes out and says siege by English troops. Before the town lawyers’ pockets. the system is working correctly,” said David walls, Henry warns the town elders to sur- render because he may not be able to stop his troops from committing murder, robbery and rape. The judge turned to the passage:

What is’t to me, when you yourselves are cause If your pure maidens fall into the hand Of hot and forcing violation? Henry goes on to issue a warning: Your fathers taken by the silver beards And their most reverend heads dash’d to the wall; Your naked infants spitted upon pikes.

“This is blackmail, of course,” said Judge Meron, “because it did not happen, but it also reads like a list of war crimes of the kind we are dealing with.” The haunting part, he said, is less that such horrors occurred centuries ago, but that they persist on such a scale today. Judge Meron, however, sees a shift, not in the facts of violence but in the interna- Professor Geoffrey Miller was surprised by the results of a class-action lawsuit study he co-authored. tional perception that the world must deal with war crimes and other large-scale abuse. The issue is a fiercely divisive one that has S. Casey Jr., president of the Association of Even in the former Yugoslavia, which has fueled a heated debate over whether to place Trial Lawyers of America, who was in Wash- long been biased against the tribunal, he limits on class-action lawsuits. Legislation to ington last week meeting with officials plan- sees a change of mood, a recognition that a curb class actions is a priority of President ning the body’s legislative strategy for 2004. reckoning is needed. Bush and many Republicans in Congress. “I’m glad there are empirical studies being As the tribunal will wind down its work in The two law school professors who con- done,” Mr. Casey said. “The whole effort by the coming years—it intends to end investiga- ducted the study, which was not financed by what I call the tort reform industry is based tions this year and its trials in 2008—Judge corporations or by trial lawyers, expressed on myth and fabrication.” Meron sees a future in which remaining cases surprise themselves over the results. “We Those who advocate limiting class-action of war crimes and grave abuses will be tried in started out writing an article about fees,” filings—and changing the nation’s tort laws various parts of the former Yugoslavia. He said Theodore Eisenberg, a law professor at more generally—are dismissing the study’s speaks of special tribunals that will be formed Cornell and one author of the study, “but results. “I’m not sure that these findings end in Sarajevo, Zagreb and Belgrade. Until now, the shocking thing was that recoveries up meaning a lot,” said Stan Anderson, exec- he said, there has been no choice but to hold weren’t up.” utive vice president and chief legal officer of the trials here in The Hague. Senator Orrin G. Hatch, a Utah Republi- the United States Chamber of Commerce “We must remember,” he said, “without can and the chief sponsor of a bill that died and chairman of the Class Action Coalition, this tribunal, what would have followed is in October in the Senate, has attacked the a group of 100 companies supporting legisla- impunity.” current system of class-action litigation as tion to change rules governing class-action “jackpot justice, with attorneys collecting the lawsuits. “You can’t argue against class copyright © 2003, The New York Times windfall.” Thomas J. Donohue, president and actions per se or its efficacy. What we argue company, reprinted with permission. chief executive of the United States Chamber is very simple, that there are problem juris- photo by marlise simons/The New York Times. of Commerce, has complained that “compa- dictions around the country.”

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Reliable data on the total number of class- Their initial goal, both men said, was A Bloomberg News study last week action lawsuits filed or settled in a given year to find out how courts historically appor- found that jury verdicts in the United States do not exist. Such data could bolster corporate tioned fees to help guide judges. The study (as opposed to settlements) last year resulted defendants’ arguments that even if the size of is the most comprehensive to date and draws in damage awards of $13.8 billion against settlements is not increasing, the number of on original research that others have not companies in just a subset of cases—those cases is rising. The number of suits filed in fed- attempted, according to people who have involving suspected fraud—up from less than eral court has risen steadily, roughly doubling studied class-action litigation. $1.5 billion in 2002. from 1997 to 2002, according to the Adminis- “The Eisenberg and Miller study is Supporters of changes to the nation’s trative Office of United States Courts. But in many senses a real advance” because its tort laws, which govern civil litigation in state courts probably oversee the most class- authors read actual court cases to learn the personal injury cases, have numerous criti- action suits, and they produce the least data, provisions in settlement agreements, said cisms of the Eisenberg-Miller study. said Nicholas M. Pace, a researcher at the Deborah R. Hensler, a law professor at Stan- Some jurisdictions are known for pre- Rand Institute for Civil Justice, which studies ford who has also studied class actions. siding over excessive settlements and jury legal issues for the RAND Corporation. “I’m not surprised by the findings in the verdicts, said Mr. Anderson of the Cham- “People will continue to research this thing Eisenberg and Miller study in most regards ber of Commerce. for years—and fight about it,” Mr. Pace said. because they seem quite consistent with many “Many states, we don’t have problems In their article, Mr. Eisenberg and his of the patterns we found in our much smaller with what happens,” he said. Averaging out- co-author, Geoffrey P. Miller, a New York pattern of case studies,” Ms. Hensler said. comes in states where lawsuits result in large University law professor, write that if the Todd Foster, a senior consultant at settlements with those in other states, he effects of inflation are taken into account, NERA Economic Consulting, said that his continued, may not show anything. then from 1993 through 2002, “contrary to firm also had not found an upward trend in The article also relied on court opinions popular belief, we find no robust evidence settlement amounts. describing settlements, Mr. Anderson said, that either recoveries for plaintiffs or fees for and those tend to be federal cases. their attorneys as a percentage of the class here can be no doubt that some lawsuits State court cases may be a major source of recovery increased.” are frivolous and that they do impose outsize settlements, he said. “It’s a critical piece According to the study, the average set- T substantial costs on businesses, as other of information that wasn’t there,” he added. tlement over the 10-year period was $100 studies have found. A report released a few Mr. Eisenberg responded that in the million in inflation-adjusted 2002 dollars. weeks ago by Tillinghast-Towers Perrin, a absence of published court opinions it is very It rose as high as $274 million in 2000—a consulting firm that primarily serves insur- difficult to learn about state court settlements. result of four settlements that year for more ance companies, concluded that tort litiga- Ms. Hensler, the Stanford law professor, than $1 billion each—and fell as low as $25 tion costs rose 13.3 percent in 2002, to $233 said that one flaw in the study was that the million in 1996. “The mean client recovery billion, “which translates to $809 per person.” amount of the settlement could be less than has not noticeably increased over the last Those results, which draw on data sup- the amount actually received by plaintiffs, decade,” the professors wrote. plied by the insurance industry, proprietary driving up the percentage paid to lawyers. The The study also found that “neither the data on medical malpractice claims and types of cases may also have changed over the mean nor the median level of fee awards has estimates of costs borne by self-insured last decade, she said. For example, smaller set- increased over time.” The average fee rose as companies, did not measure the same thing tlements might be reported more or less high as $31 million in 2000, but exceeded $10 as the two law professors’ study. The Till- often. Mr. Eisenberg said that a larger study million in only two other years. The profes- inghast study covered all payments made would be helpful, along with access to more sors also report that as one might expect, the or expected to be made, whether as a result detailed information on settlements. But criti- larger a settlement, the smaller the percent- of a jury verdict or a settlement, in a class cal facts are often sealed by the courts, he said. age allocated to legal fees. For the largest 10 action or individual lawsuit, said Russ Sut- For now, he added, “there’s no better data.” percent of settlements, which averaged $929 ter, a principal at Tillinghast and the pri- million, lawyers received an average of 12 mary author. He added that the study did copyright © 2004, The New York Times percent. For the smallest 10 percent, which not have a political agenda. “It’s our job company, reprinted with permission. averaged $800,000, lawyers received nearly just to keep score,” he said. photo by diane bondareff. 30 percent. Fees were higher in cases that were more risky and were higher in federal court cases than in state courts. “No real-dollar increase in the level of fee awards in major cases over the course of a Visit us online at decade is not the sort of fact we are accus- tomed to hearing,” the professors wrote in www.law.nyu.edu the report. Mr. Eisenberg and Mr. Miller spent several months reading about 400 state and federal court opinions describing class-action lawsuits. Mr. Eisenberg has used statistical analysis to examine where companies choose to file for bankruptcy protection and on trends in punitive damage awards; Mr. Miller has studied class- action litigation and legal fees. Each has served as a consultant to defense and plaintiffs’ lawyers.

AUTUMN 2004 THE LAW SCHOOL 101

F ACULTY FOCUS Lawyer With an Attitude

by katherine s. mangan ing information with the goal of solving Hard Times problems, not just filing lawsuits. Public-interest law is a tough sell at a time The Chronicle of Higher Education Mr. Lopez calls it “rebellious lawyering,” when law students’ debts are rising and pub- February 13, 2004 from his 1992 book of the same title. The lic-interest salaries are shrinking. approach has had a profound impact on the The American Bar Association reported everal hours into a late-evening strat- teaching and practice of public-interest law last year that law students are finding it egy session with seven of his New across the country. Instead of casting the harder than ever to afford to take jobs in York University students, Gerald P. lawyer as the sage and hero who comes in to public-interest law, where starting salaries Lopez suddenly morphs from calm, rescue people from their troubles, he believes average $36,000, compared with $90,000 Harvard-educated law professor into that lawyers should work alongside people in private law firms. The typical law-school S angry ex-convict. without many resources to fall back on, to graduate owes more than $80,000 in stu- The students, who are enrolled in his help them identify and solve their problems. dent loans, the report noted (The Chroni- Community Economic Development For instance, students in his clinic are cle, September 5). Those who do choose Clinic, have just described the red tape that meeting with day laborers to discuss their public-interest jobs often give them up the make-believe ex-con will have to go options when employers stiff them and, if after a few years. through to exchange his prison mug shot they complain, threaten to turn them in to Even if they are willing to work for less, for an ordinary identity card. immigration officials. And, working with law-school graduates often find that com- “What the hell do petition for public- you mean—that I interest-law jobs need an identity card is intense simply to get an identity because there are rel- card?” he explodes. atively few openings. “That’s bullshit!” “Almost all of our Mr. Lopez’s out- graduates can get burst injects a dose of jobs paying $125,000 reality into a discussion a year, but if they of the problems that want to get a public- newly released drug interest job that pays dealers, robbers, and $40,000, it’s diffi- rapists face when they cult,” says Richard L. try to move back into Revesz, NYU’s law- their East Harlem school dean. neighborhoods. Many community To the professor, and federal agencies, whose clinic is one facing tough times, of 21 at NYU’s law can’t afford to hire as school, this is more many lawyers as they than an academic need. Even when they exercise. The son of can, the offers often Mexican immigrants, go out late in the he grew up in a gang- spring, months after ridden section of private law firms have East Los Angeles and begun locking in their watched his older Public-interest law professor Gerald Lopez, who teaches the Community Economic Development Clinic. hires. So while third- brother cycle in and year students are out of prisons. “As a kid, my life was domi- rehabilitation counselors and social workers, snatching up lucrative job offers in Decem- nated by the people he hung with,” Mr. the students are developing guides and pub- ber or January, those holding out for public- Lopez says. “If you think they’re bad going lic-awareness campaigns to help former pris- interest jobs might not get them until late in, you have no idea what they’ll be like oners readjust to life outside bars. spring, if at all. coming out.” In his work and his writing, Mr. Lopez The proportion of law-school graduates He watched his brother, a gang member has inspired other law-clinic professors to going directly into public-interest jobs and heroin addict, struggle to pick up the adopt the problem-solving approach that (excluding government positions) was only pieces of his life each time he was released. views lawyers and their clients as part of a 2.9 percent in 2002, the last year for which “There’s very little out here for them,” Mr. larger community network. He has also figures are available. That’s down from a Lopez says. “They may not know how to inspired countless students to stick with high of 5.8 percent in 1978, according to the access drug and alcohol programs, and their dream of public-interest law—even National Association for Law Placement. some of them may have AIDS. They may when the odds seemed stacked against them. NYU, which has one of the most exten- find themselves stranded with little educa- Along the way, he has helped law schools sive public-interest-law programs in the tion, no jobs, and families in disrepair.” seeking to find a balance between producing country, helps students who pursue careers That’s where his students come in. These corporate counsel and lawyers who are in the field repay their loans. And it is try- budding public-interest lawyers are taking to interested in practicing the sort of law that ing a variety of approaches to keep stu- the streets, knocking on doors, and gather- helps America’s underdogs. dents committed.

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Its first-year Lawyering Program requires Chicano’s Vision of Progressive Law Practice more than a decade living with, and caring students to work through real-life legal cases, (Westview Press)—that he began a national for, their ailing mother. doing mock interviews with other students “rebellious lawyering” student conference. Mr. Lopez generally stayed out of trouble acting as clients, drafting memos, arguing Now in its 10th year at Yale Law School, and poured his energies into sports instead. motions, and attempting mediation. Second- the conference was expected to attract hun- Neither of his parents had gone to college, year students get more in-depth experience in dreds of students, lawyers, and community but both assumed that he would go not only courses that involve courtroom simulations. activists last week. to college, but to graduate school as well. His By the third year, they can represent real Mr. Gunn, now an associate professor of father died before he could see Mr. Lopez clients, under the supervision of a lawyer or law at Washington University in St. Louis, enter the University of Southern California, law professor. Some represent death-row pris- says he was attracted by the notions “that a where he earned a degree in economics. oners in New York and Alabama; others work lawyer doesn’t have all of the answers, and After getting into “four fancy law with immigrants threatened with deportation that the client is central. ... A lawyer should schools” that he thought his father would or parents accused of neglecting their children. know when to take a back seat.” have approved of, he chose Harvard Univer- In June, NYU went a step further, hiring sity, where he was one of only a handful of Deborah A. Ellis as assistant dean for public- avid Stern, executive director of Equal Latino students in 1970. “Culturally, it was interest law to advise students and help Justice Works, a national group that pro- very alienating,” he says. A facile test taker them find jobs. D motes public-interest service among law who had coasted through school with little “Law schools have a responsibility to students, calls Mr. Lopez’s work “absolutely motivation or discipline, he was also turned help students with this career direction, seminal” in the development of progressive off by a curriculum that, at the time, seemed which is very difficult,” says Ms. Ellis, an public-interest law. While he strongly supports largely theoretical and divorced from the NYU law alumna who has worked for the the professor’s approach, he acknowledges real-life issues he cared about. Southern Poverty Law Center, the National that some traditionally educated lawyers argue But while he was skipping out on his Organization for Women, and the American that the students are spending too much time law classes, he was coming upon a world Civil Liberties Union. “If you take a hands- being community activists and not enough of books in Cambridge. For the first time in off approach, the path of least resistance is to time solving legal problems. his life, haunting bookstores and libraries, he go to the higher-paying jobs.” “Most litigators don’t like this approach,” became an avid reader. After dropping out Clinical professors like Mr. Lopez try to says Mr. Stern. “They say, ‘Lawyers are specially of law school for a semester to travel, he expose students to the real-life challenges and trained to sue. That’s the tool of our trade. returned and graduated. rewards of public-service work. After cofound- Why are these folks learning social work?’” Mr. Lopez spent the next five months caring public-interest-law programs at Stanford Mr. Lopez smiles when asked whether he ing for children, cleaning, and doing odd jobs University and the University of California at has heard criticism of his holistic approach. at an orphanage near Mexico City. He moved Los Angeles, Mr. Lopez was recruited to bring “Sure,” he says. “The common refrain is, to San Diego, where he clerked for a federal his brand of rebellious lawyering to NYU in ‘Where’s the law?’ or ‘We’re already working judge who let him explore the courthouse, sit- 1999. Last year he set up NYU’s Center for the hard enough. Why are you laying all of this ting in on all kinds of trials. “By then,” he says, Practice and Study of Community Problem extra shit on us?’” “I had become the complete sponge, watch- Solving, which works with low-income, In fact, if more people embraced Mr. ing trials and reading voraciously.” minority, and immigrant residents. Lopez’s vision of lawyers as problem solvers, That led to his decision to join with The center’s first undertaking was a tele- Mr. Stern argues, then more philanthropies three partners in a storefront law office in phone survey of 2,000 residents of Harlem would be willing to help pay for their ser- San Diego, where they worked as criminal and other low-income neighborhoods of New vices to tackle a variety of problems. And defense lawyers who were also active in com- York City and in-person interviews with 1,000 that, he says, could expand the range of munity advocacy. Next came teaching at the social workers, drug counselors, government public-interest jobs available. For instance, California Western School of Law, and at officials, and church leaders, conducted by a foundation dedicated to improving health UCLA and Stanford. students and other volunteers. The goal was care might agree to support the salary of James Perez, a second-year law student at to determine what the residents’ biggest needs someone who helped low-income people NYU who grew up in a poor neighborhood were—whether law-related or not—and what who were denied access to care. in Los Angeles, signed up for Mr. Lopez’s eco- resources were available to them. “If a lawyer doesn’t come in saying, ‘I’ll nomic-development clinic after hearing him Mr. Lopez himself spent much of his first sue that damn hospital,’ but instead looks at speak about his own, similar background. In year at NYU walking the streets of the city’s ways to get at the root causes of the problem, the clinic, Mr. Perez works with people who low-income and immigrant neighborhoods. that could be very appealing,” says Mr. Stern. can’t afford to open checking accounts and so “I love roaming in neighborhoods and talking are vulnerable to check-cashing rip-offs. to people,” he says. “I end up taking on issues Skipping Class “When I first came to law school I felt that people don’t want to tackle or looking for For a law professor, Mr. Lopez comes out of place, but Jerry gave me hope that it’s problems that sit at the bottom of the barrel.” from a background as untraditional as his possible for someone like me to succeed at Tall, with an athletic build and fashion- approach to the practice of law. His older an elite law school and to return to my com- ably shaved head, the 55-year-old law profes- brother’s escalating drug problems and munity to make it better,” says Mr. Perez. “A sor can be both inspiring and irreverent in stints in prison made him, ironically, a pos- lot of people sympathize with low-income the classroom. Very much the Ivy League itive influence. “He always said he’d kick people who don’t know their rights from a lawyer one minute, he lapses naturally into my ass if I followed in his path, and he did hole in the wall, but he empathizes with street jargon the next to bring home a point that, literally, when he found me out on them because he’s been there. He hasn’t for- or act out the role of a client whom his stu- the street smoking when I was 5 or 6,” Mr. gotten where he came from.” dents are likely to face. Lopez recalls. His brother eventually One of Mr. Lopez’s former students, passed a high-school-equivalency exam and copyright 2004, The Chronicle of Higher Steven J. Gunn, was so inspired by his pro- worked on and off as a drug counselor and Education. reprinted with permission. fessor’s book—Rebellious Lawyering: One horse groomer. Most recently, he spent photo © frank fournier.

AUTUMN 2004 THE LAW SCHOOL 103 Student Spotlight

From Scholarly Papers to Law Revue, the Highs and Lows of Student Life

nquestionably, at the core of stu- The Student News section describes Rubin (’42) International Law Symposium dent life is academic scholarship, achievements, awards, receptions and other focusing on the repercussions of the use of exempliﬁed here by the excerpts of happenings on campus including the annual force in Kosovo and Iraq, or the Conference three award-winning papers pub- Marden Moot Court competition, and the on International Law and the Middle East Con- lished by members of the Class of induction of new members to the Order ﬂict, which explored human rights in the con- U2004—Kristine Hutchinson, Josh of the Coif. text of the controversial Israeli security barrier. Kagan, and David Lehn. Student organizations also hosted a wide Of course, no academic year is complete The swirl of activity at the NYU School variety of compelling colloquia, symposia, and without the annual show, where student- of Law is set by the students, as their varied conferences, such as the Environmental Law actors get the chance to poke fun at Dean interests, intellectual curiosity, and virtually Journal’s session about water allocation, and Richard Revesz and other faculty members, or endless energy form an engaging and sus- the Journal of International Law and Politics’ the Fall Ball and Spring Fling, where colorful taining tempo. Herbert Rubin (’42) and Judge Rose Luttan pictures are taken and memories are made. I

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In an attempt to remedy the disparity student scholarship between the legal uses of copyrighted works in face-to-face teaching and the legal uses in Online education and copyrights. Legal standards for online education, Congress passed the Tech- nology, Education, and Copyright Harmo- children’s education. The judicial system and our evolving nization Act (TEACH Act) in November, 2002. The TEACH Act allows online educa- interpretation of the law. These topics captured the tors to display all types of copyrighted works and to perform entire nondramatic imagination of three members of the Law School Class of literary and musical works and reasonable and limited portions of all other types of 2004, leading them to a level of scholarship and insight works. As a compromise to gain these rights, online educators must provide pro- that resulted in the following award-winning notes. tection against potential abuses of the copyrighted material. Thus, in order to secure the right to use greater types of copyrighted The TEACH Act: Copyright works in the course of online education, educators must have copyright policies in Law and Online Education place to promote compliance with copyright law and must use technological protection measures to reasonably prevent unautho- by kristine hutchinson (’04) Although a rized retention and dissemination of those commercial entity, copyrighted works. The note excerpted below was published in the such as a stadium Many of the compromises made during NYU Law Review (December, 2003) and won playing a song dur- the legislative process have limited the effect Kristine Hutchinson the Judge Rose L. and ing a basketball of the legislation. In some cases, the negoti- Herbert Rubin Law Review Prize for “the game, would have ating parties incorporated such limits into most outstanding note for the Law Review to get a license the Act itself—restricting the performances in international, commercial, or public law.” from the copyright and displays of works that are not nondra- Hutchinson wrote under the supervision of owners in the matic literary or musical works to reasonable Professor Rebecca Tushnet, and was inspired by musical composi- and limited portions of those works. How- her interest and belief in the value of online edu- tion to play a track ever, in many cases the limiting effects of the Kristine Hutchinson (’04) cation, which stems from her undergraduate re- from a CD to its TEACH Act arguably were unintended. For search on the subject at Brown University. She audience without example, because the TEACH Act requires was the senior notes editor of the NYU Law being liable for copyright infringement, a institutions to “reasonably prevent” unau- Review. This fall, she becomes an associate at teacher in the course of face-to-face teach- thorized retention and dissemination of the Debevoise & Plimpton in New York City. ing activities needs no such license. Section copyrighted works that they use for online 110(1) of the Copyright Act of 1976 education, some institutions, which either n 1996, an accredited nonprofit universi- expressly exempts teachers at nonprofit do not know what they must do to meet ty began offering an online course enti- educational institutions from liability for this requirement or cannot afford to meet it, tled “History of Jazz: New Orleans.” copyright infringement when they perform will choose not to rely on the legislation. Students enrolled in the course must or display copyrighted works in their class- Still other limitations are the result of soci- purchase a print textbook and its accom- rooms in the context of face-to-face teach- etal or market forces. These limiting factors Ipanying compact disc (CD), but the ing. Until November of 2002, however, include many educators’ lack of interest in university makes all other course materials there was no specific statutory exemption using the expanded types of copyrighted available through the Internet. Students for teachers of online courses. Instead, works that the TEACH Act authorizes “attend” class by sitting in front of their online educators had to get licenses from and the fact that many providers of online computers—at home, at their offices, or copyright owners for their uses of copy- education do not qualify as accredited non- wherever they have an Internet connec- righted works in online courses or rely on profit educational institutions and are tion—and reading and interacting with the general statutory exception known as therefore ineligible to take advantage of the course website. fair use. Because the online performance of the TEACH Act. One of the goals of the course is to the exemplary tracks from the CD in the Because congressional legislation must enable students to “identify African Ameri- History of Jazz course would substitute balance the competing interests of copyright can musical elements that distinguish jazz for students’ purchase of that CD, a court owners and educators and because the edu- from other musical styles.” To this end, the might have difficulty finding that the fair cational community itself agreed to the com- text of the course describes beats, melodies, use exception applies in this context. As a promises, the TEACH Act is likely the most and lyrics, and then asks students to play result, the online educator would be forced educator-friendly legislation that Congress various tracks from the CDs that they pur- to secure a license from the copyright will produce in the near future. Thus, while chased to demonstrate each example. In a owner to integrate the audio clips into her there are clear limitations to the application comparable on-campus course, the professor course rather than asking students to pur- of the TEACH Act, educators should work would likely play each song, or portions of chase and play specific tracks from the CD within the frameworks of the TEACH Act it, for the class to illustrate each example she independently. Licenses for online uses, and the general statutory exception of fair use described during her lecture, stopping to however, particularly for popular media to continue to develop creative and effective point out specific features to which she such as music and movies, can be pro- teaching and learning experiences for students wanted students to pay particular attention. hibitively expensive. in online courses.

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To make the TEACH Act more effective, using audio clips in nearly all of its online educational institutions need to establish a classes and has many such classes, it may A Civics Action dialogue about copyright policies between choose to employ more conservative defini- the administration and faculty members. tions for “reasonable and limited portions” Interpreting “adequacy” Ken Salomon, who lobbied on behalf of so as to minimize the institution’s exposure in state constitutions’ educators for the TEACH Act, reports that to risk across the board. national interest groups have sent summaries The factors that an educational institu- education articles of the legislation to the attorneys for colleges tion must consider when developing defini- and universities and are working on a sum- tions for what constitutes “reasonable and mary of the level of technological protection limited portions” are significant, and how by josh kagan (’04) that an institution must have in place to the institution chooses to define those terms comply with the requirements of the will depend in part on how risk averse the Five years working TEACH Act. While distributing such sum- university is. By providing general guidelines with Jumpstart, an maries to educational institutions’ adminis- rather than dictating exactly what content AmeriCorps program trations might achieve the goal of making educators can put in their course websites, that mentors children institutions aware of updates to copyright the administration avoids interfering with in Head Start classes, law, some commentators have expressed educators’ academic freedom while prevent- as well as internships skepticism that a national conversation about ing liability for copyright infringement. with the NAACP the issue will have an impact on individual Beyond defining the terms contained in Legal Defense Fund, educators. If academic associations and simi- the legislation, an administration should clar- Advocates for Chil- lar interest groups, who have knowledge of ify what it considers to be adequate techno- dren, and the Legal Josh Kagan (’04) and interest in copyright legislation, cannot logical protection measures. While precise Aid Society’s Juvenile be the messengers because of their lack of standards defining what qualifies as adequate Rights Division fanned an interest in children’s access to individual educators, that task is protection are still in the process of develop- rights that inspired the note excerpted below. It necessarily left to educational institutions. ment, because the TEACH Act creates an appeared in the NYU Law Review (December An educational institution should inform affirmative duty on the part of an institution 2003), where Josh Kagan was senior articles edi- its faculty members of at least two pieces of to ensure that copyrighted works are ade- tor, and won the Paul D. Kaufman Memorial information: (1) a definition of terms, and quately protected against unauthorized Award for the most outstanding note published (2) the extent of the technological protec- retention and dissemination, clarification of in the review. Kagan was advised by Professor tions necessary to preclude liability for copy- standards in this area is particularly important. of Clinical Law Randy Hertz. He is currently right infringement. Definition is particularly In developing its standards, the administra- a law clerk for the Hon. Marsha S. Berzon at important for terms that the drafters intention should consider the nature of available the U.S. Court of Appeals for the Ninth Circuit, tionally left vague in the legislation, such as technologies and which technologies map in San Francisco. “reasonable and limited portions.” The Copy- onto its concept of protection against right Office report offers some guidance for retention and dissemination. Then, rather early every state constitution institutions when defining these terms, but than outlining to educators its specific con- requires the state to provide its even the Copyright Office’s definitions are ception of what constitutes adequate pro- children with an adequate educa- vague. The administration should provide tections, the administration can make tion. Litigation based on these guidelines for educators for what it considers approved technologies available through nineteenth-century clauses now to be “reasonable and limited” for each type its Information and Technology Depart- Ndominates the current wave of of copyrighted work, such as page limits for ment and require educators to use only school reform cases. The U.S. Constitution journal articles or book chapters or time lim- those approved technologies. If an educa- contains no clause directly addressing educa- its for audio and video clips. These guidelines tional institution distributes information tion; thus the education clauses in state con- will be based on a number of factors, includ- about the TEACH Act to faculty members stitutions provide plaintiffs with claims that ing the total length of the copyrighted work and includes these components in its mes- could avoid a federal bench unwilling to hear from which the excerpt is drawn, the number sage, it has the potential of increasing the right to education cases. of copyrighted works used in a course, and effect of the TEACH Act by alleviating Plaintiffs have achieved victories in sev- the number of copyrighted works by a partic- some of the barriers to its implementation. eral states, but they have done so under ular author used in the course. For example, Full implementation of the TEACH Act inconsistent and often flawed theories. As for the History of Jazz course, the institu- requires significant effort on the part of a result, initial courtroom victories have tion’s guidelines could specify that the profes- administrations, but also offers the poten- become empty in the face of weak remedies, sor may use 20-second clips (approximately tial for significant returns. By granting legislative inaction, and legal backtracking in 10 percent) of each copyrighted song, pro- educators greater rights to use copyrighted later cases. vided that the song is at least three-and-a-half works in online education, the TEACH Act This note presents a theoretical approach minutes long and that the professor does not enables educators to remove barriers to to defining and measuring adequacy: Courts use more than two songs from any particular access to high quality educational experi- should take a broad view of history and artist. If the professor is using a large number ences. Opening the path for discussion of national education practice to inform state of audio clips, however, the institution may copyright issues in online education allows constitutional interpretation. This view leads prefer to minimize its risk by requiring that an educational institution concomitantly to to defining adequacy based on the goal of the individual clips be shorter in length or by open avenues for discussion of ways to inte- developing children into productive citizens, limiting the total number of audio clips the grate the use of technology into traditional and measuring of adequacy based on educa- professor can use. The length of audio clips classroom-based courses and how to make tional inputs—in terms of dollars, personnel, the university permits may also be based on the use of technology and copyrighted curriculum, buildings, supplies, and similar the total number of audio clips the institution materials more effective in all areas of edu- factors—required to reach that goal, rather is using school-wide. If the institution is cation—classroom-based and online. I than outputs such as standardized test scores.

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Interpretive Choices in Education their smaller size and less media attention— Believing that schools were “indispensable Adequacy Cases they are more vulnerable to factions twist- to the continuance of a republican govern- In education adequacy cases, state courts ing the results of a democratic process. ment,” Mann defined an adequate educa- must define a constitutionally adequate Moreover, the legislature’s comparative tion as one that prepares all individuals education, determine how to objectively advantage over courts in addressing com- to carry out complex civic duties, far measure adequacy, and decide upon a rem- plex policy questions is less pronounced beyond formal requirements of voting edy. Judges and commentators have pre- in many states than in the federal system, or jury service. sented four options for how to define and because state legislatures often lack the Mann’s ideology represented many measure adequacy. research resources that Congress has. school reformers who successfully pushed First, a court could use existing legisla- State court decisions form part of an common school laws and education clauses tive or executive standards to define and ongoing process of constitutional interpre- throughout the Northeast and Midwest in measure adequacy. This approach postu- tation by citizens and all three branches of the mid-1800s. Reformers, and the publics lates that existing legislative or executive a state government, rather than pronounce- they convinced, believed that “morality was standards—such as standardized tests— ments of fixed principles. Unlike federal the most important goal of common edu- define a constitutionally adequate educa- judges, many state judges stand for elec- cation” and that “moral education...over- tion and uses those tests to measure a tion. Perhaps most importantly, state con- lapped citizenship education.” school’s quality. However, this finds no stitutional decisions are relatively easy to At the same time, state regulation support in state education clauses. Instead, this approach suggests an easy way to measure adequacy without truly deﬁning it or Believing that schools were “indispensable to identifying appropriate remedies. Second, a court could order the legisla- the continuance of a republican government,” ture or executive branch to decide upon a definition and measurement. This approach Horace Mann deﬁned an adequate education fails for the same reason as the existing standards approach—it delegates judicial as one that prepares all individuals to carry authority to the legislature without constitutional basis. Both approaches also lack a out complex civic duties, far beyond formal link between their definition of adequacy and remedy for inadequacy. Accepting leg- requirements of voting or jury service. islative enactments as the definition of adequacy presumes that the legislature has the power to alter that definition in a manner overturn through amendment. became an important force in education. contrary to the fundamental purposes of Beyond using education adequacy cases States codified an ideology that saw uni- the education article. to check the legislature, state courts should form, quality public schools as crucial to Third, a court could come up with its interpret education clauses in their national state government and inextricably linked own list of required outputs. Where courts context. While one state’s interpretation may to America’s continued growth and suc- have followed this approach, their rulings legitimately vary from another’s based on a cess. The era’s central policy changes have sometimes strayed from the history different history, state courts would lose valu- revolved around increasing state control and purpose of state educational clauses. able resources if they did not look beyond and consolidating small school districts Additionally, any focus on educational their borders to the history and interpretation in order to ensure a minimum level of outputs raises remedial problems. Faced of other states’ similar clauses. quality and consistency. with chronic inadequacy in particular The history of education articles leads schools, a court could order the state to to the conclusion that contextual interpre- From Education for Democracy increase test scores, but would have no tation is appropriate for these clauses. State to Achievable Remedies basis for ordering any particular steps to constitutional drafters operated in the con- Defining adequacy in terms of preparing reach that goal. text of education clauses developing in democratic citizens provides significant Fourth, a court could come up with its other states, and referenced these other guidance to courts in determining what own list of inputs. So long as this list shares clauses in their deliberations. For instance, evidence of adequacy is most valuable— a nexus with education clauses, as discussed the record of New York’s 1894 constitu- evidence of inputs. To fulfill the goals of below, this is the preferred approach. tional convention (which adopted its edu- education clauses, citizens must have the cation article) makes clear that New York capability to understand the various com- The Historical and Theoretical framers equated their clause with similar plexities of public issues. The complexity Roots of State Education Clause clauses in other states. of such issues is more probative than the Interpretation level at which they are typically discussed. State court aggressiveness in enforcing Education History Supports a Strong Thus, in a point properly overturned on education articles is warranted by the Citizenship-Based Interpretation of appeal, the Campaign for Fiscal Equity unique nature of state constitutions and Education Articles appellate court erred in giving any weight state governments. More than any other individual, Horace to the state’s assertion that an eighth-grade Nearly every state constitution includes Mann defined the theory behind public education was adequate because most jury what Professor Helen Hershkoff calls “due schools in the 1800s. At a time when many instructions and newspaper stories about process of lawmaking” requirements, which states, responding to Mann’s movement, elections and political issues were written display a relative lack of faith in the legisla- passed such clauses, Mann believed that at an eighth-grade level. Evaluating tive branch. State governments require education clauses mandated an education whether the United States should go to aggressive judicial checks because—due to adequate enough to prepare citizens. war with a particular country, for example,

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calls for an understanding beyond that of an eighth grader, regardless of the level The Problem of Retroactivity at which newspapers present the issues. An adequate education for younger children entails teaching fundamental skills, by david lehn (’04) In order to such as reading, writing, and basic math, understand the and the critical thinking skills necessary to The note excerpted below was published as “Adju- Court’s various understand complex adult issues. Similarly, dicative Retroactivity as a Preclusion Problem: retroactivity rules, an adequate education for older children Dow Chemical Co. v. Stephenson” in the NYU one must understand must present subject-area material that Annual Survey of American Law (2003-2004), two distinctions that enables them to think critically about where David Lehn was managing editor. He won the Court has often related issues beyond school walls. the Seymour A. Levy Memorial Award, which considered signifi- Finally, while the point may seem too recognizes the most outstanding student writing cant. The first per- obvious to belabor, education clause published in the Survey, and also the Law Review tains to whether the framers envisioned a set of school build- Alumni Association Award, given to the student court confronts the ings set off from the rest of society where with the second-highest cumulative grade-point retroactivity question David Lehn (’04) children would go to learn. Thus, adequacy average. Writing under then-Russell D. Niles in the same case in entails decent school buildings, a require- Professor of Law Larry Kramer’s guidance, Lehn which it changes the law or in another case. A ment that many courts have recognized. confesses to writing and rewriting this note five court can create new law by confronting an Once a court has defined educational times, each version a complete rejection of the previ- issue of first impression, or by overruling or adequacy, crafting a specific remedy should ous one. This fall Lehn joins Cleary, Gottlieb, Steen modifying precedent. Whenever a court creates present little difficulty: The court should & Hamilton in New York City as an associate. new law, it generates a retroactivity question order the state to provide whatever input it with respect to the disputed transaction it is found inadequate. his past term, Dow Chemical Co. v. adjudicating. The court must decide whether The above framework also should Stephenson presented the Supreme to apply its new law or the law that existed encourage plaintiffs to think creatively Court with a new question of retroac- at the time that the parties acted. This may about desired remedies. Schools unable to tivity. The plaintiffs collaterally be termed the “law-changing retroactivity provide decent school buildings or text- attacked an Agent Orange class settle- question.” That court also generates a retroac- books reflecting a modern curriculum can Tment, arguing that they had not been tivity question for all other disputed transac- sue seeking sufficient funds to provide such adequately represented, and that therefore tions that preceded the law-changing decision. resources. Schools unable to pay sufficient they were not bound by the settlement. The Courts adjudicating these other disputes must salaries to attract qualified teachers can sue Court of Appeals for the Second Circuit decide whether to apply the new law that the for teacher recruitment and retention agreed, basing its decision on the Supreme first court created or the law that existed at the funds. Understanding adequate inputs as Court’s holdings in Amchem Products Inc. v. time that the parties to these other disputes the proper measure will help courts resist Windsor and Ortiz v. Fibreboard Corp. Both acted. In these other cases, it may be said that the impulse in school funding cases to con- Amchem and Ortiz were decided long after the change in law “intervened,” thereby creat- sider equal funding a suitable remedy. the events that gave rise to the Agent Orange ing a “subsequent retroactivity question.” Because poorer children tend to arrive at litigation, as well as after the Agent Orange The second distinction is between pending their first day of school at age five or six class certification, settlement, and direct and final cases. Final cases are those “where already behind their middle- and upper- appeals. Thus the appellate court applied the judgment…was rendered, the availability class peers, school districts require more Amchem and Ortiz “retroactively” to permit of appeal [was] exhausted, and the time for resources to educate them adequately. relitigation of a suit that was already final. petition for certiorari has elapsed before [the Beyond fiscal remedies, plaintiffs could An equally divided Supreme Court affirmed law-changing] decision.” Pending cases are seek a state takeover of a chronically mis- without discussion. In this article I consider those that are not yet final but whose underly- managed school or district. Plaintiffs could Dow’s unresolved question: should the appel- ing conduct occurred prior to the law change. seek changes to management practices, late court have applied Amchem and Ortiz These two distinctions, or dichotomies, requirements that the state ensure some retroactively? In order to do so, I must exam- are mutually independent. Law-changing measure of teacher quality, provision of ine the problem of retroactivity, that is, by retroactivity questions can arise in both early childhood education, or racial and what rule or principles should a court answer pending and final cases, as can subsequent economic integration. a given retroactivity question? retroactivity questions. It seems natural for a court to apply exist- Driving the evolution of the Court’s Conclusion ing law to adjudicate the dispute before it. But retroactivity jurisprudence has been the State courts can consider their own history what should a court do if between the time the Court’s shifting treatment of a handful of prin- and the history and development of educa- parties acted and the time the court adjudicates ciples. One principle is the “judicial power” tion clauses and education theory in other their dispute, the instant court or another institutionalized by Article III of the Constitu- states. Such an analysis leads to the conclu- court changes the relevant law—should it dis- tion. Another is a principle of equality, that a sion that an adequate education builds suf- pose of the case under the “new” law or the court should treat similarly situated parties ficient basic skills and critical thinking “old”? Justice Holmes, for example, thought similarly. A third is that reliance interests necessary to understand, appreciate, and that new law should be applied retroactively, should be protected. And a fourth is that final- form opinions regarding the complex but the Warren Court sometimes overruled a ity interests should be protected. Frequently, issues that they will encounter as voters, precedent but disposed of the case before it the Court has turned to the doctrines of stare jurors, and citizens. If state courts adopt according to the old law and reserved the new decisis and res judicata to protect the reliance this approach, they will go a long way law’s effect for future conduct. During the past and finality interests. Finally, the Court has towards ensuring an adequate education 50 years, the Court has frequently changed its also struggled with the choice between per for all children. I approach to the retroactivity problem. se rules and balancing tests.

108 THE LAW SCHOOL AUTUMN 2004 In this paper, I argue that the retroactivity This intuition is flawed. Even if the law, Article III still mandates retroactivity rule should be the same regardless of whether declaratory theory is valid, it still does not because of what may be termed the “best the court confronts a law-changing retroactiv- solve the retroactivity problem. This intu- law” rule. As the Court said in Griffith: ity question or a subsequent one, and regard- ition overlooks the legitimate role that less of whether it confronts the retroactivity preclusion doctrines play in the legal system. If we do not resolve all cases before us question in a case that is pending or in one Preclusion doctrines implicitly distinguish on direct review in light of our best that is already final. Further, the retroactivity between decisions now and decisions then. understanding of governing constitu- rule should be a reliance-based cost-benefit They preserve the old decision for valid pru- tional principles, it is difficult to see test, with a rebuttable presumption in favor dential reasons even if the court might reach why we should so adjudicate any case of prospectivity, in other words, in favor of a different result on the merits if it could at all…. In truth, the Court’s assertion withholding the new law’s effect from disputes hear the claim anew—indeed, even if on the of power to disregard current law in that occurred prior to the change in law. merits the case was wrongly decided. Yet adjudicating cases before us…is quite their preclusive function is not inconsistent simply an assertion that our constitu- II. Article III and the Judicial Power with the declaratory theory. They do not tional function is not one of adjudica- A. Finding Law and Making Law require that the law has “changed.” For tion but in effect of legislation. One central debate about retroactivity example, a court may adjudicate a dispute revolves around whether courts find law or but obtain the wrong result because it mis- Justice Blackmun put the point in the make law. According to the declaratory the- applied the law; a later court hearing a col- obverse: a court may not apply a law already ory, law is objective and constant. A change lateral attack might arrive at a different “determined to be wrong.” in law is really a correction: the previous result if it could, but res judicata precludes it Yet the best law rule also fails to solve statement of law simply resulted from “a fail- from doing so. the retroactivity problem because it does not ure at true discovery”; the “old” law was The problem of retroactivity is best recognize the legitimate role of preclusion “never the law.” Some justices have thought conceptualized as a preclusion problem. doctrines. That a court hearing a collateral the theory implausible, but Justice Scalia con- Accordingly, a retroactivity rule, too, may attack would decide the case differently were tinues to espouse a version of the theory. legitimately bar relitigation even though the it open to relitigation does not undermine While Justice Scalia does not consider himself court would decide the case differently the legitimacy of the res judicata bar— “so naïve…as to be unaware that judges in a under the new law. Just as the res judicata indeed, that is the very point of res judicata. real sense ‘make’ law[,]…they make it as bar is consistent with the declaratory theory, And the doctrine of res judicata itself is judges make it, which is to say as though they so too is prospectivity as a bar on applying surely part of the best current law. There- were ‘finding’ it—discerning what the law is, new law. fore, the res judicata bar does not entail rather than decreeing what it is today The counterpart to the declaratory the- applying anything less than the best current changed to, or what it will tomorrow be.” ory is the positivist theory, which acknowl- law. Once the retroactivity problem is Neither Justice Scalia nor any other pro- edges that courts do indeed make law. Once understood as a preclusion problem, it is ponent of the declaratory theory, however, courts have this power, it is possible, unlike clear that prospectivity does not entail the ever fully explains why the declaratory theory with the declaratory theory, to distinguish application of “wrong” law either. solves the retroactivity problem. The intu- “new” law from “old.” Decisions under the Therefore, the debate about whether ition seems to be that because the law does old law become “existing juridical facts,” courts find law or make it is irrelevant to the not actually change, the “new” law was in fact which militate in favor of withholding the retroactivity problem. Neither the declara- always also the “old” law, and consequently new law’s effect. Nevertheless, it is some- tory theory nor the best law rule is inconsis- there is no retroactivity problem at all. times claimed that even if courts can make tent with prospectivity. I

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AUTUMN 2004 THE LAW SCHOOL 109

STUDENT SPOTLIGHT

Root-Tilden-Kern program sung to the tune student news of U2’s “Beautiful Day”. Other musical highlights included a takeoff of Fiddler on the Roof’s “Matchmaker,” in which students asked Rave Reviews for Law Revue Gail Cutter, then-director of career counseling and placement, to strike them a match with a The popular student production returns to the prestigious law firm; and an entertaining Tishman Stage and makes the grade once again rap, “Damn, It Feels Good to Be a Third Year,” delivered with flair by Kent and Emily Bushnell (’05). Ricky and the Lawyer Factory orget about Law Review. Springtime at available to law students: Professors Rachel ended with a flourish, with the cast’s own NYU is all about Law Revue, the annual Barkow (Heather Childs, ’06), David rendition of “Higher and Higher.” They sang F musical send-up of the Law School. Richards (Ariel Joseph, ’06), Rochelle Dreyfuss “Our law is lifting us higher than we’ve ever This year, Ricky and the Lawyer Factory (Robin Effron, ’04), Noah Feldman (Joseph been lifted before. Let’s keep it up when came to the Tishman Auditorium for four Treloar, ’04), Linda Silberman (Meredith things look dire; we’ll have NYU pride for- nights—and played to an extremely appre- Stead, ’06), and Barry Friedman (Rob Elder, ever more.” The rousing chorus brought the ciative audience. ’04) sang and danced their way through a dis- audience to its feet. Law Revue definitely A takeoff on Charlie and the Chocolate cussion of the merits of a Colloquium on Law passed with flying colors. I Factory, Ricky is the story of five lucky stu- and Interpretive Dance. dents (played by Deepa Janakiraman, ’05; Even real professors got Hillary Noll, ’04; Margo Kaplan, ’04; into the act: Dean Richard Mitchell Kent, ’05; and Kelly Jordan, ’04) Revesz and several other who win a magical tour of the new Law members of the faculty School building with the quirky Dean Ricky made cameo appearances Wonka (Arthur Dobelis, ’05). As they travel discussing their “methods” through the school, the students and every- of choosing grades, such one they meet poke fun at all aspects of law as dropping papers from school life. In one scene, law students who the stairs. want to start a new journal are so desperate for hard-to-come-by supplies that they end up High Note fighting over ink toner. Elizabeth Loeb, ’04; The heart of the revue is Erica Alterwitz, ’05; Eve Moskowitz, ’05; always the music—and Catherine Cugell, ’04; Krupa Desai, ’06; Ricky’s numbers were ter- Casey Cohn,’04, and Gillian Burgess, ’06, rific. The show opened had the audience roaring with their hilari- strongly with a spoof of ous slap-stick fisticuffs. Another scene paro- the Erie doctrine, the died the wide variety of courses and seminars Supreme Court, and the Sold-Out Performance: Cast members of the 2004 Law Revue

Dewey and Skadden Make Generous Donations

Dewey Ballantine for Diversity for distribution for programs that support Tiffany McKinney (’01), an associate at Law firm Dewey Ballantine LLP and its diversity awareness. Skadden, contacted the firm’s Diversity Com- diversity committee made a gift of $125,000 Dewey Ballantine partners Richard mittee about the scholarship and provided to the NYU School of Law in June. For five Shutran (’78) and Janis Meyer worked the Law School with an introduction to the years, the Law School closely with the Law School to facilitate the firm’s Diversity Manager, Edwin Bowman. will award a Dewey gift. “Dewey Ballantine is delighted to have McKinney was alongside Bowman when he Ballantine LLP Schol- the opportunity to work with the Law presented a check for a $3,500 scholarship to arship to two students School to support initiatives promoting Linda Gadsby (’92), president of BLAPA, at from underrepresented diversity,” said Meyer. “We look forward to the Fall Mentorship Reception. populations who show continuing our dialogue with the NYU At the BLAPA Annual Dinner on April 2, both academic apti- School of Law community on issues of 2004, Bowman announced that the Skadden- tude and need. diversity awareness.” funded scholarship was being offered to Ming In 2004, the Chen (’04). Chen’s public service portfolio is scholarships will be Skadden Arps Supports Scholarship impressive, including her commitments to given in the amount The Black, Latino, Asian Pacific American NYU’s APALSA (Asian Pacific-American of $10,000 each to (BLAPA) Law Alumni Association Public Law Student Association) and civil rights Richard Shutran (’78) two J.D. candidates, Service Scholarship, established in 1994 to litigation work at the Department of Justice, one beginning his or promote the practice of law in the public the Equal Employment Opportunity Com- her first year, the other beginning his or sector by graduates of the NYU School of mission and the NAACP. This fall, she is her second year. Additionally, $5,000 Law, got a contribution from Skadden, Arps, clerking for Judge James Browning on the will be allotted during this period to the Slate, Meagher & Flom LLP’s Diversity United States Court of Appeals for the Law School’s Office of Student Affairs Committee this year. Ninth Circuit in San Francisco. I

110 THE LAW SCHOOL AUTUMN 2004

Kirkland & Ellis, Ten Years of Funding Public Service Projects

s a student at the NYU School of Law, related to workplace justice, economic justice School of Law and Columbia Law School. Oona Chatterjee (’98) says she “was not and democracy, environmental justice, youth Each year, Kirkland & Ellis picks one student A the person in the front row with my power, and gay and lesbian empowerment. from the Law School and one from hand up all the time.” “I was drawn to NYU in part because of Columbia for a year of postgraduate law- She was, however, up to her elbows in the school’s stated commitment to public related public service in New York City. work. When welfare reforms slashed beneﬁts interest work,” she said, adding: “and I “The Kirkland & Ellis Fellowships in the mid-1990s, leaving hundreds of New found many of NYU’s resources to be very reflect our dual commitments to New York York residents ineligible for food stamps, valuable. The Brennan Center Public Policy City and to public service, and arose from Chatterjee became consumed with helping Advocacy Clinic was the foundation of the strong desire of our partners to make a to offset the consequences. this organization.” meaningful contribution to New York City A local pastor offered Chatterjee and fel- In the beginning, says Chatterjee, “we life,” said Patrick Gallagher, a partner at low Law School student Andrew Friedman were working for free and living off our the firm. “The fellowships are intended to (’98) space in the basement of his Bushwick, student loans.” Then in 1998 she won the put law school graduates to work meeting Brooklyn church, and they happily accepted Kirkland & Ellis Fellowship, which entitled serious human needs.” and began holding legal rights workshops for her organization to $40,000 disbursed as Deborah Ellis (’82), assistant dean for the diverse, largely immigrant community. a salary for the duration of the fellowship. public interest law and an adjunct professor Chatterjee made the most of her Law School “Kirkland & Ellis was one of the ﬁrst to of law, sat on the fellowship panel in 1998 connections, working with professors and believe in this organization enough to put and remembers Chatterjee well. “Oona utilizing NYU programs to ground her work. funding into it,” said Chatterjee. “It meant really stood out,” she said. “She is wise Her group, called Make the Road by we could work and actually get paid.” beyond her years in a dramatic way. I was Walking, now has nearly 900 members, 15 The Kirkland & Ellis Fellowship was so impressed by her that I went home and full-time employees, and 12 part-time work- established in 1995, when the firm made wrote out a check to her organization. I’ve ers. The organization is working on projects combined gifts of $1 million to the NYU been contributing ever since.” I

Scholarship Reception

Above: Kelia Cummins (’05), the John D. Grad Scholar, at center, celebrates with fellow scholars at the Scholarship Recipients and Donors Reception. Held in Greenberg Lounge on November 11, 2003, the reception boasted an unprecedented turnout and featured Cummins, who spoke about her experience as the John D. Grad Scholar, and alumnus Kenneth Heitner (’73, LL.M. ’77), who talked about the history of the Alex E. Weinberg Fellowship.

Top right: Norma Z. Paige (’46), an esteemed member of the New York University School of Law Board of Trustees and a great friend and benefactor of the Law School, meets the Paige Scholars. The Paige Scholarship benefits talented law students with financial need and is a part of Mrs. Paige’s tradition of philanthropy at the Law School, which includes the prestigious Paige Annual Survey Prize as well as the Norma Z. Paige Scholarship and the Norma Z. Paige Professorship.

Bottom right: Robert M. Frehse Jr. (right), vice president and executive director of the Hearst Foundation, with a Hearst Foundation Scholar. The Hearst Scholarship supports outstanding under-represented law students with financial need.

THE LAW SCHOOL 111 AUTUMN 2004

STUDENT SPOTLIGHT

After the presentation of the provisional members, Dean Richard Revesz presented NYU alumna Helene Kaplan (’67) with an honorary membership to the Order of the Coif. Revesz described Kaplan as one of the Law School’s “most distinguished alumnae” and a leader of the bar, corporations, and philanthropy, calling the new group of provisional members “Helene Kaplans in training.” After graduating from the Law School, Kaplan worked as a solo practitioner before joining Webster & Shefﬁeld in 1978, where she was a partner until being named of counsel in 1985. Kaplan joined Skadden, Arps, Slate, Meagher & Flom in 1990 and is of counsel for the firm, representing nonprofit organizations and individuals with substantial philanthropic interests. Left to right: Professor Oscar D. Chase, president of the NYU chapter of the Order of the Coif, Dean Richard Revesz, Outside the world of law, Kaplan serves Helene Kaplan, honorary inductee of the NYU chapter of the Coif, and Mrs. Kaplan’s husband, Mark Kaplan. as a director of ExxonMobil Corp., J.P. Morgan Chase & Co., May Department Outstanding Students and an Alumna Stores Co., and MetLife Inc. She is also currently serving a second term as chair of Inducted to the Order of the Coif the board of the Carnegie Corporation of New York and is a trustee and vice-chair of roud family members, teachers, and In his remarks to the families of the the American Museum of Natural History, friends gathered to honor the latest new members of the Order, Vice Dean the Commonwealth Fund, and the J. Paul P provisional members of the Order of Stephen Gillers (’68) called honoring Getty Trust. the Coif, the national honorary society ded- the inductees one of his three favorite Kaplan attributed her many substantial icated to encouraging excellence in legal moments at the Law School each year, achievements to the “incredible support” of education. Based on an honor originally along with orientation and graduation. her husband, Mark Kaplan, a fellow attor- given to the most prestigious of England’s He described the experience as “hearten- ney. She said that her degree from NYU barristers, it counts the top 10 percent of ing,” because, as a father, he could appreci- opened doors she had “never imagined,” each NYU School of Law graduating class ate the pride that the parents of the and that her admission to the Law School among its members. inductees felt for their children. was a “transforming event” in her life. I

NYU Grad Tops Texas Bar Exam Currently practicing at Cox & Smith in San Anto- nio, Ayyar says he feels hen Sanjeev Ayyar (LL.M. ’04) pre- The first lawyer in his immigrant family, lucky to have a career that pared to take the Texas Bar Exam, he the 29-year-old Ayyar is quick to attribute allows him to combine his Whad every right to be confident. After his success to his support network. He also interest in finance with his all, he had already passed the test in California, gives full credit to his wife, Sandhya, a natural people skills. New York, and New Jersey. But instead of tak- tax accountant who passed the CPA exam, “My undergraduate Sanjeev Ayyar (’04) ing it easy, Ayyar, who had just finished the for her understanding when he studied background is finance-ori- LL.M. program at the NYU School of Law, through the night and came home “tired ented,” he said. “I always liked it, and wanted hit the books. and cranky.” to have a career in it.” “Fear is a great motivator,” he said. “Even Ayyar spent his undergraduate years at But his experience in tax law has far sur- though I’ve taken four bar exams, I’ve given Carnegie Mellon University, then graduated passed his expectations. “I had the idea of a 100 percent to each one. It’s an all-or-nothing cum laude from University of California, tax attorney as a guy with green eye shades, kind of test.” Hastings College of the Law with a J.D. in crunching numbers,” he said. “But it’s not His hard work paid off. Ayyar scored 2000. He took his first bar exam in Califor- like that at all. It’s much more fact-specific, higher on the exam than anyone else in Texas. nia before securing a job at Gray Cary Ware and very intellectually demanding.” He was honored with a tour of the state’s & Freidenrich, a Silicon Valley law firm. It’s also a surprisingly social career, based Supreme Court, where he was asked to speak Upon his acceptance to the NYU School of largely on the ability to communicate clearly. at the swearing-in ceremony for new Bar Law in January 2003 for an LL.M. in taxa- “My job is not about numbers, it’s about peo- members. Ayyar’s speech focused on the many tion, he prepared for possible employment ple and their businesses. You’re trying to benefits of practicing law. “We often hear that by taking the New Jersey and New York bar understand them and plan for them, and I find it’s fashionable to be frustrated with the many exams, but never practiced in either state. that fascinating. It’s really about the relation- demands and pressures of being a lawyer and Instead, he focused on his education. ships you have with the client.” trying to maintain life’s balance,” he said. “But “If you want to do an LL.M. in taxa- Despite achieving the highest bar score in as we reflect and gain perspective, we recog- tion, clearly NYU is number one without Texas, Ayyar remains modest, insisting, nize that it is a privilege.” a doubt,” Ayyar said. “I’m just glad I passed.” I

112 THE LAW SCHOOL AUTUMN 2004

Recent Graduate Honored with Justice Jackson Award

ew York University School of Law seems to characterize U.S. foreign policy. graduate Harlan Cohen (’03), was Among other instances, he cites America’s Nawarded the Washington Foreign Law backing for the Nuremberg, Yugoslavia, Society’s Justice Robert H. Jackson Award and Rwanda tribunals with its opposition for his massive 578-page essay, The American to the International Criminal Court, and Challenge to International Law: A Tentative the U.S. refusal to ratify the Comprehen- Framework for Debate. sive Test Ban Treaty, despite its railing The award, named in memory of the against states for developing weapons of preeminent U.S. Supreme Court justice mass destruction. He argues that the con- who was also a member of the Nuremberg trast between American support for the tribunal, is sponsored by law firm Chad- creation of the United Nations, and its bourne & Parke. The $2,500 prize is unilateral advance on Iraq, is only the awarded for the year’s best published most recent example. student article tackling international or Cohen suggests that in light of the his- Justice Robert H. Jackson Award winner, Harlan Cohen (’03) comparative law. tory of American international relations, Cohen’s essay appeared in the Yale U.S. inconsistency points to something stems from a U.S. founding ideology that Journal of International Law, having been more dangerous than mere pragmatism. presupposes itself as the only truly legiti- chosen for publication by the Yale Young “Such divergent actions may actually be mate state in the world. “During more Scholars Symposium. The symposium informed by a coherent, specifically Ameri- isolationist phases, the United States, sus- selects one article for publication each year. can conception of international law.” picious of the dangerous outside world, Cohen addresses the hypocrisy that This is a conception, he explains, that uses international law as a shield to protect its borders and its citizens. When roused to intervention, however, America girds itself in its utopian mission and takes NYU School of Law Students Win More Accolades action on behalf of the world’s ‘oppressed’ people, asserting the illegitimacy of the Manish Kapur (’04) and Aaron Arun Dhir (’04) were selected, respectively, as “emerging states against which it ﬁghts.” Cohen cites scholars” and finalists in the North East People of Color Legal Scholarship Conference President Bush’s recent ultimatum to the Emerging Scholars Competition. Taliban, Clinton’s speech on Kosovo, Wil- Kapur was chosen as one of only two “emerging scholars” for his thesis entitled son’s address to Congress, and McKinley’s “The Use Regulation in Houston Contradicts the City’s Free Market Reputation.” declaration of war against Spain. Dhir was selected as one of four finalists for his paper “A Critical Analysis of the Pro- His insightful essay concludes that ide- posed Disability Rights Convention and the Application of International Human Rights Norms to Persons with Mental Disabilities.” ology inevitably shapes the conception Tye Klooster (’04), an NYU School of Law LL.M. taxation student, won first place in states have of international law, and that the 2004 Mary Moers Wenig Student Writing Competition. The competition, which is in this obstacle must be overcome in order its first year, is run by the American College of Trust and Estate Council and was estab- for international law to be truly global. lished to encourage scholarship in the area of trusts and estates. Cohen suggests that to deal with this chal- Klooster’s paper entitled, “Are There Any Justifications for the Rule Against Perpetu- lenge, “international law needs to be seen ities That Are Still Persuasive? A Survey of the Modern Policy Arguments Cast For and Against Retention of the Rule Against Perpetuities,” was chosen out of 14 submissions less as a body of neutral principles waiting from 13 law schools. The award includes a prize of $5,000 and publication of the win- to be discovered, and more as a dynamic ning submission in the fall edition of the ACTEC Journal. and interactive process of law creation. Erik Bluemel (’04) was awarded second place in the 2004 Roscoe Hogan Environ- International lawyers must take an active mental Law Essay contest. As part of the award his paper entitled, “Evaluating the role in the construction of an international Effectiveness of Conservation Easements in Wetlands Preservation,” appears in the order that builds upon, interacts with, and Vermont Journal of International Law. This year’s recognition also went to recent NYU School of Law alumni David S. can eventually even reshape state ideology.” Koller (’03) and Rachel E. Rosenbloom (’02), for work they did as students at the Cohen said in an interview that “the Law School. goal should be to bring the U.S., and every Koller was awarded the 2004 Human Rights Award by the Washington College of other state for that matter, to the point Law Academy on Human Rights and Humanitarian Law. His prize-winning paper, “Immu- where they follow international law nities of Foreign Ministers: Paragraph 61 of the Yerodia Judgment as It Pertains to the because they feel committed to it, not Security Council and the International Criminal Court,” was originally written for Murry and Ida Becker Professor of Law Thomas M. Franck’s class on constitutional law and the because any institution has forced it United Nations. upon them.” Rosenbloom, an editor of the Law School’s Review of Law and Social Change, “Harlan’s piece is a nuanced intellectual was cited four times in a ruling by the U.S. Court of Appeals for the Ninth Circuit in history of American foreign relations. This Armentero v. INS. Her article, which was extensively relied on in the decision, considered is a mature and impressive piece of work whether the immediate custodian rule should apply in immigration cases. She devel- from a promising scholar,” said Cohen’s oped her interest in the area as a student in the NYU School of Law Immigrant Rights former teacher, constitutional law expert, Clinic. Rosenbloom was a Root-Tilden-Kern Scholar and graduated as a member of the Order of the Coif. Barry Friedman, NYU’s Jacob D. Fuchs- berg Professor of Law. I

AUTUMN 2004 THE LAW SCHOOL 113 STUDENT SPOTLIGHT

The list of lucky winners was long and Going, Going, Gone! their prizes often luxurious. Bart Dzikowski went home with U.S. Open tickets for Public Service Auction succeeds in its bid to $1,000; Christine Kornylak (’02) snagged raise money for students’ summer internships NASCAR tickets for $550; Therese Craparo (’02) won the helicopter ride for $350; the weekend at Professor Richard Stewart’s ﬁve- ant to help fund summer internships tion off. Second, they help out at the actual bedroom farmhouse in the Hudson Valley at nonproﬁt organizations and have event selling tickets, tending bar, or whatever went to Jennifer Weiers (’04) for $500. W some fun at the same time? Attend else needs to be done. The students have a Meanwhile, Rajeev Ananda (’05) got a trip the annual NYU School of Law Public Ser- vested interest in making the auction a great to Jamaica for $3,600, and Anita Weber, a vice Auction, where you can win Super Bowl success and this active participation goes a Law School parent, scored Super Bowl tickets, vacations to Jamaica, helicopter rides, long way to help raise that scholarship money.” tickets for $4,200. The evening ended with and even a weekend at a professor’s an obstacle course race across the stage of country house. the auditorium: Dean Revesz and his wife, The Public Service Auction, held Vicki Been (’83), Elihu Root Professor of every February, raises money to fund Law, went up against a team sponsored by students who take summer intern- the winning bidder, Deborah Ellis (’82), ships at public interest and public ser- assistant dean for public interest law, who vice organizations. This year the Law paid $550 for the chance to beat the dean. School’s Public Interest Law Center Her team’s effort fell short, however: The received more than 470 applications dean and his wife won, and were crowned for summer funding, the largest num- king and queen of the obstacle course to ber since the auction began in 1994. the enthusiastic cheers of the crowd. “The “Each student seeking funding is greatest part of the auction is how it brings required to help out with the auction together students, faculty, and alumni in an in two crucial ways,” said Helena informal atmosphere,” said Mari Bonthuis Wolin (’05), one of the co-chairs of (’05), co-chair of the event. “Everyone is the Public Service Auction Commit- out to have a good time and help raise tee. “First, they literally pound the money for the students; the feeling of com- Assistant Dean for Public Interest Law Deb Ellis (’82), in clown pavement going from business to mode, makes balloon hat for Auction Co-Chair Mari Bonthuis (’05) munity that is fostered on this night is business asking for donations to auc- at the February 26, 2004 Public Service Auction. truly incredible.” I

Krupa Desai: Woman on a Mission with Help from PILC Grant

YU School of Law prides itself on the strengthened last year with Social Security, and disability benefits. I am number of students who choose to pur- the introduction of guaran- currently working on a brief for a client who N sue public service law, both during the teed Public Interest Law has been denied Medicare after serious summers between terms, and after gradua- Center funding for any first- surgery. It’s a great follow-up to our first- tion. Many faculty members and students or second-year public inter- year lawyering course; I can really put what believe strongly in the potential for public est internship. Desai was I learned into practice.” interest advocacy to achieve some of the pro- one of more than 300 Law But it’s a tough decision for young fession’s highest ideals. School students who this Krupa Desai (’06) lawyers to enter the public interest sector. Krupa Desai (’06) is one of them. Those year decided to use a grant. Recent graduates are faced by a financial dou- outside the legal world often assume that top Bet Tzedek is Hebrew for “house of jus- ble disincentive—soaring post-law school law students immediately grab summer slots tice.” The organization, which is funded by a debt combined with the lure of corporate pay with high-end law firms. But Desai, like broad base of state, corporate, and private con- packets. The imbalance of resources between many of her classmates opted to do some- tributors, was founded by volunteers 30 years public and private firms makes itself felt even thing different. She headed west to spend the ago as a law clinic providing pro bono legal before graduation. Second-year interns in summer doing grass-roots advocacy work for services to the most vulnerable members of the corporate law offices can expect to earn Bet-Tzedek, a nonprofit in Los Angeles. local community. Since then, it has grown upward of $2,500 a week; public interest “I see law as a tool to affect social justice. from a one-evening-a-week drop-in center to internships, by contrast, are largely unpaid I wanted to go to law school before I worked one of the country’s foremost providers of (except for the Law School’s funding). for Teach for America, but that experience legal services. There are now more than 30 The Bet Tzedek internship comes after really fueled the fire,” she said. affiliated centers throughout Los Angeles Desai’s first year at the Law School. She is The Law School is well known for its sup- County catering to more than 10,000 people. considering applying for term-time intern- port of public interest advocacy both through One of the advantages that public sector ships to gain as much experience as possible its Public Interest Law Center and through internships have over those in the private in the two years before she graduates. the Root-Tilden-Kern Scholarship Program, sector is the level of responsibility given to in- Although she intends to round out her expe- which funds legal training for prospective pub- terns. “It’s working out really well,” said Desai. rience by spending a summer working for a lic interest lawyers. Support for public interest “It’s very practical. I’m dealing with civil legal private law firm, eventually Desai plans to advocacy at the Law School was further services and issues related to public benefits, return to public practice. I

114 THE LAW SCHOOL AUTUMN 2004

bribe. Two legal issues were in play before And the Winner Is… the moot court: First, can the bribe be charged as a federal crime since the police- Robert Fitzpatrick (’04) triumphs in 18th Annual man is an agent of a state organization that Marden Moot Court Competition receives federal funds? Second, how should the stolen property be valued, by its wholesale or retail price? The answer to that ques- he judges were real, even if those argu- (LL.B. ’62), chief judge, New York State tion could determine the length of a ing in front of them weren’t actually Court of Appeals; the Honorable Pierre N. sentence the officer might receive. The Tlawyers yet. Presiding over this year’s Leval, United States Court of Appeals for answer was hardly clear cut, as Judge Kaye Orison S. Marden Moot Court Competi- the Second Circuit; and the Honorable conveyed when she asked Pelham, “Mr. Pel- tion were the Honorable Judith Smith Kaye Diarmuid F. O’Scannlain, United States ham, honestly, does anyone ever pay full Court of Appeals for the retail price for diamond earrings?” Ninth Circuit. Playing Although Medic, Stark, and Pelham per- the part of lawyers were formed well, each making their points articu- finalists Robert Fitz- lately, it was Fitzpatrick who won over the patrick (’04), Kristina judges. Arguing for the appellant (defen- Medic (’05), Lauren dant), he said the crime could be considered Stark (’05), and Christo- a federal offense only if there were a connec- pher Pelham (’05). tion between the crime and the funds The case was about received from the government. Anything a police officer who else, he insisted, “threatens to expand the stopped a possible drunk federal government’s prosecutorial powers.” driver who was on his The judges awarded him the prize of way to deliver jewelry to Best Oralist. That was quite an honor, con- a retailer. As the officer sidering that Judge O’Scannlain ended the searched the driver’s van, afternoon by remarking, “The quality of he stole some of the jew- performance that we saw here today is well elry. He then let the above the average quality I see on the Robert Fitzpatrick (’04) looking the part. driver go after taking a Ninth Circuit Court of Appeals.” I

The One-Man Think Tank Annual Survey dedicates its 61st volume to prolific Judge Richard A. Posner

he NYU Annual Survey of American Law Judge Posner was honored by Geoffrey dedicated its 61st volume to Judge Miller, the William T. and Stuyvesant P. TRichard A. Posner of the United States Comfort Professor of Law at NYU; Robert Court of Appeals for the Seventh Circuit, A. Ferguson, the George Edward Wood- who is one of the most prolific legal scholars berry Professor in Law, Literature, and of our time. The Law School celebrated the Criticism at Columbia Law School; dedication with a ceremony hosted by the William F. Patry, a partner at Baker Botts, Annual Survey, featuring tributes to Judge LLP, and an expert in intellectual property; Posner and remarks by the honoree. Larry Kramer, the departing Russell D. Founded in 1942, Annual Survey is the Niles Professor of Law at NYU; and Judge Law School’s second-oldest student-edited Pierre N. Leval, United States Court of journal. Its articles analyze emerging legal Appeals for the Second Circuit. trends, interpret significant recent court deci- All those who spoke honored Judge sions and legislation, and explain leading Posner for his commitment to pragmatism legal scholars’ and judges’ perspectives on both in law and in life and his tenacious current legal topics. Each year the journal is drive for excellence. Professor Ferguson dedicated to an individual who has made an emphasized Judge Posner’s ability to step outstanding contribution to American law. across disciplines at will. Noting the The Hon. Richard A. Posner thanks the Annual Judge Posner fits that profile perfectly. judge’s ability to write about subjects as Survey of American Law staffers for honoring him. Once described in The Wall Street Journal as “a diverse as literary theory and emerging one-man think tank,” the judge is the author of technology, he said that Judge Posner is “It is a great honor to have Judge Posner over 30 books, 300 articles and essays, and “not only our most frequently cited here and to dedicate this issue to him,” said more than 2,000 judicial opinions. In his spare scholar, he is our most important one.” Editor-in-Chief Jonathan Slonim (’04). time he is a senior lecturer at the University of Judge Posner thanked both the Annual “Judge Posner has had an incredible influ- Chicago School of Law, where he was also a Survey for its recognition and his friends for ence on both legal practice and analysis, professor before joining the bench. what he called their “overly generous” words. and we owe him a lot.” I

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STUDENT SPOTLIGHT Worrying about Water in a Formal Way Environmental Law Journal Colloquium examines water allocation issues

s pointed out by members of the event’s first panel, the Environmental ALaw Journal Fall Colloquium on “Transboundary Water Allocation in the 21st Century” was held on the 164th anniversary of the completion of New York City’s Croton aqueduct, which created the city’s Upstate Water Supply. On October 14, 1842, the city held a “Croton Water Celebration” with parades and fountain displays marking the date that allowed New York City to grow, beginning the city’s ascent to one of the great cities of the world. The all-day colloquium featured experts on water allocation at the intrastate, interstate, and global levels who discussed the power struggle over this vital resource. The first panel, “Striking a Balance: Salman M.A. Salman, Lead Counsel, Legal Vice Presidency, the World Bank New York City’s Clean Water Needs and Their Effects on Upstream Land Use,” fea- supply, and several members of community Summit of the U.N. General Assembly, is tured authorities on New York’s specific groups concerned with the safety of the within reach. In Salman’s view, this goal can water issues. Currently, New York City watersheds voiced their opinions during the be a rallying point for future progress in the does not need a man-made filtration supply question-and-answer session. global debate on water resources. for the billion gallons of water it uses daily The colloquium’s keynote address— A panel on “Defining the State and because the landscape of the watershed “The Global Debate on Water Resources Federal Roles in Interstate Water Alloca- upstream from the city acts as a natural fil- Management and Sharing: Why Has Con- tion” featured Pamela Bush, commission ter. As the interests of the residents in and sensus Proven Elusive?”—was delivered by secretary and assistant general counsel to around the watershed areas lean toward Salman M.A. Salman, lead counsel for the the Delaware River Basin Commission; expansion and economic development, the legal vice presidency of the World Bank. Joseph Dellapenna, professor of law at Vil- future of the natural filtration abilities of Salman cited global water facts: The popu- lanova University School of Law; Joseph the watershed is in question. If too much of lation of the world has more than tripled Hoffman, executive director of the Inter- this natural area is paved over or replaced from 1.6 billion to over six billion during state Commission on the Potomac River with manicured lawns and golf courses, more the last century; these six billion-plus inhab- Basin; and George Sherk, associate at the and more pollutants will run straight into the itants compete for the same amount of International Water Law Research Institute at the University of Dundee in Scotland and adjunct professor at the University of The goal to reduce by half the number of Denver College of Law. The panelists offered views on current issues in the inter- people without sustainable access to safe state water allocation debate—from the struggle over the use of the Chattahoochee drinking water by 2015 is reachable River in Alabama, Florida, and Georgia, to the relative success of the Delaware River Basin Commission. water supply and New York City could be water; the problem is compounded by The colloquium closed with “New Per- forced to create a filter system, which industrialization, urbanization, hydrological spectives on International Transboundary would cost billions of dollars. Panelists dis- variability, and environmental degradations. Water Allocation” featuring Dellapenna; cussing these issues were Eric Goldstein Salman said that despite the efforts of the Karin Krchnak, senior associate in the Insti- (LL.M. ’80), senior attorney and Urban past 30 years, many aspects of the debate tutions and Governance Program and the Program Director of the Natural Resources (particularly dams, the private sector’s role director of the Access Initiative and the Part- Defense Council; Michael Principe, deputy in the international trade of water, human nership for Principle 10 of the World commissioner and director of the Bureau rights to water, and the issue of cooperation Resources Institute; and Claudia Sadoff, of Water Supply, New York City Depart- on international waters) have reached lead economist of the World Bank Water ment of Environmental Protection; Daniel nowhere near a consensus. He ended, Resources Management Group. The panel Ruzow, managing partner at Whiteman though, on the optimistic note that while concentrated on the need for cooperation Osterman & Hanna; and Christopher middle ground has been difficult to reach, among nations that share clean water Wilde (’99), watershed attorney for River- it’s not impossible. He said that the goal to sources and new scholarship to suggest dif- keeper. They also discussed the history reduce by half the number of people with- ferent paradigms for transboundary water and possible future of the three watershed out sustainable access to safe drinking water management that focuses on the overall areas that provide New York City’s water by 2015, which was set at the Millennium water needs of the interested parties. I

116 THE LAW SCHOOL AUTUMN 2004 Two New Student Journals to Publish

ew York University School of Law will have two new journals this year—the N Journal of Law and Liberty and the Journal of Law and Business. Whether by design or accident, the new publications represent neatly contrasting approaches; one sets out to explore the ideological underpinnings of jurisprudence, the other is steeped in the nitty-gritty of business

and finance. Herbert Rubin (’42), fifth from the left, at the Rubin Symposium with panelists and members of the Executive The Journal of Law and Liberty will tackle Board of the Journal of International Law and Politics. the tensions between state control and civic freedom. The journal, whose first edition comes out this fall, will focus on the analysis The Consequences of Force of law from a classical liberal perspective. Editor-in-Chief Robert Sarvis (’o5), the he international repercussions of the use of Simon Chesterman, the executive director of former co-president of the Federalist Society, force in Kosovo and Iraq was the topic of the Law School’s Institute for International a group that advocates a Tthe eighth annual Herbert Rubin (’42) and Law and Justice, noted that NATO’s unilateral conservative and libertar- Judge Rose Luttan Rubin (’42) International experience in the Balkans taught the U.S. that ian interpretation of the Law Symposium, sponsored by the Journal of it is unnecessary—and inconvenient—to seek law, intends to create a International Law and Politics. U.N. approval for military intervention. forum for debate among The first of three panels, “The Intervention Did the U.S. have a legal right to intervene a broad readership. “We by NATO in Kosovo: A Regional, Humanitar- in Iraq because it believed Iraq possessed have a focus on ideol- ian Intervention,” was moderated by Andreas weapons of mass destruction? That was the ogy,” he said, “but we Lowenfeld, the Herbert and Rose Rubin Pro- question debated in “The Coalition of the Robert Sarvis (’05) don’t have a bias toward fessor of International Law at the NYU School Willing: a (Mostly) Unilateral Exercise of Pre- it. We want to allow stu- of Law. Panelist Lori Fisler Damrosch, the ventative Self-Defense,” moderated by NYU dents to explore an approach to law that is Henry L. Moses Professor of Law and Interna- School of Law Professor David Golove. lacking at NYU. I think NYU needs it.” tional Organization at Columbia Law School, Miriam Sapiro (’86), the president of Summit The Journal of Law and Business has a more contended that the United Nations became Strategies International and a veteran interna- pragmatic agenda. Editor-in-Chief David involved in Kosovo and Iraq in similar ways. tional policy specialist, argued that the United Chubak (’o5) wants to give students the chance In Kosovo, an initial violation of fundamental States had no legal right to intervene in Iraq, to explore private and corporate legal practice. international norms was followed by a string insisting that a significant military intervention As he told The Commentator, the Law School’s of U.N. resolutions that were quickly violated, would require more than an implied military student newspaper, in followed by the threat of further consequences threat. Walter Slocombe, a senior adviser to April, “Most students at by the U.N. and continuing violations by the Coalition Provisional Authority in Iraq and NYU School of Law will Kosovar leaders. Finally, the world commu- former undersecretary of defense for policy work in a corporate set- nity, or “collective will” as Damrosch termed under President Clinton, took the opposing ting at some point in it, failed to explicitly authorize military force. view, arguing that the dangerous threat of their careers, yet there NATO then took unilateral action, an inter- weapons of mass destruction required early aren’t many avenues open vention that the Independent International intervention. Ruth Wedgwood, Edward B. to discussing law and Commission on Kosovo, which examined the Burling Professor of International Law and business or practicing David Chubak (’05) Kosovo crisis including the U.N.’s role and Diplomacy at Johns Hopkins University, corporate law.” NATO’s decision to intervene, famously called spoke more generally about the problem of Chubak has high aspirations for the jour- “illegal but legitimate.” Richard Goldstone, self-defense, citing President Kennedy’s pre- nal; he cites his model as the American Bar global visiting professor at the NYU School of emptive show of force without a Security Association’s 60,000-circulation Business Law and chair of the commission, said Council resolution to prevent the Soviet Lawyer. He aims to work closely with the busi- NATO’s move created complex long-term Union from delivering missiles to Cuba. ness community and will commission articles challenges. He described the difficulties of “God gives you an ability to act against an not only from law professors, but also from restructuring a country with distinct and hos- attack, an intention, or a capacity,” she said. working lawyers and corporate councils. tile ethnic groups. “If you can’t make a shield, you have to do Despite their different approaches, both The second panel, “The Future of the U.N. one of these things.” journals are trying to do something fresh. in the Regulation of the Use of Force,” drew Following the symposium, panelists and According to Chubak, the Journal of Law and comparisons between unilateralism to resolve organizers had dinner with special guests Business will be the country’s only student-run the hostilities in Kosovo and the 2002-03 crisis including Judge Robert Katzmann of the U.S. journal that targets professionals in its field, at the U.N. over Iraq. “The carefully crafted Court of Appeals for the Second Circuit, rather than academics and students, as its sub- postwar multilateral diplomacy embodied in Vsevolod Grigore, Moldovan ambassador scribers and contributors. The Journal of Law the U.N. is being trashed,” argued Thomas to the U.N., and Judge David Trager of the and Liberty, for its part, aims to fill a neglected Franck, Murry and Ida Becker Professor of U.S. District Court for the Eastern District space within the legal discourse. I Law Emeritus at the NYU School of Law. of New York. I

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STUDENT SPOTLIGHT The Bottom Line: Profit v. People Corporate accountability and human rights

he NYU Law Students for Human Rights, nies feel obligated to abide by.” Jennifer M. one of the campus’s newest associations, Green, from the Center for Constitutional Theld its first symposium this spring on Rights, followed with an examination of recent the issue of corporate accountability and U.S. litigation in corporate accountability for human rights. actions overseas under the Alien Tort Claims Burt Neuborne, the John Norton Pomeroy Act. Finally, Terry Collingsworth from the Professor of Law at the Law School, delivered International Labor Rights Fund described his the opening address; three panels followed. experiences litigating to protect international The first discussion was “Theoretical Perspec- labor rights in U.S. courts and obstacles that tives on Corporate Accountability.” Professor continue to thwart corporate accountability. Philip Alston began by stating: “What we’ve Alice Tepper-Marlin, president of Social Tal Becker of the Israeli mission to the United Nations got is a strong disconnect between the theory Accountability International and an adjunct and the practice.” He attributed this problem professor at NYU’s Stern School of Business, Mid-East Dilemmas to the fact that international law binds states, spoke in the final panel, “The Formulation not corporations. Professor Peter Spiro of and Implementation of Corporate Codes of hould an ambulance be stopped at a road- Hofstra University School of Law warned Conduct.” She discussed her organization, block and searched for bombs? Would that “if corporations are not accountable to which works with “key stakeholders” in order Syour answer change if you knew that a sui- international law, then they are not account- to formulate, implement, and ensure compli- cide bomber with explosives strapped to his able at all.” Professor Catherine Kessedjian, ance with voluntary standards of conduct. body was inside? Such issues were addressed at from the University of Paris II and a member Scott Greathead, CEO of World Monitors the Conference on International Law and the of the Law School’s global faculty, rounded Incorporated, commented on the unique dif- Middle East Conflict held this spring at the out the panel, suggesting that “we can fight ficulties that oil and mining corporations Law School. The conference was co-hosted by for human rights from the private point of face, as well as the current sad state of corpo- the NYU Jewish Law Students Association, in view…through private and commercial law rate codes of conduct in manufacturing. Rae conjunction with the Anti-Defamation League and through nonlegal norms.” Lindsay, a partner at Clifford Chance, LLP, and the NYU Bronfman Center for Jewish The second panel, “Corporate Accountabil- took on the difficulties faced by corporations Student Life. ity for International Labor Conditions,” was doing business overseas as they make efforts Tal Becker, legal adviser to the Israeli mis- led by Human Rights First Executive Director to comply with human rights laws even as sion to the United Nations, gave the keynote Michael Posner. Posner examined the global attempts are increasingly made to hold them address. A veteran of the Israeli army, Becker is state of corporate accountability, urging the accountable for human rights violations per- an expert in international law and has repre- importance of “public pressure and public crit- petrated by third parties. Her conclusion: sented Israel in peace negotiations with the icism…that comes with reporting and litiga- Changes must be made on the international Palestinian Authority and at the International tion in the courts.” He also suggested creating scale to better guide corporations in this Court of Justice. He defended Israel’s practice “private enforcement initiative[s] that compa- noble—and essential—pursuit. I of targeted assassination as a legitimate method of self-defense, noting that the Euro- pean Union was wrong to simultaneously recognize Israel’s right to self-defense yet deny it the means to pursue that right. Too many governments fail to recognize that Israel is engaged not in a criminal investigation of Hamas, but an open armed conflict. In armed conflicts, he said, the laws of war apply. The conference also included a panel discussion with several scholars and practitioners in the areas of human rights and the Middle East conflict. The panelists included Jonathan D. Tepperman, a senior editor at Foreign Affairs; Ruti G. Teitel, Ernst C. Stiefel Profes- sor of Comparative Law at New York Law School; and Roy Schöndorf, a Law School J.S.D. candidate. Ruth Wedgwood, the Edward B. Burling Professor of International Law and Diplomacy at Johns Hopkins University, discussed the legal context of the case over the Israeli security barrier at the International Court of Jus- tice. Other breakout sessions covered topics such as Palestinian refugees, human rights, Michael Posner, executive director of Human Rights First, Jennifer Green, staff attorney at the Center for Israeli settlements, and the international legal Constitutional Rights, Terry Collingsworth, executive director of the International Labor Rights Fund, and Kathy Zeisel (’05), chairperson of Law Students for Human Rights. response to global terrorism. I

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He cited Soko Bukai v. YWCA as an exam- The Legacy of Korematsu ple of the kind of work that inspires him. The case centered on the true ownership of a com- Why we need “rebellious” lawyers munity building bought by the San Francisco YWCA in 1920 for a Japanese group then ixty years after the U.S. Supreme Court José Padilla, Yaser Hamdi, and Guantanamo barred by state alien land laws from owning affirmed government internment of Bay cases, debating the military detainees’ sta- land. Three lawyers, Karen Kai, Don SJapanese-Americans during World War II tus and due process rights. Tamaki, and Robert Rusky, argued for Soko in K orematsu v. United States—and 21 years The highlight of the symposium, how- Bukai, a consortium of three Japanese after it overturned that decision—courts are ever, was the third annual Korematsu Lec- Christian churches. They achieved their facing wartime civil liberties issues again. This ture, given by Bill Ong Hing, professor of goal not just by representing their clients, time those under scrutiny aren’t Japanese, but law and Asian American but also by motivating and mobilizing the Arab and Southeast Asian citizens and nonciti- studies at the University community to support their cause. In zens. The Asian Pacific American Law Stu- of California, Davis. the end, a settlement was reached and dents Association’s spring symposium, “From Hing was introduced by Soko Bukai was allowed to complete the Korematsu to Guantanamo Bay: Judicial and NYU School of Law’s purchase of the building at well below Presidential Authority in Times of Military Professor Gerald López market cost. Conflict” examined these political and ethical as “the best immigration The three lawyers were also part of a questions, focusing on post-September 11 lawyer in the U.S.” and team that argued successfully to overturn Bill Ong Hing immigration policies and the legality of indefi- one who practices what Korematsu v. United States in 1983. The nite military detentions. López calls “rebellious lawyering.” Rebellious Korematsu Lecture series began in 2000. In the first panel, Muzaffar Chishti, a lawyers, Hing went on to explain, work with, In order for the series to receive permanent senior policy analyst at the NYU School of not just on behalf of, their clients. They hone funding, however, the APALSA must Law’s Migration Policy Institute, and Jan their listening skills and powers of observa- raise $50,000 by next year; please contact Ting, a former INS official and Temple Uni- tion, showing respect for clients with little Susan S. Shin (’06), an APALSA chair, at versity Law School professor, argued about formal education and income. Hing, who [email protected] if you would like to support whether tougher enforcement of immigra- founded the Immigrant Legal Resource Cen- the Korematsu series. “So far, we have gar- tion laws would reduce terrorism or simply ter in San Francisco in 1980 and served on the nered $17,000,” said Jeanette M. Park (’05), create more racism. In the second panel, Law U.S. Department of Justice Citizens’ Advi- who organized this year’s lecture, “It’s really School professors Michael Wishnie and sory Panel, called for public interest lawyers important for us to try and get pledges from Stephen Schulhofer and David Rivkin, a to learn from clients about what it is like to current students so that they’ll continue to partner at Baker & Hostetler, analyzed the be at the margins and the bottom of society. contribute once they start working.” I

Challenges Remain 50 Years After Brown The Catch-22 of achieving in a white world can also leave black professionals ifty years after Brown v. Board of Education, Despite all these common experiences, feeling empty inside, concluded NYU economists, professors, and sociologists when graduates looked at their lives today, School of Law Professor Derrick Bell. Fgathered to discuss “The Black Middle they found themselves still living in segre- “They learn the hard way that success does Class: Barriers to, and the Consequences of, gated worlds. not shield them from the myriad forms of African-American Class Mobility,” a sympo- Professor Rachel Godsil of Seton Hall racial subordination,” he said. “Too often sium sponsored last winter by BALSA, the Law School and professor and sociologist their achievements as individuals come at Black Allied Law Students Association. NYU Karyn Lacy of Emory University were on a price, and sometimes a price not worth School of Law Professor Deborah Malamud the second panel, “The Landscape of Chal- paying. As they climb the ladder of success, delivered the opening remarks, saying the lenges Facing Middle-Class African-Ameri- they leave their values on the rungs, and recent decisions in the afﬁrmative action cans.” They discussed the difficult balancing arrive well-heeled and moderately re- cases Gratz and Grutter provided the impe- act of suburban, middle-class African-Amer- spected by nearly everyone—but them- tus for the symposium. There are two issues icans trying to assimilate into a white world selves. The only antidote is to recognize to examine, she said. How do we increase while maintaining black social ties and cul- it and try to do as much good through the size of the black middle class, and how ture. Sandra Smith, who was at NYU at the our positions as we can.” I do we get the growing black middle class time and is now a sociology professor at the to fill the gaps that make them need affir- University of Cali- mative action? fornia at Berkeley, In the ﬁrst panel, entitled “The Growth elaborated on how of, and Ongoing Challenges Facing, the these same tensions Black Middle Class in the 50 Years Since affect middle-class Brown,” sociologist Amy Stuart Wells of black college stu- Columbia University shared her research dents: “Students feel into integrated schools, concluding that a struggle within as graduates were “grateful for having attended they try to maintain these diverse schools.” She said white gradu- strong racial com- ates talked a lot about increased comfort and mitments while decreased fears, while minority graduates enjoying the experi- Professors Derrick Bell of New York University School of Law and Amy Stuart Wells, talked about learning survival skills in a ences afforded by mix- a sociologist at Columbia University Teacher’s College. white world. But it wasn’t all good news. ing in the university.”

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STUDENT SPOTLIGHT

Internet v. Intellectual Property Rights

s a law student almost 50 years ago, Pauline Newman (’58) used to take Atea in Greenberg Lounge. This spring, Newman—now Judge Newman of the United States Court of Appeals for the Fed- eral Circuit—returned there to talk about intellectual property and the legal future of the Internet. “Intellectual property takes the legal form of patents, trademarks, copyrights, trade secrets, and proprietary business information,” she said in a speech sponsored by the Intellec- tual Property and Entertainment Law Society. “These laws are being prodded and stretched by the nature and capabilities of cyberspace.” The judge, who earned a Ph.D. in chemistry before attending the Law School, sympa- Left to right: Professor Holly Maguigan, Professor of Clinical Law at NYU School of Law; Mark Eckenwiler thized with those who believed that the very of the Department of Justice; Professor Ric Simmons of Moritz College of Law, Ohio State University. unruliness of the early Internet had accelerated science and creative art. But, she added, “The Justice in a High-Tech World sweet freedom of the early days of the Inter- net will never return.” While she expressed Technology advances play a bigger role dismay at “intrusions of government into science,” Newman, a former director of in today’s courtrooms and cases patents and licensing at FMC Corporation in Philadelphia, reminded the audience that hat role should technological Scheck examined solutions, including the with tools as powerful as the Internet, legal advancements such as DNA and use of “John Doe warrants,” to avoid oversight “is inevitable.” Wfingerprint testing play in the court- statutes of limitation for cases involving “Each new technologic capability of the room? What is the relationship between biological evidence and “forensic audits,” Internet raises new possibilities of fraud, or the Fourth Amendment and new technol- using the services of independent groups sharp practice, or exploitation, or conflict,” ogy? These and other issues were the topics to examine forensic practices. the judge said. “Old laws are being tested; of a symposium examining “The Power Meanwhile, “Technology-Enhanced new laws are being enacted.” and Pitfalls of Technol- Surveillance: While Internet communication raises ogy: Evidence Law and Orwellian Intrusion new questions for the courts, especially of the Modern Court- or Legitimate Inves- venue and extraterritorial police power, they room,” presented by tigation?” examined and legislatures are right to build upon pre- the Annual Survey of the relationship Internet wisdom in reaching a new balance, American Law. between new tech- she said. Judge Newman suggested that it “Technology and nology and Fourth was far better to be cautious, and let social Truth: Using Technol- Amendment protec- change outpace legal change, than to overre- ogy to Establish Jus- tions and “2050: A act. “The great strength of the law,” she said, tice,” addressed Courtroom Odyssey” “is that it lives in the past.” questions relating to assessed the role of But lawyers must live in the present—and DNA testing and how technology in the find new ways to cope with the legal ramifica- it changes traditional courtroom. While tions of new technology. And those who do, courtroom procedure. excited about the the judge noted, are sure to have an “interest- Barry Scheck, professor evolving science, ing and promising future.” I of law and director of panelist Gordon clinical legal education Bermant, a psycholo- at the Benjamin N. gist and lawyer, Cardozo School of warned there was a Law at Yeshiva Univer- danger in relying too sity and co-founder of heavily on these new the Innocence Project, processes. “To the called for the expan- extent that technol- sion of the use of technology as new proof ogy fades into the background and allows us of innocence. Scheck proposed that “this to focus on what brought us here—it’s a doctrine should not be limited to DNA good thing,” he said. “But to the extent testing” and “should include instances that it focuses attention on itself and is pro- “The sweet freedom of the early days of the Internet where the individual has pled guilty.” moted as the endgame, it’s a bad thing.” I will never return,” says Judge Pauline Newman (’58).

120 THE LAW SCHOOL AUTUMN 2004 Law Students Letting Off Steam Fall Ball

Spring Fling

AUTUMN 2004 THE LAW SCHOOL 121

Around the Law School

Telling Talks, Engaging Lectures, and Provocative Programs

Rita Hauser Awarded the Prestigious Vanderbilt Medal

istinguished faculty, trustees, guests, Martin Lipton (’55), and Judge Judith Kaye cializing in interna- administrators, and current and for- (’62). Last year, the award went to Judge tional legal matters mer Hauser Scholars convened to Rose Luttan Rubin (’42). at the New York law honor Rita Hauser (’59) with the “Rita is a wonderful woman who has ﬁrm Strook & Strook Arthur T. Vanderbilt Medal, the done a lot for the Law School,” said Uni- & Lavan, where she Dhighest honor that NYU School of versity Trustee Herbert Paul (LL.M. ’61). practiced as a senior Law awards its alumni. “She’s very deserving.” partner and is now In past years, the award has gone to Hauser has focused much of her career of counsel. In 2001, such notable figures as Judge Edward on public service, serving as a human rights Hauser was appointed Weinfeld (’21), Senator Jacob Javits (’26), ambassador to the United Nations and spe- by President Bush to Rita Hauser (’59)

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the Intelligence Oversight Board, a standing the traditional study of the formal, interna- tasks,” Wierda said. “It also gave me immea- committee of the president’s Foreign Intelli- tional system of laws to include global issues surable personal benefits and close friend- gence Advisory Board. such as climate change, Internet issues, terror- ships. I want to thank you personally.” Interested in world peace, security, and ism, humanitarian intervention, and Holo- Revesz then listed a number of Hauser’s human rights, Hauser also presides over the caust reparations—an effort that has helped philanthropic accomplishments, focusing philanthropic Hauser Foundation. She also to make NYU the world leader in interna- on the events surrounding the creation of has served on commissions affiliated with tional legal education. the Hauser Program. “I think that when the U.S. Department of State, the Brookings “Rita doesn’t hold a showy office, the history of 20th century legal education Institution, and the International Center but she’s a woman of enormous influence is written, it will say that one of the most for Peace in the Middle East. Her efforts nationally and internationally,” said attendee important things that happened is the for peace in the Middle East earned her the David Malone, president of the Interna- Hauser Global Law School Program.” “I dodged this award for a couple of years, but they finally wrestled me to the “Rita doesn’t hold a showy office, but she’s ground,” said Hauser. “Gus and I got together with John Sexton 10 years ago a woman of enormous influence nationally and decided it was time to take a great law school and make it a part of the global and internationally. She’s in huge demand environment.” Hauser spoke glowingly of the success worldwide.” —DAVID MALONE of the students who have been selected for the Hauser program. “All of them give me the greatest sense of pride and joy.” I Shimon Peres Peace Award from Americans tional Peace Academy, a nonprofit research for Peace Now. She is a director of many institute for international security issues organizations, including the International located in New York City, of which Hauser Institute for Strategic Studies in London, is the chair of the board. “She’s in huge Humanitarian the RAND Corporation, and the Lincoln demand worldwide.” Center for the Performing Arts. The Hauser Scholars, a group of the 11 Intervention But she is best known at the Law School most impressive students with law degrees as the co-namesake of the Hauser Global from around the world, complete a competi- Ashdown on justice Law School Program, with her husband tive application process in order to be selected Gustave Hauser (LL.M. ’57), chairman and to receive full scholarships to attend the Law hen should the international com- CEO of Hauser Communications. The Hauser School. Dean Richard Revesz introduced munity intervene in places where program, established in 1994, is the center- the attendees to one such scholar, Marieke W human rights are being violated? piece of the Law School’s international Wierda (LL.M. ’97), now a senior associate And once wrongs have begun to be righted, enterprise, attracting the finest international at the International Center for Transitional when should forces withdraw? These were law scholars, promoting scholarship on com- Justice, a nongovernmental organization some of the difficult issues addressed by parative and global law, and planning events based in New York, who took the podium Lord Paddy Ashdown, High Representative through the Law School’s centers and insti- to thank Hauser. for Bosnia and Herzegovina, last spring in tutes as well as with academic institutions “Your scholarship gave me opportuni- the eighth Hauser Lecture on International worldwide. In an increasingly interdepen- ties that I otherwise never would have had, Humanitarian Law, sponsored by NYU’s dent world, the Program ventures beyond concrete opportunities to pursue rewarding Hauser Global Law School Program and the International Committee of the Red Cross. The series honors Gustave Hauser (LL.M. ’57), a renowned lawyer and innova- tor in the cable television industry, and Rita Hauser (’59), a highly regarded public service lawyer, president of the philanthropic Hauser Foundation, and chair of the Inter- national Peace Academy. In his speech, entitled “International Humanitarian Law, Justice, and Reconcilia- tion in a Changing World,” Lord Ashdown argued that humanitarian law offers a legal basis for intervening in states that commit gross violations of international law or fundamental human rights. It also provides practical means of quelling intrastate conflicts that devastate the lives of ordinary people—a point that the late Judge Richard May, who presided in the trial of Slobodan Milosevic for the U.N. International Crimi- nal Tribunal for the former Yugoslavia (ICTY), made in last year’s Hauser Lecture. Esteemed lawyer and philanthropist Rita Hauser (’59), in front row, second from left, with husband Gustave (LL.M. ’57), the dean, and a group of Hauser Scholars. She received the Arthur T. Vanderbilt Award. Lord Ashdown rejected the traditional argu-

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ment that since the international community cannot intervene everywhere it should not The Brennan Lecture intervene anywhere. He also dismissed the notion that humanitarian intervention is Marshall says to look abroad for precedents nothing but soft-headed altruism. “We cannot afford to ignore failed states,” he said. hief Justice Margaret Marshall of the Children: Interpreting State Constitutions in “What lies in them can pose a threat to our Supreme Judicial Court of Massachusetts the Age of Global Jurisprudence,” urged the own well-being.” C drew a huge crowd this winter when she U.S. courts to consider decisions from appro- delivered the 10th annual Justice William J. priate foreign courts when dealing with situa- Brennan Jr. Lecture on State Courts and tions uncommon to American jurisprudence. Social Justice. Sponsored by the Institute of Marshall observed that in Lawrence v. Texas, a Judicial Administration and the Brennan Cen- case about a gay man’s right to have sex in ter for Justice, the series honors Brennan’s the privacy of his own home, the Supreme abiding vision of the responsibility of state Court cited a case decided by the European courts to protect constitutional rights with Court of Human Rights that held that “the lectures that focus on and highlight the role of protected right of homosexual adults to the state judiciary. engage in intimate, consensual conduct” is A week before her speech, Marshall “an integral part of human freedom.” presided over a controversial decision about She explained that American courts may gay marriage. Her court declared the Mas- find persuasive authority in the reasoning sachusetts legislature’s civil unions bill and conclusions of the high courts of con- unconstitutional on the basis that it did stitutional democracies where written guar- not allow for gay marriage. Though Mar- antees of individual rights are protected by shall, the first woman to serve as chief an independent judiciary. Justice Marshall justice on the Supreme Judicial Court of presented three contexts in which state Massachusetts in its more than 300-year his- courts might beneﬁt from consideration of tory, did not directly comment on her deci- analogous decisions from abroad: personal sion, the issue did seem to be reflected in autonomy, regulation of hate speech, and how she deﬁned judicial independence. She physical detention. “The question today is called it “a system of government in which not whether state court judges should con- judges have the power to say no: no to leg- sider the work of foreign constitutional islators, no to governors, no even to presi- courts when we interpret our state’s consti- dents when the needs of the political moment tution. The question is whether we can Lord Paddy Ashdown says ignoring failed states poses threats to everyone’s well-being. clash with constitutional guarantees.” afford not to,” said Marshall. “Our constitu- Chief Justice Marshall’s speech, “Wise tional offspring have much to tell us. We The session was a testament to the Law Parents Do Not Hesitate to Learn from Their would be wise to listen.” I School’s international ties and deep connection to the efforts made to solve the problems in the former Yugoslavia. Professor Theodor Meron, Charles L. Denison Pro- fessor of Law who is on leave from the Law School because he is currently serving as the ICTY’s president, introduced Lord Ash- down, and once he had dispensed with his formal duties, went on to contribute to a rich exchange following the lecture. During the question and answer session, relevant issues were raised by other eminent members of both the international human rights community and the Law School faculty who were in the audience such as Richard Goldstone, who was a chief prosecutor at the criminal tribunals for the former Yugoslavia and Rwanda and a former justice of South Africa’s Constitutional Court. Goldstone has longstanding ties to the NYU School of Law—having spent time teaching as a distinguished global fellow and as a global visiting professor of law. Antonio Cassese, another colleague who was in attendance at the Ashdown talk, also served as president of the ICTY and has been a distinguished global fellow too. The intensity of the discussion was palpa- Chief Justice Margaret Marshall argues that federal judges need to say “no to legislators, no to governors, no ble, reported the students who attended. I even to presidents when the needs of the political moment clash with constitutional guarantees.”

124 THE LAW SCHOOL AUTUMN 2004 A Journey from Struggle to Influence Building the Inter-American Court of Human Rights

t wasn’t easy to establish the Inter-Ameri- were initially held was far from formal—the mid-80s, when it considered hundreds can Court of Human Rights. In fact, the first meetings were in the bathhouse of the of cases involving Hondurans who were I court, now considered one of the preemi- Costa Rican Bar Association. The deliberat- allegedly murdered by government death nent human-rights institutions in the Ameri- ing judges could hear children playing in the squads. (The court ruled against the govern- cas, was sidelined for the first seven years of its outside pool. ment of Honduras.) Beginning in 2001, the existence, hearing few cases. Inter-American Commission “The IACHR was estab- on Human Rights was required lished [in 1979] in the mid- to send all cases to the court, dle of massive human-rights thereby increasing its influence. violations… the Cold War Last year, for example, the court allowed military dictators set a financial precedent with its and civilian regimes to decision against Guatemala in engage in torture and other the death-squad murder case massive abuses,” Judge of anthropologist Myrna Mack Thomas Buergenthal (’60), Chang, ordering Guatemala to one of the court’s founders pay the Mack family more than and its former president, $600,000 for damages, and told his listeners in a spring pain and suffering. lecture sponsored by the Though Judge Buergenthal Institute for International left the IACHR in 1991, he Law and Justice and the continues to fight for human Center for Human Rights rights on a global scale. He and Global Justice. Regimes is now serving as one of 15 in Central and South Amer- judges of the International ica were openly hostile to Court of Justice, the principal or dismissive of the court’s judicial body of the United role and purpose, he said. Nations. Among his colleagues Judge Buergenthal on the bench are three with Judge Thomas Buergenthal (’60), a founder of the IACHR, describes the first meetings of described the intense strug- the court, which were held in a Costa Rican Bar Association bathhouse. NYU ties: Judge Gonzalo gle to establish the IACHR. Parra Aranguren (M.C.J. ’52), The judge, an American who was nomi- Over the next two decades, the court Judge Nabil Elaraby (LL.M. ’69), and nated to the court by Costa Rica, said Costa slowly built legal and moral legitimacy and Judge Hisashi Owada, who from 1995 to Rica’s early and vigorous support was the the Inter-American Commission on Human 1999 was the Inge Rennert Distinguished only lifeline the court had. Judge Buergen- Rights began to recommend more cases be Visiting Professor of International Law at thal recalled that the venue where sessions heard by it. The court raised its profile in the the Hauser Global Law School Program. I

Global Public Service Law Project create lasting professional relationships among public service lawyers in developing nations. Conducts Regional Institute in Budapest To make the institute model a success, faculty and staff designed a curriculum to uly 2004 marked a breakthrough for the The Regional Institutes Program has built introduce the participants to a range of pub- NYU School of Law’s Global Public Ser- upon the experience and resources gathered lic interest strategies and to stimulate a con- J vice Law Project. After years of bringing over the past six years of the Global Public versation about how best to pursue social activist and government lawyers from the Service Scholars program. Since 1999, as justice through law. The Program also developing and transitional world to New many as 59 activist and government lawyers included field visits to leading public interest York City, the project’s faculty and staff trav- from the “global South,” or developing organizations in Budapest, such as the Euro- eled to Central Europe to take the program nations, have come to the Law School to pean Roma Rights Center and the Interna- directly to lawyers in the field. complete the LL.M. in Public Service Law tional Center for Not-for-Profit Law. The project offered its first Regional Insti- and to engage in a yearlong conversation The Budapest Institute’s seven-person fac- tute in Budapest, Hungary, in conjunction about legal strategies for social change that ulty consisted of practicing lawyers and legal with Central European University last July. succeed in different national settings. academics from five countries: the United Twenty-one lawyers from countries as diverse The potential impact of the Regional Insti- States, Slovakia, Hungary, Romania, and the as China, Azerbaijan, Ethiopia, India, and tutes Program is high. By going beyond the Philippines. Particularly exciting was the Russia participated in the three-week pro- walls of NYU, the Institutes will reach lawyers teaching role played by Arnold De Vera, a gram, which dealt with the emerging global in developing countries who are hungry to be 2002 alumnus of the LL.M. in Public Service phenomenon of public interest law, with a part of a conversation among global activists, Law who litigates and organizes on behalf of special focus on the forms it has taken in but are not able to spend a year at the Law Filipino laborers at SALIGAN, a prominent Central and Eastern Europe. School. Project faculty hope the Institutes will public interest organization in Manila.

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According to Professor Frank Upham, now the Wilf Family Professor of Property Law and the co-director of the Global Public Ser- vice Law Project, “Arnold’s involvement was one of the best things about the Budapest program. We hope that future Institutes will not only allow us to reach more lawyers in the South, but also to integrate our alumni fully into our work at NYU and in the ﬁeld.” The curriculum and teaching staff are not the only ways in which the Regional Institute broke new ground. It also utilized a new funding model, bringing together support from governmental, nongovernmental, and academic donors: the Open Society Institute supported three participants from Palestine; the Ford Foundation and the U.S. Department of State supported five Chinese participants; and the Global Public Service Law Project and Central European University jointly supported the general program. The Institute also represents a strengthening of NYU’s ongoing relationship with CEU, which is home to global law faculty members András Sajó and János Kis. The Project hopes to conduct regional institutes in different loca- tions over the next two to three years. Cities currently under con- Clockwise from top: Global Public Institute student Sathya Narayan, Joint Director of the Institute of Advanced Legal sideration include Beirut, Manila, Studies at ILS Law College, University of Pune, India, with Mehari Taddele Maru from Ethiopia; Ibrahim A.B. Abu Sham- malah from Palestine; Arnold De Vera (LL.M. '02) from the Philippines, teaching as part of the Law School's Global Beijing, and Bangalore. I Public Service Institute.

to offend the county’s governing elite by One Barefoot Lawyer’s Quest questioning the application of laws. These problems make the amateur lawyer’s for Legal Justice in China job far more difficult. Having taken only one law course during his college-level training for hen Guangcheng was not a likely hero. occasionally won cases for disabled villagers in the blind in massage therapy, Chen neverthe- Living in a small village in the Chinese the lower court of his country. less sought out books and other materials to C countryside, the 31-year-old blind man Cohen, an expert on Chinese law, was educate himself in law. The majority of his earned his livelihood as a massage therapist introduced to Chen in New York through a work is dedicated to fighting discrimination in only to learn that he was being unfairly taxed U.S. State Department program. They next the collection of taxes against the disabled and by his local government. Despite such barri- saw each other in Beijing where Cohen seeking to ensure that legislation adopted by ers as an intractable government and a nearly accepted an invitation to visit Chen’s rural the central government is applied properly at inaccessible county seat, Chen did what few Shandong Province and experience first-hand the grassroots level. others dared: He taught himself the law, took the social, economic, and political context in on the local government, and crusaded for the which this self-taught attorney operated. rights of Chinese citizens with disabilities. Last October while teaching in China, In a recent lecture, NYU School of Law Cohen was able to travel to Chen’s village, Professor Jerome Cohen gave a telling account one of 61 tied to a single township where the of his experience with Chen, whom he called a lowest court, local lawyers, and legal facilities “barefoot lawyer” in rural China. The disabled are located. Distance from the county seat in China are supposed to be exempt from pay- precludes many disabled villagers in Chen’s ing taxes according to central government rule, township from seeking legal assistance, as but many local governments violate the law. does the high cost of transportation. Fur- Chen initially got involved in the legal system ther complicating the issue, the courts simply to exempt himself from the illegal tax, sometimes will not hear cases because it and he says he still only seeks to enforce is not profitable for them to do so. The the will of the central government; in the local lawyers are unwilling to help not meantime, he has become an advocate for only because there is no money in such all Chinese citizens with disabilities, and has cases, but also because they don’t want

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Cohen, impressed by Chen’s determination, decided to help fund a small law library for him. Cohen’s research assistant, Eddie Hsu (’04), who accompanied him to China, went to a bookstore in Beijing and purchased texts about everything from tax to administrative Waiting on China law in order to help Chen in his search for justice. During his stay in the village, Cohen was By Jerome A. Cohen able to see that this investment would reap high returns, as Chen and his farmer brother Jerome A. Cohen is a law professor at Yang was indicted on both the illegal- used their newly acquired knowledge of civil New York University and adjunct senior entry and spying charges and tried on Aug. procedure and administrative law to challenge fellow at the Council on Foreign Relations. 4, 2003, in Beijing’s No. 2 Intermediate Peo- the denial of a hearing by the local court on a ple’s Court, the main arena for political trials. The long-pending case of Yang Jianli, a Because “state secrets” were allegedly tax discrimination case. Boston-based democracy activist who was involved, the hearing was closed to the pub- Despite his occasional success, Chen still detained by China’s security police two lic, excluding even his family and representa- faces many problems. Though he has won years ago today, offers a vivid example of tives of the U.S. Embassy. After a half-day some cases in the lower court, a few were Chinese-style political-legal gridlock. hearing, the three-judge panel announced rejected. He has not yet won an appeal in the Although China has no jury system, in that a decision would be issued in due distant city intermediate court, where these politically sensitive cases it often has the course, and Yang was returned to his cell. functional equivalent of a “hung jury,” Since China’s criminal procedure code decision-makers who cannot agree on normally requires a trial court to issue its a verdict despite long deliberation. In judgment within a month and a half of such cases, the decision-makers are not receiving the indictment, the end of Yang’s the judges nominally responsible for wait seemed in sight. Yet no decision was deciding important cases. Rather, they forthcoming. are unidentified Communist Party offi- The court extended its deadline a month, cials—frequently at the highest level. as allowed for difficult cases. When that When those leaders disagree on the proved insufficient, the court, seeking a fig outcome of a controversial case, the leaf for the delay, asked Yang’s lawyer last hapless accused is simply forced to October to apply for another month’s exten- wait. The time constraints imposed by sion on the spurious ground that the defense the country’s criminal procedure code needed to collect additional evidence. In the are swept aside amid endless debates repressive Chinese context, where embattled over charges, evidence, punishment, and defense counsel appear before this impor- politics, domestic and international. tant court regularly, this was an offer that Such is the case of Yang, a Chinese was hard to refuse. Yet Yang’s counsel, the national with U.S. permanent residence well-known human rights lawyer Mo Shaop- and doctorates from Harvard and the Uni- ing, refused to collaborate in his client’s versity of California at Berkeley, who was continued incarceration. denied the right to return to his homeland Staffers at the prosecutor’s office that Professor Jerome Cohen helped fund a law after the 1989 Tiananmen tragedy. After supervises Yang’s detention center subse- library for a Chinese citizen fighting unfair detention, he was investigated for enter- quently admitted that on Dec. 1, Yang’s government policies in China. ing China by using a friend’s passport and detention had officially expired and those was held in solitary confinement for responsible for holding him illegally should claims tend to be compromised as a result of almost a year, incommunicado, with no be punished. But they also conceded that local political and economic pressures. Some notice of his whereabouts given to his this is no ordinary case. of China’s professional lawyers feel that Chen family and no access to counsel. The Chinese government claims that last and similar activists are tarnishing the reputa- As the generous legal time limit for year, its strict new procedures for ending ille- tion of the legal profession by practicing with- criminal investigation was about to expire gally prolonged detentions corrected more out a certiﬁed legal education. They choose to and his detention was to exceed China’s than 25,000 violations. Yet Mo’s petitions to ignore the failure of the legal profession to maximum one-year punishment for those the Supreme Prosecutor’s Office and the meet the needs of China’s poor and disabled convicted of illegal entry, the authorities Supreme Court seeking Yang’s release have rural people, Cohen said. started the detention clock over again by gone unanswered, as has his family’s petition launching a new investigation, this time to the National People’s Congress. Chen’s work extends beyond the legal for alleged acts of spying for Taiwan, a Yang’s two years of punishment with- sphere. His primary concern is simply to much more serious charge that could out any conviction is a severe deprivation make life better for citizens in his township lead to the death penalty. for him and his American wife and chil- and for the disabled. Perhaps the most telling Yang’s family, members of Congress, dren. But it is also a blatant acknowledg- example of this occurred when villagers real- the State Department, the United Nations, ment by the Chinese government that its ized their inconveniently located water supply human rights organizations, the media and belated campaign to end the scourge of was becoming polluted, and turned to him. his lawyers all subjected the Chinese gov- overtime criminal detentions, which the Chen traveled to Beijing where he requested ernment to unremitting pressure in an National People’s Congress has character- assistance from the British Embassy, which effort to extract him from the clutches of ized as “a chronic disease,” has a long the security police. Not only did the U.N. way to go. Despite China’s commendable referred him to a British charitable founda- Working Group on Arbitrary Detention efforts to create a legal system, politics is tion. It donated £25,000 for a new well, and find Yang’s detention to be in violation of still in command. residents of Chen’s village can now drink international law, both houses of Congress safely and conveniently. As Cohen said, unanimously adopted resolutions calling Originally published in The Washington “Instances such as these have made Chen for his release. Post, April 26, 2004. a hero in his village of 480 people.” I

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suspects and search warrants; and the Taiwan’s Transformation of increased rights of defendants and their counsel, such as the right to confront wit- Its Criminal Justice System nesses, the right to remain silent and the right to cross-examine witnesses. Gelatt lecture addresses sweeping changes Wang was joined by several luminaries of East Asian legal studies. NYU School of Law Professor Jerome Cohen, one of the leading international experts in East Asian law, moderated the panel, which included Law School professors Holly Maguigan and Frank Upham; Daniel Yu, a Law School research fellow; Jonathan Hecht, deputy director of the China Law Center at Yale Law School; and H.F. Huang, a Taiwanese High Court judge. Wang and Cohen agreed that Taiwan’s move toward democracy and an independent media have been crucial for judicial reforms. Wang said that intense public and media scrutiny—as well as increased pay— have virtually wiped out corruption from the Taiwanese judiciary. Prosecutors and judges are now given good apartments by the state, along with pay that exceeds that of professors or mayors. In addition, the public and media will turn their full attention to even “the whiff of corruption Daniel Ping Yu, Research Fellow in Chinese Law at the NYU School of Law, with H.F. Huang, a Taiwanese High Court judge, and J.P. Wang of the National Taiwan University College of Law. charges,” he said. Wang emphasized that a series of he lessons learned from the recent transformation as hundreds of provisions unique events since 1997 had helped upheaval of the Taiwanese criminal jus- of the Code of Criminal Procedure (CCP) prompt change. For instance, in a cele- T tice system were the focus of the ninth have been amended, implementing a move brated bank robbery case, the police annual Timothy A. Gelatt Dialogue on from an inquisitorial system to an adversar- announced they had a confession from a Law and Development in Asia. Hosted by ial system that went into high gear in 2002. suspect who reportedly had been tortured the Law School, the dialogue was entitled One of the leading architects of these changes, and not allowed the benefit of counsel. “Criminal Justice and Chinese Political- Professor J.P. Wang of the National Taiwan After the suspect committed suicide by Legal Culture: Recent Hope from Taiwan?” University College of Law, said the shifts jumping off a bridge, the real perpetrator Since 1997, in conjunction with the included the adoption of American-style of the crime was found. The resulting pub- island’s recent democratization, Taiwan’s rules of evidence; the termination of prose- lic outrage led to the adoption of a right- criminal justice system has undergone a cutors’ rights to issue detention orders of to-counsel rule. I

States, and will always be a union of nations.” Europe’s Economic Power Prodi also discussed the difficulties in drafting the E.U. constitution, finished in European Commission President Romano Prodi July 2003 and now under review, following talks about growing interdependence almost two decades of attempts at constitutional reform. He cautioned that many difficult issues have yet to be resolved, including udience members may have had to sion of Bulgaria and Romania in 2007 would standards for the amendment process and strain to hear soft-spoken Romano bring 500 million people into the Union. the new constitution’s call for a uniform A Prodi, but the European Commission “It will be the biggest economic unit in E.U. foreign policy. president’s message heralding the Euro- the world, in terms of income and in terms After his speech, Prodi took questions, pean Union’s growing global economic of trade,” said Prodi, who expressed hope including one on the future of Europe’s rela- force was loud and clear. that the Balkan states, Turkey, and former tionship with the United States. Acknowl- Prodi, who spoke to about 300 students Soviet Union republics will possess the eco- edging there had been important differences and faculty at the NYU School of Law’s nomic and political stability, and dedication between them on Kyoto, the International Vanderbilt Hall in November 2003, dis- to democracy and human rights to join the Criminal Court, and Iraq, Prodi affirmed cussed both the push for enlargement of the union at a later time. that the two world powers share the same E.U. into central and eastern Europe and a Those values, he said, are central to basic values. successful E.U. constitutional convention. the E.U.’s very existence: “The definition of Prodi, who was a professor of industrial The European statesman, noting the Europe is a union of minorities, because policy at the University of Bologna for 18 union’s expansion from 15 to 25 member there is no majority. Europe is a union of years, served as Italy’s prime minister from states early in 2004, said the additional inclu- people and of nations, not like the United mid-1996 until November 1998. He was seen

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whether individuals should be able to sue foreign nationals in U.S. courts for sponsor- ship of terrorism abroad. According to John Cooke, director of the education division of the Federal Judi- cial Center, there is an international dimension even to mundane cases such as torts and contracts these days. Just as international cash flow is increasingly uninhibited across borders, so are the movements of people. It is now common for matrimonial and child custody cases to involve family members who are scattered across nations with entirely different approaches to family law. One country may tend to favor child custody for the mother, in another the final say may lie with the father. In such cases, to what extent can the legal authorities of one country influence those of another? “In cases of litigation, the parties must “Thanks to his stewardship, [the E.U. has been able to] draft a constitutional treaty for Europe,” said Profes- sor Joseph Weiler, chair of the Hauser Global Law School Program, of Romano Prodi (above). often cross international boundaries with different legal systems in order to gather informa- as instrumental in getting his country’s chair of the Hauser Global Law School Pro- tion. The question is how to create a synthesis ﬁnances in order to join the countries imple- gram and European Union Jean Monnet between these disparate systems,” said Cooke. menting the euro, Europe’s single currency. Chaired Professor, praising Prodi’s moves on The intention of the conference was not to tell In 1999, he was appointed to the presi- internal E.U. reform, open governance, and judges what to do when making these deci- dency of the Commission, the E.U.’s executive transparency. “Prodi’s great statesmanship sions, but to “expose them to the issues and body. “Thanks to his stewardship, [the E.U. has been [to assert that] enlargement is allow them to talk about approaches to issues has been able to] draft a constitutional treaty going to go on with or without constitu- that they will see in their courtrooms.” for Europe,” said Professor Joseph Weiler, tional change.” I For his part, Kennedy lamented that too many people around the globe live without electricity and running water, getting by on less than $2 a day. “These are Anthony Kennedy, Supreme Court the new voices,” said Kennedy. “How are we going to answer those voices?” Living in an international age calls for living up to Justice on the Global Village its demands. “We have to figure out how He and fellow judges recognizing human rights to recognize the voices of all of humankind,” said Kennedy. “This is our mission.” I

ore than 40 distinguished jurists from pants that our understanding across the nation gathered for two days of international law has come a M last fall to participate in the Program long way from the early days of on International Law for Federal Judges, the republic, when “the law of hosted by the Institute of Judicial Adminis- nations” governed the slave tration (IJA) at the NYU School of Law and trade and piracy. He noted that co-sponsored by the Federal Judicial Center we have moved far from World and the Law School’s Institute for Interna- War II and the battle of “the tional Law and Justice. Supreme Court Jus- totalitarian state versus the free tice Anthony Kennedy was passionate about democratic state.” the role of the law in bridging physical and The Program included a cultural distances. “Today,” he said at the series of panel discussions about conference, “our challenge is to deﬁne our post-September 11 immigrant duty to recognize human rights.” detention, enemy combatant Justice Kennedy, a key figure in bring- classification, and the use of ing the conference together, took several military tribunals, as well as days out of his busy schedule to spend time issues related to the prosecution at the Law School, meeting with Dean of human rights violations by Richard Revesz, faculty, and students as multinational corporations and well as attending constitutional law classes. foreign governments. Judges Kennedy, who is known for his particular and professors discussed and interest in cross-border legal issues, also debated a wide variety of topics, participated in a panel discussion on the from whether international cus- role of international law in legal decision- tomary law should be a persua- “We’ve come a long way from the World War II era of the totalitarian making. Kennedy reminded the partici- sive authority in federal court to state versus the democratic state,” says Justice Kennedy.

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after story about the creative approaches Do International Human Rights needed to succeed in enforcing human rights in developing countries. Treaties Make a Difference? Helena Romanach (LL.M. ’04) spoke about her work as a criminal defense attor- The obstacles to enforcing human rights ney in São Paulo, Brazil. She said that it is common for judges in Brazil to sentence burglars to prison terms far beyond what the law allows, and for police to kill hundreds of suspects each year without any public outcry. Another panelist, Patrick Kiage (LL.M. ’04), reported that in his work as a capital defense attorney in Kenya, international human rights treaties are not of much use; Kenya’s judges are insuf- ﬁciently educated about international law and are unwilling to even consider enforcing international agreements. Ibarra Gutierrez (LL.M. ’04), a public interest lawyer and advocate in the Philip- pines, noted that the fact that his country is a signatory to virtually every human rights agreement on record matters very little when it comes to the enforcement of human rights law in domestic courts. He illustrated this point with a story about a judge who Professor Holly Maguigan, GPSLP faculty co-director, and Kenneth Roth, executive director for Human Rights Watch, with GPSLP scholars, Patrick Kiage (LL.M. ’04), Helena Romanach (LL.M. ’04), Ibarra Gutierrez (LL.M. ’04), and Romanita Iordache (LL.M. ’04). argued that torture should be legal in certain situations, he United States is often criticized which nations internalize international even though the Philippines has signed the these days for the unwillingness of its human rights agreements and the different Convention Against Torture. politicians and judges to take interna- approaches by which public interest lawyers Romanita Iordache (LL.M. ’04) tional legal obligations seriously. Pro- practice law as a result. Roth argued that described her life as a lawyer and advocate gressive courts in South Africa and too often in the United States, litigation is for gay and lesbian rights in post-Cold War T India and Europe have made head- seen as the only way to advocate for a cause. Romania. Iordache claimed that Romania lines in legal circles by looking to interna- He said that other methods of advocacy are signs every human rights treaty only to tional human rights law as a basis for major needed to succeed in a world that is often ignore them in practice. “We are very good decisions. However, despite this trend, a recent panel discussion hosted by NYU School of Law’s Global Public Service Law “There is no reason why the enforcement Project (GPSLP) asserted that public interest lawyers on the ground need more than inter- of rights needs to be limited to the legal national human rights law on the books to bring about positive social change. realm.” —KENNETH ROTH The panel brought together scholars from the Philippines, Romania, Kenya, and Brazil for discussion about the obstacles more political than legal. “There is no rea- at sham compliance,” she laughed. Iordache that lawyers face enforcing human rights. son why the enforcement of rights needs to entertained the gathering with a story The panel was moderated by Law School be limited to the legal realm,” he said. about how she once faced a judge who was Professor Holly Maguigan, GPSLP Faculty Roth commended the GPSLP as an unaware of the existence of the Interna- co-director, and introduced by Kenneth example of how legal education can prepare tional Convention on Civil and Political Roth, executive director of Human Rights lawyers to confront challenges to the inter- Rights. Fortunately for Iordache and Watch (HRW). national rule of law and to enforce human her client, she had a copy of the conven- Roth has led HRW since 1993 and has rights across domestic borders. The pan- tion in her bag for a class she was to teach overseen its development into one of the elists also discussed the relevance of interna- later in the day. Iordache was able to show world’s premier human rights organizational legal frameworks to the practice of the judge Romania’s signature on the con- tions. He discussed the various ways in domestic human rights law, and told story vention and went on to win the case. I

130 THE LAW SCHOOL AUTUMN 2004

A New Democracy, Enshrined in Faith By Noah Feldman

Noah Feldman, author of Aft er Jihad: America and the Struggle ties must not be organized around a program contrary to Islam or the for Islamic Democracy, is a law professor at New York University. constitution. That would exclude an antidemocratic Taliban party; but He was a senior adviser for constitutional law to the Coalition would it also exclude a party of secularists who wanted to remove Provisional Authority in Iraq. Islam from the constitution? What about laws requiring women to dress modestly: unconstitutional as a violation of women’s rights, or In his admirable if overdue speech last week, President Bush ac- constitutional as in accord with the teachings of Islam? knowledged 60 years of American error and announced a new The draft constitution gives guidance on all these questions, policy of encouraging democracy rather than dictatorship in the but the answers might well come down to the makeup of the Muslim world. What Mr. Bush neglected to mention was that Supreme Court: one dominated by illiberal religious scholars might many Muslims, if freed to make their own democratic choices, interpret the text one way, while one with a majority of judges will choose Islam over secularism. A case in point is the newly trained in the secular tradition might see it very differently. released draft of the Afghan constitution, which enshrines In its ambitions, attractions and dangers, the Afghan draft con- Islamic values even as it guarantees basic liberties. stitution can be seen as a metaphor for the wider prospects of The document raises a crucial question that goes well beyond Islamic democracy. Like the Afghan constitution, Islamic democ- Afghanistan to the Muslim world as a whole: Can a nation be racy has no chance if the West does not help create the economic founded on both Islam and democracy without compromising on prosperity and social stability for its success. After driving out the human rights and equality? Taliban, the American-led coalition has done too little to bring If the answer is no, then democratization in places like Iraq and Afghanistan under the control of a centralized government, nor Afghanistan will be a pyrrhic victory—we will have gotten rid of the has the United Nations presence in Kabul lessened the de facto Taliban and Saddam Hussein without their former victims actually control of the country by regional warlords. achieving real freedom. If, however, a synthesis of Islam and democ- Unless America and the United Nations do more to buttress the racy can satisfy devout Muslims, while at the same time protecting sovereignty of an elected Afghan government, the constitution will individual liberties and the rights of women and non-Muslims, then inevitably become more of a symbol than an actual charter of gov- Islamic democracy may be the best hope for improvement in the ernance. Similarly, unless America keeps steady pressure on Muslim Muslim world. countries to democratize—rewarding meaningful elections and Make no mistake: the Afghan constitution is pervasively Islamic. punishing human rights violations—little progress will be made. Its first three articles declare Afghanistan an Islamic Republic, The paradox, of course, is that if the people of Muslim countries make Islam the official religion, and announce that “no law can be do get a greater say in their own government, Islamic politics will contrary to the sacred religion of Islam and the values of this con- likely prevail. Islamic parties speak the language of justice, the stitution.” The new Supreme Court, which is given the power to paramount political value to most Muslims. In some places—Turkey, interpret the constitution, is to be composed of a mix of judges Indonesia and Malaysia—secular forces in the society counterbal- trained either in secular law or in Islamic jurisprudence. ance the rising Islamic politics. But in the Arab dictatorships, where The new flag features a prayer niche and pulpit, and is embla- secularist politics are associated with autocracy and graft, increased zoned with two Islamic credos: “There is no God but Allah and freedom will undoubtedly lead, at least in the short run, to new Muhammad is his Prophet” and “Allah Akbar” (“God is Great”). The gains for political Islam. government is charged with developing a unified school curriculum This leads some to say that we should not promote democracy “based on the provisions of the sacred religion of Islam, national in the Middle East lest we open the door to elections that might culture, and in accordance with academic principles.” The provision be, in the memorable words of a former assistant secretary of requiring the state to ensure the physical and psychological well- state, Edward Djerejian, “one man, one vote, one time.” But calls to being of the family calls, in the same breath, for “elimination of tra- preserve the undemocratic status quo fail to acknowledge that the ditions contrary to the principles of the sacred religion of Islam.” alternative to trying Islamic democracy may be much worse. And yet, the draft constitution is also thoroughly democratic, It would be equally futile for the United States to unilaterally promising government “based on the people’s will and democ- impose secularization in Afghanistan and Iraq. For a constitution racy” and guaranteeing citizens fundamental rights. One essen- to function, it must represent the will of its citizens. Nothing could tial provision mandates that the state shall abide by the United delegitimize a constitution more quickly than America setting down Nations Charter, international treaties, all international conven- secularist red lines in a well-meaning show of neo-imperialism. tions that Afghanistan has signed and the Universal Declaration Rather, our goal must be to persuade a majority of the world’s 1.2 of Human Rights. Because Afghanistan acceded in March to the billion Muslims that Islam and democracy are perfectly compatible. Convention on the Elimination of All Forms of Discrimination This will be especially true in Iraq, where the constitutional pro- Against Women—a treaty the United States Senate has never rat- cess must demonstrate to the Iraqi people and the rest of the ified—the draft constitution guarantees women far-ranging rights world that the coalition intends to let Iraqis govern themselves. against discrimination. It also ensures that women will make up What’s more, denying the possibility of democracy within Islam at least 16.5 percent of the membership of the upper legislative may bolster the case of Islamist radicals who, for very different house (only 14 of 100 United States senators are women). reasons, claim that their religion and political freedom cannot mix. In addition, the provision that makes Islam the nation’s official The draft Afghan constitution is just one possible picture of religion also recognizes the right of non-Muslims “to perform how Islam and democracy can live side-by-side in the same politi- their religious ceremonies within the limits of the provisions of cal vision. There are no guarantees in constitution writing or in law.” This carefully chosen language might arguably leave room nation building, and it is too soon to predict that the idea of to restrict proselytizing—as, for example, do similar laws in India Islamic democracy will take hold in practice—in Afghanistan or and Israel—but it nonetheless guarantees individual expression as elsewhere. All we can do is continue to press for democracy in the an inviolable right. (It’s worth noting that the right to change Muslim world: not because we naively expect a victory for secular- one’s religion is enshrined in the human rights declaration.) ism, but because freedom only makes sense as a value extended Yes, if the draft is ratified by the grand assembly, or loya jirga, ten- equally to all, to make of it what they will. sions in the constitutional structure will have to be resolved later by the Supreme Court. According to the draft, for instance, political par- Originally published in The New York Times, November 13, 2003.

AUTUMN 2004 THE LAW SCHOOL 131 AROUND THE LAW SCHOOL Iraq’s Hard Road to Democracy “The basic function of any state, namely, protecting you so you wouldn’t get shot, was absent,” Professor Noah Feldman pointed out.

told the judges, “but they did choose to vulnerable Sunnis, the ethnic group of Sad- reach an agreement…in which they all gave dam Hussein and the Baathist party, got something up, and in which they all got some- “a guarantee in the constitution that the nat- thing.” In return for more autonomy than the ural resources of the state would be divided other regions, the Kurds agreed that oil rev- roughly in proportion to the population.” enues and borders will be controlled by the Professor Feldman went on to explain the central government and that the Kurdish importance of looking beyond the creation of militia “will come indirectly under command a constitution and to the institutions that will of the Central Army.” establish and make that constitution meaning- The Shia, who favor an Islamic state, have ful. “It will take a long time to discover that taken a risk by supporting a democratic gov- collective action can have a real effect,” he said. ernment, and in return they have obtained “a “They have to believe that it works and that guarantee that the state would have an ofﬁcial this can be the core of a process of democrati- religion of Islam,” said Feldman. The now- zation that will work.” I

Justice and Race: When Vested

hat are the chances that the new Iraqi Interests Change Legal Outcomes Interim Constitution will lead to an The Eighth Annual Bell Lecture looks at W equitable distribution of resources and to the preservation of basic civil liber- “Interest Convergence” Theory today ties? About 50-50, according to NYU School of Law Professor Noah Feldman, who spoke at a dinner sponsored by the Institute for acial-justice advocates haven’t had much Harris pointed to the U.S. Supreme Judicial Administration (IJA) last spring, just reason to rejoice recently, noted UCLA Court’s ambivalent decisions about the afﬁr- as the ﬁnal draft of the interim constitution R Professor of Law Cheryl Harris in her mative action admissions policy at the Uni- was awaiting approval by the Iraqi Govern- speech, the eighth annual Derrick Bell Lec- versity of Michigan, followed by the defeat ing Council. The professor’s audience: Eight ture on Race in American Society. The lec- of California’s most recent proposition ban- judges of the U.S. Court of Appeals for the ture is given in honor of NYU School of ning the collection of race data. A well- Second Circuit, including Chief Judge John Law Professor Derrick Bell, a civil rights known critical race theorist, Harris argued M.Walker Jr. leader and the author of the groundbreaking that judicial decisions about racial equality Feldman, who served as the senior Race, Racism, and American Law. depend on whether the majority regards the adviser on constitutional law to the Coalition Provisional Authority in Iraq, outlined the tumultuous series of events that culminated in the newly written Iraqi Constitution, starting with the U.S.-led invasion of Iraq. In the days following the invasion, the entire Iraqi state collapsed; he described chaos so complete that one day in late May of 2003, in a poor Shia neighborhood, a man pulled at his sleeve and asked, “Excuse me sir, who is the government?” Under conditions of anarchy such as these, explained Feldman, Iraqis were forced to fall back on their ethnic and denominational identities in order to survive. “The basic function of any state, namely, protecting you so you wouldn’t get shot, was absent,” he said. Remarkably, civil war did not result and leaders from Kurdish, Shia, and Sunni communities eventually negotiated the new interim constitutional text for the nation. “All of those groups who came to the table could NYU School of Law Professor Paulette Caldwell, left, pictured with Professor Cheryl Harris of UCLA School of have chosen not to reach an agreement,” he Law, who said timing and public opinion can influence the perceptions of the Supreme Court.

132 THE LAW SCHOOL AUTUMN 2004

issue as being in its own interest. She then proceeded to examine how this “interest Judges as Policymakers? convergence” theory, introduced by Bell in the mid-1970s, remains relevant almost three Judge Tatel presents the James Madison Lecture decades later. Harris began with the high court’s decision in the combined Gratz v. Bollinger and Grutter v. Bollinger cases. Gratz maintained she was denied admission as an undergraduate to the University of Michigan because affirmative action policies put her at a disadvantage as a white applicant. Grutter raised the same question at Michigan’s law Professor Derrick Bell school. The Court struck down the undergraduate admissions process, but upheld the law school’s admissions policy as Left to right: Norman Dorsen, the Frederick I. and Grace A. Stokes Professor of Law with the Madison lecturer, not being disadvantageous for white stu- Judge David S. Tatel of the United States Court of Appeals for the D.C. Circuit, and Dean Richard Revesz. dents. Harris explained the mixed result: The undergraduate admissions policy was udge David Tatel, who gave the James the public’s perception that judges are acting “too specific about how race might count as a Madison Lecture, was an engaging and as unelected political officials.” plus, about how race matters.” J even humorous speaker, but he wasn’t To make his point, Tatel examined two While the decision had the effect of kidding when he talked about the danger of Supreme Court cases decided in the early supporting affirmative action, it revealed a judicial activism. 1990s, Missouri v. Jenkins and Board of Educa- deep reluctance to confront the meaning of Dean Richard Revesz hailed the talk as the tion of Oklahoma City v. Dowell. Both arrived race. The law school’s admissions policy “leading intellectual event of the year,” marking at the politically conservative outcome of was allowed to stand, however, and Harris the 35th time the Madison Lecture was given at limiting desegregation orders through decid- argued that was because of interest conver- the NYU School of Law. Tatel, who sits on the edly unconservative means—splitting away gence: Timing had changed the percep- U.S. Court of Appeals for the D.C. Circuit, from precedent. tions of the Court. presented his timely talk, “Judicial Methodol- Since Jenkins and Dowell are best under- The case was argued on April 1, 2003, ogy, Southern School Desegregation, and the stood in the context of school segregation, the eve of the U.S. invasion of Baghdad, Rule of Law,” as the 50th anniversary of Brown Tatel reached back more than three decades and a group of retired generals filed an v. Board of Education approached last fall. The to the Nixon administration. Tatel played amicus brief arguing that affirmative action paper contributed to the Brown retrospective fragments from six taped conversations: was crucial in admitting racial minorities to by shedding light on the way the politics of the Nixon’s position was clear. At one point service academies and the ROTC. Accord- 1950s influenced the historic school desegrega- he declared, “I want to take a flat-out posi- ing to Harris, having a majority-white offi- tion decision. tion against busing. Period. I am against cer corps has resulted in low morale, racial Tatel confided that he was worried about busing. Period.” tension, and disciplinary problems. This public perception of judges’ political motiva- “The courts seemed to be performing as argument was a factor in Justice O’Con- tions. “‘Judicial activist’ is a phrase usually unelected policy-makers,” said Tatel, sum- nor’s swing vote, she said. “O’Connor hurled by [people] who aren’t happy with the ming up. “Nothing could do more lasting lifted some of her language directly from outcome of a case,” Tatel said. “Commentators injury to the Court and to the system of law.” this brief.” usually conclude that the judge is an appointee The James Madison Lectures are pub- Early in his career, Professor Derrick Bell of President X or Y and is making decisions to lished in the NYU Law Review and also served on the legal staff of the NAACP Legal fit a political agenda.” appear in The Unpredictable Constitution, Defense Fund, having been hired by its then- “I’m frequently asked whether I find a collection of essays about civil liberties general counsel, Thurgood Marshall. During methodological principles restraining,” Tatel edited by Norman Dorsen, NYU’s Freder- his five years at the Fund, he handled and said. “Of course I do, but they’re also comfort- ick I. and Grace A. Stokes Professor of supervised close to 300 school desegregation ing. As Oliver Wendell Holmes said, ‘It has Law. The lectures are made possible by the cases. In 1971, he became the first African given me pleasure to sustain the constitutional- Schweitzer Endowment, as well as grants American tenured law professor at Harvard ity of laws that I believe to be as bad as possi- from the Philip Morris Companies, the Law School. He has been a member of the ble, because I thereby helped to mark the estate of Howard Cosell (’40), and others. NYU School of Law faculty for 13 years. difference between what I would forbid and U.S. Supreme Court Justice Hugo Black During those years, he has published 10 what the constitution permits.’ delivered the first lecture in 1960 on the pro- books, including three editions of his widely “You might wonder why a sitting appeals- tection of freedom of speech, and other illus- used text, Race, Racism, and American Law. court judge would criticize the court that trious lecturers have included Supreme His most recent book is Silent Covenants: reviews his opinions—or, as my friend says, Court Justices Stephen Breyer, Ruth Bader Brown v. Board of Education and the Unful- ‘The court that grades his papers,’” Tatel said Ginsburg, and Sandra Day O’Connor, as filled Hopes for Racial Reform (Oxford Uni- with a laugh. “After almost 10 years as a fed- well as the late Harry Blackmun, William versity Press, 2004). I eral judge, I’m increasingly concerned with Brennan Jr., and Thurgood Marshall. I

AUTUMN 2004 THE LAW SCHOOL 133 AROUND THE LAW SCHOOL Arizona Governor “Calls In” Due to Prison Hostage Crisis The Abrams Public Service Lecture

large turnout of students, faculty, alumni, Napolitano then fielded questions about and friends of the NYU School of Law entering politics, immigration policy, her A gathered for the annual Attorney General battles with the Arizona legislature, and the Robert Abrams Public Service Lecture. One role of gender in law and politics. Asked important person was missing, though: Judge about being labeled by her political rivals as Janet Napolitano, governor of Arizona and the too aggressive, Napolitano pointed out that evening’s speaker. a Democratic governor working with a Because of a critical hostage situation at Republican legislature has to be aggressive Arizona State Prison Complex - Lewis, one in order to advance her office’s agenda. A of Arizona’s high-security facilities, Napoli- man using the same approach would never Robert Abrams (’63), former attorney general of the State of New York, explains the unusual circum- tano had to remain in her home state to be so labeled, she added. stances of this year’s lecture. oversee the crisis response. She recorded a Elaborating on the difficulties of being a brief video statement explaining her absence woman in a position of power, the governor friend told her bluntly: “Get over it.” That was and joined the event by telephone to answer said that men in politics or the law seem natu- good advice, Napolitano said. She has learned audience questions. rally suspicious of a woman entering “the net- to accept the rough treatment as part of the Napolitano described the grave situation work.” This often forces women to prove game, and now relishes the political arena. to the tense crowd. At 6:45 a.m. on Sunday, themselves beyond what is required of men. The governor also discussed the practical January 18, Napolitano received a phone Napolitano, who was Arizona’s attorney gen- difficulties in pursuing a career in public ser- call informing her that a male and female eral before becoming governor, then generated vice. The reality, she said, is that many peo- guard at Lewis Prison had been taken laughs with an anecdote about how she first ple will not be able to pursue public interest hostage by two inmates. “When someone earned the respect of her law enforcement per- work immediately after law school because from your staff calls you before 8:00 a.m., sonnel by holding her own at a firing range. of tremendous debt. However, for those it’s not going to be a good day,” she said. “I decided not to tell them I had already been who feel forced into a firm but still desire a The inmates managed to retreat to a nearly through a firearms camp during the time that I life of public service, Napolitano advised impenetrable guard tower and successfully represented Smith & Wesson,” she said. against adopting a cushy lifestyle. “Living held off police advances for more than a Napolitano described politics as “a full- modestly during the years where your week. The state’s negotiation team, working bodied sport that you have to develop calluses income is the greatest allows you to build a closely with the FBI, had secured the for.” She elaborated on a scathing article pub- war chest for things like running for elected release of the male hostage. Napolitano lished during her nomination in 1993 for U.S. office,” she said, warning that those who live reminded the audience that it was her call Attorney for the District of Arizona about extravagantly off of their firm salaries often whether to authorize the end of negotia- her representation of Anita Hill during the find themselves bound by “the velvet hand- tions and initiate a siege. The crisis ended Clarence Thomas confirmation hearings. This cuffs”—unable to pursue their aspirations after 15 days when the inmates surrendered was Napolitano’s first venture into public ser- because of paralyzing financial obligations. to law enforcement—the longest running vice and when she made an emotional phone The Abrams Public Service Lecture honors domestic hostage situation in U.S. history. call for support to a friend in politics, the Robert Abrams (’63), who served in various governmental positions for 28 years, establishing a remarkable public service record. Abrams was elected to three terms in the New York State Assembly, where he achieved election law reform, changes in New York’s then-archaic abortion law, and child abuse protection. Abrams was also elected to three terms as Bronx borough president and four terms as New York’s attorney general, achieving the highest margin of victory of any attorney general in history. He launched pioneering efforts in the areas of environment, consumer, and civil rights protection. He also led the office into criminal justice prosecutions and enforcement, and achieved needed changes in the law relating to the insanity defense, organized crime, and victims’ rights. A recipient of more than 300 awards from academic, business, professional, public interest, religious, and philanthropic organizations, Abrams was honored by the Law School with its Alumni Association Achievement Award in 1981 and its Public Governor Janet Napolitano speaks at a Southern Arizona Legal Aid Anniversary celebration—live and in-person! Interest Service Award in 1993. I

134 THE LAW SCHOOL AUTUMN 2004 public interest

“You will bring a freshness of perspective Grutter Attorney Speaks on when you’re a new lawyer that people who have been out for a few years will not bring,” Key Affirmative Action Case she said. “Be bold, be controversial.” “She did a good job of placing [affirma- Miranda Massie (’96) counsels optimism tive action] in its historical context,” Leon Kirkland (’06) said. Massie also met earlier with students in small group sessions to discuss her career path. “It was nice to have one of our own here,” said Deborah Ellis (’82), assistant dean for public interest law. “We have so many Law School graduates doing public interest work, and we’ll continue to focus on bringing them back to speak.” The Melvyn and Barbara Weiss Public Interest Forum honors the Weisses’ contribution toward making a career in public service possible for many Law School students through the Loan Repayment Assistance Program. Melvyn Weiss (’59), a senior partner at the law firm of Milberg Weiss Bershad & Schulman, is a leading authority on securities and accounting fraud. For more than 35 years, he has represented institutional and individual shareholders in complex securities Melvyn I. Weiss (’59) and Miranda K.S. Massie (’96), a lawyer at Scheff & Washington in Detroit, at the Weiss Public Interest Forum. class-action suits. In recent years, his pro bono work has included reaching major set- ithout affirmative action, legal edu- neutral measure of merit is possible in a soci- tlements for Holocaust victims and their cation in particular, but higher edu- ety that is as crippled and as stunted and as families in class actions against the German “Wcation in general, is resegregated,” distorted by racial inequality as this one,” she government, German businesses, and Swiss said Miranda K.S. Massie (’96), a lawyer at said. “There is no such thing as a race-neutral banks. A trustee of the NYU School of Law, Scheff & Washington in Detroit. “Affirma- measure of merit.” Citing studies that have he has been the recipient of the Law Alumni tive action is the only effective desegrega- tracked the biases present in the Law School Association’s Alumni Achievement Award tion plan for higher education. It is Brown Admission Test (LSAT) and other standard- and the Law School’s highest honor, the v. Board of Education.” ized measures, Massie described how meri- Arthur T. Vanderbilt Medal. Massie, the featured guest at the annual tocracy arguments can hide deeply ingrained The Weiss lecture kicked off the Root- Melvyn and Barbara Weiss Public Interest systemic bias. Tilden-Kern Monday Night Speaker Series Forum at the NYU School of Law, was an Massie said she based her optimism for on Public Interest Law, which continues attorney for the student defendants in Grutter the future on Justice Sandra Day O’Con- throughout the academic year and is orga- v. Bollinger, an affirmative action case decided nor’s opinion, which she said links efforts nized by the Public Interest Law Center. by the U.S. Supreme Court in June 2003. toward diversity to “our nation’s struggle “I see the series as a survey seminar on The plaintiff in the case challenged the admis- with racial inequality” and makes clear that public interest law,” Ellis said. “My overall sions procedure employed by the University integration is necessary for social legitimacy. goal is to educate students about the range of Michigan Law School, which allowed Nonetheless, Massie noted that challenging of opportunities in public service work.” I some weight to be given to race as one factor work lies ahead for civil lit- among many entrance considerations. igators, such as those in According to Massie, the goal of those California, where Proposi- who supported and funded the Grutter law- tion 209 has decreased suit, most notably the Center for Individual minority enrollment at top Rights, a conservative, nonprofit law firm, state schools and Proposi- was the resegregation of higher education tion 54 threatens to halt

y Susan Walsh. and the elimination of conscious attempts to the collection of racial data

tz b address racism in our society. Massie dis- for any purpose except law a cussed Regents of the University of California v. enforcement. Bakke, which preceded Grutter, and noted Throughout her career,

er and Gr that Supreme Court Justice Lewis Powell Jr. Massie has merged her held that “diversity could be a compelling civil rights litigation with state interest sufﬁcient to justify the use of activism. She counseled race in higher education admissions.” the aspiring-lawyer crowd Massie defended afﬁrmative action beyond not to underestimate what

AP Photo of Grutt AP Photo just diversity and desegregation. “No race- they can do as new lawyers. Grutter and Gratz, students who brought recent affirmative action suits.

AUTUMN 2004 THE LAW SCHOOL 135 AROUND THE LAW SCHOOL Lawyers as Catalysts to Build a Just Democracy

and equality was granted to us by the likes of Martin Luther King Jr. Rice conceded that it was easier to dismantle inequality than to construct true equality, but urged her audience to strive for a just society. “You do what you have to do given the state of the track at the time,” she said. To prevent the underprivileged from sinking further, poor whites and blacks have to develop “a grand alliance,” suggested Rice. Currently a director of the Advancement Project, an organization she helped launch to take on problems of inequality and exclusion, Rice described her recently-filed litigation intended to force Los Angeles to improve its bus transit system. A crucial part of daily life for hundreds of thousands of city residents without cars, this aspect of Los Angeles’ mass transit is unfairly ignored by officials, Professor Sylvia Law (’68) and Constance L. Rice (’86), with Adjunct Professor Richard E. Blum (’89). said Rice. The Rose Sheinberg Scholar-in-Resi- ivil rights lawyer Constance L. Rice NAACP Legal Defense and Educational dence Program was established in com- (’86) gave the Rose Sheinberg Scholar- Fund in Los Angeles, mediated gang con- memoration of attorney Rose Sheinberg C in-Residence Program’s tenth annual lec- flicts, and coordinated legal action that (’50), who championed women’s rights. ture last spring. successfully pressed for more money for The program invites scholars working on Rice, a cousin of President Bush’s school construction in inner-city Los Ange- subjects of gender, race, and class to be national security adviser Condoleezza les. She offered a vision of “justice as relay part of a day of informal discussions and Rice, has served as a counsel for the race,” saying that the testament of hope to present the lecture. I

Globalization and Bankruptcy The King and Seligson workshop, which offers participants a choice of two tracks—a Workshop grapples with cross-border issues basic program for general practitioners and an advanced one for participants who are ow is globalization changing bankrupt- Speaking about the model insolvency specialists—will celebrate its 30th anniver- cy law? Prominent Bankruptcy Judges codes proposed by the International Mone- sary this year. A fundraising effort is under- H Allan Gropper and Arthur Gonzalez tary Fund and the research conducted by the way in order to name an appropriate space (LL.M. ’90), both of the U.S. District Court World Trade Organization on the regulation in honor of the late Professor Lawrence for the Southern District of New York, tackled of insolvency laws, Gropper advocated new King, a bankruptcy expert who taught for this topic as keynote speakers at the three- financing and new loans and discussed ways 40 years at the NYU School of Law. I day Lawrence P. King and Charles Seligson of dealing with financial Workshop on Bankruptcy and Business crises in foreign countries. Reorganization at the NYU School of Law. Confessing his uncertainty Gonzalez discussed the conflicts facing about whether the IMF plan countries dealing with cross-border insol- can succeed, Gropper pre- vency. He noted the struggle between a dicted that large financial country’s desire for universality, in which institutions will be “dubious” no preference is given in loan repayment about providing new fund- based on location, and a citizenry’s prefer- ing, yet foreign countries ence to repay local creditors first. would prefer to see private “Insolvency systems must be compati- capital from these institutions ble with global markets,” Gonzalez said. rather than bailouts from the Emerging-market countries face the politi- U.S. government and other cally charged issue of convincing citizens creditors. “The movement that facing bankruptcy—and experiencing toward globalization is going what is often an immediate shock to local to force us to look at how economies—may in the long run be a our laws are recognized else- sound strategy because developing coun- where, and how we want to tries can prove their mettle to the global recognize other laws here,” Southern District bankruptcy judges Allan Gropper and Arthur financial markets. Gonzalez said. Gonzalez (LL.M. ’90).

136 THE LAW SCHOOL AUTUMN 2004 Sessions on international tax followed, tax headed up by Professor H. David Rosen- bloom, director of the International Tax Pro- gram at the Law School, and a partner at Annual Graduate Tax Workshop Caplin & Drysdale in Washington, D.C. and Richard Andersen, a partner at Arnold & Takes on Tough Issues Porter, also an adjunct faculty member at the Law School. Norman Sinrich, an adjunct pro- Tax pros lecture on corporate tax, partnerships, fessor and of counsel at Feingold & Alpert, led a bankruptcy tax session, discussing tax consid- estate planning, bankruptcy, and tax cuts erations in corporate insolvency. He focused on pertinent sections of the IRS Code and pre- early 100 local tax professionals and NYU School of Law, and Stephen D. sented problems for the audience to discuss. several LL.M. in Taxation students Gardner (LL.M. ’65), a partner at Kronish The workshop concluded with a session on N joined the NYU School of Law tax Lieb Weiner & Hellman and a member of ethics as related to professional tax work. Ger- faculty for the annual Graduate Tax Work- the adjunct faculty at the Law School. T. sham Goldstein (LL.M. ’64), a partner at Stoel shop. Panels debated recent tax cuts, lob- Randolph Harris (’77, LL.M. ’83), another Rives, presented the audience with numerous bied for implementation of different forms member of the adjunct faculty at the Law hypothetical scenarios based on current issues of taxes, and discussed corporate tax, part- School, led a discussion on estate planning facing tax lawyers. These examples focused on nerships, estate planning, and the sec- and the Economic Growth and Tax Relief tax planning, return preparation, and prior ondary effects of taxation on related fields Reconciliation Act of 2001, while adjunct understandings with the IRS. such as bankruptcy and reorganization. faculty member William Lesse Castleberry Net proceeds from the event support Professor Noël Cunningham (LL.M. ’75), (LL.M. ’75), also a partner at Kronish Lieb, the Gerald L. Wallace Fund, which pro- director of the Graduate Tax Program at the and Professor Leo Schmolka (LL.M. ’70) vides scholarships to students in the Grad- Law School, introduced the ﬁrst speaker, took on the evolving law of partnerships. uate Tax Program. I Daniel Shaviro, the Wayne Perry Profes- sor of Taxation at the Law School. His speech was entitled “The Bush Tax Cuts: Steps Toward Bigger Government?” Professor Edward McCaffery of the University of Southern California Law School spoke on the fair timing of taxes. He asserted that the battle in tax policy should not be about income versus consumption taxation, but about what kind of consumption tax to choose. Other panels included one on the Jobs and Growth Tax Relief Reconcili- ation Act of 2003, led by James Eustice (LL.M. ’58), the Gerald L. Wallace Professor of Taxation at the

Clockwise from top left: William Lesse Castleberry, left, partner, Kronish Lieb Weiner & Hellman and NYU adjunct professor of law, with NYU School of Law Professor Leo L. Schmolka; Stephen D. Gardner, partner, Kronish Lieb and NYU adjunct professor of law; H. David Rosenbloom, left, partner, Caplin & Drysdale, Washington, D.C. and director of the International Tax Program at the NYU School of Law, with Richard E. Andersen, partner, Arnold & Porter in New York, and NYU adjunct professor of law; NYU School of Law Professor Daniel N. Shaviro, left, with Edward J. McCaffery, Maurice Jones Jr. Professor of Law and Political Science, University of Southern California, School of Law.

AUTUMN 2004 THE LAW SCHOOL 137 AROUND THE LAW SCHOOL

determine tax liability. For academics, they’re Hot International Taxation Trend appealing because they help simplify complex international tax law. NYU/KPMG lecture sheds light on APAs Other panelists included Sean Foley, a principal with KPMG’s International Cor- porate Services practice; Matthew Frank, he fourth annual NYU/KPMG Lecture Why are APAs so popular? For ofﬁcials, the newly appointed director of the APA Series “Current Issues in Taxation” they’re the only way to capture taxes that Program at the IRS; and H. David Rosen- T brought together three different perspec- would otherwise never be paid. For business bloom, the director of the NYU School of tives—government, private sector, and executives, they’re a great way to accurately Law’s International Tax Program. I academia—to examine the Advance Pricing Agreement Program. Currently the hottest trend in international taxation, APAs are individualized agreements between private companies and governments about the rate of taxation on inter-company business. Harry Hicks III (LL.M. ’91), associate chief counsel of the Internal Revenue Ser- vice, was the keynote speaker for the symposium, which was sponsored by the NYU School of Law Graduate Tax Program and KPMG’s Tax Practice Group. APAs help resolve taxation issues that arise from transfer pricing. There are two types: Bilateral APAs involve agreements with companies and more than one national government; unilateral APAs are agreements with the U.S. government. More than 200 APAs

are currently being negotiated—over 150 bilat- Panelists included Larry Pollack, partner, KPMG; Matthew Frank, the director of the IRS APA Program; Harry eral APAs and more than 50 unilateral APAs Hicks III (LL.M. ’91), associate IRS chief counsel (international); Professor H. David Rosenbloom, director of NYU’s International Tax Program; and Sean Foley, principal, KPMG. with the U.S. government.

Gall (’94, LL.M. ’96). Afternoon sessions South for the Winter focused on “Tax Procedure and Litigation” and “Ethical Considerations in Tax Practice.” Revived tax workshop meets in Orlando Judge James Halpern of the U.S. Tax Court joined Gersham Goldstein in engaging the he world’s leading tax professionals gath- chair of the ABATax Section, opted for three attendees in an analysis of frequently encoun- ered last winter in Orlando, Florida, for days, figuring that was about right. tered ethical issues in taxation. T the NYU School of Law Graduate Tax “We really wanted to bring back the Other workshop highlights over the course Program’s inaugural Gerald L. Wallace-Charles spirit and energy of the old Graduate Tax of the next two days included a highly charged S. Lyon National Tax Workshop, which com- Workshop, focusing the sessions and the corporate tax discussion on spin-offs and split- bined substantive training with alumni pro- discussion on problem sets, model solu- offs led by Louis Freeman (LL.M. ’72), Stein- grams. “It was like a family reunion,” said tions, and hot topics,” said Mary Silver (’92), berg, and Eric Solomon (LL.M. ’84), deputy Jerald David August (LL.M. ’80), a partner director of the Part-time Graduate Tax Pro- assistant secretary for regulatory affairs at the at August, Kulunas & Dawson of West Palm gram at the Law School. “And it just made U.S. Department of Treasury. Additional ses- Beach, Florida, and chair of the event. “This sense to name the new workshop after Jerry sions focused on distressed companies, inter- workshop was a long overdue homecoming Wallace and Charlie Lyon.” Wallace created national taxation, and estate planning. for graduates of the tax program.” the course of study in 1945, hiring Lyon During the Friday night dinner, Jerald The three-day session drew 70 tax profes- soon after, and in so doing instituted a revo- August, who served as the evening’s emcee, sionals including Marvin Kloeppel (LL.M. lution in graduate legal education. The pro- announced the new Wallace-Lyon donor cate- ’00), J. Fitzgerald O’Connor Jr. (LL.M. ’75), ceeds of the workshop are earmarked for the gory, which confers Weinfeld Associate status Robert Shapiro (LL.M. ’61), and Susan Tom Gerald L. Wallace Fund, which provides on those who contribute $5,000 (or more) to (LL.M. ’75). Judges, academics, practitioners, scholarships for students in the Graduate the Wallace Fund. He also enthusiastically and government officials came in from all over Tax Program. Additional support for the accepted the honor of being the very first in the United States, as well as from Italy, Ger- workshop came from sponsors August, the category. many, and Hong Kong. Kulunas & Dawson, Greenberg Traurig, For more information about next year’s The program harkened back to the week- KPMG, Skadden, Arps, Slate, Meagher, & Wallace-Lyon National Tax Workshop, long tax workshops held in the ’70s and ’80s. Flom, the Brian D. Berlin Memorial Chari- which will be held in Orlando in February, But August and his core workshop committee table Trust, and Fidelity Charitable Services. or about becoming a Wallace-Lyon donor— members, including NYU School of Law Pro- The workshop began with a session on perhaps in time for the program’s 60th fessor Guy Maxfield, Lewis Steinberg (’84, “Partnership Taxation” taught by NYU School anniversary dinner this April—please contact LL.M. ’92), Gersham Goldstein (LL.M. ’64), of Law Professor Noël Cunningham (LL.M. Mary Silver, director of the Part-time Graduate and Richard Shaw (LL.M. ’63), the current ’75), Terence Cuff (LL.M. ’79), and Phillip Tax Program, at (212) 998-6596. I

138 THE LAW SCHOOL AUTUMN 2004 Trade Disputes and Tax McDaniel delivers Tillinghast Lecture

nternational tax law may be an arcane “prohibited export subsidies” subject to some, but it is more crucial under the WTO. The decisions I than ever as global trade and business were also necessary if the agree- create friction between nations. Professor ments were to be effective. “If a Paul R. McDaniel, who gave the 2003 country could avoid its WTO David R. Tillinghast Lecture on Interna- obligations simply by substitut- tional Taxation, analyzed the challenges facing a tax subsidy for an identical ing countries by discussing the implications direct subsidy, the organization for the U.S. and other nations of two recent would be completely under- World Trade Organization rulings. mined,” McDaniel said. McDaniel, former director of the Graduate and Interna- tional Tax Pro- grams at the NYU School of Law and now a professor at the University of Florida Levin College of Law, discussed his paper “Trade Agreements and Income Taxa- tion: Interac- tions, Conflicts, and Resolu- corporations, tions.” He pro- however, are vided a history taxed on their of the World worldwide Trade Organiza- income absent tion’s decision some exception on the European such as was pro- Union’s chal- vided by the FSC lenge to the and ETI rules.) David R. Tillinghast with featured speaker Paul McDaniel, now professor of law at the University of Florida, and H. David Internal Rev- Rosenbloom, the director of the International Tax Law Program at the NYU School of Law. McDaniel, how- enue Code forever, found that eign sales corporation rulings. The FSC From an economic perspective, he asked, this argument lacked merit because exemp- regime provided a tax subsidy for U.S. “What was the impact of the decisions on tion systems do not subsidize exports, while exports, and the E.U. claimed the subsidy the economic welfare of the United States that was the speciﬁc purpose of the FSC and violated international trade rules under and other countries?” He concluded that the ETI rules. In addition, he found that U.S. WTO agreements. The WTO agreed, hold- decisions improved welfare both for the U.S. multinationals pay a very low effective rate of ing that the FSC rules constituted a prohib- and for its trading partners. tax on their foreign earnings ited export subsidy. Congress then enacted Finally, McDaniel considered whether The annual Tillinghast Lecture, which is the Foreign Sales Corporation Repeal and the WTO agreements impinged on U.S. delivered each fall by a renowned interna- Extraterritorial Income Exclusion Act of sovereignty. He found that U.S. rules gov- tional tax scholar, was created to provide a 2000, known as ETI. Congress attempted erning treaty obligations sufficiently pro- forum in which leading tax lawyers and edu- to comply with the WTO decision by protected concerns for U.S. sovereignty. Some cators from around the world share ideas viding a different form of tax subsidy for have argued that the U.S. international tax about current issues in international taxation. U.S. exporters. But this subsidy too was system hinders the country’s multinational The lecture, published in the Tax Law Review, challenged by the E.U., and WTO dispute companies when competing with multina- is jointly presented by the NYU School of resolution bodies held that the U.S. ETI tionals from exemption countries. Accord- Law and the New York law ﬁrm Baker & regime also violated WTO rules. ingly, the FSC and ETI regimes created a McKenzie, where Tillinghast is a partner. McDaniel analyzed the two decisions level playing field by exempting from U.S. A graduate of Brown University and Yale from three perspectives: legal/structural, tax a portion of the income earned by U.S. Law School, Tillinghast served as special economic, and sovereignty/political. He con- multinationals in foreign countries. (Multi- assistant for international tax affairs at the cluded that the decisions were legally cor- nationals from exemption countries pay no U.S. Treasury Department before he returned rect--the U.S. tax provisions constituted domestic tax on their foreign earnings; U.S. to private practice in New York City. I

AUTUMN 2004 THE LAW SCHOOL 139

Making the Grade

Commencement 2004 Celebrating an “Infusion of Talent”

ore than 6,000 graduates flooded NYU into the world.” He reminded graduates including General Electric and YUM Brands. Washington Square Park on to appreciate their families and friends, and Billie Tisch was then presented with the Thursday, May 13, for New York lauded the faculty for their “restless quest for Lewis Rudin Award for exemplary service University’s 172nd Commencement excellence, openness and affirmative lack of to New York City. The award is given to an Exercises. Resplendent in purple contentment that drives progress.” individual whose exemplary achievements Mrobes, they entered to the music of H. Dale Hemmerdinger (B.A. ’67), a in the public realm reflect and advance the the NYU Concert Band and the Pipes and member of the Board of Trustees and chair- extraordinary spirit of Lewis Rudin (B.S. ’49, Drums—and to the cheers, smiles, and tears man of the Committee on Alumni Affairs, from what is now the Stern School of Busi- of their classmates, families, and friends. recognized several alumni and special ness), a distinguished alumnus, valued trustee, University President John Sexton and guests. He and Lipton presented the 2004 and devoted friend of NYU. Ms. Tisch is cur- Martin Lipton (’55), chairman of the Board of Albert Gallatin Medal for an outstanding rently a trustee of the September 11th Fund Trustees, presided over the ceremonies. Sexton contribution to society to Kenneth G. and the United Jewish Appeal Federation, called the commencement exercises a “rite of Langone (Stern ’60), the founder of past president of the Federation of Jewish passage celebrating the next infusion of talent, Invemed Associates, co-founder of Home Philanthropies of New York, a trustee at knowledge, commitment and energy from Depot, and director of many companies, Skidmore College, vice chairman of the

140 THE LAW SCHOOL AUTUMN 2004 United Way of New York City, and director of the Tisch Family Foundation. Law School Convocation Provost David McLaughlin awarded honorary degrees to several candidates. The first A tradition of leadership continues degree, a Doctor of Humane Letters, was presented to C. Duncan Rice, principal and n Friday, May 14, the Law School public-interest opportunities. Lofton vice chancellor of the University of Aberdeen. held its annual Convocation in described his childhood dream of being a Professor Farhad Kazemi, from the Faculty of honor of the graduating Class of lawyer, explaining how he wanted to be a Arts and Science, presented Rice with his hon- 2004, which comprised over 800 source of positive social change and to emu- orary degree. President Sexton praised Rice as J.D., LL.M. and J.S.D. candidates. late legal heroes such as Thurgood Marshall. a “bold architect of academic initiatives” and as O Dean Richard Revesz welcomed The convocation address was delivered a “renowned university statesman, [who] built the Law School’s newest alumni and recog- by Burt Neuborne, the John Norton a lasting bridge of mutual esteem between nized the many students who were awarded Pomeroy Professor of Law and legal director two of the world’s most foremost universi- scholarships or received fellowships, congrat- of the Brennan Center for Justice, which ties that bear the names of the great cities in ulating them on their academic successes. aims to protect civil liberties. He is also which they thrive.” Lester Pollack (’57), chairman of the Law known for his work on international holo- Professor Marisa Carrasco from the Fac- School’s Board of Trustees, asked the class to caust litigation. Neuborne focused on the ulty of Arts and Science presented Judith help the Law School continue to lead in the impact that Brown v. Board of Education had Rodin, then the outgoing president of the field of legal education. He also gave the grad- on him as a young boy growing up in University of Pennsylvania, with a Doctor of uates a little practical career advice: offer fair Brooklyn. He reminded the graduates that Humane Letters. Rodin is the first woman judgments and always try to inspire others. public law is an expression of private values to be a president of an Ivy League institu- University President John Sexton praised and that constitutional law is the engine of tion, “a path-breaking academic leader, who the Law School faculty and warned the gradu- social change. Neuborne noted that Brown led Penn to extraordinary levels of achieve- ating class to steer clear of “sins of omission,” was only the first step in a series of civil ment,” said Sexton. to show kindness and compassion, and to feel rights advances in the United States and Mohamed ElBaradei (LL.M. ’71, J.S.D. confident in “speaking truth to power.” implored the class to make sure that the ’74), was presented with an honorary Doctor Two students then spoke on behalf of their voice of Brown lives on. of Laws. ElBaradei is the director general of classmates. Steven Budlender delivered an The Class of 2004, led by a Class Gift the United Nations International Atomic address for his LL.M. classmates, and Bran- Executive Committee including students Energy Agency. President Sexton applauded don Lofton spoke for the J.D. graduates. Peter Lallas and David Berman, then pre- the recipient as a “diplomat, international Budlender discussed the increasing globaliza- sented the Law School with the first-ever civil servant, and peace-seeker.” The degree tion of law, encouraging his peers to seek out class gift. More than 50 percent of the class was presented by Law School Professor donated $8,000 to the fund; the gift was Stephen Holmes. accepted by an appreciative Dean Revesz. I Finally, Richard D. Parsons, chairman and CEO of Time Warner, was presented with an honorary Doctor of Commercial Science from Vice Provost Sharon Weinberg. In his concluding remarks, President Sexton called New York the first “glocal city”— both global and local—and praised its diversity. “NYU embraces this glocal environment and [mirrors] it deliberately in [its] curriculum, faculty, and students,” Sexton said. He pointed to the 160 flags surrounding the stage in Washington Square Park that represented the graduates’ home countries. He pushed for an appreciation of the value of education, emphasizing that a significant part of the wealth of nations comes not from the mere growth of equipment or from more hours of labor. Rather, he said, wealth comes from the creation of new knowledge in the fields and disciplines that are the province of our universities. “The health of our society depends on our historians, classicists, and philosophers … who enrich our social discourse by bringing the wisdom and insights of the ages to bear on the questions of our day.” He concluded by congratulating his students and their families and wishing them tremendous luck in the future. The ceremony ended with a tribute to Top left: Brandon Lofton delivers an address for the J.D. graduates. Top right: Steven Budlender delivers the address for his LL.M. classmates. Bottom left: Burt Neuborne, the John Norton Pomeroy Professor New York City and to the graduates of the of Law, delivers the convocation address. Bottom right: Lester Pollack (’57), Chairman of the New York University School of Law Board of Trustees NYU Class of 2004. I

AUTUMN 2004 THE LAW SCHOOL 141

MAKING THE GRADE

Mohamed ElBaradei: Man of Peace

NYU President John Sexton, right, presents Mohamed ElBaradei (LL.M. ’71, J.S.D. ’74) with an honorary Doctor of Laws degree.

New York University Law School alumnus Mohamed ElBaradei (LL.M. ’71, J.S.D. ’74), director general of the International Atomic Energy Agency, was appointed to the post in 1997—a crucial time in the organization’s history. The IAEA grew out of the “Atoms for Peace” program in the late 1950s and was charged both with the containment of nuclear weaponry and the promotion of peaceful nuclear energy. In many ways its mission is still the same, but the post-cold-war world has presented the agency with a new set of challenges. As an Egyptian national and a strong believer in strict arms control, ElBaradei is uniquely suited to lead the organization as it faces nuclear proliferation among Islamic and Middle Eastern nations and elsewhere. During the May graduation ceremonies, the University presented ElBaradei with an honorary degree, which joins the master’s degree and doctorate he received at the Law School in the 1970s. ElBa- radei’s adviser during his studies was Thomas M. Franck, one of the world’s leading experts in international law. Franck was so impressed by his former student that when he was asked to head the United Nations Institute for Training and Research (UNITAR), he said he would only do so if ElBaradei could be seconded from the Egyptian government to help him. Born in Cairo in 1942, ElBaradei was already well-versed in the law before he began his studies in the United States. His father, Mostafa ElBaradei, was president of the Egyptian Bar Association, and by 1962 ElBaradei had graduated from the Law Faculty of Cairo University. He began his career as an international diplomat with the Egyp- tian Foreign service in 1964, working both in New York and Geneva before enrolling at NYU. On completing his doctorate, he returned to the Egyptian foreign service before Franck asked for him to be appointed as a senior research fellow at the U.N. ElBaradei joined the International Atomic Energy Agency in 1984. In an interview with an Iranian newspaper, he said of his move that, “I wanted to expand my role from someone who defends the national interests of a small country to one that defends the interests of human beings throughout the world.” Defending the world is no easy matter. When ElBaradei issued a detailed report in November 2003 outlining Iran’s attempts to deceive weapons inspectors but concluded that there was insufficient evidence to prove the country had plans to develop a nuclear arsenal, he came under attack from the Bush administration and Arab states alike. But ElBaradei has built a reputation as a skilled diplomat who has a steadfast commitment to the principles of law. Top: Steven Budlender carries the NYU School of Law banner. Center right: Richard D. Parsons, Chairman and Chief Executive Officer of Time Warner, His dual heritage may at times leave him in a double bind, but an addresses the gathering. Center left: Law School graduates proceed. Bottom honest arbitrator rarely has a smooth passage. — D.B. left: Josh Kagan receives the Juris Doctor degree. Bottom right: Lior Hendler receives master’s and doctoral degrees.

142 THE LAW SCHOOL AUTUMN 2004 Hooding Album Family Photos Left to right from top: 2004 Melissa Ahn with her brother-in-law, Steven Chung (’99)

t is a tradition at Convocation for Zev D. Benjamin with his sister, graduates to be hooded by relatives Hilla Shprung (’02) Ior signiﬁcant others who are alumni Elliot E. Chalom with his daughter Randy Chalom and brother-in-law, or staff of NYU School of Law. In 2003, Robert Frastai (’96, LL.M. ’99) the Law School added a new ceremonial Yula Chin with her husband, dimension—having scholarship donors Jack H. Nguyen (’02) hood their graduating scholars. Robin J. Effron with her father, Andrew S. Effron (‘IJA ’97)

Jill I. Goldenziel with her fiancé, Michael H. Pine (’01)

Anne K. Goldstein with her father, Kenneth Goldstein (LL.M. ’75)

AUTUMN 2004 THE LAW SCHOOL 143

MAKING THE GRADE

Family Photos

Left to right from top: Susan Haskel with her father, Michael Haskel (’75)

Melissa Costiere Holsinger with her father, John Holsinger (’74)

David Evan Horn (LL.M. Taxation) with his brother Richard Horn (’03)

Douglas E. Julie with his father, David B. Julie (’63)

Matthew King with his brother, Gerald W. King (’01)

David M. Lehn with his father, David Lehn (LL.M. ’86)

Libbi R. Levine (LL.M. General) with her father, Mark Lee Levine (LL.M. ’69)

Benjamin Li (LL.M. Corporation Law) with his father, Kwan-Tao Li (LL.M. ’69)

144 THE LAW SCHOOL AUTUMN 2004 Family Photos

Left to right from top: Thomas William Littman (LL.M. Taxation) with his father Robert Littman (LL.M. ’62)

Chase Madar with his brother, Josiah Madar (’02)

John Christopher McCaffrey (LL.M. Taxation) with his father, John McCaffrey (’67, LL.M. ’73), and his mother, Carlyn McCaffrey (’67, LL.M. ’74)

Elizabeth Ann Moller with her husband, Robert Lemons (’99), and her father, Allan S. Moller (’70)

Gitte Lykke Pedersen (LL.M. Trade Regulation), with her sister, Rikke L. Pedersen (LL.M. ’01)

Amy E. Powell with her husband, Daveed Gartenstein-Ross (’02)

Elizabeth Harris Raskin with her father, Fred Raskin (’73)

Marisa J. Savitsky with her father- in-law, Reuben Leibowitz (LL.M. ’79)

AUTUMN 2004 THE LAW SCHOOL 145

MAKING THE GRADE

Family Photos

Left to right from top: Tracy Udell with her mother, Justice Bernadette Bayne (’72)

Yuko Watanabe with her husband, Tetsuji Watanabe (LL.M. ’03)

Omer Wiczyk with his sister-in-law, Kate Phillips (’98)

Boji Wong with her father, Richard Wong (’69)

Tae Han Yoon (LL.M. Corporation Law) with his wife, Seong Eun Kim (LL.M. ’02)

Kelly Jordan with her cousin, Law School Dean Emeritus and University President John Sexton

Lori Rifkin with her great aunt, Law School Trustee Norma Z. Paige (’46)

Scholarship Donors

Right: Morris M. Geifman Memorial Scholar Roman A. Bilyk (LL.M. International Taxation) was hooded by Stephen L. Geifman (LL.M. ’71)

146 THE LAW SCHOOL AUTUMN 2004 Scholarship Donors

Left to right from top: Norma Z. Paige Scholar David E. Blabey was hooded by Law School Trustee Norma Z. Paige (’46)

Norma Z. Paige Scholar Demian G. West was hooded by Law School Trustee Norma Z. Paige (’46)

Jack and Susan Rudin Scholar Michael Burstein was hooded by Jack Rudin

Jack and Susan Rudin Scholar Linda Carranza was hooded by Jack Rudin

George T. Lowy Scholar Rachel Demeny was hooded by Law School Trustee George T. Lowy (’55)

An-Bryce Scholar Sheridan L. England was hooded by Beatrice W. Welters

Hale & Dorr/Root Tilden Kern Scholar Rebecca Kiley was hooded by C. Hall Swaim (’64)

Pickholz Family Scholar Matthew B. Larsen was hooded by Jason R. Pickholz (’94)

AUTUMN 2004 THE LAW SCHOOL 147

Alumni Activities

Professor Noah Feldman said “the best reason to think we have a chance for democracy Reunion Weekend in Iraq is that ordinary Iraqis realize that one group can’t dominate their government.” Dining, Dancing, and Discussing Feldman served as a senior adviser on constitutional law to the Coalition Provisional lumni participating in reunion The interaction between distinguished Authority last spring. weekend were almost as busy as faculty and alumni, such as Richard Bernard Hasan addressed the relationship students procrastinating before the (’76), executive vice president and general between Muslims and America. Hasan, an bar exam. They attended recep- counsel of the New York Stock Exchange, American Muslim of Pakistani descent born tions, dinners, tours of the Law and Asma Gull Hasan (’01), the author of and raised in the United States, reminded A School’s new Furman Hall, and Why I Am a Muslim, showed once again the the audience of a few crucial facts: Only 12 danced at the renowned Waldorf-Astoria. longstanding and diverse strengths of the percent to 20 percent of Muslims are Arab, But it wasn’t all fun and games. Alumni NYU School of Law community. and 79 percent of Muslims in the United from the classes of 1954 (who were inducted States vote. She encouraged the president into the Golden Circle), 1959, 1964, 1969, Bringing Full-Fledged and other high-level officials to travel to 1974, 1979, 1984, 1989, 1994, 1999, and inter- Democracy to Troubled Iraq Islamic countries more often and to do more national graduates took part in four panels In a panel on Iraq, “The U.S. in the Gulf, with Muslims in this country, including visit- on topics ranging from the role of the United and the Gulf in the U.S.,” moderated by ing mosques. She also pointed out that the States in Iraq and compensation of corporate Benedict Kingsbury, the Murry and Ida prophet Mohammed not only wrote a con- executives, to the challenge of increasing voter Becker Professor of Law and director of the stitution for the city of Medina, but he also turnout and Holocaust-related litigation. Institute for International Law and Justice, refused, on his deathbed, to name his succes-

148 THE LAW SCHOOL AUTUMN 2004 sor. Instead, he instructed his followers to choose their next leader themselves—a story illustrating that Islam and democracy are not strangers at all. Talking Money: Are Executives Paid Too Much? In the wake of scandals at WorldCom, Enron, and Tyco, compensation packages for executives have come under increased scrutiny. In a provocative discussion titled “The Exec- utive Compensation Conundrum,” the NYU School of Law alumni and professors discussed how compensation is determined and whether the system should be changed. “We have a real problem in the United States today,” said Geoffrey Miller, the William T. and Stuyvesant P. Comfort Professor of Law Reunion 2004: Honorees, from left to right, are Tanya E. Coke ('94), Marcia Robinson Lowry ('69), and director of the Center for the Study of Martin S. Garbus ('59), Herbert M. Wachtell ('54), and David Rudenstine ('69) with Dean Richard Revesz. Central Banks, who moderated the panel. (Please see page 100 for more on Miller’s work.) “During the past 10 years, executive compensation has more than tripled,” he said. The Law Alumni Association Awards Luncheon “The average CEO pay today approaches After the four panels, alumni and faculty made their way to the Greenberg Lounge to $11 million per year.” reminisce over lunch and to celebrate achievements within their ranks as the LAA presented Miller asked the panelists to recommend awards to five outstanding NYU School of Law graduates. ways to rein in excessive compensation. Bernard pointed out the difficulties: “Most Recent Graduate Award teaching. Rudenstine reflected on the public boards would be uncomfortable setting Katherine Frink-Hamlett (’91) presented the perception of lawyers: “Consider Atticus Recent Graduate Award to Tanya Coke Finch in To Kill a Mockingbird. Since then, salaries down at the 25th percentile because (’94). As an independent consultant, Coke we’ve had many scandals and that stature of they think it wouldn’t be motivational and helps nonprofit organizations become more lawyers has never quite returned. But as I wouldn’t help retain the kind of executive strategic in designing programs and raising look around this room, I see great lawyers they need.” Bernard suggested creating a money. She also worked as director of the and good people, who hold on to our free- board that is over 50 percent independent, Criminal Justice Initiative and counsel to doms. Our liberties would not be as they are U.S. programs of the Open Society Institute. today without lawyers to define, protect, and driven by an uncompromised compensation enhance them and to tell people what’s at committee chosen by an objective nominat- Public Service Award stake when governments try to limit them.” ing committee. Many committees also Patricia Hennessey (’79) presented the Pub- employ independent consultants as defen- lic Service Award to Marcia Robinson Lowry Alumni Achievement Award sive devices, explained Claude E. Johnston (’69), the executive director of Children’s “It’s a personal privilege and honor to Rights, the leading national, nonprofit orga- recognize my teacher, friend, and mentor, (LL.M. ’83), managing director in the nization advocating for the rights of children Marty Garbus,” said LAA President Paul New York office of Pearl Meyer & Partners. in foster care. Lowry and Stewart Pollock Kurland (’70) as he presented the award “Consultants can have conflicts if they’re (’57), a retired New Jersey Supreme Court for Alumni Achievement. “As one of our hired by management, however, so many judge and a trustee of NYU School of Law, country’s leading trial lawyers, he repre- compensation committees hire their third- recently won a high-profile case against sents causes as well as clients.” Garbus New Jersey’s youth and family service (’59), a partner at Davis & Gilbert and the party advisers directly.” department, proving that it did not protect author of four books, helped draft a new Professor Robert Daines, then at the four children from their foster parents who constitution for the Czech Republic. He has NYU School of Law and now the Pritzker systematically starved them over several taught at Columbia and Yale, and is cur- Professor of Law and Business at Stanford years. As a result of this litigation, the state rently teaching in China. “I thank each of and an expert in corporate finance, focused created an office of child advocates, which you for this award,” he said, “and I thank is headed by another NYU School of Law NYU for giving me a lifetime of law.” on what kind of compensation packages alumnus, Kevin M. Ryan (LL.M. ’00). executives receive. “Hundreds of the largest As she accepted her award, Lowry told Judge Edward Weinfeld Award firms let their CEOs use corporate jets for the story of a little boy who, after being “Herbert Wachtell excels at everything he personal business. Interestingly, stock returns abused by his mother, was shuttled through does,” said Dean Revesz as he presented drop two percent on average when compa- 11 foster-care homes, until one day he the Judge Edward Weinfeld Award. “A climbed into a garbage can and asked to nies disclose that the jet is being used by great deal of the success of this law school be thrown away. “Kevin had been thrown is due to Herb and the support of his firm.” CEOs. It seems like it would be better to away by the system,” said Lowry. “I want Wachtell (’54) graduated first in his class, just give the CEOs cash and let them rent to fight until I never hear another story like was editor-in-chief of the NYU Law Review, [the jets].” Why do shareholders view the use that again. It’s a privilege to be these chil- received a Root-Tilden Scholarship, and is a of corporate jets so negatively? People might dren’s lawyer.” founding and senior partner of Wachtell, think it indicates that other bad things are Lipton, Rosen & Katz. Said Wachtell: “When Legal Teaching Award we started our firm, every lawyer was from happening within the company, Daines Then Law School Vice Dean Stephen Gillers NYU. We have since let down the barriers explained. “It’s like judging a restaurant (’68) awarded David Rudenstine (’69), the and permitted a few others, but we’re still an on its bathrooms—if it’s dirty where people dean of Cardozo School of Law, the Legal NYU firm as to the standards we set and our can see it, what’s happening back in the Teaching Award for his excellence in legal beliefs about how law should be practiced.” kitchen?” (Continued on next page.)

AUTUMN 2004 THE LAW SCHOOL 149

ALUMNI ACTIVITIES

Campaign Coverage Norton Pomeroy Professor of Law and Semitic activities. We deliberately chose to “Politicians, Voters, and the Media: Explain- legal director of the Brennan Center; focus on Ford first because we wanted to ing the Communications Gap,” a panel led Michelle Freda Weitz (’01; LL.M. ’04), show the Germans that we weren’t being by former Russell D. Niles Professor of Law assistant settlement counsel on the Swiss biased in our selections of who we held Larry Kramer (now dean of Stanford Law), Bank litigation; and Adele Bernhard (’76), accountable. The industries treated it all like explored how best to create an informed and director of the Criminal Defense Clinic at business and knew they should appear to engaged electorate. Obstacles include politi- Pace Law School—discussed the details express remorse. We ended up getting $5.2 cians beholden to interest groups, voters and implications of these watershed cases. billion into a German Foundation to com- with “MTV attention spans,” and the media’s Weiss, who was a lead counsel, pro pensate the victims.” unbalanced focus on sound bites, he said. bono, in the Swiss bank litigation that These ground-breaking cases also raised Stephen Salyer (’79), president and recovered $1.25 billion and a lead counsel in some intriguing philosophical questions chief executive officer of Public Radio recovering more than $5 billion for German that Neuborne was happy to discuss. “Is International, said studies show that peo- Holocaust victims, began by describing his monetizing the Holocaust something anyone should ever consider doing? Have we reduced it to dollars and cents?” asked “You don’t need to find someone to blame Neuborne, who was a lead counsel in the litigation against Swiss banks, working for the activity that hurt you. You just have pro bono, and a principal lawyer in the litigation against German corporations. “On to show that you went to jail when you the other hand, has the historical record been changed so that the Holocaust can shouldn’t have, whether it was because of never be ignored? Have we helped these people by recovering this money? My a police officer who didn’t investigate well, answer: Taking money from unjust enrichment and giving back to the victims has a witness who made an error, or some the feel of justice.” Bernhard, who is involved in the Inno- other reason.”—ADELE BERNHARD (’76) cence Project, is trying to apply those hard- earned lessons in the United States today. “I thought the best solution was for the states ple are shifting away from the nightly news legal strategies. “We realized that it wasn’t to provide statutes that would work like and daily newspapers for political informa- just about Jewish people. The German worker’s compensation,” she said. “You don’t tion, and turning instead to cable networks industrial complex forced 1.7 million people need to find someone to blame for the activ- and the Internet. Nicholas Baldick (’95), into slave labor. About 250,000 were labor- ity that hurt you. You just have to show that national campaign manager for Democratic ers in concentration camps, who worked you went to jail when you shouldn’t have, vice-presidential candidate John Edwards, until they died; others were forced laborers, whether it was because of a police officer offered a harsh critique of the media, which taken from their homes to work in camps who didn’t investigate well, a witness who he deemed too negative. What is needed, without pay. We uncovered some shocking made an error, or some other reason.” And Baldick said, are more town hall meetings research. For example, Ford Motor Com- once that’s demonstrated, there should be a and debates, and more active voters like pany had had a plant in Germany. When the monetary remedy, she said. “I believe in a Iowans. The former U.S. senator from female workers had babies, the babies didn’t right to compensation for those who have Oregon, Robert Packwood (’57), currently survive. I documented Henry Ford’s anti- been unjustly convicted.” I president of Sunrise Research, cited specialized reporting, such as that done by trade newsletters, as examples of serious coverage. Seth Gitell (’94), press secretary to Mayor Thomas Menino of Boston and a former reporter for The Boston Phoenix, said long-form journalism, such as New Yorker articles and Frontline pieces, are essential to informing voters. Fighting for the Rights of Holocaust Victims NYU School of Law faculty and alumni have been key players in litigation that has helped Holocaust survivors and their families recover more than $8 billion in assets. In a panel moderated by the Honorable Dennis Jacobs (’73) of the U.S. Court of Appeals for the Second Circuit, four members of the NYU family—Melvyn Weiss (’59), a senior partner of Milberg Weiss Bershad & Schulman and trustee of the Professor Noah Feldman discusses the Iraq situation. Law School; Burt Neuborne, the John

150 THE LAW SCHOOL AUTUMN 2004

Lipton, Jones, and Cosby Honored by Brennan Center

he night began with actor Alec Baldwin imploring the lawyers in the room to T donate more money to the Brennan Center for Justice at the NYU School of Law and ended with a pledge from comedian Bill Cosby to begin funding the Law School’s Thurgood Marshall Scholarship. The Brennan Center’s Legacy Awards dinner, which drew nearly 800 people, is held annually to pay tribute to the values of U.S. democracy and to raise funds for the Center. This year, Martin Lipton (’55), chair of the NYU Board of Trustees, Elaine Jones, president and director-counsel of the NAACP Legal Defense and Educational Fund, and Cosby were recognized for their Golden Moment for Root-Tilden-Kern human justice work. Lipton, honored for his dedication to he Root-Tilden-Kern Scholarship Program Guantánamo Bay, Cuba, and an administra- the relationship between the NYU School celebrated its 50th anniversary last spring tion that puts a lower priority on international of Law and the Brennan Center, exempli- T with a day of panels about the current human rights have left its reputation tarnished. fied the evening’s theme of partnership. state of public interest law followed by an “The effect of and reaction to terrorism “The key to Marty’s heart—the reason why evening of celebration at the Rainbow Room. increasingly affects our credibility,” noted mod- he is being recognized here tonight—is Keynote speaker Professor Alexander Boraine erator Thomas Buergenthal (’60), the Ameri- to celebrate the NYU relationship,” said set the tone for the reunion by talking about can judge on the 15-member International Thomas Gerety, the Center’s executive what motivates people to fight for human Court of Justice. “It will set the whole U.S. director. “This relationship is central to rights. Boraine, the founding president of the human rights movement back.” the success of the Brennan Center.” International Center for Transitional Justice Boraine made a similar point when asked Nancy Brennan, daughter of the Center’s and an adjunct faculty member at the Law whether the leaders of the anti-apartheid namesake, U.S. Supreme Court Justice School since 1999, struggled for years against movement would turn to the United States William J. Brennan Jr., and a board member, apartheid in his native South Africa, serving as for help in the same way they once did, if the vice chairman of the South African Truth and struggle were arising now. He lamented that it Reconciliation Commission. He put the mat- would not be so clear that ter simply: “It is always the same kind of the United States would question, ‘What do I owe the world? What be the place to turn. “The kind of contribution can I make?’ ” United States must get Tough questions, as illustrated in a spirited back its focus,” he said. panel led during the day by Steven Kelban, “It is an incredible coun- the former executive director of the Root try, with so much poten- program, that analyzed and celebrated changes tial and power, but it’s brought about by Roots in the judiciary, gov- actually ruining its own Thomas ernment, law firms, and public interest organi- Buergenthal (’60) reputation. America must zations. Kelban, who started the Law School’s remind itself of its values.” Public Interest Law Center, and is now the When asked about what lessons he could offer executive director of the Andrus Family Fund, the United States about Iraq, Boraine listed a which bankrolls community projects, said he number of distinct areas that America must was inspired by his time with Root alumni. address to achieve reconciliation and restora- “These graduates continue to make a real dif- tion. The United States “must consult,” he ference in people’s lives,” he said. said, “not just control.” He also stressed the During another panel called, “The Chal- importance of having a legal code that protects lenges Globalization Poses for Public Interest ordinary people and of creating and preserving Law,” several speakers maintained that between a free, independent justice system. the war on terrorism and the war in Iraq, it’s a Such sobering and thought-provoking difficult time to be an American working on reflections certainly made clear that although international human-rights efforts. For many the Root-Tilden-Kern program has accom- decades, the U.S. led the world both in official plished much to be proud of, the need for Actor and comedian Bill Cosby accepts the action and in private work. But the panelists lawyers who are creative and thoughtful Brennan Legacy Award for his commitment argued that the U.S.’s unilateral approach to problem-solvers is going to be even stronger to education and his passion for fairness and equality. Iraq, the recent handling of detainees in during the program’s next half-century. I

AUTUMN 2004 THE LAW SCHOOL 151 ALUMNI ACTIVITIES

seconded that sentiment. “Partnerships can A.G. Speaks at the Annual Alumni Luncheon sometimes be marginal, but at the Brennan Center, they are part of the weave of what we do. This partnership and all of our partnerships help a smallish organization to have a great impact.” Lipton was introduced by John Sexton, president of New York University and former dean of the Law School. “Marty Lipton is a man who deserves to be honored by all of us simply for the kind of man he is,” Sex- ton said. “This is a man whose spirit and generosity is legend.” Lipton modestly accepted his award, noting that it took more than a few calls to convince him to be a recipient. “I am here because of a great, great partnership between four friends forged 50 years ago at the New York University School of Law,” Lipton said, referring to the creation of his law firm Wachtell, Lipton, Rosen & Katz New York State Attorney General Eliot Spitzer stresses that moral failures are not restricted to Wall Street. in 1965 by himself and three other NYU School of Law graduates, Herbert Wachtell liot Spitzer’s reputation of aggressively that does not limit itself, and has not limited (’54), Leonard Rosen (’54), and the late pursuing white-collar criminals may itself, to the private sector,” Spitzer said. “We George Katz (’54). E have earned him tabloid nicknames have had crises in the not-for-profit sector, in Lipton was heralded not only for his like “the sheriff of Wall Street” and “the the elected branches of government… in the commitment to the NYU School of Law, enforcer,” but his dynamic personality is media, in our religious denominations.” but also for his leadership and generosity hardly an anomaly in the history of the He also talked about the problem of fed- to major educational and cultural institutions New York State Attorney General’s Office. eral overstepping, of a tendency toward pre- benefiting equality and human dignity. However much ire Spitzer has sparked emption of state efforts. He cited the Office Through his firm, Lipton has spearheaded from the Wall Street wrongdoers he has of the Comptroller of Currency, a federal various efforts in the public and private chased, few would argue that he is any agency currently in charge of protecting cus- sectors, including the establishment of a $5 more a maverick than one of his most tomers, as an example. The OCC has often million scholarship fund at New York Uni- notable predecessors: Aaron Burr. been criticized for being assigned too much versity for the dependents of firefighters, Spitzer mentioned this little-known his- responsibility for efforts that states are more police officers, and emergency medical per- torical fact about the third vice president equipped to handle. “The OCC doesn’t have sonnel who died during the rescue efforts when he spoke at this year’s Annual Alumni the people, doesn’t have the resources, does- after the attacks at the World Trade Center Luncheon at the Pierre Hotel in Manhattan. n’t have the track record to deal with these on September 11, 2001. Dean Richard Revesz, who introduced the types of cases,” Spitzer said. Lipton also served as president of the keynote speaker, commended Spitzer for his Spitzer thanked attendee Robert Abrams NYU School of Law Board of Trustees for accomplishments as the state’s 63rd attorney (’63), another one of his predecessors as 10 years and is a recipient of the University’s general, most notably his victories in envi- attorney general and currently a partner at Gallatin Medal, the Law School’s Vanderbilt ronmental matters, where the federal govern- Stroock & Stroock & Lavan. Abrams also Medal, and a Presidential Citation. The Brennan Center, created in 1995 by Brennan’s family and his former clerks, has Attorney General Eliot Spitzer has earned dedicated itself to promoting equality and human dignity through scholarship, public respect nationwide by taking corporate education, and legal action. The Center’s projects include reforming the campaign criminals, mafia big-wigs, and reckless finance system, promoting fair courts and democratic participation, increasing eco- polluters to task with equal ferocity. nomic justice and access to the courts, and improving criminal justice policy. The Cen- ter represents a new model of public-interest ment has been relatively passive. Spitzer has happens to be the person who gave Spitzer legal advocacy not only because of its wide- earned respect nationwide by taking corpo- his first job—as a summer intern in the ranging docket of cases, but also in large rate criminals, mafia big-wigs, and reckless Attorney General’s Office. part because of its relationship with the polluters to task with equal ferocity. The program, which drew some 400 NYU School of Law, which connects the Spitzer discussed some of the efforts his attendees, concluded with outgoing LAA lawyers and advocates employed at the office has made to improve accountability in president Marvin Lerman (’65, LL.M. ’70) Brennan Center with the scholars of the the state and beyond, particularly in the secu- passing the torch to his successor, Paul Kur- Law School. rities industry. He pointed out that moral land (’70), while expressing thanks to those “We hope to make this a model in the failures are not restricted to Wall Street and who had made his term a success: “I want to country at large to put idea people together that all segments of society must be vigilant thank all of my board members who worked with advocates,” Gerety said. I in enforcing ethical behavior. “This is a crisis so hard for me in the last several years.” I

152 THE LAW SCHOOL AUTUMN 2004 The Good Fight BLAPA honors four outstanding alumni who are battling for social justice

he NYU School of Law not only turns of her professional life fighting out good lawyers, it turns out lawyers inequity, from working as chairper- T who do good. Four outstanding alumni son of the East Harlem School at were honored for their achievements and Exodus House to her more recent commitment to social justice by the Black, involvement in providing cultural Latino, Asian Pacific American Law Alumni enrichment with the Bedford Association (BLAPA) at their annual din- Stuyvesant Restoration Corporation. BLAPA Scholarship winners from left to right, Michael Hing (’04), Chitra Aiyar (’04), and Ming ner last April. Her BLAPA award honored these diligent Chen (’04) When entertainment lawyer Lisa Davis efforts. Keeping with the upbeat spirit of (’85) attended the Law School, racism was the event, she used her acceptance speech to discrimination, from race to sexual orienta- an insidious reality. “Call-backs for students reiterate her vow to “never be complacent tion to disability. And in 1999, Pu-Folkes of color during Early Interview Week were in the face of discrimination.” founded New Immigrant Community rare,” she said, and students of color rarely Bryan Pu-Folkes (’94), a former corpo- Empowerment (NICE), a New York-based landed jobs with large ﬁrms. “We were told rate lawyer whose commitment and dedica- nonprofit organization seeking to civically [by hiring partners] that ‘people like to hire tion to public service took him out of educate and empower new immigrants. people who look like them.’ ” Now a part- corporate work and into immigrant com- Elgin Clemons Jr. (’94) was honored for ner at New York-based Frankfurt Kurnit munities, also received a distinguished ser- his efforts in urban economic development. Klein & Selz, Davis was named one of vice award from BLAPA. As the head of The Root-Tilden graduate is the former “America’s Top Black Lawyers” by Black the New York City Commission on Human CEO of the Economic Development Cor- Enterprise magazine. Davis has spent much Rights, Pu-Folkes deals with all types of

The Society of the Torch

“I have chosen to make Wayne R. Hannah Jr. (’57) is a member of New York Uni- versity's Society of the Torch, a group of alumni and friends my bequest gift to the who have established bequests and charitable trusts that Root-Tilden-Kern Program. beneﬁt New York University.

My work with the Program has been most By including the Law School in your estate plans, you can enlightening and personally enjoyable. As an achieve significant tax and financial benefits, while helping to ensure that future generations of students receive the best early circuit secretary trying to entice students legal education in the world. If you would like more infor- from Midwestern colleges to consider NYU and mation about including the Law School in your will, please contact Marsha Metrinko (see contact information below). later as a member of the judges’ panels that made All inquiries will be handled in confidence.

the difficult choices of final selection, I have Also, if you have already included a gift for NYU School of learned firsthand how an institution driven by Law in your estate plans, please contact the Law School so that we may thank you and officially welcome you as a the needs of public service and professional member of the Society of the Torch. excellence can grow while making a meaningful Please contact: difference to its students and the larger commu- Marsha Metrinko nity it serves. The Program was well founded and NYU School of Law 161 Avenue of the Americas, 5th Floor has adapted to needs and modern conditions. New York, NY 10013 The Root Program will continue to receive my Telephone (212) 998-6485 Facsimile: (212) 995-4035 support; the cause is indeed worthy." Email: [email protected]

AUTUMN 2004 THE LAW SCHOOL 153 ALUMNI ACTIVITIES

poration for Trenton, a nonprofit real estate development company with a mission to improve Trenton’s economic, social, cultural, and physical environment through development and redevelopment projects. As a student, Clemons also won the NYU Greene Memorial Award for Trial Advocacy, which is the highest award given to a prospective trial lawyer in the graduating class. U.S. Federal District Court Judge Ronald Guzman (’73) received an award for a distinguished career that includes work with the Association House of Chicago, a legal services program that provides free representation for members of the largely Latino and African-American communities in the Chicago area. He also served as a magistrate judge in the Northern District of Illinois for nine years, before being appointed a district court judge for the Northern District of Illinois by President Clinton in 1999. Grutter-Gratz commentators from left to right: Thomas Gerety, Miranda Massie (’96), Professor Sylvia Law BLAPA also awarded three $3,500 schol- (’68), Melissa Woods, and Manuel Klausner (’62, LL.M. ’63). arships against outstanding debt to third- year minority students who are already working hard in the public interest. The The Impact of Grutter and Gratz winners: Chitra Aiyar (’04), for her efforts Two high-profile cases send mixed messages on behalf of The Door and the Association of Community Organizations for Reform about the future of affirmative action Now (ACORN) High School for Social Justice in Brooklyn; Michael Hing (’04), who interned at the Office for Civil Rights he race-conscious admissions policies Grutter, said she made arguments in that case at the U.S. Department of Education and applied by the University of Michigan and about the necessity of affirmative action in works with the New York Consortium for Tthe lawsuits that sought to eradicate those today’s society “that continues to be in many Worker Education; and Ming Chen (’04), policies were the topics of discussion in a sym- ways a caste society.” She attacked law schools’ who helped establish the west coast version posium sponsored by the Law Alumni Associ- reliance on LSAT scores for admissions, citing of the Harvard Civil Rights Project and ation and the Black, Latino, Asian Pacific a study that showed white students score 9.2 worked at the U.S. Equal Employment American Law Alumni Association last fall. points higher on the LSAT than students of Opportunity Commission and the Brook- Four attorneys who were involved in color after controlling for college GPA and ings Institution. those cases, Grutter v. Bollinger and Gratz v. major. “It’s a test that has been proved to be A new BLAPA executive board, led by Bollinger, examined the question, “The Uni- racially biased,” Massie said. “To use it as a Michelle Meertens (’98), was also ushered versity of Michigan Cases: What Do They putative measure is completely unacceptable in at the dinner. Meertens got her tenure off Mean for Affirmative Action and Where Do and a tool of re-segregating our society.” to a strong start, urging not only the award We Go From Here?” In Gratz, the univer- Thomas Gerety, executive director of the winners, but everyone in the audience to sity’s undergraduate admissions program, Brennan Center for Justice and former presi- continue their noble fight against racial and which awarded underrepresented minorities dent of Amherst College, agreed with Massie ethnic inequalities. I bonus points on an admissions scale, was that the LSAT might be biased against people struck down as unconstitutional; in Grutter, of color, but he argued that law school a policy of conferring favor on individual admissions boards are unlikely to abandon minority applicants to the university’s law it. The question, he said, is what should be school was upheld. done about the bias? Melissa Woods, assistant counsel at the Panelist Manuel Klausner (’62, LL.M. ’63), NAACP Legal Defense and Educational general counsel of the Individual Rights Fund, represented student intervenors in the Foundation and an affirmative action oppo- Gratz case and was deeply disappointed by nent who filed amicus briefs in both cases, the decision. Under the point system that said that until Grutter, a strict scrutiny stan- was struck down, four of the five factors— dard existed for finding a compelling state school attended, curriculum, geography, interest in upholding affirmative action poli- and alumni legacy—favored white students, cies. “The Court abandoned the whole con- according to Woods. “Some sort of prefer- cept of using strict scrutiny, and race was ence needed to have been done to make up allowed to be used. I submit that the case, for that difference.” at bottom, was a political decision.” A majority of the panelists were support- Massie and the others saw it differently, ers of the Grutter decision backing affirma- arguing that Grutter was a good decision for tive action. Miranda Massie (’96), who served the right reasons—and a case that will have a BLAPA honoree Judge Ronald A. Guzman (’73) with Linda Gadsby (’92) as lead counsel for the student intervenors in huge long-term impact. I

154 THE LAW SCHOOL AUTUMN 2004 Moskowitz discussed a real estate trans- The Art of the Deal action familiar to students: the new Law School building. He explained the different Why real estate is more than just numbers stages of the deal—understanding the zoning laws, negotiating with neighbors, securing ou’ve got to like the deal,” said Alan panelists discussed the ins and outs of real tax-exempt financing, responding to a law- Pomerantz (’68), describing the key estate legal work in New York City. suit filed to stop construction, and settling “Yto success for any real estate lawyer. Jonathan Mechanic (’77), a partner and the lawsuit. “The deal has to be more important than head of the real estate department at Fried, Meredith Kane, a partner at Paul, Weiss, anything else.” Frank, Harris, Shriver & Jacobson, praised his Rifkind, Wharton & Garrison and a gradu- Pomerantz, a partner at Weil, Gotshal & alma mater’s real estate curriculum and ate of Harvard Law School, and Jennifer Manges, was one of the most influential real explained his reasons for pursuing real estate McCool, an associate at Schulte Roth & estate attorneys in the country to offer his law. “If you like walking around the city of Zabel and graduate of New York Law secrets for success at a panel on “Careers and New York—and I love it—there’s just no School, also participated in the panel. Trends in Real Estate Law,” sponsored by the other practice of law where you can walk “Tell the assigning partners what you NYU School of Law’s Real Estate and Urban down the street and see different projects that want to do, what you haven’t done yet,” said Policy Forum and the Andrew (’92) and you had some involvement in.” Mechanic also Kane. “Almost every law firm will take the Justin (’96) Segal Real Estate Forum. discussed his recent project representing the opportunity to develop you into a well- Pomerantz also encouraged students to learn buyer of the GM Building, which was sold for rounded lawyer.” McCool added that young economics, but to study it in a way that $1.4 billion, a record-breaking price. lawyers should attend seminars whenever emphasizes psychology over charts. “Under- Ross Moskowitz (’84), a partner at possible. “If you’re the youngest face in the standing why people do what they do is Stroock & Stroock & Lavan, noted that stu- room, then good for you,” she said. essential to representing people in real dents’ choice of the NYU School of Law was The panel was organized by Nicholas estate,” he said. an enormous step toward success in real estate Bagley (’05) and Joshua Babbitt (’05), Professor Michael Schill, then the Wilf work. “The Law School has one of the best co-chairs of the Real Estate and Urban Family Professor of Property Law and direc- real estate curriculums around.” He added that Policy Forum, a Law School student orga- tor of the Furman Center for Real Estate and his love of the city also influenced his choice. nization that connects students to New Urban Policy and now the dean of UCLA “I became a real estate lawyer because you can York City’s real estate and urban economic- School of Law, moderated the event, where smell it, you can touch it, you can feel it.” development worlds. I

Second Annual “Halfway There Dinner” “We want to demonstrate now, while we are still at the Law School, that we love This year NYU and are committed to its continued marked the fiftieth excellence,” said Peter Lallas (’04), chair of anniversary of the the 2004 committee and one of the stu- Class of 1954, and dents who came up with the idea of giving its members were a class gift. well represented at “We want to show our alumni that we the planning din- recognize that it is their financial commit- ner. Among them ment that makes the incredible opportunities were Benjamin F. NYU School of Law provides possible,” said Crane (’54), who Lallas, adding: “We want to show those was in the inaugu- schools with five times our endowment that ral class of Root- we can play, too.” Tilden Scholars, David Berman (’04) said the decision and Joseph L. to join the gift committee was automatic. Hornstein (’54), “Everybody wins when the class is involved,” who was called he said. “The school gets the funding it Committee chair Bradley Smith (’74) reports his class’s fundraising progress. out of the Law needs and that in turn helps the school pro- School and into vide the kind of learning environment that en alumni class representatives of the the U.S. Navy for two years before returning brings worldwide prestige for NYU.” NYU School of Law gathered this Jan- to complete his studies. All of the reunion committee members T uary not for a reunion, but to get ready Also in attendance were several students who attended reported that they were well for one. The second annual “Halfway There from the Class of 2004. A group of enter- on their way to meeting their fundraising Dinner,” which marks classes’ fundraising prising current students has formed the first goals; the overall effort was already above progress, was once again a success. The ever Graduation Class Gift, and its executive the halfway mark. event, held at the New York Palace Hotel committee members were on hand to share “We’re so fortunate to have such com- in midtown Manhattan, brought together the good news. To pay for the gift, the committed alumni,” said Jeannie Forrest, Asso- reunion committee members from each of mittee was gathering donations from mem- ciate Dean for Development and Alumni the classes scheduled to celebrate on campus bers of the Class of 2004 in what it hoped Relations at the Law School. “Everybody during the following spring. The fundraisers will become an annual tradition of giving is so proud of the school and its mission— were able to check in and report on their something back to the Law School as stu- plus seeing former classmates for dinner fundraising efforts. dents enter the profession. is a great bonus.” I

AUTUMN 2004 THE LAW SCHOOL 155 ALUMNI ACTIVITIES Dean’s Roundtables: Talking over Lunch

he popular “Dean’s Roundtable Lun- ident and cheons” hosted by Dean Richard Revesz CEO, Tanen- T bring students together for intimate baum-Harber conversations with alumni about different Co. Inc.; and career paths within the law. The guests Francois Chateau speak about their work experiences, sharing (LL.M. ’82), part-

Ferguson Scholar David Lenter (LL.M. '04) with advice and insights about how they found ner, Salans. NYU School of Law Trustee M. Carr Ferguson ('60) their way. Marc Platt (’82), In the last year, guests of honor have producer of Jerry included: John Redpath (LL.M. ’78), Maguire, Silence of the Lambs, and Broad- M. Carr Ferguson senior vice president general counsel, Time way’s Tony Award-winning musical Wicked, Tax Scholarship Inc; Tracy Rich (’77), vice president and participated in an especially engaging and general counsel, The Phoenix Companies, frank roundtable with students last fall, Inc.; Stephen Hammerman (’62), deputy described below. n December 2001, alumni of the Law commissioner, Legal Matters, New York School’s Graduate Tax Program came City Police Department; Jeff Greenblatt A Smashing Combination I together, through the leadership of (’83), president, Monarch Capital Hold- Demonstrating how legal skills can enhance Francis Blanchfield (’70, LL.M. ’74), to ings, LTD; Ronald Jacobi (’71), of counsel, and shape a career in the arts, Marc Platt acknowledge the legacy and accomplish- Bryan Cave LLP; Helaine Barnett (’64), (’82) was the guest of honor at the October ments of beloved Law School professor and then attorney-in-charge of the Legal Aid 28, 2003, Dean’s Roundtable. Before start- eminent tax practitioner M. Carr Ferguson Society Civil Division, and now president, ing his own entertainment production firm, (LL.M. ’60). The effort was designed to Legal Services Corporation; Ann Kappler Marc Platt Productions, Platt served as presi- fund a fellowship in Ferguson’s name in (’86), senior vice president and general dent of production for Orion, TriStar, and recognition of his retirement, and as a lasting counsel, Fannie Mae; Max (Harold) Mess- Universal Pictures. He has produced such tribute in the tradition of the fellowships mer (’70), chairman, president, and CEO, other hits as Dances With Wolves, Philadel- that bear the names of NYU tax luminaries Robert Half International; John Dealy phia, and Legally Blonde. James Eustice (LL.M. ’58), Charles Lyon, (’64), president, The Dealy Strategy “Careers are marathons, not sprints,” and Gerald Wallace. Group, LLC; Barbara Shulman (’83), senior Platt said. “There is no right approach—do Blanchfield sent a letter to all 9,000 NYU vice president general counsel, National what makes you satisfied professionally.” He School of Law tax graduates describing his College Sports Network; John Lieber (’90), urged students to be long-term planners and vision for the M. Carr Ferguson Fellowship senior vice president, Silverstein Properties; to take risks in order to reach their goals. in Graduate Tax. The fellowship would sup- Joel Litvin (’85), executive vice president, Platt’s own unconventional path began port a student in the NYU School of Law Legal and business affairs, National Basket- when, as a student at the University of Penn- Graduate Tax Program who wished to pur- ball Association; Scott Hoffman (’87), sylvania he came across a musical production sue a career in government or academia. managing director, Lazard Freres & Co. of Assisi, based on the story of St. Francis of Blanchfield declared that if this fundraising LLC; Sheila Birnbaum (’65), partner, Skad- Assisi. He organized a successful, limited-run effort identified even one practitioner like den, Arps, Slate, Meagher & Flom; Sara “equity showcase” at New York’s St. Clement’s Carr Ferguson, it will have made a differ- Moss (’74), senior vice president, general Theater, but once he tried to move the show ence in the world. counsel, and secretary, The Estee Lauder into a larger venue, he realized that attorneys Clearly, Ferguson is beloved. The Companies; Walter Harris (LL.M. ’82), pres- and agents were in control. alumni response to this effort over the past two years has been significant. The fellowship has raised more than $350,000 and the Law School awarded the first fellowship to David Lenter in the fall of 2003. Lenter Seeking Talented attended Brown University, where he graduated magna cum laude and Phi Beta Kappa. Students and Alumni? He received his J.D. cum laude from Harvard Law School, where he was the primary edi- f your organization has hiring needs Simply complete the online form, or contact tor for the Human Rights Journal, a news for part-time interns, summer associ- Wendy Siegel, associate director of recruit- writer for the Harvard Law Record, and the ates, or full-time employees at any ment and marketing, at (212) 998-6090 or president of the Harvard Society for Tax Law I level, zero in on the top talent at NYU at [email protected]. and Policy. He took a leave of one year from School of Law. Harvard to research 19th-century tax records www.law.nyu.edu/depts/careerservices/ for a corporate history project with a Brown The Office of Career Services will post a job jobform.doc professor and to work on a publicity cam- on our website free of charge. Your listing NYU School of Law is committed to a policy against discrimination in employment based on race, color, religion, nation- paign for the Fresh Air Fund. This year he will be emailed exclusively to NYU alumni, al origin, age, handicap, sex, marital or parental status, or or students, as appropriate. sexual orientation. The facilities and services of NYU are was a research attorney for the Office of Tax available only to those employers who agree to abide by this policy. Policy Research in Ann Arbor, Michigan. I

156 THE LAW SCHOOL AUTUMN 2004

“Art and business go hand in hand,” Platt The Annual Weinfeld Patrons' Party said. It was that interdependence that inspired him to go to the Law School in order to be the “smartest one in the room” the next time he faced a similar negotiation. At NYU, Platt focused on entertainment law and intellectual property courses, and independently obtained internships with Broadway producers. He had no intention of becoming a practicing attorney until Liz McCann, one of those producers he interned for, changed his mind. He headed to a small ﬁrm where he was able to get immediate entertainment experience. The legal skills he learned as a transactional lawyer at the ﬁrm “set [him] apart from [his] peers,” and Platt now considers the experience invaluable. After a short tenure at the firm, Platt went to work for agent Sam Cohn of Inter- Weinfeld Patrons Dwight Opperman, Jack (’68) and Dolores Clarke national Creative Management (ICM), who wanted a lawyer to negotiate his deals. At 26 years of age, Platt was representing names from Woody Allen and Bob Fosse to Whoopi Goldberg and Cher, establishing trust and ties to major industry stars. With help from those relationships, Platt returned to his goal of working on the creative side of the industry. His famous client Woody Allen made films at Orion, and Orion hired Platt to be a creative executive, a position that would allow him to work in the studio and handle both business and creative roles. “I moved to California for a year,” Platt Herbert Rubin ('42), Diane Brandt LLewis,ewis, and Martin LLewisewis ('51) celebrate at Dean Revesz's Dean Richard Revesz and new Weinfeld Patron said. “That was 17 years ago.” In just two and Professorofessor VickiVicki Been’s home Mary Jean Potenzone (J.D. '74, L.L.M. '78) years, he had produced Dances With Wolves and Silence of the Lambs, and soon rose to president. Orion, founded by Columbia Law alumnus and social activist Arthur Krim, produced films with a social conscience, which became Platt’s personal preference as well. After leaving Orion to become president of TriStar films, Platt “thought it was about time to do a movie about AIDS.” After discovering the legal case on which the award- Nicky Manning and the Honorable winning film Philadelphia is based, he made Rose Luttan Rubin ('42) that step, and the film helped bring AIDS Weinfeld Patron Jack M. Clarke ('68) awareness into the national dialogue, as in discussion with Professor Been (’83) well as making a major step forward in color-blind casting. Platt’s career path has come full circle with his latest accomplishment, producing the Broadway musical Wicked. Based on Frank Baum’s Wizard of Oz novels, the musical combines Platt’s passion for theater and social commentary, as plays in general are, as he puts it, “very political.” For his generous, honest, and inspiring discussion, the attending students gave Platt a standing ovation. “It was great to see an alumnus take a nontraditional career path and become extremely successful,” said Weinfeld Patrons Michael Byowitz ('76), Eric Roth ('77) of Wachtell, Lipton, Rosen & Katz, and Kenneth Raisler ('76) of Sullivan & Cromwell Adam Dunst (’05). I

AUTUMN 2004 THE LAW SCHOOL 157

ALUMNI ACTIVITIES

associate professor of law; Gerald López, Dean’s Strategic Council professor of clinical law; Michael H. Schill, then the Wilf Family Professor of Property Preparing for the next 10 years Law and professor of urban planning, now dean of UCLA’s law school; Stephen Schul- hofer, Robert B. McKay Professor of Law; and Linda Silberman, Martin Lipton Profes- sor of Law—discussed the challenges of connecting scholarship to the “real world.” They noted that the purpose of legal scholarship is to improve the ability of the legal system to deliver justice. The faculty also fielded questions about how they fund their scholarship, the involvement of students, and the importance of the colloquia and weekly faculty workshops in identifying and developing research topics. Feldman identified a need for more specialized training of faculty members in how to acquire the funding they need to support their research. The implications of that change for the Law School are one of many issues the Council plans to consider. A representative slice of the student population joined the Council for lunch to share their perspectives on the Law School. The Dean’s Strategic Council members Jodi Saposnick Balsam (’86) and Robert Lemle (’78), in foreground, discuss topics for establishing future committees. group included: Erin Dow (’06), Filomen M. D’Agostino Scholar; Jeremy C. Marwell (’06), Furman Academic Scholar; Sonja n 1990, a group of alumni convened to At the opening session, Dean Revesz and Shield (’04), Sinsheimer Public Service strategize about NYU School of Law’s Sudler reflected on the transformation of the Scholar; and Leila K. Thompson (’05), An- I future. Under the leadership of then-Dean Law School, marveling at how much was Bryce Scholar. When asked to explain why John Sexton (currently NYU president) and accomplished with relatively few resources— they chose the NYU School of Law, Shield Law School Trustee Martin Payson (’61), provoking a comparison from Sudler to the responded: “It was the only place I visited the Council established a blueprint of ideas “little engine that could.” where students said they actually enjoyed law to guide the institution over the course of During the daylong session, the Council school.” Others mentioned the strong intel- the next decade, a strategy that provided heard from panels of faculty, students, lectual community that they sensed during the foundation for the Law School’s success administrators, and board members. The the recruitment and orientation sessions, the as it solidified its reputation as the top first panel of the day brought together fac- accessibility of the faculty, the energy and global law school. After meeting with ulty to discuss the practical application of liveliness of the Law School, and the oppor- alumni across the country during the first scholarship. Five scholars—Noah Feldman, tunities that New York City offers. year of his deanship, Dean Richard Revesz decided to resurrect that concept and draw from the deep well of resources the alumni community offers. The Council brought together a group of professionals from a cross-section of alumni to strategize about the goals and aspirations of the NYU School of Law. The 78-member Council is chaired by Eileen FitzGerald Sudler (’74), general counsel of the Sudler Companies, a privately held construction and development concern. Sudler started her legal career as a criminal defense attorney for Legal Aid, later serving as assistant U.S. attorney for the Southern District of New York. She then worked in private practice before entering the real estate field with her husband, Peter Sudler (’73), president of the Sudler Companies and a trustee of the Law School. The Council first convened on Novem- ber 20, 2003, to identify key issues for the Lewis Steinberg (’84, LL.M. ’92), chair of the Dean’s Strategic Council Committee on the Graduate Tax Program, next decade. discusses issues and recommendations for the program.

158 THE LAW SCHOOL AUTUMN 2004 After lunch, the Council broke into panel. As Martin Gross (LL.M. ’81) com- how clearly the institution, through the fac- committees for the remainder of the day. mented during a subsequent conversation on ulty and centers, has established a distinct They explored five areas identified as criti- alumni involvement, “It’s important for our voice in trying to address these issues intelli- cal to the future of the Law School: alumni alumni to know that the Law School is play- gently and attract attention to them.” involvement (chaired by Shawn Creedon, ing an important role in some of the most The Council will reconvene in Novem- ’02, an associate at Fried, Frank, Harris, complex social issues our nation and world ber to solidify their recommendations for Shriver & Jacobson); business law (chaired faces. The stories we heard this morning are inclusion in a strategic plan that should be by Brian Schorr, ’82, executive vice presi- compelling not only for the facts, but for unveiled by the end of the academic year. I dent and general counsel of Triarc Compa- nies); foreign LL.M. students (chaired by Rachel Finkle Robbins, ’76, general counsel of Citigroup International); fundraising Alumni Gatherings strategies (chaired by Kenneth Raisler, ’76, a partner at Sullivan & Cromwell); and the graduate tax program (chaired by Lewis Steinberg, ’84, LL.M. ’92, a partner at Cravath, Swaine & Moore). The whole Council next convened for a second day-long session on May 25, 2004. This time, they were able to meet in the new Lester Pollack (’57) Colloquium Room in Furman Hall, the Law School building that opened on January 12, 2004, on Sullivan and West Third streets. The meeting kicked off with a panel to discuss the role of centers and institutes at the Law School, which currently houses 13 centers and five institutes that run the gamut from environmental and land-use law to transitional justice. Each serves to organize the work the faculty is doing by attracting leading policymakers and scholars, and Mexico involving students in the practical application of legal study. The Law School beneﬁts from the institutions’ exchange of ideas through conferences, workshops, journals, fellowships, and academic programs, all of which contribute to the vibrancy of the community. Three faculty members and an executive Los Angeles Boston director gave the group updates on the work of their centers or institutes. Partici- pating in the discussion were Professor Rio Stephen Holmes, co-director of the Center on Law and Security; Smita Narula, executive director of the Center for Human Rights and Global Justice; Professor Bryan Stevenson, who also serves as executive director of the Equal Justice Initiative of Alabama; and University Professor Joseph H. H. Weiler, director of the Jean Monnet Center for International and Regional Eco- Palm Beach Palo Alto nomic Law and Justice. Their presentations provided a valuable Left to right, from top: opportunity for the Council to hear about The active and dedicated Mexican NYU School of Law Alumni Assocation proudly hosted Dean Richard the depth of the work being done at the Revesz in Monterrey last spring.

Law School across a broad range of topics— The alumni lunch in Rio de Janeiro, Brazil, was one of many throughout the Americas, demonstrating from death penalty work and the impact of the school's international reach. mass incarceration on culture to the balance A great turnout for the dean at the St. Regis in Los Angeles. between pursuing counterterrorism strate- At the Bay Tower in Boston, alumni listened as Dean Revesz presented his "State of the Law School" gies and preserving civil rights. Throughout address. the remainder of the day’s panels, as each The 20th annual alumni lunch in Palm Beach, Florida, drew graduates from all over the Sunshine State. committee chair reported on the progress of their information-gathering, the discussion Exchanging news over lunch at Spago in Palo Alto was a delightful way for these alumnae to get an update from the dean. would return to an issue raised in the ﬁrst

AUTUMN 2004 THE LAW SCHOOL 159 ffering an exciting ride through the past, the critically acclaimed PBS series Liberty’s Kids makes American history come to life for young TV fans, managing to pull off being fun and educational. Pulitzer prize-winner Jack Rakove (cartoon version, left), who was a visiting professor at the NYU School of Law last year and is the W.R. Coe Professor of History and American Studies at Stanford Uni- versity, was responsible for the accuracy of the animated show, vetting all of Liberty’s scripts before they were produced. A font of the indelible facts that form the bedrock of the serie’s dramatic story- telling, the professor made sure that Liberty’s two apprentices, Sarah and James, seen working here in Ben Franklin’s print shop, are trustworthy purveyors of history. An A-list roster of celebrities—Annette Bening, Ben Stiller, Sylvester Stallone—provide the historical figures’ voices, with Walter Cronkite speaking Franklin’s lines. Save the Date!

Reunion 2005 April 9, 2005

Bringing together the classes of 1955, 1960, 1965, 1970, 1975, 1980, 1985, 1990, 1995, and 2000, the Golden Circle, and all alumni with an LL.M. in Taxation to celebrate Reunion 2005 and the Graduate Tax Program’s 60th Anniversary.

Join your friends and classmates to celebrate the anniversary of your Law School graduation and the Graduate Tax Program’s 60th Anniversary . Look for your invitation in the mail or check the Web site at www.law.nyu.edu/alumni. We’re looking forward to having you join us! If you have any questions, call (212) 998-6470 or send an email to [email protected]. 2004–05

For the most up-to-date calendar listing, Alumni Events Calendar visit our Web site at www.law.nyu.edu. September 2004 International Tax Program at the International February 2005 Dwight D. Opperman Inaugural Chair Lecture Fiscal Association (Vienna, Austria) Recent Graduate Cocktail Reception (New York) 30th Annual Bankruptcy Workshop Public Interest/Public Service An-Bryce Inaugural Chair Lecture Legal Career Symposiuim Graduate Tax Program Alumni Reception San Francisco Alumni Reception (Washington, D.C.) Los Angeles Alumni Reception Dorothy Nelkin Lecture Palo Alto Alumni Luncheon Public Service Auction October 2004 David R. Tillinghast Lecture Wallace-Lyon National Tax Workshop (Orlando) Delaware Alumni Luncheon Brennan Center Legacy Awards Dinner March 2005 ICRC/NYU Seminar James Madison Lecture Hauser Global Law School Program Annual BLAPA Mentorship Reception Tenth Anniversary Reunion National Center on Philanthropy and the Law Boston Alumni Luncheon Annual Conference April 2005 BLAPA Spring Dinner November 2004 Derrick Bell Lecture Graduate Tax Workshop Law Alumni Association Fall Lecture/ Reunion Weiss Public Service Forum Gala Dinner in Honor of the 60th Anniversary Annual Scholarship Reception of the Graduate Tax Program KPMG Lecture Washington, D.C. Alumni Luncheon Dean’s Cup Basketball Game December 2004 Recent Graduate Holiday Happy Hours (Los Angeles and Washington, D.C.) May 2005 Nicholas J. Healy Lecture Convocation January 2005 AALS Reception for Alumni in Education Denver Alumni Reception (San Francisco) 58th Annual Conference on Labor Legal Ethics Workshop presented by Professor Stephen Gillers June 2005 NYU Directors’ Institute Weinfeld Gala Attorney General Robert Abrams August 2005 IJA and Alumni Breakfast during Public Service Forum the ABA Meeting (Chicago) Brennan Lecture with the Honorable Ronald M. George Annual Alumni Luncheon (New York)

Non-Profit Org. U.S. Postage PAID Bohemia, NY Office of Development and Alumni Relations Permit No. 338 161 Avenue of the Americas, Fifth Floor New York, NY 10013-1205