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A Vote for Democracy VIII Professors Samuel Issacharoff and Richard Pildes, co-creators of a legal specialty, focus their scholarship on bringing fairness to the electoral process. save the date! april 4, 2009

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Define Success: $400 million by 2009 Contact Nick Vagelatos, Campaign Manager, NYU School of Law | Telephone: (212) 998-6007 | email: [email protected] A Message from Dean Revesz we have a tremendous issue here! i am delighted to be able to present you with a timely cover story that will shed light on the intersection between law and politics as we come into the final stretch of the 2008 presidential race. Two of our faculty, Samuel Issacharoff, the Bonnie and Richard Reiss Professor of Constitutional Law, and Richard Pildes, the Sudler Family Professor of Constitutional Law, along with their colleague Pamela Karlan, a past judge on and president of professor at Stanford Law the Inter-American Court of School, are the co-creators of Human Rights, Buergenthal a legal field called the Law of has made profound contribu- Democracy. tions to the cause of human The groundbreaking case- rights. In fact, as the magazine book they published in 1998, was going to press, he was one The Law of Democracy: Le- of two recipients of the Gruber gal Structure of the Political Foundation International Jus- Process, has transformed the tice Prize, a $500,000 award way scholars view election honoring those who advance law. Defining the cluster of the cause of justice through legal issues underpinning the legal system. the practice and theory of On a lighter note: Did you American democracy, their know that Professor Roderick work turned diffuse areas of Hills Jr. had to find a new home the law into a coherent dis- for Reflector, his horse, before cipline—one that is quite coming to NYU? Turn to page popular among law students. 46 to learn more about the 27 As you may know, each enormously accomplished ac- year we highlight an academic ademics who have joined our area that we are confident a full-time faculty since 2002. I peer review would say is the am also quite proud of all our strongest of its kind among faculty, and delighted to wel- the top law schools. This year come six new members, whose that area is the Law of Democ- profiles begin on page 40. racy. Larry Reibstein, the for- This was a great year for midable journalist who wrote student scholarship. An article about Law and Philosophy for the magazine in 2005, explores that Brian Frye ’05 began as a third year, published in the NYU this new legal specialty in “Leveling the Playing Field” on page 18. Journal of Law & Liberty, was cited in Supreme Court Justice Anto- As you’ll discover in our story “Follow the Numbers” on nin Scalia’s majority opinion in District of Columbia v. Heller. And page 28, Jennifer Arlen ’86, Norma Z. Paige Professor of Law, a paper that Sima Gandhi ’07 (LL.M. ’10) wrote for Batchelder’s tax and Geoffrey Miller, Stuyvesant P. Comfort Professor of Law, are and social policy seminar won the Brookings Institution’s inaugu- also blazing new trails in the burgeoning area of Empirical Legal ral Hamilton Project Economic Policy Innovation Prize. To read Studies, known as ELS. Along with almost two dozen members more about students’ achievements, please turn to page 73. of the faculty, including Professors Lily Batchelder in tax and Finally, we are privileged to have so many active and thought- social policy, Marcel Kahan in corporate law and Stephen Choi ful alumni. Don’t miss our back page piece about the new presi- in securities law, Arlen and Miller have been publishing real- dent of Taiwan, Ma Ying-jeou (LL.M. ’76), who is married to Chow world, data-driven research that illuminates a range of public Mei-ching (LL.M. ’76). The interview was conducted by Law School policy matters, and have made NYU Law a locus of ELS activity. Professor Jerome Cohen, who taught Ma at Harvard in the 1970s. It’s hard to understand why Thomas Buergenthal ’60, who And many thanks to an alumnus who sent an email last year sug- received an honorary doctorate during our most recent com- gesting that The Law Schoolcould improve its environmental prac- mencement ceremonies, isn’t a household name. tices. This issue is our first printed on paper con- Turn to the remarkable story, “From Darkness,” on taining 30 percent post-consumer recycled fiber; page 10, and you will see Buergenthal’s early life as the quality of recycled paper continues to im- was the stuff of nightmares; he was one of the few prove, that percentage will increase. So, enjoy, and children to survive the Auschwitz Death March. A when you’re finished reading these pages, please judge on the International Court of Justice, and a Richard REvesz be sure to recycle the magazine!

AUTUMN 2008  The Law School the magazine of the new york university school of law • autumn 2008

Senior Director of Communications Elyse Mall Klayman 4 Managing Editors Jeanhee Kim Notes & Pamela Kruger Renderings Creative Director David Niedenthal Leila Thompson ’05 becomes the first AnBryce Scholar to have Assistant Managing Editor 73 Student Spotlight Elizabeth Rohlfing clerked on the Supreme Court; Ronald Dworkin awarded the Holberg Prize; An economic policy paper by Sima Senior Designers Michael Bierman Immigrant Rights Clinic triumphs in Gandhi ’07 (LL.M. ’10) wins the Hamilton Karin Wood long-fought deportation case. Project prize; Reena Arora ’08 aids im-

Graphic Designer migrant detainees and gets public service Hisiya Beppu award; students spend spring break providing free legal services to needy web content editor 33 Jill Rachlin Marbaix Faculty Newark residents. Senior Writer student Atticus Gannaway Focus 84 scholarship Design coordinator Peggy Cooper Davis wins University’s David Kamin ’09 on Julia Lovallo 2007 Distinguished Teaching Award; the continuing, fierce Contributors peers pay homage to Anthony Amster- debate in Washington, Karen Donovan, Gretchen Feltes, Catherine dam; Smita Narula named U.N. adviser Fredman, Jennifer Frey, Adam Liptak, Elizabeth D.C. about tax equity; Lynch, Kelly Nolan, Helaine Olen, Surabhi and wins human rights awards, and more. Catherine Sweetser ’08 on Ranganathan, Graham Reed, Laura Sayer, Tracy Thompson, Dody Tsiantar, Susannah Vila, keeping peacekeepers accountable. Molly Webster 40 additions to the roster Photographers The Law School welcomes Cover photograph by John Earle 89 six new faculty members and Mathieu Asselin, Bart Bartholomew, Bruce Around the Cook, Dan Creighton, Mark Finkenstaedt, 38 visiting faculty and fellows. Annemarie Poyo Furlong, Phil Gallo, Elena Olivo, Ilene Pearlman, Don Pollard, Debra Rothenberg, Law School Leo Sorel, Juliana Thomas 56 faculty Eu r o p e a n Ce n t r a l Ba n k Pr e s i d e n t Photo retouching by Benjamin Jackson and Je a n -Cl a u d e Tr i c h e t e x p r e s s e s c o n ce r n Tito Saubidet scholarship Clayton Gillette, a b o u t t h e g l o b a l m a r k e t s ; Su p r e m e Co u r t Printed by Full Circle Color Roderick Hills Jr. Ju s t i ce Ru t h Ba d e r Gi n s b u r g g i v e s k e y - Special thanks to the NYU Photo Bureau. and Catherine n o t e a t Ha y s 50t h a n n i v e r s a r y ce l eb r a t i o n ; “Fa m i l y Da y ” a t NYU La w , a n d m o r e . Copy Editors Sharkey share Lorraine Martindale, Parlan McGaw, excerpts from their Barbara Spilka recent academic work. editorial Assistants 107 Brian Dwyer, Tania Nguyen, 67 good reads Andrelie Suarez, Peter Torre A list of all the work published in 2007 Alumni Student Contributors by full-time faculty. Plus, excerpts from Almanac Michelle Christenson ’08, Rebekah Cook- recent books by Professor William Nelson, Mack ’08, David Kamin ’08, Molly Tack ’09, Anthony Welters ’77, the new chair of the Sara Anne Zier ’10 Dean Richard Revesz and coauthor Board of Trustees, shares his vision for Michael Livermore ’06, and others. NYU Law; a look at the legacy of Lester Please send your comments to Pollack ’57, who assumes the position of [email protected] chair emeritus; NYC Commissioner of © 2008 New York University School of Law. Finance Martha Stark ’86 named Law All rights reserved. Women’s Alumna of the Year. 119 Making the Grade 10 New Jersey Attorney General Anne The Light of Reason Milgram ’96 exhorts graduates to dream As a child, Thomas Buergenthal ’60 big; the Law School’s Singapore program survived the Auschwitz Death March. graduates its first class. Now, more than a half-century later, he sits on the International Court of Justice at The Hague. How is it that 128 someone who saw the darkest side of mankind, at a time when the interna- The Back Page tional community failed to intervene, Taiwan’s new presi- remains devoted to advancing legal dent, Ma Ying-jeou concepts of human rights? Read on. (LL.M. ’76), shares his plans for his country and tells how NYU shaped him. 18 And Justice for All Topic NYU Law’s Samuel Issacharoff and Richard Pildes are cofounders of a International Updates young, cool legal field called the Law This year we spotlight of Democracy. Weighing in on issues the Law of Democracy. such as voting rights, campaign finance In each of the last six and gerrymandering, their work is environmental years, the magazine has especially critical as we enter the final showcased an area of months of the 2008 presidential election. law in which we believe Here, we take a close look at the a peer review would de- intersection of law and government. criminal termine that NYU School of Law has the strongest program among top schools. News on past legal philosophy feature subjects—inter- national, environmental 28 and criminal law, legal philosophy, civil pro- Tracking the Numbers civil procedure cedure and clinics—is Professors Jennifer Arlen ’86 and Geoffrey marked with the “update” Miller, along with nearly two dozen other icons pictured here. faculty members, are at the center of a new legal movement, Empirical Legal Studies. cLinics Also called ELS, it relies on hard data to shed light on pressing, real-world problems. Whether it’s analyzing voter identification fraud or assessing the role of race in sen- tencing, ELS is starting to make an impact. notes & renderings Security for Notes & Renderings Social Security John Infranca ’08 has won a $30,000 grant from the National Academy of Social Insurance, and will write a paper on enforcing existing laws protecting Social Secu- rity benefits from creditors Bad Ballots when funds are held in bank A study by the Brennan Center accounts. Infranca’s project is for Justice found that eight part of a program funded by years after the butterfly-ballot the Rockefeller Foundation to debacle in Florida, the U.S. generate ways to strengthen electoral system continues Social Security for vulner- to be plagued by ballots with able populations. Infranca, poor visual organization, who was a Hays Fellow and confusing instructions and Lederman/Milbank Fellow at other problems. Released in the Law School, currently is July, the study, “Better Ballots,” clerking for Judge Berle Schil- concluded that despite billions ler ’68 of the Eastern District spent on new voting systems, of Pennsylvania, and will clerk poorly designed ballots have for Judge Julio Fuentes of the led voters to skip over key U.S. Court of Appeals for the races or make mistakes that Third Circuit invalidated their votes, and in 2009. hundreds of thousands of Alston Gives U.N. voters have been effectively disenfranchised during the Mission Report last several federal elections. Design flaws in ballots could fter returning from a human rights mission for play an even bigger role in No- the United Nations, John Norton Pomeroy Professor of Law vember, with many new voters A Philip Alston sharply criticized the U.S. judicial system expected to come to the polls, for how the government applies the death penalty in Texas and Lawrence Norden, director of Alabama, and how “enemy combatants” held at Guantánamo Bay the Brennan Center’s Voting prison are prosecuted. Technology Assessment Proj- As the U.N. Human Rights Council Special Rapporteur on ect, told The New York Times. extrajudicial, summary or arbitrary executions, Alston assessed whether due-process guarantees were being honored in death penalty cases in the U.S. After meeting with officials from the A Path to the Supreme Court Departments of State, Justice, Defense and Homeland Security, Alston—a director of the Center for Human Rights and Global Leila Thompson ’05 has racked to exceptional students who Justice—called for immediate reform. “There needs to be full up one impressive achieve- are from economically disad- accountability,” he said at a June press conference. ment after another: She was a vantaged circumstances and Six Guantánamo prisoners have been charged with capital winner of the Daniel G. Col- are the first in their family to offenses under what Alston called the “deeply flawed” Mili- lins 1L Negotiation Competi- pursue a graduate degree. tary Commissions Act of 2006. Alston said access to counsel is tion, served on the Law Review, “I had a hard time grow- severely limited, and hearsay evidence is permissible. At least and has held two federal ing up. I had to overcome a lot one of the six was subjected to waterboarding, yet coerced state- clerkships. Now she’s recently to get here,” says Thompson, ments are admissible. “These trials should be aborted,” he said. completed a coveted clerkship who was very much on her Alston also had harsh words for Texas, with the highest num- with Supreme Court Justice own growing up near Seattle. ber of U.S. executions and death-row prisoners, and Alabama, Clarence Thomas, making her After a high school counselor with the highest per-capita rate of U.S. executions. He said the the first AnBryce Scholar to “showed me that education tions photo fact that 129 death-row inmates have been exonerated should be clerk for the High Court. was the way out,” she says, she a “an enormous wakeup call,” and he recommended repealing an A hard worker, to be sure, attended Stanford University, Alabama law that allows judges unrestricted authority to override Thompson nonetheless credits earning a B.A. in sociology. jury verdicts. “It’s possible that Alabama has already executed in- her success in large part to the Graduating in 1997, she held nocent people,” said Alston, “but officials would rather deny that 10-year-old scholarship pro- positions in marketing and

than confront flaws in the criminal justice system.” gram, which pays full tuition finance before turning to law. philip Alston: united n

 THE LAW SCHOOL notes & renderings Schock An Award-Winning Season and Awe Law School professors earn distinctions richard pildes, Sudler The National Science University Professor Family Professor of Constitu- ­Foundation awarded a Labor Pains Thomas Nagel has received tional Law, won a 2008 Gug- two-year, $387,000 grant the 2008 Rolf Schock Prize for genheim Fellowship from the to stephen schulhofer, Steven Greenhouse ’82, the logic and philosophy from the John Simon Guggenheim Robert B. McKay Professor New York Times labor and Royal Swedish Academy of Memorial Foundation. of Law; University workplace correspondent, first Sciences. The triennial award The fellowship will Professor tom became interested in labor includes 500,000 Swedish support his work tyler, and aziz issues as a cub reporter and kronor (at press time, roughly on political power, huq, adjunct even pressed for unionization $82,000). democratic poli- professor of law at The Record in Bergen County, Nagel goes further than tics and constitu- and deputy direc- tional theory. tor of the Brennan New Jersey. At NYU Law, he most thinkers, says Lars Berg- Pildes was also Center’s Justice took labor law courses with ström, a professor at Stock- elected to the Ameri- Program. The grant will Professor Samuel Estreicher, holm University and chair can Academy of Arts and fund a study of how inves- among others, and was vale- of the selection committee: Sciences, which “honors... tigative tactics of Western dictorian of his class. In his “When objective and subjective remarkable men and wom- counterterrorism agencies 2008 book, The Big Squeeze: perspectives conflict, it is a en who have made pre- affect levels of trust and Tough Times for the Ameri- common move in philosophy... eminent contributions to cooperation within can Worker (Alfred A. Knopf), to subordinate or reduce one their fields,” said Acade- Muslim communities Greenhouse investigates the to the other. But Nagel...argues my President Emilio Bizzi. Other in New York City and London. plight of workers, which, he that both...perspectives must inductees included Supreme To thwart future attacks, Court Justice John Paul the FBI and the New York City says, has worsened as com- be taken seriously.” Stevens and former White Police Department have used panies have demanded more Of Nagel’s latest honor, House Chief of Staff James A. random subway searches, im- output while offering stagnat- Ronald Dworkin, the Frank Baker III. migrant detention, electronic ing wages, shrinking benefits Henry Sommer Professor of surveillance and undercover and decreased job security. He Law, adds, “The Schock Prize is dean richard revesz, informants; London’s Metropol- uncovered an appalling range the hall of fame of contempo- Lawrence King Professor of itan Police Service emphasizes of abuses, from firing employ- rary philosophy. The past win- Law, has joined the Council on dialogue with Muslims. Over a ees for taking sick days to even ners are the great philosophers Foreign Relations, a nonpar- year-long period, Brooklyn and locking them in their work- of the age, and Tom’s election tisan think tank that analyzes East London Muslims will be in- places. “I was shocked at the to join the list does great honor policy choices facing the U.S. terviewed, and their responses extent of the legal violations,” to him—and to them.” and other countries. Associate analyzed, to reveal attitudes Professor Cristina Rodríguez toward their respective law en- says Greenhouse, whose book also joined the council as a forcement authorities. A final has made a media splash, five-year term member. report is expected in 2010. featured on CNBC, CNN and other outlets.

When she got to NYU, E. Greenberg Professor of Thompson couldn’t afford a Contract Law, ever asked to computer and intended to go coauthor an article (not yet without, until Anthony ’77 and published). “Leila was one of Beatrice Welters, founders the most interesting, engag- of the AnBryce Foundation, ing students I have ever had stepped in and bought her the privilege to teach,” he one. Dean Richard Revesz and told the school newspaper, several professors, including The Commentator. Rachel Barkow and Clayton Planning to pursue cor- Gillette, also gave her support. porate law after a few months “I never saw myself as a star, of traveling, Thompson re- but they always encouraged flected on her Supreme Court me. It’s hard not to believe in stint. “You walk out and look yourself if so many people that at the building you just came you respect are telling you that from,” she says, and no matter you can do it,” she says. “I am what happens, “you feel good forever grateful.” about yourself because it’s so Thompson was the first amazing.”

leila thompson: marty katz student that Gillette, the Max notes & renderings

Faculty Soundbites

“If…women cast their ballots in ignorance or a fit of rage, the glass wouldn’t just be half empty for feminists. It would be shattered—and that’s not the glass feminists have been trying to break through all these years.” Professor Rachel Barkow, on why Hillary Clinton supporters would be unwise to vote for Senator McCain, in a June 27 op-ed in The Huffington Post High Honors “There is a general perception today that businesses for Noble have slipped the traces of public control and that Professor of Law on Leave unregulated market forces will not ensure a just, or even Ronald Noble has been admit- efficient, economy. It is time to push the reset button, ted as a knight to the Légion time to reassert the legitimacy of public intervention.” d’Honneur in recognition of Harry First, Charles L. Denison Professor of Law and director of the his service as the secretary Trade Regulation Program, in a June 2 op-ed in The Nation general of the International Criminal Police Organization (INTERPOL). France’s highest “The language of the decision and the spirit of the decision decoration was presented by suggests that when the challenge to New York’s law comes, President Nicolas Sarkozy it will be struck down as unconstitutional.” in a ceremony at the Élysée James Jacobs, Chief Justice Warren E. Burger Professor of Constitutional Law and the Courts, on the Palace in June. “I am honored Supreme Court’s overturning Washington, D.C.’s handgun ban, in a June 27 New York Sun interview to accept on behalf of the 500 officials at the INTERPOL Gen- eral Secretariat, and the law “Its political significance should not be underestimated enforcement professionals in since it will require careful and continuing coordination, each of our 186 member coun- for the first time, between state-owned mainland and tries and National Central Bureaus,” said Noble. Sarkozy Taiwanese industrial titans.” observed that INTERPOL Professor Jerome Cohen, on potential cooperation between Taiwan and mainland China in oil and gas makes a decisive contribution exploration, in a July 10 op-ed cowritten with Chen Yu-jie in the South China Morning Post “in combating organized crime, money laundering, terrorism “We’re not demanding that all these kids be and in the fight against the sexual exploitation of chil- released tomorrow. I’m not even prepared to say that dren.” Earlier, Noble credited all of them will get to the point where they should be NYU: “The bulk of my 25 years released. We’re asking for some review.” of public service was possible Professor Bryan Stevenson, who also is executive director of the Equal Justice Initiative, thanks to the strong support on the U.S. practice of giving life sentences without the possibility of parole to juveniles that I have always received as young as 13 or 14 years old, in an October 27 New York Times interview from the Law School, its dean, faculty, students and alums.”

improvements to the munici- U.S. Blocks Haitian Aid, Report Finds pal water systems in several The Center for Human Rights In June, CHRGJ, working in approved loans from the Inter- Haitian cities. and Global Justice (CHRGJ), conjunction with Zanmi Las- American Development Bank Residents of the poverty- along with three other human ante, Partners In Health and to the government of Haiti. stricken Caribbean island rights groups, accused the U.S. the Robert F. Kennedy Memo- The reason, according to nation suffer from lack of ac- government of “breaching its rial Center for Human Rights, the report: The U.S. govern- cess to potable water, with duty to respect human rights” released a report contending ment wanted to use the and deliberately blocking that in 2001 U.S. Department money as “leverage” for loans for projects that would of Treasury officials, among political change in Haiti. have resulted in safe, clean others, used their clout to The funds were earmarked water for residents of Haiti. block $54 million in previously to make urgently needed  THE LAW‘‘ SCHOOL ’’ notes & renderings Dworkin Wins the A Holberg Prize Statistical ew york university law professor ronald m. dworkin, Snapshot who is widely considered among the most influential theo- N rists on ethics and morality in law, won the 2007 Ludvig Crunching the numbers Holberg International Memorial Prize, carrying a cash prize of on the backgrounds of the 27 faculty members hired 4.5 million kroner (at press time, roughly equivalent to $870,000). since 2002 yields some Dworkin, Frank Henry Sommer Professor of Law, is the first interesting data. to receive the prize for legal scholarship. He was cited for hav- Terror Tradeoff ing “developed an original and highly influential legal theory grounding law in morality,” and having a “unique ability” to tie Number of professors The Brennan Center for abstract philosophical ideas together with “concrete everyday who clerked for the U.S. Justice chose Stephen Holmes, issues in law, moral philosophy and politics.” Supreme Court: the Walter E. Meyer Profes- A faculty member since 1975, Dworkin is the fourth winner of sor of Law, to give the keynote the annual award—named for the Dano-Norwegian playwright address at the 11th annual and author of the Age of Enlightenment—which is modeled on the Thomas M. Jorde Symposium, Nobel Prize. The committee highlighted six of his books, includ- 6 (Deborah Malamud, which sponsors scholarship ing Law’s Empire, Life’s Dominion and Is Democracy Possible Here? Rachel Barkow, Troy McKenzie ’00, on issues central to the legacy “Many people, I fear, many lawyers, think of the law as a rather Cristina Rodríguez, Samuel Rascoff, of Justice William Brennan. mechanical discipline,” Dworkin observed, accepting the medal Catherine Sharkey. Kevin Davis Holmes delivered two lectures: from His Royal Highness Crown Prince Haakon of Norway at a clerked for the Canadian “Playing by the Rules in the November 28, 2007 ceremony in Bergen, Norway. The Holberg, Supreme Court) Age of Terror,” at UC Berkeley he said, celebrates the view that the “intellectual breadth and School of Law in November, moral depth of the Ratio of professors who and “Misunderstanding Trade- law depends upon clerked for liberal U.S. Offs in the War on Terror,” at seeing it as drawing Supreme Court justices to Yale Law School in April. from and contribut- those who clerked for con- In the lectures, Holmes, ing to all the other servative justices: who teaches a course on legal domains, among issues arising from 9/11 and them philosophy and the war against terrorism, the humanities.” 2:1 explored the consequences of Dworkin argues sacrificing civil liberties for se- that the legal system curity concerns. “We were not should be seen as Approximate percentage of professors who so wise. We lost our compass having two parts: hold a Ph.D.: while taking off our gloves,” rules set by law and Holmes said. “Only those who principles of a moral fail to appreciate the grav- nature. But when ity of a looming threat would the law is fuzzy, he 30% advocate a wholesale dis- asserts, judges must (Jennifer Arlen ’86, Oren Bar-Gill, Stephen Choi, pensing with rules developed interpret the law John Ferejohn, Moshe Halbertal, to improve the intelligence using evolving prin- Daniel Hulsebosch, Samuel of decisions made during ciples of justice and Scheffler, Jeremy Waldron) emergencies.” fairness.

Ballpark estimate of almost 70 percent of the popu- “That’s a clear violation of the obtained by the RFK Center the number of law school lation dependent on private basic human right to water.” through a Freedom of Infor- campuses using casebooks coauthored by Samuel sellers of water as a result, Amanda Klasing ’08 acted as mation Act lawsuit. The funds Issacharoff, Stephen Choi / l CHRGJ noted. While in the primary investigator in Haiti, were eventually released in a and Arthur Miller: U.S., a flush of a toilet uses 1.6 helping to conduct a study 2003, but the projects they gallons, “the people we studied documenting the impact were meant to finance were

rit hommed are using 2.43 gallons of water of contaminated water on derailed and remain stalled. a per day for eating, drinking, Haitians’ human rights. The U.S. Treasury Department 133 sanitation, the whole deal,” The 87-page report, cov- has declined to comment on holberg prize

/ said Associate Professor of Law ered by The New York Times the report but has said the U.S. (To learn more about the ld dworkin: m a

npix and CHRGJ faculty director and others, is also based on in- remains supportive of finan- new faculty, turn to page 46.) a on R sc Margaret Satterthwaite ’99. ternal government documents cial efforts to aid Haiti. ’’ AUTUMN 2008  notes & renderings “Roots” Flourish hen 16 law school students graduated this past May, not only did these new lawyers mark a milestone, W but so did the Root-Tilden-Kern Scholarship Program. For the first time in more than two decades, the RTK Scholarship program provided all these graduates with a full three-year ride. Supreme Citing “This is a big deal,” Deborah Ellis ’82, assistant dean for public Student’s article noted by High Court interest law, told the New York Law Journal in May. “The cost of tuition keeps going up and up, but the salaries of public interest The NYU Journal of Law & After graduating, Frye lawyers don’t go up that much.” Liberty is barely three years slotted his Miller case re- Founded in 1951, the program is named for alumni Elihu Root old, but already it—and one search into time left over (Class of 1867), the statesman, New York Governor Samuel Tilden of its cofounders—has shot from his federal and state (Class of 1841), and Jerome H. Kern ’60, chairman of the Colorado- into the spotlight. A 2008 court clerkships. “I was for- based Symphony Media Systems. It provides need-blind, tuition article by Brian L. Frye ’05, tunate that NYU has a really scholarships to gifted students committed to public service ca- “The Peculiar Story of United fantastic legal history sub- reers and has been a model for other public service scholarships, States v. Miller,” was cited in department, with professors including the newly established Gates Public Service Law Schol- U.S. Supreme Court Justice like Bill Nelson and John arship at the University of Washington. But as earnings on the Antonin Scalia’s June major- Reid and Daniel Hulsebosch, endowment principal did not meet rising costs, both the number ity opinion in District of Co- all of whom were incredibly and the amount of the scholarships had been cut. lumbia v. Heller, which ruled helpful,” says Frye. However, thanks to a 50th anniversary fundraising drive kick- Washington, D.C.’s ban on In Justice Scalia’s started by a $7.5 million gift from Kern, himself a “Root,” every handguns unconstitutional. opinion, he cited Frye’s new incoming class of “Roots” now will enjoy a full three-year “This is recognition of the article, saying that Justice ride. The RTK program awards 20 full scholarships each year. The highest order,” noted Barry John Paul Stevens’s dissent new graduates have positions ranging from death penalty work Friedman, vice dean and was incorrect in relying in Alabama to counseling at-risk youth in New York City. Jacob D. Fuchsberg Profes- upon Miller because Miller sor of Law. “did not even purport to be Frye first became a thorough examination of interested in the 1939 the Second Amendment.” Miller case, the Court’s last Now Frye is working on his Second Amendment case, next article; combining his while doing research for passion for law with his Inez Milholland Professor long-time fascination with of Civil Liberties Professor film, it will describe how an Burt Neuborne. “I realized avant-garde film affected that people had not done Abe Fortas’s nomination for a lot of primary source re- Chief Justice. “I just hope search” on it, says Frye, I can continue to produce who is now a Sullivan & scholarship that people Cromwell associate. find useful,” he says.

Immigrant Rights Clinic Wins Lee Case Appeals for the Second Circuit struck that argument down, After nearly eight years of grant Rights Clinic. “It’s really vised by Pro- the clinic litigated whether a proceedings before numerous a wonderful thing to know that fessor Nancy mail-fraud conviction should courts, the deportation case for Yuen Shing Lee and his Morawetz ’81, won qualify as an aggravated fel- Lee v. Ashcroft finally ended, family, this nightmare is over,” a motion to terminate removal ony. In June, an Immigration thanks to work by the Immi- says Alina Das ’05, a clinical proceedings against Lee, who Court judge ruled it should not, teaching fellow and supervis- had faced forcible return and the federal government ing attorney for the clinic. since 2000. decided not to appeal. Lee, a U.S. lawful perma- Law students working for This is the Immigrant nent resident since leaving the clinic first argued that Lee Rights Clinic’s second victory Hong Kong as a child, faced should be treated as a U.S. na- in the last year involving the deportation due to a 1999 tional because he had applied Illegal Immigration Reform conviction for mail fraud. for citizenship and his imme- and Immigrant Responsibil-

Students Chirag Badlani ’08 diate family were all U.S. citi- ity Act and the Antiterrorism n frye: simon hØgsberg a

and Alexa Silver ’08, super- zens. When the U.S. Court of and Effective Death Penalty bri notes & renderings A Big Win

Christopher Meade ’96 was Two Testify celebrating on June 16. The WilmerHale partner learned for Tax Reform that he had won a hard-fought pro-bono immigration case Who: Lily Batchelder, Who: Daniel Shaviro, before the Supreme Court: Associate Professor of Law Wayne Perry Professor Dada v. Mukasey. At issue in and Public Policy of Taxation the case was how to recon- Where: Senate Committee Where: Senate Committee cile seemingly contradictory on Finance on Finance provisions of immigration When: March 12, 2008 When: April 15, 2008 law when a deportable im- Waldron Gives migrant seeks to pursue a Storrs Lectures The impending one-year “The old Chinese curse, motion to open his case, based repeal of the estate tax ‘May you live in interesting on changed circumstances, What part, if any, should in 2010 creates an oppor- times,’ has perhaps never after he’s agreed to leave the international law play in the tunity for Congress, says been more applicable to U.S. country voluntarily. Meade highest courts of the United Law School Professor Lily tax policy than it is today,” argued that the laws weren’t in States? University Professor Batchelder. Asserting that it said Daniel Shaviro. Presi- conflict, if read together. The Jeremy Waldron explored this is the only tax on inherited dent Bush’s 2001 and 2003 Court agreed. The 5-4 ruling question when he delivered income, and perhaps the tax cuts are set to expire in could affect about 20,000 im- the 2007 Storrs Lectures over most important barrier to 2011, and an estimated 30 migrants yearly. Jodie Morse the course of three evenings intergenerational economic million taxpayers may face ’06 assisted Meade, and Profes- at Yale Law School. mobility, she proposed the alternative minimum sors Nancy Morawetz, Rachel Waldron observed that improving, not repealing, tax by 2010. Shaviro argued Barkow and Cristina Rodrí- courts in other countries, such the current wealth-transfer for broadening the base and guez prepped Meade by hold- as his native New Zealand, tax system. “The estate tax lowering tax rates, but doing ing a moot court. In December, have embraced citing Ameri- is not a double ‘death’ tax so in a coherent manner. Meade will argue a veterans’ can decisions in their rulings. on the decedent,” she said. Rules for taxing businesses rights case in the Supreme Why, he suggested, shouldn’t “Instead it is a tax on a major need attention, as many Court, marking his third judges here do the same? source of unearned income businesses report a higher Supreme Court argument in “To use a perhaps inadvis- for those who are fortunate income to shareholders to three consecutive terms. able metaphor, we are at a enough to be born into boost investments and a sort of Tinkerbell moment,” [wealthy] families.” Batch- lower one to the I.R.S. to Waldron said in his lecture. elder proposed: Replace the lower taxes. Also, Shaviro “This material will exist as a estate-tax system with a rev- urged that filing be made body of law if judges believe enue-neutral inheritance tax easier for low- and middle- in it enough and begin articu- so heirs pay income tax as income households: “All lating their beliefs into their well as a 15 percent flat rate this complexity is not just practices of adjudication.” on the portion of a windfall a matter of slaying trees to Waldron tackled a similar that exceeds $2 million; or supply the endless cascades theme when he delivered a reduce incentives for donors of paper needed for all the lecture at NYU (see page 37). to rely on sophisticated and forms. It undermines com- expensive tax advice. pliance and…public trust.”

Act. The 1996 laws, which ex- right to return to the U.S. in panded the list of offenses that 2007, but he was able to come could be considered aggra- back to the country only vated felonies, left longtime earlier this year. U.S. residents who were guilty The clinic, founded by of such crimes subject to de- Morawetz in 1998, represents portation without the right to both individual immigrants most forms of relief. and advocacy organizations In Gutiérrez v. Gonzalez, in the field of immigrant rights. the clinic represented Luis “Not only do our students Gutiérrez-Castro, a legal per- represent individual clients manent resident who was de- facing [immigration] chal- ported to Columbia in 2000 as lenges, they are also thinking a result of a 1995 car theft con- about how their work fits into viction. Angelica Jongco ’05 the broader immigrant rights fought for and won Gutiérrez’s movement,” explains Das.

AUTUMN 2008  10 THE LAW SCHOOL The happy family, 1937. From Darkness Thomas Buergenthal ’60 has a picture of himself and his parents taken in the spring of 1937. He is three, a blond, curly-haired boy who looks into the camera with the serene assurance of a well-loved child. His mother, Gerda, short and dark-haired, wears a suit; his father, Mundek, a tall man in a jacket and bow tie, wraps his arm protectively around his wife. The three of them look happy. In fact, they were a family on the edge of an abyss. Shortly afterward, the family’s hotel in Lubochna, Czechoslovakia, Today, the boy who survived all that is a 74-year-old, white-haired was seized by the local Fascist militia and the Buergenthals escaped judge on the International Court of Justice (ICJ) at The Hague—the to Poland, where they applied for English visas. On the day Hitler principal judicial organ of the United Nations and an increasingly invaded, they were on a train bound for the border with the visas in busy forum for international disputes that range from boundary hand—only to have their train bombed. They wound up in the Jewish feuds to the death penalty. In the decades between then and now, ghetto of Kielce for several years, surviving two massacres. Eventu- Buergenthal has emerged as one of the main architects of the legal ally, they were sent to Auschwitz, where Buergenthal was separated institutions and procedures needed to apply the abstract concept of from his parents. About a year later, when the camp was evacuated “human rights” to real-world problems. In 1979, he was elected to a in January 1945, he was among a group of prisoners who made the judgeship on the Costa Rica-based Inter-American Court of Human 44-mile trek across the frozen Polish countryside that later came to Rights (IACHR), the most important human rights tribunal in Latin be known as the Auschwitz Death March. Buergenthal was 10 years America; in 1990, he served on the U.S. delegation to the first post- old, one of only three children who survived. Mundek Buergenthal Cold War conference in Europe, helping to draft standards for demo- was executed by the Nazis at Flossenburg in the last days of the war. cratic elections in newly formed Eastern European nations; in 1992, Gerda Buergenthal survived and spent the next 18 he was appointed to the U.N. Truth Commission for months searching for her son before finding him By Tracy Thompson El Salvador. In 1995, he became the first American to opposite: max koot studios in a Polish orphanage run by a Jewish relief group. be elected to the U.N. Human Rights Committee.

AUTUMN 2008 11 Clearly, it’s been a remarkable life. Yet outside academia, the of Human Rights, a body I’d never heard of. I went to his office at U.N. and the State Department, Thomas Buergenthal is not a Emory and met a short man whose meticulously groomed curly household name, which seems a little strange. How could anyone hair reminded me of my father’s, and whose perfect manners were have accomplished so much from such bleak beginnings and not more formal than the casual Southern friendliness I was used to. have the kind of fame enjoyed by, say, fellow Holocaust survivor We did a brief interview about the Carter Center’s new program, and Nobel Peace Prize-winner Elie Weisel? which frankly didn’t interest me much, and after a while I stood to The comparison is inevitable: After decades of false starts, leave. As I did, he asked—almost shyly—“Would you like to know Buergenthal has finally managed to put his life story on paper. a little bit about my childhood?” I sat back down. Ein Glückskind (Lucky Child) describes some of the same events I heard only the most truncated version of his story that day, as Weisel’s classic 1958 Holocaust memoir, Night—and despite but even so, it was difficult to grasp that the child who had expe- rienced such horrors and the man sitting across from me were one and the same. As it happened, Buergenthal had on his bookshelf the English translation of the memoirs of Odd Nansen, the Norwegian author and humanitarian, who had met Buergenthal when they were both prison- ers at Sachsenhausen after the evacuation of Auschwitz. Buergenthal showed me the book’s dedication, which was to the mil- lions of victims of the Holocaust—“and especially you, little Tommy.” “That’s me,” he said, smiling. “Now you know why I’m doing human rights law instead of international business law.” I wasn’t familiar with either field, but I knew a remarkable witness to history when I met one. Not long after, I invited Buer- genthal and his wife, Peggy, over for din- ner and cooked my best “company” meal, roast leg of lamb, which they seemed to rel- lov ing a rms: Thirteen-month-old Buergenthal with his father, Mundek, in 1935. ish. Years later, Buergenthal confessed that the smell wafting from the kitchen when he the hundreds of Holocaust books that have been written in the and Peggy walked through my door had nearly made him retch: For last 60 years, Ein Glückskind quickly hit the best-seller list in Ger- years after the war, the only meat available had been mutton. Unwit- many, where it was first published in 2007. So far it’s sold more tingly, I’d served him something he’d sworn off forever. than 100,000 copies in Germany and is currently in print in nine That kind of diplomatic fortitude is an occupational require- countries, with British and American publication set for early 2009. ment for a judge at the ICJ, where the most mundane cases—a com- Germany, the country that once stripped Buergenthal of his citi- plaint from Argentina, say, about pollution from a Uruguayan pulp zenship, is now eager to lionize him: Suddenly, there are television mill—arrives bristling with international political tensions. The 15 interviews, audio books to record, invitations to be honorary this or judges on the court, who hail from a variety of backgrounds, must that, even the dedication of a library named for him in his mother’s interpret and apply legal precedents that are still relatively new hometown of Göttingen. compared to most common law concepts, and do it while main- Writer Krista Tippett has observed, “Goodness prevails not in taining at least the appearance of collegiality. Buergenthal finds the absence of reasons to despair, but in spite of them. People who this relatively easy: He is unassuming, multilingual (he speaks bring light into the world wrench it out of darkness, and contend German, English, Polish, Spanish and a little Italian), knowledge- openly with darkness all of their days.” able about other cultures and always eager to learn more. On days “After all you have seen,” I asked him, “do you really think a spe- when the ICJ is in session or he is working in his office at the court’s cies seemingly intent on self-destruction is also capable of creating headquarters in The Peace Palace in The Hague, he usually lunches a coherent, enforceable jurisprudence of human rights?” with his fellow judges in their private dining room. The man who has witnessed so much of that darkness has an He also brings heavyweight scholarly credentials to the task. He unhesitating reply: “I don’t have any doubt.” wrote the book on post-war human rights law—literally: His 1973 text International Protection of Human Rights, coauthored with Louis B. Sohn, was the first American casebook on the subject, and Full Disclosure paved the way for introducing human rights into law school cur- Thomas Buergenthal is an old friend of mine. We met in 1985 when ricula across the country. Subsequent books, written with George I was the legal affairs reporter for the Atlanta Constitution, fresh Washington University Law School professors Dinah Shelton and from the Master of Studies in Law program at Yale Law School. He David Stewart, are required reading for students in the field. had just been named director of the newly established Human Within his field, Buergenthal is famous. But the community of Rights Program at the Carter Center in Atlanta, a position that international human rights legal scholars is relatively small, and came with a teaching post at Emory University School of Law. He the field as a whole suffers from an image problem. Most Ameri- had also just been elected chief justice of the Inter-American Court cans associate the phrase “human rights” with the word “violation.”

12 THE LAW SCHOOL Bombarded as we are with stories about Abu Ghraib, the murder- Rights (established in ous fanaticism of the Taliban or tribal warfare in Kenya, it’s easy to 1953), IACHR (1979), and conclude that the state of human rights today is a sorry mess. the African Court on That would be the short view. The long view is that progress in Human and Peoples’ human rights law since World War II has been “phenomenal,” said Rights (2006). Murry and Ida Becker Professor of Law Emeritus Thomas Franck, Buergenthal’s major and he repeated the word for emphasis: “phenomenal.” contribution has been One of the lesser-known facts about the Nuremberg War Crimes in Latin America. The Trials at the end of World War II is that they specifically excluded United States is not a acts in which the victims were German citizens, Franck noted. party to the conven- Why? Because at the time, what a government did to its citizens tion that created the was considered purely a domestic concern. Genocide was viewed IACHR, but Costa Rica th e gr a duat e: The summer before in the same way wife-beating used to be: a distasteful matter out- is. That nation nomi- he entered law school, Buergenthal visited his mother, Gerda, in Italy, where siders were well advised to ignore. nated Buergenthal, who she had settled after the war. But just as domestic violence is now considered an urgent social had already established problem, “there has been a sea change in the fundamental issue, himself as an expert in regional human rights tribunals, and his U.S. which is that how a government treats its citizens is no longer con- nationality helped boost the fledgling institution’s credibility. sidered purely a domestic matter,” Franck said. A formidable body Credibility is no longer an issue. The IACHR has established an of human rights law has sprouted in a mere half century from a extensive body of case law dealing with the enforcement of human seed planted in the ruins of World War II. Among other things, the rights in Latin America, on issues ranging from state censorship to charter of the United Nations pledges “international cooperation violent political repression. It was the first international tribunal in…promoting and encouraging respect for human rights and for to hold a state financially liable for waging a campaign of “forced fundamental freedoms for all without distinction as to race, sex, disappearances” against its political opponents. In that 1988 ruling, language or religion.” That was followed by the passage of the Con- the court ordered the government of Honduras to pay restitution vention against Genocide, better known as the Geneva Convention, to the families of the victims during that country’s civil war earlier and the 1948 Universal Declaration of Human Rights. in the decade. The ruling was itself remarkable; even more remark- But what, exactly, are “human rights”? Over the ensuing ably, the government of Honduras complied. decades, the exacting work of defining the term and the methods Since then, IACHR case law has taken root in the constitutions by which its protection would be enforced was left to a variety of of more than 20 countries in Latin America. The result has been a U.N.-created commissions and to the bodies that interpreted inter- dramatic increase in recent years in the number of human rights national conventions, such as those barring torture or race dis- cases initiated by governments themselves against the actions crimination. Another body of law evolved within the framework of of previous regimes. Case in point: the 1998 detention of General agencies like the U.N. Educational, Scientific and Cultural Organi- Augusto Pinochet, the former Chilean dictator, in London, and his zation (UNESCO) or the International Labor Organization, both of subsequent prosecution on charges of systematic human rights which incorporate human rights protections into their charter. abuses during his 16-year rule. Since then, similar cases have been World events also played a role: The bloody civil wars that brought in Mexico, Uruguay, Brazil and Peru, marking a radical erupted in the 1990s in Yugoslavia and Rwanda spawned tribunals shift toward accountability in a part of the world with a long his- to try individuals charged with crimes against humanity, genocide tory of repressive military dictatorships. and war crimes (the International Criminal Tribunal for the for- “When I came to Latin America, you couldn’t really even talk mer Yugoslavia, for instance). The credibility those tribunals estab- about human rights,” Buergenthal said, and it’s clear from the lished led, in turn, to the creation of the International Criminal frequency with which the subject of Latin America comes up Court in 2002. Over the same period, three regional human rights in conversation that he regards his tenure on the IACHR as one judicial systems were evolving: the European Court of Human of the most satisfying periods of his career. Though it would be hard to single out Buergenthal’s single most important contribu- tion to human rights law, his IACHR work would be at or near the top, colleagues say. “He’s had a role in improving the well-being of an awful lot of people,” said GWU Law Professor Sean Murphy. Human rights law may be an esoteric topic to most people in the United States, “but in Latin America, it’s in the papers every day.”

The Immigrant Becomes a Citizen Buergenthal arrived in this country in 1951 aboard a ship crowded with European refugees, carrying one suitcase and a smelly $50 bill in his shoe—a 17-year-old high school student whose years of missed elementary school education had been only partially remedied by private tutoring. He lived with an aunt and uncle in Paterson, N.J., and, despite his initial handicaps, graduated in the top quarter of his class. After high school, he accepted a scholarship lost but f r e e: Taken in by Polish soldiers, 10-year-old Buergenthal to Bethany College, a small liberal arts college in West Virginia. had his own pony, gun and uniform. This soldier eventually took Buer- In his senior year at Bethany, the school recommended him for a genthal to an orphanage where his mother would find him a year later. Rhodes Scholarship to study law at Oxford University. After making

AUTUMN 2008 13 who also lived in Hayden Hall,” he said. His associ- ation with the school continues: The international law program that has developed since Buergen- thal’s days now sends students each year to work as interns at the ICJ. If he were a baseball umpire, Buergenthal would be described as having a consistently narrow strike zone. He goes where he thinks the law goes, even when U.S. foreign policy and/or its military and political strategies go another way—that far, and not an inch further. His circumspection is partly a product of his history, says Sean Murphy: “He is sensitive to the perception that because of his Holocaust experiences there might be some who would question whether he could be impartial.” Buergenthal’s judicial perspective is often in- voked in procedural terms. In 2003, for instance, a majority of the court ruled that the United States th e l aw stu de n t, 19 6 0 : Buergenthal’s closest friends from the Law School remain those who lived in his dormitory, Hayden Hall. illegally invoked a national security rationale for destroying three offshore oil platforms owned by it through the first selection round, he arrived at the final inter- Iran in 1987 and 1988. Buergenthal differed—not because he sided view unprepared and babbled aimlessly. That ended his Rhodes with the U.S. on the merits, but because in his view the court lacked prospects, but one of the interviewers was impressed enough to jurisdiction to address the issue. The same year (2003 was notable slip him a note advising him to apply to NYU’s Root-Tilden Schol- for the number of controversial ICJ cases) the U.N. General As- arship Program. Buergenthal did, and not only won a scholarship, sembly asked the ICJ for an advisory opinion on whether Israel but also a stipend covering room, board and books. The stipend, was justified in erecting a wall along the Green Line in occupied Buergenthal said, made all the difference: Even with an academic Palestinian territory on the West Bank. In a 14-1 ruling, the ICJ held scholarship, he simply did not have any money to live on. “Without that Israel was not, with Buergenthal as the holdout. it, I wouldn’t have been able to go to law school,” he said. But his opinion was not exactly pro-Israel. Instead, he argued Buergenthal recalls his first year of law school as a tough aca- that the ICJ should have stayed out of the dispute altogether because demic transition, though it was eased by life in Greenwich Village, the evidence submitted to it by the General Assembly glossed over in those days a small town that just happened to be in the middle the history of rocket and mortar attacks on Israel launched from of a busy metropolis. He roomed at Hayden Hall with Alan Norris, the Palestinian territories. Then he made an even finer distinction: now a senior judge of the U.S. Court of Appeals for the Sixth Circuit Even assuming that the court had ample evidence before it that in Columbus, Ohio. Norris, who is still a close friend, recalled that Israeli citizens were victims of Palestinian rocket attacks, “a state he and Buergenthal had little in common in terms of politics, but which is the victim of terrorism may not defend itself against this his roommate cheerfully tolerated the oversized picture of Repub- scourge by resorting to measures international law prohibits.” A lican Senator Robert Taft that Norris hung in their room. careful weighing of Israel’s security needs versus the rights of the Buergenthal’s fellow law students remember him as friendly, Palestinian people along each section of the wall would be needed, but no party animal. “He never went out with the boys drinking, and might well show that some sections violated international law but he always had time for an event,” says John Blyth, a New while others did not. York real estate lawyer who met Buergenthal when one of their “He has convinced the invisible college of international law that professors seated the incoming students in alphabetical order. he really does care about the law,” said Franck, who has been a And though Buergenthal never made much of it, “after a while friend and colleague for 40 years. “He’s understated, he’s relatively everybody knew about his background in the camps,” Blyth said. quiet and unassuming, he’s made it absolutely clear that he calls “Nobody ever said much about it.” the shots as he sees them. He never tries to bully or dominate or In his third year at NYU, Buergenthal married Dorothy Cole- wave a big stick…. When the law coincides with [what] the United man, who had been a fellow student at Bethany College. Over the States [wants], he will call it that way, but if the law doesn’t support next 19 years, the couple raised three sons while Buergenthal pur- what the United States wants, he’ll go with the law, and everybody sued an academic career that took him to the University of Texas as knows it. It gives him a kind of clout.” well as American, Emory and George In the Israeli wall case, Buergenthal Washington universities. His marriage implicitly criticized his colleagues for to Coleman ended in 1981. Two years ignoring certain facts to fit their ruling later, he married Peggy Bell, a Peru- when he wrote that the humanitarian vian-born conference interpreter. needs of the Palestinian people would Aside from his rocky introduction have been better served if the ICJ to law school, Buergenthal said, he has majority had taken a complete factual warm memories of his time at NYU—in record into account, “for that would particular, of Robert McKay, the con- have given the Opinion the credibility stitutional law scholar who would later I believe it lacks.” become dean. “My best friends to this As director of the human rights program at the Yet neither judicial reticence nor art- day are fellow Root-Tilden students Carter Center, Buergenthal mingled with President ful phrasing can conceal Buergenthal’s Jimmy Carter and Ambassador Andrew Young. 14 THE LAW SCHOOL profound differences with the Bush administration’s approach to As critical as he is of U.S. foreign policy under the Bush adminis- international law and human rights. In 2003, he joined a unanimous tration—it has “totally destroyed our credibility on human rights,” ICJ ruling that said the U.S. violated an international treaty by not he said—Buergenthal takes his U.S. citizenship very seriously. telling 51 Mexican citizens held on death row in U.S. state prisons Classmate John Blyth recalls that Buergenthal became a citizen that they had the right to seek legal help from their government. The while the two of them were at NYU. On the next election day, Blyth Bush administration demonstrated its displeasure by withdraw- said, “the polls opened at 6:00 a.m., and he was there at a quarter ing from the convention under which it had agreed to accept ICJ to six. And he was the first to vote.” jurisdiction. Even so, President Bush ordered state courts to com- ply with the ICJ ruling. On March 25, though, the Supreme Court ruled 6-3 that Bush’s order had exceeded the authority of the execu- Remembering the Holocaust tive branch. Unless Congress explicitly said as much, the majority On an unusually springlike evening last February, I went with the ruled, international treaties cannot supersede state law. The case Buergenthals to a reception at the Israeli embassy in The Hague. It seemed over—but in June, Mexico asked the ICJ to temporarily halt was given by Ambassador Texas’ execution plans. In response, the ICJ asked the U.S. to “take all Harry Kney-Tal and his measures” necessary to delay the executions while it considered the wife, Nili, in honor of Israeli request. But on August 5, Texas proceeded with the first execution. writer Aharon Appelfeld, In an era when political differences often devolve into personal whose latest book had just attacks, it’s worth noting that people who vehemently disagree with been published in Holland. Buergenthal’s views—and there are many—confine their attacks The three of us squeezed to his opinions. A recent into seats near the back of post on a blog devoted to the room as Appelfeld—a ICJ matters, for instance, balding, diminutive man Buergenthal and his fellow human rights court judges have an audience was scathingly critical of dressed completely in with Pope John Paul II in 1983. an ICJ opinion “written by black—kept the crowd rapt your friend and mine, Tom with tales of his own youth during the Holocaust. Buergenthal.” Still, conser- As the reception was breaking up, Peggy urged her husband to vative animus to Buergen- introduce himself. Peggy grew up in a bilingual household in Peru, thal’s views runs deep. He and speaks with a charming accent that, to my ears, sounds like was nominated to the ICJ Zsa Zsa Gabor’s. (“No,” Buergenthal corrected me when I told him by the outgoing Clinton this. “Eva Gabor. She was the one I always had a crush on.”) Now administration to fill out the “Eva” was doing a wifely full-court press. “You must talk to him,” unexpired term of his pre- she said. “You must tell him about your book.” decessor, then renominated “No,” Buergenthal demurred. “There are so many of these in 2006 by the Bush admin- books, Peggy.” Just then, Nili Kney-Tal came up and put her hand a fou n ding j u dge: From 1979 istration. But that appear- on Buergenthal’s arm. “I so wish you had asked a question!” she to 1991, Buergenthal was a judge on ance of bipartisan support exclaimed, and Buergenthal shrugged, smiling. He seemed slightly the fledgling Inter-American Court of Human Rights in Costa Rica. is deceiving. Conservatives embarrassed. But after a few moments, he edged his way through in the State Department the dense crowd around Appelfeld, and these two children of the were outraged by Buergenthal’s rulings in the oil platforms case Holocaust had a brief chat out of our earshot. and by his less-than-vigorous dissent in the Israeli wall case. “What did you talk about? Are you going to send him a copy of “The ICJ in my view has gone out of its way to find actions your book?” Peggy asked excitedly as we were putting on our coats in violation of international law,” said Edwin Williamson, a in the foyer. “Oh, I don’t know,” Buergenthal muttered. Peggy gave former legal adviser to the State Department under the adminis- me a look as if to say: husbands. tration of President George H.W. Bush. U.S. judges nominated to The incident illustrates something that has bedeviled Buergen- the ICJ are vetted by the State Department and approved by the thal for much of his life. While he has always felt a strong urge to president before their names are forwarded to the U.N. General tell his story—he showed Blyth an early draft when they were law Assembly, where approval is usually pro forma. Buergenthal’s students, and he mentioned his desire to write his memoirs on the renomination might not have made it that far if not for the support of former Secretary of State Colin Powell, who argued that he was both qualifiedand electable, an important consideration at a time when relations between the United States and the United Nations were at a low point over the war in Iraq. Even then, the Bush administration may have felt it had no choice but to renominate him. ICJ procedures also say that judges can be nominated by any ICJ member country; Buergenthal won the support of a record number of 32 nations. “He would have been elected anyway,” Franck said. “And to have been elected anyway as the American judge on the court, without having the nomination of the United States, would not have been very good politics.” Buergenthal, third from left, poses in 1984 with fellow judges on the What the State Department didn’t know, said one source Inter-American Court of Human Rights (IACHR). During his tenure, who asked for anonymity, was that Buergenthal would not have the IACHR was credited with developing a significant body of case law dealing with the enforcement of human rights in Latin America. accepted the appointment without the backing of his own country.

AUTUMN 2008 15 day I met him—it’s been painfully difficult for him to find his voice. remarkable not just for the For one thing, he had doubts about his writing ability. His young- dramatic events Buergen- est son, Alan, 40, a lawyer who works for a health care company in thal has lived through, but Columbus, Ohio, regards his father as “a great legal author” whose also for the number of ques- logical presentation is “always a pleasure to read.” But narrative tions it cannot answer. prose is a very different genre. “The insanity of it all is “As one whose prior writing experience has been limited to law hard to fathom,” he writes, r e f l ections: Buergenthal, with books and legal articles, I found writing this book very difficult, and the book is peppered wife Peggy on the Rhine in 2005, has published his memoirs of his and not merely because of the subject,” he wrote me in an email with a similar kind of first dramatic 74 years. last fall. “As a result I am quite insecure about the quality of the detached bewilderment: book, that is, whether it conveys what I wanted to convey.” “Generalizations about the Holocaust, about German guilt or about Then there are the comparisons that will inevitably be made what Germans knew or did not know, do not help us understand between Ein Glückskind and Night. Though they were at Auschwitz the forces that produced one of the world’s greatest tragedies.” And: at the same time, Buergenthal and Weisel first met several years “I have often wondered why or how I managed to survive the camps.” ago at an event at the U.S. Holocaust Museum in Washington, D.C. Buergenthal says that he wept at times while he was writing Ein Their accounts of the Death March are strikingly similar. Glückskind—but overall, the book keeps the reader at arm’s length Otherwise, the books could not be more different. Night is a from the events it portrays, and there is a sense that the psycho- primal howl of anguish written when Weisel was only 30 and his logical armor that helped protect the child is now a hindrance to memories still raw. Written in 2006, Ein Glückskind is the work of a the adult writer. Perhaps it’s unavoidable. In one chilling passage, 72-year-old man looking back over half a century. It is less a memoir he recounts how he used to sleep in a barracks so close to the gas of the Holocaust than it is the story of how a child’s moral intelli- chambers at Auschwitz that his sleep was often interrupted by the gence was refined in the cauldron of that horrifying event. screams of the people being forced inside. After a while, he found a It also has a broader scope. Like Weisel, Buergenthal describes way to cope—by what psychologists call “lucid dreaming.” Hearing concentration camps that were “laboratories for the survival the screams, he would say to himself in his dream, “This is only a of the brutish.” Unlike Weisel, he also describes generosity and nightmare, there is nothing to be afraid of.” acts of heroism. Weisel asked how God could have allowed such Yet the person who emerges from the pages of Ein Glücks- things to happen; Buergenthal asks how people could have kind is not a tortured soul, but an irrepressible, mischief-making allowed it. “What is it in the human character that gives some boy. During his years in Kielce, Buergenthal and his friends individuals the moral strength not to sacrifice their decency,” he would play tricks on the peasant women who tilled the land in the vacant lot behind their apartment build- ing: They would hide until the women stopped to urinate in the field, standing in their long skirts with their legs spread apart. At just the right moment, the boys would yell or bang on a pot to startle the women in midstream, so to speak. Then the children would run, laughing, pursued by Polish curses. As an adult, Buergenthal’s brand of humor tends toward the droll understatement. Nor- ris, his old roommate, recalls that every man at NYU in the 1950s was draft bait—except for Buergenthal, who was exempted because he had lost two toes to frostbite during the Death March. Every year, Buergenthal would get a notice from the draft board inquiring about his physical fitness; every year, he would write ausch w itz 55 y e a rs l at e r: Buergenthal recalls it was “just as cold” as it was the day he left on the infamous Death March in January 1945. back: “My toes have not yet grown back.” Blyth recalls a party where Buergenthal gave an writes, while others “become murderously ruthless?” How could impromptu performance of the Polish national anthem. He knows such brutality be inflicted by such ordinary people—men who how to have fun: Buergenthal’s former colleague Murphy recalls a would “go home in the evening to their families, wash their hands dinner at his home when Buergenthal wowed Murphy’s children before sitting down to dinner as if what they had been doing was with his prowess at ping-pong. a job like any other”? At the same time, he is a deeply serious person. Alan jokingly A reader might hope that age and wisdom have given Buer- says that “the only way he truly let us down as kids” was by nixing a genthal insights that eluded the youthful Weisel, but not so. family trip to Disney World, which his father thought was a waste of Buergenthal seems as stymied by these questions as Weisel—more time. Robert, who is 45 and works as a senior counsel in the Justice so, in fact, since the intervening years have shown too clearly that Reform section of the World Bank in Washington, D.C., remembers the Holocaust was hardly a singular event. As a teacher or a judge, that at family dinner “every child reported on his schoolwork and he can be exacting, a stickler for the precise word, the correct there was always an issue to discuss.” phrase. But he has no answer to the mystery of human evil, and Buergenthal and his sons have a running argument about he is uncharacteristically inarticulate when it comes to explor- how much he told them about his childhood. Buergenthal says ing the emotional landscape of his experiences. Ein Glückskind is his children never showed much interest. His sons emphatically

16 THE LAW SCHOOL differ, but say what they learned came in bits and pieces. “If you asked that “death is always just a moment away.” Which, in a way, is a questions, he’d always answer,” Alan said. At other times, informa- spiritual epiphany—but the moment passed, and in the years since tion would emerge in odd ways; once, Robert said, his father told he has never totally recaptured it. him that he’d been unable to carry Robert around as a baby because Alan Norris has told him that it was more than just cosmic of a back injury he suffered during a beating in the camps. Buergen- coincidence that on the day Buergenthal was chosen for the gas thal spoke far more easily about his grandparents, murdered by the chamber, the ever-efficient Nazis did not have enough prisoners Nazis in 1942, or his mother, who remarried after the war and lived to justify firing up the crematorium—just as it was more than coin- in Italy, with frequent visits to this country, until she died in 1991. cidence that a Polish camp When Robert was in junior high school, he read Night. “I told doctor later secretly altered Pop it sounded a lot like his stories, and I asked him to read it,” Rob- his identity card, saving his ert said. The answer was no. To this day, his father avoids Holocaust life. Buergenthal disagrees. literature and movies depicting the period. When Slaughterhouse His survival, he says, was Five became a movie in 1972, Robert remembers, his parents came simply luck. “I admire peo- home from the theater early; his father could not bear to watch it. ple who are religious—well, “Until this book, no matter what he may say, he never walked us not the extremes—but I through his history,” said Robert. And yet the proverbial elephant don’t believe in a personal was always in the room: “Everything about him was shaped by the God the way some people war or the Holocaust.” do,” he said. “I wish I could. It would give me strength.” With his first grandchild, Eliza, Yet, in a way, the absence in 1996. A Sustaining Faith in the Law of one kind of faith has left One day in the fall of 1944, the prisoners at Auschwitz were called to room for another: a faith in the power of law. The law is no pana- assemble for one of the many “selections” the Nazis performed to cea, he concedes; it has never prevented terrible things. But it can at get rid of prisoners unfit for work. One by one, the prisoners walked least be a “no trespassing” sign posted at the edge of the abyss. There before a panel of doctors—a group which may have included are reasons to think this is a useless gesture: Cambodia, Rwanda, Mengele himself, though Buergenthal will never know for sure; Bosnia, Darfur. But, Buergenthal points out, the same decades that he was too terrified to look up. He followed his father in the line, brought us those events have also brought the end of apartheid, the looking for an escape route. At the head of the line, the doctors fall of the Berlin Wall, the replacement of autocratic regimes with ordered Mundek Buergenthal to go left and his 10-year-old son to democratically elected governments in Latin America, a prolifera- go right. Mundek grabbed his son, but a guard tore the boy away tion of international tribunals and a growing number of nations will- while another kicked the elder Buergenthal out the barracks door. ing to comply with their rulings. It was the son’s last glimpse of his father. On a trip to Columbus last year, Alan told me, his father was Buergenthal was taken to another barracks, where all the other looking through some family photos with Alan’s seven-year-old prisoners were old, sick or succumbing to starvation—clearly, des- daughter, Ruth, and explaining to her how so many of their rela- tined for the gas chamber. So was he; children were considered tives had died, why their extended family was so small. The next unfit for manual labor, and it was a miracle he had survived this day, Alan said, Ruth went to her first-grade class “and she told what far. Three times over the next few hours, Buergenthal managed she could about what happened to my father, and the kids said, ‘Oh, to escape through the back door of the barracks; three times, for you’re lying, people don’t do things like that for no reason.’” reasons he still finds unfathomable, the other prisoners alerted the But people have, and probably will again. Meanwhile, Buergen- guards that he was escaping. Finally—baffled, angry, overcome thal shows up for work every day at a court with a steadily growing with grief and fear—he sat down against the wall in a corner. caseload. The years are passing, and he would like to spend more Until then, I had been gripped with fear, fear of dying. But then time with his grandchildren. But his work is not finished; it may something most unusual happened. Slowly, very slowly, my fear and never be. Building a jurisprudence of human rights is like building anxiety faded away….An inner warmth streamed through my body. the Taj Mahal, or the pyramids of ancient Egypt: The goal is ridic- I was at peace, my fear had vanished ulously ambitious, the work takes and I was no longer afraid of dying. decades, and the craftsmen labor in “I can’t explain it,” he said to me. anonymity. Even then, the results We were sitting in his office in The are imperfect, and susceptible to Hague, located in a modern building vandals and the passage of time. next door to the ornate 19th-century What’s most amazing about those edifice where the court holds its hear- wonders, though, isn’t how well they ings. Through a window left slightly have survived. The most amazing open to the springlike air, I heard a thing is that anyone ever thought of distant hum of traffic; a pair of Nile building them in the first place. geese floated on a pond outside. Was it a spiritual experience? I Freelance journalist Tracy Thompson pressed. “No,” he said. His family was wrote The Ghost in the House: Moth- never observant, and his experiences erhood, Raising Children and Strug- in the war eliminated any vestige of gling with Depression (HarperCollins, a belief in the Divine. The best way Buergenthal receives an honorary Doctor of Laws degree from 2006). Recently she contributed to the he can describe that moment was NYU Provost David McLaughlin (far left), Law School Trustee anthology The Maternal Is Political Evan Chesler ’75 (rear, right), and NYU President John Sexton. that it was the intense realization (Seal Press, 2008).

AUTUMN 2008 17 18 THE LAW SCHOOL Leveling the Political Field in 1986 samuel issacharoff was in springfield, sure the political process and institutions were open and Illinois, handling an election law case that revolved around responsive—not parse each issue through the constitutional restrictions on black politicians. Issacharoff, then 32, had been prism of individual rights. In short, Issacharoff said, McNeil’s around these kinds of voting rights cases for a while, finding aphorism was sounding right: Let everyone have an equal seat them not especially exciting—too technical, too many statis- at the table—and the pork would be distributed just fine. tics bandied about by would-be experts that tended to dull This spare notion would develop into a distinct field of the brain. But something happened at the Springfield trial law, known as the Law of Democracy, that attempts to find that Issacharoff remembers today in great detail. a unified theory of election law. It was crafted by Issacha- His lead client, a candidate for Chicago’s city council roff, Bonnie and Richard Reiss Professor of Constitutional named Frank McNeil, was on the stand testifying about Law, his colleague Richard Pildes, Sudler Family Professor of an at-large election system that essentially worked to keep Constitutional Law, and Pamela Karlan, Kenneth and Harle blacks from obtaining office. The opposing lawyer seemed Montgomery Professor of Public Interest Law at Stanford to find an opening that could spell trouble. Law School. Their work culminated in a book, first published “Is it true, Mr. McNeil,” the lawyer asked, “that the real in 1998, The Law of Democracy: Legal Structure of the Political reason you’re running for office is you want pork to be dis- Process. More than a mere textbook about election law, it was, tributed to your constituency?” as one reviewer observed, a statement about democracy in McNeil responded confidently: “If there’s pork to go America, including an unusual assemblage of case studies, around, I want my people to get some, too.” political theory, political philosophy and American history. That pithy, off-the-cuff testimony provided an epiphany of They aimed to shape a chaotic set of legal positions into a sorts for Issacharoff. It disrupted how he thought about elec- level playing field and let the politicians play ball. tion law and how to organize democratic politics. It was the end result that mattered more in these issues, he thought. The By l arry Reibstein courts should perhaps confine themselves mostly to making illustrations by steve brodner

AUTUMN 2008 19 Columbia Law, was selected to deliver the Herbert Hart Lecture in May at the University of Oxford, an especially distinct honor in that the lecture is normally presented by a specialist in legal phi- losophy. In the span of a few weeks in April, Pildes was awarded a highly coveted Guggenheim Fellowship and elected to the Ameri- can Academy of Arts and Sciences. A frequent network television commentator on election matters, he was nominated for an Emmy In just a decade, their ideas implanted themselves in much of the as part of the NBC team covering the 2000 election. In 2004, he legal community, and electrified law and political science profes- wrote the prestigious Harvard Law Review constitutional foreword. sors across the country. Owen Fiss, the revered constitutional law And Pildes can claim to have conceived two election-related ideas and civil procedure legal scholar and professor at Yale Law School, that were later incorporated as doctrine by the Supreme Court— who had taught Issacharoff and Karlan, recalls: “It was just the right two more than most law professors (more on those later). book at the right time by the right people.” (Fiss remembers how he was on the reviewing committee of the publisher, Foundation Press, when they short-circuited their usual lengthy scrutiny for this book Election Law’s Oscar and Felix proposal, greenlighting it immediately.) At least half of the coun- For two guys who work together so well, Issacharoff and Pildes are a try’s law schools now teach a Law of Democracy course. At NYU, kind of odd couple of the academic legal world. Issacharoff greets a Pildes and Issacharoff alternate each year in teaching the course to visitor at his sprawling Upper West Side apartment one winter day, his second- and third-year students, sometimes bringing in speakers, salt-and-pepper hair slightly askew, dressed in gray sweat pants, blue such as the top election lawyers for the Democratic and Republi- T-shirt and Asics sneakers, looking as if he’s on his way to a pickup can parties. And in the fall of 2007, Issacharoff and Pildes joined basketball game, which he plays regularly. Pildes, however, sched- Pasquale Pasquino, a visiting professor of law at the Hauser Global ules his meeting in his fifth-floor office crammed with law review Law School Program, in presenting a colloquium that focused on articles and student papers. He is neat and trim, looking like the for- democracy abroad, Constitutional Democracies. mer competitive runner he was at his Evanston, Illinois high school, The course is “wildly popular” with today’s students, says Yale and dressed in a pressed green shirt and brown corduroy pants. Law School Professor Heather Gerken. “It’s like teaching sex, drugs Issacharoff answers questions with little hesitation, while Pildes and rock ’n roll,” she says. “It’s taking all of the pristine principles pauses to formulate his responses. The latter says, “I’m much more of constitutional law, like equal protection and First Amendment, of the tortured academic, seeing complexity everywhere, more and bringing them to the down-and-dirty world of politics.” interested in exploring issues than pushing the bottom line very Indeed, not many professors sought to teach courses about hard. I think Sam’s much more confident, bottom-line-oriented.” electoral matters until Issacharoff, Karlan and Pildes’s ideas “rev- That said, Pildes has no hesitation in calling a couple of his friend’s olutionized what was a pretty boring and tedious field before,” ideas “wacky” and “off the deep end”—which Issacharoff shrugs off says Dennis Thompson, a political philosophy and ethics profes- as part of academic give-and-take. sor at Harvard’s Kennedy School of Government. But in the last They took differing paths, too, to arrive at the same conceptual decade, Karlan says that a “huge number of people” entered the place. Pildes’s was more theoretical. After graduating from Har- field, impelled by the textbook and the 2000 Bush v. Gore election vard Law in 1983, he clerked for Judge Abner Mikva of the U.S. Court debacle. Gerken recalls that legal theorists such as University of of Appeals for the District of Columbia Circuit and then for Justice Chicago Law Professor Cass Sunstein and Judge Richard Posner Thurgood Marshall on the Supreme Court. (Pildes self-deprecat- of the U.S. Court of Appeals for the Seventh Circuit “suddenly ingly shares the story of how, when he went to Marshall’s office to started writing about election law, this in a field they hadn’t heard say goodbye at the end of his clerkship, the justice, a notably moody of five years before!” Among the professors who used the trio’s early character, walked past him and said to his secretary’s pleadings, teaching materials: Barack Obama, while an adjunct at the Univer- “What’s he want me to do, kiss him on the fanny?”) Pildes prac- sity of Chicago Law School. ticed a couple of years at Boston’s Foley, Hoag & Eliot law firm Issacharoff, Karlan and Pildes are now recognized as the found- before joining Michigan’s law faculty in 1988, where he stayed ing parents of and leading authorities on this fresh view of election until 2000, when he moved to NYU’s law school. True to his Hamlet- law, having converted many scholars to their “structuralist” camp like decision-making, it took him two years to make the decision rather than the “individual rights” school. They have been recog- to join NYU, and, more recently, two years to decide to turn down nized accordingly. Issacharoff, who was lured to NYU in 2005 from Harvard Law to stay.

20 THE LAW SCHOOL Issacharoff, by contrast, had rolled up his shirtsleeves working the cause of black people as a result of making sure there is active as a voting rights lawyer. He was born in Buenos Aires, Argentina, black representation in Congress and legislatures than as a result moving to the United States with his family when he was five and of the more aggressive court cases that have sought to deal with eventually settling in Manhattan. He graduated from SUNY Bing- things like poverty.” hamton in 1975, having majored in history, and spent a year studying Issacharoff churned out a series of papers throughout the 1990s at the Université de Paris. At Yale Law School, Fiss recalls, Issacha- as he delved into the topic. In a 1993 Texas Law Review piece (“Judg- roff “disagreed with almost everything I had to say and yet I hired ing Politics: The Elusive Quest for Judicial Review of Political Fair- him as a research assistant and learned from him ever since.” ness”), for example, he challenged the conventional wisdom that After graduating in 1983, Issacharoff focused on minority vot- gerrymandering corrects itself. In that view, political parties that ing rights and labor law at firms and organizations including the attempted to control as many districts as possible risked losing, Lawyers’ Committee for Civil Rights Under Law and the Lawyers’ should a small percentage of voters shift allegiances. In 1995, he Committee for International Human Rights. As a law student, he set the stage for his argument that the Constitution was limited in represented clerical employees in front of the National Labor Rela- analyzing voting rights disputes (“Groups and the Right to Vote,” tions Board in their successful effort to unionize. In 1989, he joined Emory Law Journal, and “Supreme Court Destabilization of Single- the faculty at the University of Texas at Austin School of Law. Member Districts,” University of Chicago Legal Forum). It was at Texas, in 1992, that Issacharoff got an idea (inspired For his part, Pildes explored general constitutional and legal by Georgetown University Law School Dean Alexander Aleini- theory in great depth. In a series of articles, he argued against the koff) to organize a conference on government, constitutional law idea that constitutional rights give individuals absolute freedom. and politics. Among the attendees was Pildes, who had studied Instead, he proposed that rights should be seen as regulating electoral topics for years but was, he relates, “groping for a spe- government actions, limiting the kinds of reasons for which gov- cific way into those issues that seemed fresh, that hadn’t been ernment can act (“Why Rights Are not Trumps: Social Meanings, explored in lots of depth.” Also there was Karlan, then teaching Expressive Harms, and Constitutionalism,” Journal of Legal Studies, at the University of Virginia School of Law. She had gone to Yale 1998). He also turned to less theoretical areas, studying cumulative Law School at the same time as Issacharoff, and had met Pildes voting systems in Alabama in a 1995 paper, “Cumulative Voting in while both of them were clerking at the Supreme Court, she for the United States,” in the University of Chicago Legal Forum. Justice Harry Blackmun. Issacharoff recalls that it became apparent at the conference that they were exploring a new and distinct area of the law, though A Field of Law? never stated so explicitly. Pushed by Aleinikoff again, they decided Defining the Law of Democracy is no easy matter; even Pildes that a good way to organize the still-inchoate Law of Democracy demurred. Yale’s Owen Fiss, who himself teaches a Law of Democ- idea was to gather case material that would be used for teaching— racy course, wonders aloud whether the professors have yet to find material that was to become the core of their textbook. an “autonomous set of principles” governing election law that Their timing was exquisite. Democracy and how it should be would properly constitute a law of democracy, even as he’s con- structured were hot in the 1990s, giving them plenty to chew over. vinced that it exists. “The work remains to be done, and that’s the In a series of cases, the Supreme Court raised the visibility of what great challenge,” he says. democracy meant by increasingly applying the Constitution to But Pildes and Issacharoff argue that American democratic matters involving redistricting, term limits, campaign financing, institutions aren’t fixed in stone, that they are constructed along and the like. The world, meanwhile, was going through a frenzy of the way and that self-interested politicians require policing to make democratization, from the former Soviet Union to Latin America, sure they don’t gum up the works. “All the issues we identified— South Africa and parts of the Mid- dle East. More new democracies were formed than in any compara- As Burt Neuborne notes, ble period, Pildes points out, rais- ing real-life questions about how the professors were asking to design democratic institutions. “All of this kept pushing these issues onto the agenda in ways that were the overlooked, yet critical, not thought about much before,” Pildes says. question in election matters: The authors were drawn at first to the theories of John Hart Ely and “ Is it good for democracy?” his groundbreaking 1980s book, Democracy and Distrust, according to Issacharoff. Ely worried like campaign financing, districting—share a common core about overreaching judicial activism, citing decisions like Roe v. around the basic questions of what is the point of democracy, Wade, and he tended to put more emphasis on the process of law- what are the objectives of democracy, what are the tradeoffs when making rather than on the theory. This was an idea they thought designing institutions,” says Pildes. could be carried over to the world of democratic politics: Courts And as the professors saw it, the Supreme Court certainly wasn’t should protect the process or structure of politics—making sure doing a great job in sorting it all out. The courts’ tendency to apply no one was shut out before the first ballot is cast—rather than wade constitutional law and abstract principles of individual rights to in too heavily to determine what is a “good society.” resolve electoral disputes was, they said, mostly a mess. Without A more conservative view, to be sure, but more transformative a unifying vision, courts created a mishmash of cramped, some- to society, Issacharoff contends: “More has happened to advance times illogical rulings.

AUTUMN 2008 21 “Cases that involved campaign finance were treated as First acknowledging but rejecting critics who say their model will invite Amendment cases,” says Issacharoff. “Cases that involved redis- an overly aggressive judiciary. He compares the role of courts to tricting, like Baker v. Carr, would be treated as equal protection.” a cancer drug, targeting pathology in the democratic system but And the courts threw up their hands in futility when it came to hopefully not destroying healthy tissue. cases testing the power of political parties. “[Individual rights] is The article set off a firestorm. It was, so it seemed, attacking an abstract, philosophical way of thinking about these issues that the sacrosanct paradigm of individual rights and substituting just doesn’t have any traction for dealing with the real-world prob- a managerial concept, using business school words like anti- lems that this area addresses,” says Pildes. trust and lockup. Critics said it wasn’t asking enough about what is It was better, they said, to think more pragmatically about these right or moral. Pildes notes that many scholars “don’t want to matters—meaning to consider the consequences when resolving think about rights necessarily having trade-offs against other legal issues surrounding democratic politics. And in weighing objectives. You know, rights are rights.” Some very prominent academics fall in this camp. Legal philosopher Ronald Dworkin, while “We went from being, ‘This a huge admirer of the two professors, notes that the trend to employ the economic model in legal analysis can indeed be overused. Trying to dis- is outlandish and ridiculous,’ cern commonality between the wants of vot- ers and consumers can be misleading, he says. to ‘This is just old stuff,’” Harvard’s Thompson, who makes extensive use of the textbook, likewise cautions: “In the mar- Samuel Issacharoff says, ket, if we don’t like a product we can buy a differ- ent product. In an election, the competition ends laughing. “I wanted a brief in a decision and we have to buy the product— no matter how competitive it is.” moment when we were Neuborne, despite his left-leaning politi- cal credentials as a former ACLU legal direc- tor, says he wasn’t bothered by the marketplace ‘sober and thoughtful.’” metaphor. “There’s nothing inherently right- wing about viewing things as markets,” he says. those questions, Issacharoff and Pildes suggested separately, “When there’s market failure in democracy, viewing it as a market courts should view politics not as a clash of states vs. constitutional is a left-wing thing because it means you have to step in and cor- individual rights, but as a competitive marketplace. rect the market.” They unleashed this metaphor in February 1998 in “Politics as Today, says Issacharoff, the politics as marketplace idea is mostly Markets: Partisan Lockups of the Democratic Process,” published considered conventional wisdom. “We went from being, ‘This is out- in the Stanford Law Review. Does a law limiting campaign contri- landish and ridiculous,’ to ‘This is just old stuff,’” he says, laughing. butions, for example, lead to a robust marketplace of candidates— “I wanted a brief moment when we were ‘sober and thoughtful.’” or does it lock out potential aspirants? By viewing the issue that way, it was no longer a fuzzy First Amendment case about restric- tions on political speech. As Burt Neuborne, Inez Milholland Bush v. Gore Professor of Civil Liberties and legal director of the Brennan Center If there was ever a time when an ivory tower concept suddenly for Justice, notes, the professors were asking the overlooked yet became relevant to the popular masses, it was the 2000 U.S. presi- critical question in election matters: “Is it good for democracy?” dential election. “Florida 2000 was a perfect storm,” says Issa- Or as Pildes puts it: “I think the fundamental question ought to be, charoff. The combination of creaking and dysfunctional election Is this rule a means of stifling political competition or not?” machinery in Florida; a form of review that was “nastily partisan”; The backbone to their marketplace approach is this: The biggest the inconsistency between the popular and the electoral college threat to a democracy is the tendency for incumbents to lock up the votes, and a confident Supreme Court, unafraid of inserting itself political process so they can’t be effectively challenged. “Inherent into areas given to other branches of government, made election authoritarianism,” Pildes calls it. law the top story of every night’s news broadcast. It was also a per- “The term ‘lockup’ was deliberately chosen,” says Issacharoff, fect storm for Issacharoff, Pildes and Karlan to enter the media who spent a year at Columbia studying corporate governance the- whirlwind with numerous television appearances. They consid- ory, “because it’s a term of art in corporate governance law—where ered turning their commentary and writings into a popular book management makes it impossible to dislodge it. We were trying to on the election that could have elevated their name- and face- say the same thing happens in the public domain, for example, dif- recognition in the mass media along with well-known legal experts ficulty in getting a third party at the ballot, difficulty in challenging such as Alan Dershowitz and Jeffrey Toobin. But eventually they incumbents in a primary.” decided to write an evenhanded casebook for students and profes- When should the judiciary step in to unlock the door? Judges, sors called When Elections Go Bad: The Law of Democracy and the they said, should aggressively scrutinize laws such as gerryman- Presidential Election of 2000. dering that appear to entrench and protect politicians. Other- Four years after Bush v. Gore, Pildes found himself in the middle wise, when laws are only reshuffling democratic rulemaking—as of what he calls “Bush v. Gore 2.” He was representing Puerto Rico’s in those involving primaries, for example, that don’t entrench election commission in an eerily similar election dispute that would one set of insiders over another—they should back off. Of course, determine the next governor of the commonwealth. His opponent: figuring out where to draw the line here is no easy trick, Pildes says, Theodore Olson, who was Bush’s lawyer in Florida. The controversy

22 THE LAW SCHOOL again was over whether certain ballots were valid. “I had this sur- Voting Rig hts and R ace real experience of arguing against Ted Olson about what Bush v. The landmark Voting Rights Act of 1965, which prohibited states Gore means,” Pildes recalls. Olson wanted the courts to intervene from adopting policies that disenfranchised African Americans, to halt a recount and have the ballots thrown out (sound familiar?). set up extensive federal oversight of jurisdictions with a history of Pildes won the case, the ballots were counted and the candidate who discriminatory practices. But some 35 years later, Issacharoff and benefited, Aníbal Acevedo-Vilá, is the current governor. Pildes suggested that federal intervention could be dialed back, because the political process in those states and districts—the marketplace—was now open to minorities. This view, Issacharoff Real World Applications points out, gave integrity to their core argument: Just as courts Taught at the Law School by Issacharoff or Pildes since 2002, the needed to act when confronting entrenchment, they should back upper-level Law of Democracy course starts with issues involving away when the political system was operating fluidly. individual political participation—the right to vote, for instance— That idea came to the fore in the 2003 Supreme Court redistrict- and then moves on to the role of groups in politics—parties, pri- ing case Georgia v. Ashcroft, which Pildes calls the most important mary elections and the like. But to some extent, this is a course decision in a generation on race and political equality. Georgia where the syllabus is ripped from the headlines. Pildes and Issa- had a Democratic majority but was trending Republican, so the charoff dive into subjects that are in the news and apply their black Democratic majority put together a deal that slightly diluted sometimes-unique perspectives, which are often ripe for debate the concentration of black majority districts, spreading out votes among their colleagues and even between themselves. This being that would shore up Democratic lawmakers elsewhere. Any dim- a particularly engaging presidential election year, there’s no short- inution of black concentration is a prima facie violation of the age of strong and even clashing opinions. Voting Rights Act, however, so the Justice Department objected.

AUTUMN 2008 23 exploited for partisan gain. (Their colleague Kar- Pildes argued that the lan disagrees, saying the section is still needed in those local election areas where two strong par- Voting Rights Act ought to ties don’t exist.) In the end, however, Congress be updated to reflect a voted to renew the measure with no changes. Political Parties changed political and racial The presidential primary season is an apt real-life lesson for students of the Law of Democracy—and specifically the role of political environment: “Otherwise, parties. Notice, says Pildes, how Barack Obama and John McCain generally fared better with the Act becomes a way of open primaries, in which voters were free to choose for which party they want to select their entrenching racial identities candidate. Hillary Clinton did better when only Democrats were permitted to vote in their closed and a racially polarized primaries. With open primaries, we generally tend to get more moderate candidates; close form of politics.” them and we get more extreme candidates. Pildes’s point: A seemingly small, technical rule governing primaries can have enormous The Court ruled, 5-4, that Georgia’s legislature had the latitude consequences for democracy. So who should set the ground rules to make the changes. Pildes suggests the Court weighed the case when disputes arise involving political parties? Generally, let the in a pragmatic, process-based way, understanding that blacks had politicians fight it out in the public arena, he says. Yet the Supreme gained political power and thus the Voting Rights Act could be Court has been intervening of late, generally barring states from interpreted with more flexibility. regulating how political parties structure themselves. Pildes was able to take special pride in the Court’s reasoning. In its 2000 decision California Democratic Party v. Jones, for It explicitly endorsed and cited an idea he had proposed just a year example, the Court ruled California’s open primary system uncon- earlier in the North Carolina Law Review. He wrote that because stitutional on individual rights grounds—a political party, like a whites were now voting regularly for black candidates, it might no private club, has the right to decide its members and who can vote longer be necessary to create a majority black election, as required in its primaries. Pildes says the Court once again was wrong to under the VRA. (Barack Obama is proving the point this year in his try to invoke the Constitution to settle a matter that should be ability to attract white voters.) subject to the back-and-forth of legislative debate—and one that It was the second time that Pildes’s work turned into court did not involve entrenching one set of insiders over another. The doctrine. In 1993, he and political scientist Richard Niemi of the danger, he says, is that the Court could “freeze into place its own University of Rochester conceived the notion of “expressive harm” vision of how democracy should function.” Indeed, it’s possible in describing the Supreme Court’s view of the constitutional harm that the Jones decision could make it unconstitutional for states done when designing election districts along racial lines. The idea is to require parties to let independents vote in their primaries. that the government can inflict harm not only in concrete ways, but “That would have far-reaching ramifications for the future of also symbolically through ideas and attitudes it expresses. Creating American politics,” he says. minority election districts, for example, can send the harmful mes- sage that members of the same race always share political views. Campaign Finance The notion was subsequently employed by the Supreme Court in As Issacharoff sees it, much to his dismay, today’s law school cases including Miller v. Johnson in 1995 and Bush v. Vera in 1996, students are fixated on the need for campaign finance reform—spe- in which the Court ruled that redistricting plans in Georgia and cifically, in favor of public financing. “They are as naïve and myo- Texas, respectively, were gerrymandered to hurt minority groups. pic as the editorial board of the New York Times on this issue,” he Following Ashcroft and several other Supreme Court rulings declares. Breaking from liberal orthodoxy, Issacharoff (and Karlan) on voting, Issacharoff weighed in with a 2004 piece that also prefers, in short, that virtually all campaign finance restrictions be pivoted on the idea that blacks were gaining ground: “Is Section 5 thrown out except for those requiring disclosure of contributors. of the Voting Rights Act a Victim of Its Own Success?” Issacharoff’s “You raise money any damn way you want,” he says. “The media Columbia Law Review article suggested that African Americans would expose stuff; I think that’s far better.” had made such gains in the political establishment that Sec- Issacharoff and Karlan described the existing system—which tion 5, which required close federal scrutiny for certain districts, restricts contributions but leaves expenditures wide open—as had served its purpose—and in fact might be impeding the now- “taking a starving man to an all-you-can-eat buffet but giving him robust political process. only a really tiny spoon to eat with.” Their 1999 article in theTexas Two years later, in 2006, Pildes and Issacharoff testified before Law Review, “The Hydraulics of Campaign Finance,” caused a stir Congress when Section 5 was up for renewal. Pildes argued the sec- with its dim view of campaign finance regulation. Comparing elec- tion ought to be updated to reflect the changed political environment tion money to water, they argued that shutting off one avenue only that now allows, for example, black-white political coalitions. “Oth- diverts it to another—the unintended consequence problem. Regu- erwise, the Act becomes a way of entrenching racial identities and late money to political parties and it goes to parallel organizations, a racially polarized form of politics,” he says. Issacharoff, too, testi- like political action groups or independent 527 groups (named for fied that the Act was out of date and voiced concerns that it could be a section of the tax code). “Our view is it’s actually much better if

24 THE LAW SCHOOL the money goes to the candidate,” says Issacharoff. “Because then Internet to raise vast amounts of money in small increments, an somebody running for office is actually accountable.” average $91 per person. This form of individual fundraising, if repli- If it’s any consolation to students, Pildes thinks Issacharoff cated in coming years, Neuborne says, could ultimately negate the and Karlan’s idea is “wacky”; it is closer to Justice Clarence Thom- problem of big money’s undue influence on elections. “Technology as’s view that the First Amendment’s freedom of speech bars any may solve something that the law couldn’t,” he says. kind of regulation of campaign contributions. Pildes argues the Supreme Court ought to give room to lawmakers to set rules, given Partisan Gerrymandering the vigorous public debate on a clearly crucial issue. “The position After the 2010 census, legislators will sit down to draw the boundar- that the Constitution just cuts that off, and says nothing is permis- ies of state and congressional districts. Lawsuits will inevitably flow, sible in regulating the system, seems to me a very troubling thing claiming one unfairness or another. Issacharoff thinks the system in a democracy,” Pildes says. But if legislators make laws that act is absurd. In a 2002 paper called “Gerrymandering and Political to entrench themselves, then of course courts should intervene on Cartels,” Issacharoff suggested that all such plans drawn by insid- grounds they are anticompetitive. In any case, Pildes argues that ers are self-evidently unconstitutional. He proposed instead that this debate is just playing at the margins until something really districting should be taken out of the hands of self-interested radical happens—meaning public financing of elections. But that, incumbent politicians and be placed into an independent commis- he notes, isn’t happening anytime soon. sion or even a computer. Many countries, including Great Britain, But Burt Neuborne thinks something radical did happen this Canada and Australia, use outsiders for this purpose. year that could have a monumental impact on the campaign The problem of self-interested districting arises most acutely finance issue: Barack Obama’s remarkable success in using the in bipartisan gerrymandering in which, for instance, incumbent

Neuborne Takes Campaign Financing v. FEC in a 5-4 decision in December 2003. Says Neuborne, “The case was won not at Reform to the Supreme Court the level of brilliant theoretical arguments, Burt Neuborne is no mere observer of Union, would stake his reputation on but what we did is build a record that campaign finance issues. The founding the bill’s constitutionality, it’s got to have made it impossible to overturn.” As for legal director of the Brennan Center for merit. Neuborne also rounded up 14 for- the law’s impact, he insists it’s been a total Justice, he played an important role in mer ACLU executives to publicly support success in eliminating corporate money the legal defense of the landmark Mc- the measure as a means of neutralizing from political campaigns. In 2007, how- Cain-Feingold campaign finance law. The ACLU opposition. That maneuvering, he ever, the Court seemed to gut the segment 2002 law bans unlimited, “soft money” says, helped keep lawmakers on board, on electioneering by allowing certain ads contributions to political parties and re- leading to passage. from interest groups. The 5-4 decision in stricts political advertisements by unions, When the law was challenged in FEC v. Wisconsin Right to Life was seen as corporations and advocacy groups in the court, the Brennan Center put together a rebuke of McCain-Feingold. weeks leading up to elections. a team, led by Rosenkranz and including Neuborne remains optimistic: “What In the mid-1990s, recalls Joshua Rosen- Neuborne and Brennan Senior Counsel I thought was a real defeat doesn’t ap- kranz, then the director of the Brennan Frederick A.O. Schwarz Jr., to defend the pear to be playing out on the ground that Center, Neuborne “had this instinct” that measure. Their assignment was specifi- way,” he says, explaining that the unions, campaign finance reform would be the next hot development in election law. The center began de- “The case was won not at veloping ideas and positions, set- ting itself up as a kind of general the level of brilliant theoretical counsel to the reform movement. A few years later, Rosenkranz was arguments, but what we did asked to join a small group of le- gal scholars who drafted what be- came the McCain-Feingold bill. He is build a record that made it played the dominant role in writ- ing the section on advocacy ads. impossible to overturn.” Neuborne remembers that as soon as the bill was introduced, it was at- cally the section on electioneering. They corporations and advocacy groups the tacked furiously from both the left and commissioned studies on election ads electioneering passages specifically the right on First Amendment grounds. and tracked campaign contributions from targeted don’t seem to be using the Court’s As the bill foundered, Senators John Mc- big donors to build the argument that the decision as a loophole. “The truth is [the Cain and Russ Feingold had Neuborne old law was corrupt, allowing phony issue 2007 decision] is a useful safety valve that hold a press conference to defend the ads to creep in that were really aimed at allows small groups that really are talk- measure. The strategy was: if Neuborne, altering the outcome of the election. ing about issues to get an exemption and a longtime, well-known fighter for the Citing the gritty evidence of campaign not have to worry about violating the Act,” First Amendment and former legal di- finance end-runs and loopholes, the Su- Neuborne explains. But he cautions only rector of the American Civil Liberties preme Court upheld the law in McConnell time will tell whether this remains true.

AUTUMN 2008 25 legislators strike deals to put all the Democrats in safe districts and about peoples’ identity,” he says. In New Zealand, the Maoris are Republicans in others. In New York State, for example, party lead- guaranteed an opportunity to vote in specially constructed dis- ers essentially agree to gerrymander state districts to ensure that tricts, but every eight years they can select whether to register Democrats control the Assembly and Republicans, the Senate. in the special or a regular district. If not enough Maoris choose Bringing this system down is tricky. No one is being denied the the special district, it disappears, and the Maoris are absorbed right to vote, he notes, so it’s hard to claim some individual right into the regular district. “This leaves it in the hands of the people has been violated. But Issacharoff says the court should not ask concerned,” Waldron says. about rights violations, but instead should ask a “process” ques- tion: Is it presumptively unconstitutional to give incumbent law- e me rg ing DEMOCRACIES makers the power to determine electoral arrangements? Following Bush v. Gore and 9/11, Issacharoff says he and Pildes grew Issacharoff concedes his idea to strip lawmakers of districting more interested in issues like how to administer a democracy, and powers is pushing the boundaries. “Rick has characterized this how to define and set limits on executive authority. That led them as an approach that even the Warren Court in its heyday would to look abroad. Says Issacharoff, “I realized that I was quite unin- blanch at,” he says with a grin. To be sure, Pildes generally prefers formed on how other countries address these issues.” independent commissions, too. How to get to that goal is another Issacharoff was not in the dark for long. In a 2007 Harvard Law matter. “Sam’s idea that the courts should order this across the Review article called “Fragile Democracies,” he explored how demo- country is, to put it charitably, provocative and, to put it in practical cratic countries should deal with serious threats by antidemocratic terms, completely off the deep end,” he says. It would be far better groups that exploit the electoral arena to push their cause. One need if popular pressure gave rise to independent commissions, he says, only look at Hitler’s rise using democratic means. And there was rather than to have it “forced down our throat” by the Supreme plenty to study today—Turkey banning Islamic parties, Israel ban- Court. On the other hand, Pildes says courts have done “virtually ning parties that deny the Jewish nature of the state, India removing nothing” about partisan gerrymandering—the very essence of candidates from office who appealed to religious or ethnic hatreds, politicians locking themselves into power. and others. In America, courts generally use the “clear and present Agreeing with Pildes, University Professor Jeremy Waldron, danger” threshold to weigh government restrictions. Issacharoff who tends to view electoral issues through a philosophical prism, suggested that may be too high a bar for less stable countries fac- recommends a system used in his native New Zealand that accom- ing mass threats. Those countries need the ability to crack down on modates the indigenous Maori people, about 10 percent of the such electoral activity without regard to its imminence. The danger, population. The problem with ethnic or race-based districting, of course, is a power grab by insiders, and thus he says that his pro- he says, is “it freezes peoples’ identity or it makes assumptions competitive approach “would dictate a great deal of caution.”

26 THE LAW SCHOOL Neuborne called the piece a “pragmatic argument for minimal- Trying to export Western-style democracy generally is fraught ism”—meaning democracies in time of stress could interfere with with dangers. Walter E. Meyer Professor of Law Stephen Holmes, individual rights, yet they needed to think hard about keeping the who has written extensively and consulted on emerging democra- change minimal. Still, it was controversial, he says, in even allow- cies in Eastern Europe, also has little time for people who “pretend ing some kinds of abridgements of rights. “I’m an ACLU person, to be experts” and go around the world selling their services as so I dig in and fight,” he says. “But maybe you need somebody like constitutional or electoral engineers. “You can more easily unplug me and, at the same time, Sam, who’s building a position beyond an appliance in New York and plug it in in Moscow,” Holmes says, which we won’t move.” “than you can unplug our due process system and put it in Mos- In a book chapter entitled “Identity and Democratic Insti- cow.” He recalls how, in the early 1990s, some American lawyers tutions,” Pildes took a comparative approach, looking at how grew concerned that Albania was removing judges without cause. countries with sharply divided heterogeneous societies—like India, South Africa and Iraq—deal with designing democratic institutions. One com- “You can more easily mon mistake: Designers assume that the conflicts among competing groups are fixed and unchang- ing, so they set up government in a way that—sur- unplug an appliance in prise, surprise—only entrenches those identities. Yet countries and societies are fluid, and the best New York and plug it in in systems design for that. An obvious example: the United States and federalism, which accommo- Moscow,” Stephen Holmes dates regional preferences and changes. In Iraq, designers at least set up a rotating presidency says, “than you can unplug among the three major groups as an interim mea- sure to navigate tension. Interim power-sharing our due process system was also done in South Africa after apartheid. Similar issues of fragile democracies were in the Constitutional Democracies colloquium run and put it in Moscow.” by Issacharoff, Pildes and Pasquino. Roughly 30 students heard presentations from speakers including justices They went there and had the law rewritten to prevent that. So the from courts in Germany, France and Israel. “It was an important Albanians starting putting judges in jail instead. event,” says Pasquino, exposing students to views from justices What’s critical is a thorough understanding of the informal net- around the world. He notes that Europe doesn’t have many aca- works that determine whether a country functions well or not. In demics like Issacharoff and Pildes who specialize in election law. Iraq, for example, Holmes says the United States lost three to four The reason, he says, is that in countries like France and Italy, only years insisting it would negotiate only with elected officials rather one national law governs the electoral process—unlike the 50 dif- than tribal leaders. “This was a case of trying to export democracy, ferent laws in the United States. But democratic design is an impor- which blinded us to the elementary building blocks of a negoti- tant topic these days in Italy, which is debating switching from a ated settlement in Iraq,” he says. Similarly, he ponders whether proportional system of electing representatives to an American- having an election today in Pakistan would make their handling style majoritarian one. “A coalitional government is a huge prob- of nuclear weapons more or less safe. “You can’t assume you know lem,” says Pasquino, who favors the switch. “It’s indecisive, and if the answer,” Holmes said. you have 20 parties, it’s hard to attribute responsibility.” To say that the only legitimate leaders are those elected “shows a zero understanding of world history,” Holmes contends. “Most e Lection s Abroad leaders throughout history have not been elected, and they have In U.S. domestic politics, elections always appear to be a good been as effective or ineffective as elected ones.” thing, the exercise of individual rights to influence how to run the Waldron, on the other hand, is not so quick to question elec- nation. But this doesn’t necessarily translate overseas, especially tions. Of course, he says, it makes little sense to have elections when ill-prepared countries with new democracies rush to hold without traditions like mutual tolerance and a culture of delib- elections. Issacharoff criticizes American foreign policy in recent eration. But he argues that peoples’ urge to participate in elections years as “hold the goddamn elections someplace at some time and is strong—witness Iraq or South Africa—and should be respected. the outcome be damned.” That policy has only exacerbated ten- “What I definitely reject is the view that the electoral dimension of sions in places like Iraq, Palestine and Kazakhstan. A presidential democracy is a sham, or just icing on the cake,” Waldron asserts. election, he says, needs to be preceded by such things as function- Such rigorous discussion underscores how important Law of ing parliamentary institutions, some judicial counterweight and Democracy is and will continue to be in domestic and world poli- human rights monitors. Otherwise, “an election can be a referen- tics. Change, whether it be in the form of a new democracy created dum on who’s going to use state power to suppress everyone else, or an established democracy like the United States facing the real and that’s not a democracy,” Issacharoff says. possibility of electing its first black president, seems an integral In a Washington Post opinion piece published in 2005, Issacha- element of our times and for the foreseeable future. And you can roff argued that what defines a democracy is not the first election bet that Samuel Issacharoff and Richard Pildes will continue to but the second. Pildes thinks the rush stems from the “naïve, ro- insert their idiosyncratic views into the global debate. manticized” image of democracy held by many people—to wit, all will be fine if we can get citizens just to speak their minds and vote Larry Reibstein is a New York journalist who has previously written their preferences. about law and philosophy for the magazine.

AUTUMN 2008 27 Follow the Numbers

Empirical Legal Studies is a relatively new trend in legal scholarship that applies scientific method to legal data. Almost two dozen faculty at the Law School have embraced this effort to test legal theory with real-world evidence. Among them, Jennifer Arlen and Geoffrey Miller are helping to spark a revolution across the legal academy.

28 THE LAW SCHOOL AUTUMN 2008 29 few years ago, joseph price, Neither Wolfers nor Price is a lawyer, and their paper wasn’t about then a graduate student in econom- the law. But it did deal with the application of rules by judges, albeit ics at Cornell University, began basketball judges. And it addressed an issue that is central to many of building a database of basketball today’s most contentious legal debates—namely, the extent to which m

statistics. Price was interested in race continues to play a quiet role in the administration of justice. So c o r. e

the relationship between incentives the paper became a main attraction at a conference that drew nearly h c s and performance, and he wanted to see whether professional play- 450 scholars to the NYU School of Law in November. They came for ers played better when their contracts were on the verge of expiring. the second annual Conference on Empirical Legal Studies, where mce AAt the time, Price also happened to be reading Blink, the best-sell- they reveled in law schools’ newfound interest in real-world, data- d. www. ing book by Malcolm Gladwell, which includes a chapter arguing driven research. More than 100 papers were presented, on topics e rv e s

that most people harbor deep-seated, racist attitudes that affect their ranging from the impact of voter-identification laws to the perva- e s r behavior. As Price read Blink, he realized that his basketball data— siveness of corporate fraud to the role that race plays in sentencing. t which included box scores from individual N.B.A. games—could be used to test Gladwell’s theory. Was it possible, Price wondered, that ll righ referees treated players differently depending on their race? mpirical legal studies, often referred to as els, olland. A Price, now an economics professor at Brigham Young Univer- E has become arguably the hottest area of legal scholarship today. H sity, ended up collaborating on the research with Justin Wolfers, Attendance at the November conference, organized by professors pany-

an economist from the Wharton School at the University of Penn- Jennifer Arlen and Geoffrey Miller of NYU Law, was almost twice as m r Co

sylvania. They analyzed every game over the previous 13 seasons, high as at the first conference, held at the University of Texas in 2006. e h and they concluded that the answer to Price’s question was a A new journal—The Journal of Empirical Legal Studies—began in 2004 c clear yes. Holding all else equal—a player’s position, the location and now accepts less than one in 10 of the submissions it receives. of a game and numerous other factors—the professors found that NYU, meanwhile, has become one of the centers for this new e M.C. Es an all-white refereeing crew called between 2.5 percent and 4.5 brand of empirical work. Almost two dozen members of the faculty, h percent more fouls per game against a black player than a white including Lily Batchelder in tax and social policy, Vicki Been ’83 in player. (Black referees, for their part, were more likely to call fouls real estate, Marcel Kahan in corporate law, Florencia Marotta-Wur- pirals” © 2008 T against white players than black players, though the pattern wasn’t gler ’01 in commercial law, and Stephen Choi in securities law have S r’s “ as strong.) “Basically,” Wolfers was quoted as saying in a front-page published empirical studies in the last few years. And Arlen ’86 and e h New York Times story last year, “it suggests that if you spray-painted Miller have played a broader role, by helping turn the recent burst of c

one of your starters white, you’d win a few more games.” research into something of a formal movement. M.C. Es

30 THE LAW SCHOOL In 2006, the two professors joined with Bernard Black of the he 20 or so nyu law faculty who embrace els are University of Texas School of Law and Theodore Eisenberg and T applying their data-crunching skills to other front-page Michael Heise of Cornell Law School to build upon the foundation issues, too. Associate Professor of Law and Public Policy Lily Batch- created by the Journal of Empirical Legal Studies two years earlier. elder, for example, testified before the Senate Finance Committee They started the annual conference and founded the Society for in March about the spottiness of the estate tax. Some individuals Empirical Legal Studies. Arlen and Miller became the founding who receive extraordinarily large inheritances bear little or no tax copresidents of the society. “They’re very important players,” said burden, Batchelder said, while a small number who inherit relatively Heise, who serves as coeditor of the Journal. “They’re engaged small amounts bear substantial tax burdens. Given that the estate in their own work, and they’ve also taken on leadership roles to tax is scheduled to disappear in 2010 but return in 2011—and that increase the visibility of the Empirical Legal Studies movement.” policy makers are likely to fix this oddity in some way—they have Each has done work that has overturned preconceived notions. a good opportunity to make the tax fairer in the process. In effect, Miller, Stuyvesant P. Comfort Professor of Law, came to NYU from Batchelder is nudging the Senate to get beyond the usual ideological the University of Chicago in 1995 and specializes in corporate law. debate over the estate tax and to consider practical matters as well. In 2004, he published a paper in the then-new Journal of Empirical In May, Vicki Been, Elihu Root Professor of Law and director Legal Studies, with Theodore Eisenberg, that set the conventional of the Furman Center for Real Estate and Urban Policy, testified wisdom about class-action lawsuits on its ear. While legislators before the House Oversight and Government Reform Committee’s such as Senator Orrin Hatch were decrying “jackpot justice, with domestic policy subcommittee about the effects the current wave of attorneys collecting the windfall,” the authors found the average foreclosures are having. Been and two coauthors examined sales of size of class-action settlements had not, in fact, risen over the pre- properties surrounding foreclosed homes, and concluded that fore- vious decade. The size of attorney’s fees in such lawsuits hadn’t closures significantly depress the sales prices of nearby homes. But risen, either. This, the professors dryly noted in their paper, “is not what excited Congress and the media more is that a wholly innocent the sort of fact we are accustomed to hearing.” segment of the population has been adversely affected by the mort- Arlen, Norma Z. Paige Professor of Law, has taken a spe- gage crisis: renters. In New York City, the Furman Center report cial interest in the sentencing guidelines governing corporate documents, 60 percent of properties entering foreclosure in 2007 criminal liability. In the were two- to four-family or mul- 1990s, the U.S. Sentencing tifamily buildings, representing Commission adopted sen- “The real importance of ELS is that at least 15,000 renter house- tencing guidelines that con- holds. (To read more about this strained judges in most cases it enables us to formulate legal policy report, see page 104.) to impose higher fines on cor- based on the real problems that exist As Arlen notes, the empiri- porations convicted of crimes. cal-research movement aims In 1999, Arlen and two coau- in the world, not the problems we think to replicate the scientific meth- thors found that in the years might exist, based on our ideology,” ods of the medical sciences. In after the guidelines were those fields, researchers can adopted, corporate sanctions says Jennifer Arlen. ELS “gets us investigate cause-and-effect increased dramatically, but relationships through ran- they also determined that the away from anecdotes and domized trials; some patients legal constraint on the judges from making policy based on are given a drug, some are not, was unnecessary. It seems and outcomes are compared. that federal judges voluntarily which anecdote you believe.” But such trials aren’t feasible heeded the call to increase corporate sanctions, whether or not in much of the legal world. A judge can’t vary prison sentences, for their cases fell under the new guidelines. In 2005, the Supreme instance, in order to see the effect that time behind bars has on Court ruled in United States v. Booker that sentencing guidelines recidivism. When legal researchers want to determine the effect of are no longer mandatory. a legal change on states, they must rely on sophisticated statistical “The real importance of ELS,” Arlen said, “is that it enables us to analysis to distinguish the effect of the law from other influences. formulate legal policy based on the real problems that exist in the In fact, the main reason for the rise of empirical work is sim- world, not the problems we think might exist, based on our ideol- ply that it’s far easier to do now than it once was. Computers can ogy.” The field, she added, “gets us away from anecdotes and from crunch reams of data and allow researchers to tease out the cor- making policy based on which anecdote you believe.” relations—between, say, a defendant’s skin color and his sentence The empirical work on medical liability, for example, is length—that once would have remained hidden. “You can do work helping to shift the debate about the role of medical error in on your laptop today,” Miller says, “that would only have been pos- health care. For all the talk about the soaring malpractice costs, sible on a mainframe 15 years ago.” research has shown that the main problem isn’t frivolous law- But the empirical movement has also come along at a serendipi- suits; it’s widespread medical error. In 2006, for instance, Michelle tous time in the intellectual cycle. The legal fields that were grow- Mello, an associate professor of health policy and law at the Har- ing in the 1980s and 1990s don’t have quite the energy that they vard School of Public Health, testified before a U.S. House sub- once did. These fields included law and economics (which mostly committee that “only three to five percent of patients who are attracted professors on the right side of the political spectrum) and seriously injured by medical negligience file malpractice claims critical legal studies (which attracted those on the left). By the cur- and less than half those who claim receive compensation.” In fact, rent decade, the arguments of those fields no longer seemed so new, other studies show that patients face a substantial risk of medical and young professors discovered that they could more easily make error—and support Mello’s finding that only a small fraction of their mark not by offering new theories to explain the world but by those injured file lawsuits. investigating what was actually occurring.

AUTUMN 2008 31 iller notes that the most coveted faculty Barry Adler recruits once had to just be fantastically smart lawyers, like t Bankruptcy, Corporate Finance M w Supreme Court clerks; today, the schools want not only brain power, published papers and impressive credentials, but also research a Jennifer Arlen Corporate Crime, Experimental Economics experience in the social sciences. “There have always been people who looked at data, at least since the 1930s,” he said. “But in the

La last 10 years, it’s become probably the most important development

Oren Bar-Gill Consumer Contracts in legal studies.” ELS has made ripples in Washington, as Batchelder’s and Been’s

U Rachel Barkow appearances before Congress suggest. And some of its findings— Practice of State Prosecutors like those on the prevalence of medical error—have helped support efforts to change policy. But the field’s overall effect on policy— g wh Lily Batchelder a clear goal of ELS proponents—has been tricky to measure. Part Tax, Inherited Wealth, Income Volatility of that is merely a reflection of the field’s youth. But part of it, some

n scholars say, stems from the fact that doing truly unassailable Vicki Been empirical research is so difficult. “The question is, ‘How good is Subprime Mortgages and Foreclosures, this stuff?’” said noted legal theorist and law-and-economics pro- t NY Land Use Regulation, Housing Investments ponent Richard Epstein, a visiting professor at NYU who attended ti the November ELS conference, but has not done empirical work a Oscar Chase himself. “I have mixed emotions.” a Judicial Ceremony Stephen Choi Securities Litigation and Arbitration, The main reason for the rise in Judicial Performance empirical work is simply that Kevin Davis it’s easier to do now. Computers can Economic Development crunch reams of data and allow Barry Friedman Courts, Judicial Behavior, Jurisprudence researchers to tease out correlations

vestig that once would have remained hidden. Helen Hershkoff Health Care, Education in Developing Nations “You can do work on your n Samuel Issacharoff laptop today that would only l studies Political Party Regulation in Foreign Nations have been possible on a Marcel Kahan mainframe 15 years ago,” a Finance, Corporate Law says Geoffrey Miller. o’s i Lewis Kornhauser One problem is finding enough relevant data. As Arlen Economic Analysis of Law says, “We have too little data to examine many of the issues h Florencia Marotta-Wurgler we care about.” Another is designing a study that enables Commercial Contracts researchers to isolate the effect of a change in the law from all other potential causes of change. As a result, it is not uncommon to W Geoffrey Miller get multiple studies of the same topic with differing results. The best example may be the recent dueling studies over the effect l leg Commercial Contracts, Class Action Attorneys’ Fees, State Supreme Courts of the death penalty, which have been covered in the mass media. Some studies have confidently declared that the death a Richard Revesz penalty causes a reduction in murders in the states that impose Judicial Behavior it. Other papers, just as confidently, say that the amount of noise in the data makes it impossible to conclude that the Cristina Rodríguez death penalty is a deterrent. Immigration-r Yet there is also a broad swath of work that gets nearly universal elated Legislation praise even from skeptics like Epstein. In the end, then, the way for- ward certainly involves more empirical work, so that the compel- Stephen Schulhofer ling research can ultimately win out over the flawed studies—and Policing in Muslim-Diaspora Communities so that legal scholars, lawyers, judges and policy makers can get a better understanding of how the law actually affects people in Catherine Sharkey their day-to-day lives. Tort Reform “Theory is just theory,” as Miller says, “but data is something policy makers take seriously.” empiric 32 THE LAW SCHOOL Faculty Focus

Amsterdam Honored by Annual Survey | 34 Meron Receives Haskins Prize | 34 Dworkin Prize Celebrated | 35 Narula Goes to the United Nations | 37 A Dozen Faculty Awards | 38 Meet the New and Visiting Faculty | 40 New Works by Clayton Gillette, Roderick Hills Jr. and Catherine Sharkey | 56 Good Reads | 67

Peggy Cooper Davis, John S.R. Shad Professor of Lawyer- ing and Ethics, won a University 2007 Distinguished Teaching Award. For details, turn to page 35. faculty focus To the Teacher, Legal Legend and Man

he only surprise at the april with intimate portraits of a teacher, a friend the wee hours of the morning. Seemingly dedication of the 2008 NYU Annual and an extraordinary human being. apocryphal stories of legal brilliance—like T Survey of American Law to Anthony Professor of Clinical Law Bryan Steven- that cheeky feat of citing a Supreme Court Amsterdam was, as the journal’s Editor- son had only the highest praise for his col- case, volume and page number included, in-Chief Benjamin Geffen noted, that the league and mentor, who has taught at NYU before a skeptical judge, or dictating per- publication hadn’t done it years ago. since 1981. “I don’t believe there’s any law- fect legal briefs via the phone—were con- Current and former students and accom- yer, any litigator who has had a more pro- firmed true. And try as they might to each plished colleagues gathered to pay homage found influence on social justice in this say something different about the man, all to Amsterdam’s legend—as a leading law country in the last 40 years,” he said, add- were in awe of his dedication and caring. professor, advocate and litigator for capital ing, “He is a very uncommon person.” David Kendall, known for representing defense and other civil rights causes. But Nearly everyone mentioned Amster- President Bill Clinton during the Monica more so, their tributes honored the man dam’s typical practice of sending emails in Continued on page 35 Late to the Academy, But Sharing a Lifetime of Learning charles l. denison professor of law contributed to our thinking critically about the jurisprudence of international criminal Emeritus and Judicial Fellow Theodor how to create a more humane world.” law in the “seminal Srebrenica case of Gen- Meron was chosen to give the American Born in Poland in 1930, Meron lost eral Krsti´c, for instance, which established Council of Learned Societies’ Charles six years of his childhood to ghettos and that genocide can be committed even in a Homer Haskins Prize Lecture in May to work camps, and most of his family to the circumscribed geographical area.” reflect on “A Life of Learning.” Indeed, Mer- Holocaust. He emerged from World War In introducing Meron, ACLS President on’s accomplishments and contributions II hungry for learning. Later, he became Pauline Yu emphasized his “sustained have not been limited to the academy, as he determined to apply his legal studies at effort to move beyond boundaries—both didn’t begin teaching full time until he was Hebrew University, Harvard Law School those of nations and of disciplines—to 48. Instead, he confessed to the hope “that and Cambridge University to “working in bring people together to explore common in some small way these endeavors have areas which could contribute to making concerns and causes.” She described him atrocities impossible and avoiding the hor- as “a leading figure in the scholarship of rible chaos, the helplessness, and the loss of international law but also deeply commit- autonomy which I remembered so well.” ted to its practice and development today.” Despite the humble tone of his lecture, Meron attributed his success largely to Meron has made immense contributions— “chance and seized opportunity,” but his during 20 years as the legal adviser for the belief that crimes against humanity can be Israeli Foreign Service, four years as Israel’s avoided is also a factor. He cited from his ambassador to Canada, a year in the U.S. 2006 book, Humanization of International State Department as a counselor on inter- Law: “It seemed to me obvious that repres- national law, two years as president of the sion of human dignity occurs in a contin- U.N. International Criminal Tribunal for uum of situations of strife, ranging from the Former Yugoslavia and, since 2001, as normality to full blown international wars, appeals judge to the Tribunal. As a judge, and that all these norms must be treated as Meron has felt privileged to write what he a whole to provide for a maximum of pro-

calls the “most exciting literature of all,” tection to human beings.” theodor meron: ewa grigar

34 THE LAW SCHOOL faculty focus Lewinsky scandal, began his career work- ing with Amsterdam at the NAACP Legal De- fense and Education Fund (LDF) during the mid-1960s. He shared a poem Amsterdam had once included in correspondence as a testament to his wit and playfulness. Former U.S. Solicitor General Seth Waxman, who won a 2005 victory in Roper v. Simmons, in which the Supreme Court ruled the execu- tion of juveniles violated the Eighth Amend- ment, confessed that an additional reward for the privilege of defending death-row in- mates is having close access to Amsterdam. Even though all spoke from vastly diver- gent places in their careers—from law stu- dent to senior partner—all were grateful for Amsterdam’s wisdom. “There’s no one in this business that I know of…that works harder than Tony does,” said George Kendall, another LDF veteran. “He leads, and teaches by example.” Underscoring Kendall’s point were trib- utes from Amsterdam’s former student Dimitri Dubé ’05, now a clerk to Judge The- Dworkin Tributes Held odore McKee of the U.S. Court of Appeals rominent legal theorists gath- Bergen, Professor Jeremy Waldron ex- for the Third Circuit, and a current one, ered in Norway and New York to honor plored Dworkin’s theory of the role that in- Robyn Mar ’08. As the most recent ben- P Professor Ronald Dworkin, winner tegrity plays in the law. Waldron, who had eficiaries of Amsterdam’s teaching, Dubé of the prestigious 2007 Ludvig Holberg Dworkin as his doctoral mentor at Oxford, and Mar described the same man his peers International Memorial Prize for out- noted Dworkin sees the legal enterprise had—affirmation of the respect with which standing scholarship. (See “Dworkin Wins as “primarily keeping faith with a coher- Amsterdam treats everyone, regardless of Holberg Prize,” page 7.) Dworkin, who ent body of principle that governs all their age or career status. is Frank Henry Sommer Professor of us in the exercise of power over When the honoree finally accepted his of Law and Philosophy at NYU and one another.” award, he tried to dismiss the kind words. Emeritus Professor of Jurisprudence The NYU seminar, in April, in- In fact, his short speech exemplified all of at University College London, is re- cluded talks from Cass Sunstein of the qualities attributed to him—modesty, nowned for his work tying together philoso- the University of Chicago Law School and humor, intelligence and sensitivity. “It’s stag- phy and moral, legal and political issues. Lawrence Sager of the University of Texas gering to see so many friends and so many At both day-long events, scholars gave School of Law. Sunstein spoke on his long- good people so deluded,” he said, but as the presentations focusing on themes central held view of judicial minimalism, the idea attendees stood to applaud him, Amsterdam to Dworkin’s work, and he, in turn, com- that judges should avoid sweeping pro- couldn’t hide the fact that he was truly grate- mented on each. At the Norway symposium, nouncements in their decisions. A few ful and deeply moved. held last November at the University of intellectual clashes occurred. In “Social Rights and Legal Interpretation,” Sager noted Dworkin’s work had influenced him, but took issue with his view that there are Davis Recognized for Teaching no social and economic rights enshrined in Peggy Cooper Davis, John Richard Revesz observed the U.S. Constitution. S.R. Shad Professor of Law- that “there are few edu- Dworkin’s views also continued to sur- yering and Ethics, was one cators in the country who prise. NYU Law Professor and Vice Dean of four University faculty have thought as deeply or Liam Murphy, who organized the sym- to receive the 2007 Distin- as imaginatively as Peggy posium, said he and others had known guished Teaching Award, about how to bridge the Dworkin a long time, yet “we all felt we which includes a medal gap between theory and had learned something new.” One exam- and a $5,000 grant. Davis, a practice,” adding that “her ple: Dworkin’s view about the connection former New York State fam- influence is felt by every between legal rights and the appropriate- ily court judge, directs the student trained at the Law widely acclaimed first-year School, directly or indirectly. ness of judicial review. Dworkin was clearly Lawyering Program. She also provides tireless mentoring and taken by the speakers. “There are many di- “She has been a productive critic of guidance to our lawyering faculty, helping mensions to the honor I’m receiving,” he outmoded pedagogical methods and a to prepare them for teaching positions at said at the Norway meeting, “but perhaps wise innovator,” says Vice Provost for law schools around the nation. Peggy’s im- the most significant is the character of the Faculty Affairs E. Frances White. Dean pact as a teacher and scholar is profound.” people who have come to help us celebrate this occasion, and I’m very grateful.”

AUTUMN 2008 35 faculty focus Guidelines for Organizations and federal anti-discrimination laws, which allow Regulating Self-Regulation companies to avoid punitive damages for ow can employment law guar‑ discrimination if they maintain effective antee fair wages and working condi- compliance and complaint procedures. H tions and foster employee democracy “The law promotes self-regulation not by within the workplace? Cynthia Estlund mandating it but by rewarding it,” Estlund offered answers to both questions in said. “It is based on a quid pro quo: ‘If you her inaugural lecture as the Catherine put in place effective self-regulatory sys- A. Rein Professor of Law, “Corporate Self- tems, we’ll give you a less punitive enforce- Regulation and the Future of Workplace ment regime.’” Governance.” Regulation works best by But whether we aim simply to deter encouraging effective self-regulation by violations of the law or, as the New Gov- firms, Estlund said, and for these internal ernance model would have it, to promote self-regulatory systems to be effective, they democratic responsiveness and internal- must give employees a genuine collective Estlund, right, with Catherine Rein ’68 ization of public values, Estlund said, work- voice in governance. ers must have an independent voice within The New Deal model of “industrial modes of governance within corpora- internal compliance structures—one that democracy,” said Estlund, looked to unions tions. Unlike a simple deterrence model not only will protect them from employer and collective bargaining to improve wages that penalizes corporations for wrongdo- reprisals, but also will overcome the col- and working conditions. But dwindling ing regardless of their internal processes, lective action problems that workers fre- union membership and a 50-year stand- a New Governance approach offers firms quently face in seeking compliance. “If still on reforms to American labor laws a more congenial enforcement regime employees become powerful enough to have left many workers unrepresented and as long as they can maintain effective claim their rights under the law,” Estlund vulnerable to lapses in the enforcement of internal systems for complying with laws pointed out, “then they may also become employee rights and labor standards. designed to keep workplaces safe and fair. powerful enough to demand more of what Employment law, Estlund said, can Some examples of regulated self-regulation, they want at work, and to claim a real role potentially fill this void by promoting new Estlund said, are the Federal Sentencing in firm governance.” How to Prevent the Next WorldCom or Enron n a successful effort to raise $12 In “Private Enforcement of the Secu- fraud and explaining precisely how they billion in capital through the largest rities Law,” his inaugural lecture as the were misled prior to discovery. This law has I bond offerings in American history, Murray and Kathleen Bring Professor of achieved the desired effect of rooting out WorldCom, a publicly traded telecom- Law, Stephen Choi argued that private se- frivolous suits while still allowing meritori- munications company, “waved the magic curities class action suits would help deter ous suits that lacked the hard evidence prior accounting wand” in order to make a $3.8 companies from engaging in the sorts of to discovery to proceed. billion operating expense in 2001 appear risks that caused WorldCom’s downfall as Choi urged flexibility, however, in ad- well as provide adequate dressing the problem of companies that compensation to those cook the books. Class action suits are just whose net worth is wiped one method of ensuring accuracy in cor- out in the process. porate disclosure. Others include greater Private securities class enforcement and regulation by the Securi- action suits, however, can ties and Exchange Commission, audits by be plagued by all kinds third-party gatekeepers such as indepen- of frivolous claims be- dent accounting firms, private securities cause of plaintiffs’ attor- arbitration, and further reforms of private neys who “file first and litigation. The 1998 Sarbanes-Oxley Act, an ask questions later,” ac- ex-ante mechanism that requires certi- cording to Choi. “Many fication for CEOs and CFOs, Choi said, is Choi, left, with Kathleen and Murray Bring ’59 plaintiffs’ attorneys may another solution, albeit an expensive one file suit even if there isn’t for innocent companies. “Ex-ante may be as a future capital expenditure. But the fol- any smoking-gun evidence of fraud,” he said, a mechanism, but it’s a costly mechanism, lowing year, WorldCom’s internal auditing “in the hopes of scoring a settlement from a to the extent that it doesn’t just apply to the department revealed the fiscal sleight of company that wants to avoid the hassle of fraudsters…but to all companies,” he said. hand; the company filed for bankruptcy, litigation.” Congress addressed this scourge Putting hope in one simple solution, and in 2005 former CEO Bernhard Ebbers through legislation, overriding President Choi said, might result in greater costs in- was found guilty on all counts and sen- Bill Clinton’s veto to pass the Private Securi- curred by companies both big and small, tenced to 25 years in prison. WorldCom ties Litigation Reform Act (PSLRA) in 1995. In valid suits being discounted and honest eventually paid billions in claims and set- part, the PSLRA requires plaintiffs to plead plaintiffs’ attorneys unable to do battle tlements, and its stock became worthless. with particularity—identifying the alleged against reckless corporations.

36 THE LAW SCHOOL faculty focus Narula at the United Nations Olivier De Schutter, U.N. Special Rap- porteur on the Right to Food, named Associate Professor of Clinical Law Smita Narula to serve as legal adviser for his mandate. Narula will work in concert with economic, agricultural and nutrition experts to ensure that governments worldwide protect people’s right to food, and to identify emerging issues related to that right. The mandate comes at a particularly Waldron, University President John Sexton, and Waldron’s partner, Carol Sanger urgent time as the world experiences a food crisis and the growing emphasis on biofuels strains supply and increases costs. Hornets’ Nest: Foreign Law A significant portion of Narula’s scholarship has fo- cused on the right to food. and the U.S. Constitution Her paper “The Right to n “treating like cases alike in Reactions were the opposite in the Food: Holding Global the World: The Use of Foreign Law in United States when Justice Anthony Ken- Actors Accountable I Constitutional Cases,” his inaugural lec- nedy delivered his swing-vote in Roper v. Under International ture as University Professor, Jeremy Waldron Simmons, a 2005 case that held it is uncon- Law,” published in explored the fiery debate in America over stitutional to impose capital punishment the Columbia Journal of Transnational Law consistency—whether there should be for crimes committed while under the age in 2006, examined “harmonization and standardization of the of 18. Kennedy received death threats; he the challenges and way human rights are administered in the also was harshly criticized by some justices opportunities found at world, [and if] American constitutional law for citing foreign law in his opinion. the intersection of eco- is part of that enterprise.” Waldron said that Americans must nomic globalization, in- In deciding a 2004 flag-burning case, understand that the Bill of Rights “recog- ternational human rights Hopkinson v. Police, New Zealand Justice nizes many of the core rights that both the law and the right to food. Ellen France referenced the U.S. Supreme international documents and the other Narula’s extensive work Court’s decision in Texas v. Johnson, in foreign charters recognize.” He added that on the issue of discrimi- which a law forbidding the desecration of these rights—free speech, religious free- nation against the Dalits, members of India’s lowest the American flag was deemed unconstitu- dom—help shape global human rights law. caste and the victims of tional since it prohibits freedom of speech. “They weren’t called ‘human rights’ widespread subjugation, France ruled that Paul Hopkinson’s right to when we embodied them in our constitu- has included discussion free speech was being unjustifiably limited tion,” Waldron said. “We were pioneers of the restriction of Dalits’ and overturned his flag-burning conviction. in this common enterprise, and it is odd access to food. Her decision met with no resistance from now that we should have such difficulty in that country’s citizens or its judiciary. acknowledging this.” Sylvester J. Petro: In Memoriam, 1917-2007 on november 10, 2007, former nyu Professor of Law Norman Dorsen, Petro’s According to his family, Petro was a  School of Law Professor Sylvester Petro colleague for 11 years. “He also believed, founder of the Conservative Party of New passed away at age 90. and here he was in a distinct minority, York in the 1960s and a member of the Petro joined NYU as an assistant profes- that federal and state regulatory statutes classical liberal Mont Pelerin Society, and sor in 1950, shortly after earning his J.D. and were unconstitutional as exceeding the worked for the Foundation for Economic LL.M. from the University of Chicago and power of government.” Education and the National Right to Work University of Michigan law schools, respec- Dorsen remembers, however, that Petro Committee. Among many titles, he wrote tively. He focused on labor, antitrust and “made his arguments vigorously but politely The Labor Policy of the Free Society, The contract law and also taught constitutional and with a certain sense of humor.” It is this Kohler Strike and The Kingsport Strike. law. “Sylvester Petro was an unabashed last characteristic that distinguished Pet- He left NYU in 1972 to join the faculty of libertarian, strongly maintaining that ro’s teaching, says former student Harvey Wake Forest University School of Law and government regulation of the economy Ishofsky ’71. “His love for law was reflected taught labor law there until 1978. Petro also was undesirable in almost all circumstan- in how he taught in classrooms. He was directed an institute for labor policy analy- ces,” says Frederick I. and Grace A. Stokes both moving and witty.” sis, which has since closed.

AUTUMN 2008 37 faculty focus Estlund as “incredibly respected in the fields of labor and employment law….Her Laurels and Accolades body of scholarship is extensive and, most For their body of work, exceptional scholarship or dedication, importantly, puts issues of importance in our professors are acclaimed by peers and students. labor and employment law in frequently read and respected publications that are authors choi, kahan, miller in Fellowship Fund to assure that the next read by scholars and practitioners out- corporate top ten generation of law school students and law- side of our field. She is a pleasure to work Three Law School professors cowrote yers are committed to social justice.” SALT with…[and] selflessly guided us and gave three of Corporate Practice Commentator’s works to increase the inclusiveness of the us advice when we were creating our sym- top 10 corporate and securities articles of legal profession, enhance the quality of legal posium this year.” The award honors the 2007, voted on by corporate and securi- education and ensure all individuals and memory of Samuel M. Kaynard ’42, a major ties law professors nationwide. Stephen communities have legal representation. figure in labor and employment law who Choi, Murray and Kathleen Bring Profes- worked to increase recognition of the field. sor of Law, cowrote (with Robert B. Thomp- dworkin inducted “Cynthia Estlund constantly publishes on son) “Securities Litigation and Its Lawyers: Ronald Dworkin, Frank Henry Sommer the aging of the National Labor Relations Changes During the First Decade After Professor of Law, was among three NYU Board, effects of pregnancy protections PSLRA,” which scrutinizes the effects of the professors recently inducted into the (or the lack thereof) on families, and other Private Securities Litigation Reform Act of American Philosophical Society, an elite issues that we find important,” said Leon- 1995 on securities class-action litigation. In scholarly organization founded by Ben- ard. “She publishes her articles in promi- “Hedge Funds in Corporate Governance and jamin Franklin in 1743. With around 900 nent law reviews and journals that are read

Choi Kahan Miller Dorsen Dworkin Estlund

Corporate Control,” Marcel Kahan, George current members, the society’s ranks have by lawyers outside of labor and employ- T. Lowy Professor of Law, and Edward B. included George Washington, Thomas Jef- ment law. She perfectly fit the spirit of the Rock analyze hedge fund activism and its ferson, Charles Darwin and Albert Einstein. Kaynard Award.” effects on corporate governance and regu- Among Dworkin’s fellow inductees this year latory reform. Geoffrey Miller, Stuyvesant are Al Gore, New Yorker editor David Rem- distinction for fox P. Comfort Professor of Law, and Theodore nick, Martin Scorsese and Supreme Court Eleanor Fox ’61, Walter J. Derenberg Pro- Eisenberg examine the matter of Delaware Justice John Paul Stevens. fessor of Trade Regulation, received the incorporation as a choice-of-law and choice- In its election essay for Dworkin, the 2007 Distinguished Service Award from of-forum option in “Ex-Ante Choices of Law society noted that Dworkin expanded the the American Foreign Law Association and Forum: An Empirical Analysis of Cor- reach of moral philosophy “by essentially (AFLA). The award has been given for more porate Merger Agreements.” linking the interpretation of law with the than a decade to those who have made perspective of morality, and by his unique significant contributions to either AFLA fellowship named for dorsen position as a public intellectual. The posi- or the broader field of international busi- The Society of American Law Teachers tion is unique in demonstrating in practice ness or comparative law. Roger Goebel ’60, (SALT) has established the Norman Dorsen one of Dworkin’s guiding ideas, namely that professor at Fordham University School of Fellowship, the organization’s first paid fel- freedom of speech is fundamental to that Law and chair of the AFLA’s award commit- lowship, in honor of Norman Dorsen, Fred- responsibility for civic conversation apart tee, explained that the award “was given erick I. and Grace A. Stokes Professor of Law. from which society cannot know itself, that to Eleanor Fox in view of her outstanding Camilla McFarlane, a second-year law stu- is, know what it values politically.” expertise in U.S. and international compe- dent at the Catholic University of America tition law. Eleanor’s specialization in anti- (CUA) Columbus School of Law in Washing- journal honors estlund trust law commenced as the first woman ton, D.C., is the first fellow. McFarlane will Cynthia Estlund, Catherine A. Rein Pro- partner of Simpson Thacher & Bartlett, and work with Professor Margaret Martin Barry fessor of Law, won the Samuel M. Kay- she continued to devote her principal aca- at CUA. The fellowship trains law students nard Award for Excellence in the Fields of demic attention to the field after she joined in the work of activist scholars within the Labor & Employment Law from the Hofs- the NYU Law faculty. For over 30 years, she legal academy. Hazel Weiser, SALT’s exec- tra Labor & Employment Law Journal. Edi- has provided the highest level of academic utive director, said that “it was Norman’s tor-in-Chief Alexander Leonard said that commentary, in particular on international vision that created SALT, and it was his Estlund’s selection by the journal’s exec- and European Union competition law. generosity that created the Norman Dorsen utive board was unanimous, describing For the last decade, she has particularly

38 THE LAW SCHOOL faculty focus devoted time and effort to assisting anti- the indignity of caste discrimination, or Following a clerkship with Supreme Court trust authorities, judges and academics in are unfairly profiled in America’s ‘war on Justice John Paul Stevens, Bagley now is developing countries as they try to create terror,’ there are few who are more deserv- an attorney at the U.S. Department of Jus- and implement competition law.” ing of an Access to Justice Award,” says tice’s civil appellate division. Amardeep Singh, vice president of the law article wins award organization. “SABANY is proud of Profes- stevenson wins law prize The UCLA School of Law and its Williams sor Narula’s work to ensure that our most Professor Bryan Stevenson, executive direc- Institute have bestowed the Dukeminier vulnerable have access to justice.” Narula tor of the Equal Justice Initiative, an orga- Award on Sylvia Law ’68, Elizabeth K. Dol- also received the 2008 Public Interest Indi- nization that provides legal aid to indigent lard Professor of Law, Medicine and Psychi- vidual Achievement Award from the North defendants and prisoners, has received the atry, for her article “Who Gets to Interpret American South Asian Bar Association, first annual Katharine and George Alexan- the Constitution? The Case of Mayors and which represents 25 regional South Asian der Law Prize from Santa Clara University Marriage Equality” (Stanford Journal of Civil bar associations in the U.S. and Canada. School of Law. The prize recognizes legal pro- Rights & Civil Liberties, 2007). The award rec- In addition, the Thorolf Rafto Founda- fessionals who have done significant work to ognizes the best law review articles on issues tion for Human Rights awarded its 2007 correct injustice and to promote human and involving sexual orientation and gender Rafto Prize to the National Campaign on civil rights, and includes a $50,000 award. identity. Law’s article questioned whether Dalit Human Rights (NCDHR) for its efforts Selection criteria for the prize include the local executive officials have the authority to fight caste prejudice in India; Narula level of innovation and sustainability of the to grant marriage licenses to same-sex cou- is a cofounder of the campaign. Rafto nominee’s implemented programs; courage; ples, based on the officials’ understanding Foundation Chairman Arne Liljedahl self-sacrifice; the number of beneficiaries of of their own state constitutions. Lynngård called the NCDHR’s struggle the nominee’s efforts, and other indications

Fox Law Merry Narula Revesz Stevenson

merry’s body of work lauded “instrumental in mobilizing international of the nominee’s commitment to interna- Professor Sally Merry, who holds a joint human rights organizations to combat tional human rights and social justice. Dean appointment to the Law School’s Institute caste-based discrimination.” Donald J. Polden called Stevenson “an out- for Law and Society and NYU’s Depart- standing lawyer who has made a great and ment of Anthropology, was awarded the revesz article singled out positive difference in the lives of persons 2007 Harry J. Kalven, Jr. Prize by the Law Dean Richard Revesz and Nicholas Bagley unjustly accused of crimes.” and Society Association, a multinational, ’05 were honored with the Award for Schol- interdisciplinary group of scholars. The arship in Administrative Law from the kofler book wins tax award Kalven Prize recognizes “empirical schol- American Bar Association’s Section of Acting Assistant Professor Georg Kofler was arship that has contributed most effectively Administrative Law and Regulatory Prac- awarded the 2007 Mitchell B. Carroll Prize to the advancement of research in law and tice for their article, “Centralized Over- by the International Fiscal Association for society.” The Law and Society Association sight of the Regulatory State,” published his book. Doppelbesteuerungsabkommen praised Merry’s “substantial, original and in the Columbia Law Review in 2006. In und Europäisches Gemeinschaftsrecht (Dou- consistently high quality [work]….While the article, Revesz and Bagley examine ble Taxation Conventions and European intellectually rigorous, her scholarship is the task of centralized review of agency Community Law) explores the complicated also socially meaningful and policy-rele- rulemakings that is assigned to the Office relationship between bilateral tax treaties vant. In addressing the question of human of Management and Budget (OMB), and and supranational European law, touching rights and violence against women in par- question the OMB’s assumption that on a wide range of issues such as tax treaty ticular, Merry demonstrates that the best of agencies have an inherent tendency to benefits for nonresidents; exemption of for- scholarship need not abandon a commit- overregulate, which results in an antireg- eign losses; limits to exit taxation, and the ment to social justice.” ulatory bias on the part of the OMB. Daniel legal status of tax treaties between Euro- Troy, the award committee chair, said in pean Union member states and between justice award for narula the citation that “the article’s analysis is member states and non-European coun- Smita Narula, associate professor of clini- sophisticated, subtle, open-minded, and tries. Hugh J. Ault, professor at Boston Col- cal law, received the 2007 Access to Justice careful, with an impressive mix of the the- lege Law School and chair of the Mitchell Award from the South Asian Bar Associa- oretical and the practical,” and that Revesz B. Carroll Prize Jury, praised Kofler’s work, tion of New York (SABANY) for her work on and Bagley “make a compelling case” and saying it “will provide an important road- behalf of South Asians. “Whether it’s Pro- “provide a valuable guide for improvement.” map for those involved in the judicial and fessor Narula’s work for those who suffer Revesz previously won the award in 1993. legislative developments in the field.”

AUTUMN 2008 39 faculty focus as statistical modeling, to look at issues New Faculty such as how politicians build support and, conversely, how constituents control politi- cians. “The logic of majority rule says don’t be too hard to please,” or you’ll be left out of the majority, Ferejohn says. “You better find a way to prevent politicians from play- ing you off against others. So essentially, to control a politician, you need to come to some sort of agreement with other vot- John Ferejohn He died tragically in his sleep at age 33 ers on a single evaluative criterion, such as when Ferejohn was just seven years old. the liberal or conservative dimension, and visiting professor of law His mother, Olga Collazo, married physi- then not set so high a standard that the pol- john ferejohn can lecture on pork- cist Robert Bjork and moved the family to itician will simply ignore it.” barrel politics in the afternoon and whip Santa Monica. Currently, he’s coauthoring a book ten- up a dish of pork bellies with scallops that At age 12, Ferejohn started playing the tatively called Super Statutes, which chal- evening. A true Renaissance man who plays clarinet, saxophone and flute. Within a few lenges the belief that the fundamental jazz saxophone, runs marathons, collects years, he was playing at jazz clubs, intend- rights enjoyed by Americans are protected wines, travels extensively and experiments ing to be a jazz musician. He married his by the Constitution. “Instead of doing with molecular gastronomy—an avant- high-school sweetheart, Sally, now a constitutional law from the top garde cuisine that uses chemical powders retired elementary school teacher, down, we want to look at the real to create new textures such as liquid ravi- and worked his way through San rights we have and rely on day to oli—Ferejohn has academic interests that Fernando State College doing pay- day, from the bottom up,” he says. also span a number of disciplines. roll accounting for an aerospace Written with William Eskridge Jr., At Stanford University, his home since company. Realizing soon enough John A. Garver Professor of Juris- 1983, Ferejohn, Carolyn S. G. Munro Pro- that playing the sax wouldn’t prudence at Yale Law School, and fessor of Political Science, has chaired the pay the bills, he focused expanded from an earlier article, department and taught in the philosophy on his schoolwork and the book is due to be pub- department and the Graduate School of was accepted at Stan- lished by Yale University Business. Currently, he is a fellow at the ford University. Press in 2009. Hoover Institution. A non-lawyer, he none- During his first Just as he improvises theless has been teaching one semester at year at Stanford in jazz compositions, Fe- the NYU School of Law since 1993, and will 1968, he “discovered rejohn enjoys taking an join the faculty full-time in 2009. “He does that it was possible “eclectic” approach to everything,” says Lewis Kornhauser, Alfred to use deductive academics. In addition B. Engelberg Professor of Law, with whom thinking to see how to using techniques of he coteaches the Colloquium on Law, Eco- politicians do things. PPT, he looks forward nomics and Politics. “He has great curios- I got interested in ex- to collaborating with ity, a penetrating mind, and can talk about ploring the elegant NYU legal philosophers anything that goes on in the Law School.” and simple idea that Thomas Nagel and Liam Ferejohn is known for his work on vot- complex political insti- Murphy, among others. ers and the responsiveness of their elected tutions had a simple un- “Part of law—constitu- officials. He is also credited with being derlying logic.” He loaded tional law in particu- one of the founders of positive political up on mathematics and eco- lar—is really an applied thinking (PPT), a methodology that uses nomics courses, and in 1972, area of political and moral mathematical models, economics and he earned his Ph.D. in politi- philosophy. And NYU is re- game theory to analyze the workings of cal science. In 1974, he pub- ally strong in these areas,” political institutions. “John is the great lished his first of five books, says Ferejohn, who has positive political theorist of his generation,” Pork Barrel Politics: Rivers and taught political philosophy says Kenneth Shepsle, George D. Markham Harbors Legislation, 1947-1968 at both California Institute Professor of Government at Harvard Uni- (Stanford University Press). of Technology and Stanford. versity. “When he was starting out in the Both Pork Barrel Politics “The nice thing about applied early 1970s, PPT was extremely novel. It was and his second book, The as opposed to theoretical ap- through a lot of John’s work that it became Personal Vote: Constituency proaches to these topics is much more mainstream.” Service and Electoral Inde- that one can see the conflicts Ferejohn was born on an Army base in pendence (Harvard Univer- in sharper relief, and political Deming, New Mexico. His father, George, a sity Press, 1987), which he scientists have a congenital high school dropout who once worked as coauthored with Bruce Cain love for conflict.” a janitor at Columbia University, became of the University of Califor- Joining NYU full-time will a bombardier instructor in the U.S. Army nia, Berkeley and Morris Fio- allow him to focus more on Air Corps, then went on to attend Cornell rina of Stanford, use PPT and the philosophical approach University and Harvard Medical School. game theory strategies, as well to law. Plus, Ferejohn,

40 THE LAW SCHOOL faculty focus who has three children and three grand- teacher. They had two sons, Moshe and Dov, much the struggles within Jewish thought children, will be able to explore Man- and moved to Jerusalem when Moshe was resonate with ongoing struggles in law, lit- hattan’s exciting music scene—and its eight years old. Halbertal remembers his erature and politics today,” says Richard mouthwatering culinary offerings. He also father, the educational director of a high Pildes, Sudler Family Professor of Consti- looks forward to performing in some of the school who died in his early 70s in 2001, as tutional Law. Pildes cites current debates downtown jazz clubs he’s played in the past. an optimistic person who taught him the over the role of the Constitution in Ameri- And who knows? He may even twist foie power of gratitude and giving. “When I can law and culture, the proper methods of gras ribbons into bow ties in the kitchen of asked him how he came from there with- constitutional interpretation or the legiti- the city’s molecular-cooking mecca, wd~50. out being broken,” says Halbertal, “he said, mate space for dissent from rulings of the —Jennifer Frey ‘Whenever I was in distress, I saw someone Supreme Court as subject to illumination in far more distress and gave help to him.’” through Halbertal’s exposure of the centu- Both parents also instilled a deep respect ries-long turmoil over surprisingly similar Moshe Halbertal for education. “My father’s formative years issues within the traditions of Jewish reli- were all about survival,” Halbertal says. “He gious thought. gruss professor of law wanted his children to have the gift of what In 2001, Halbertal was appointed by a burt neuborne calls moshe halbertal he missed, the gift to study and grow, so in committee established by the Israeli Joint “the star of the Monday meetings.” At these some ways, we were the children who Chiefs of Staff to contribute to the weekly faculty gatherings, a professor pres- fulfilled whatever he hadn’t had.” drafting of the ethics code for the ents a working paper; it’s an opportunity to Halbertal received a strong, Israeli Army. Given the impor- receive feedback and share expertise with Talmudic education in yeshiva, an tance to Israel of its military, cre- fellow scholars. Halbertal always stands out Orthodox Jewish rabbinical semi- ating any restrictions on military for not only having read the week’s paper nary, and then attended Hebrew might was a delicate operation. but being among the first to ask questions. University, where he earned a However, the ultimate product, “He taught me how to behave on Mondays: B.A. and a Ph.D. in Jewish says Yishai Beer, professor of I time my question carefully so that I have thought and philoso- law at Hebrew University, raised my hand early but get called on after phy. His work began “was a masterpiece.” Moshe,” says Neuborne, tongue-in-cheek. to focus on the inter- More recently, Hal- “Then I say, ‘Never mind, Moshe has already section of Jewish law bertal was the guest asked my question.’” and philosophy when at the Colloquium in Halbertal, a global visiting professor he noticed a “construc- Legal, Political and of law and Gruss Visiting Professor of Law tive tension,” namely the Social Philosophy— since 2003, joins the faculty as the tenured question, “What is the role known for conven- Gruss Professor of Law this fall. He will con- of value in adjudicating be- ing some of the most tinue his practice of spending the spring se- tween possibilities?” For ex- incisive, even ruthless, mester in Israel, where he is a professor of ample, Halbertal notes that intellectuals and phi- Jewish thought and philosophy at Hebrew a saying such as “an eye for losophers for a thorough University. At NYU, he teaches Jewish Law an eye” can be read in two dissection of papers-in- and Legal Theory and the Ethics of Obliga- plausible ways: the seman- process. Halbertal’s pa- tion in Jewish Law. Though he doesn’t have tic, where one would actu- per, “Self-Transcendence, a J.D., he has become, through his careful ally demand an actual eye Violence and the Politi- readings of others’ work and long philo- in retribution, and the cal Order,” examines sophical discussions, “indispensable to so moral, where one would the suicide bomber and many of us on the faculty,” says Amy Adler, accept monetary compen- the terrorist who doesn’t who specializes in art law. Indeed, the news sation and consider the eye try to escape punishment that Halbertal secured a permanent posi- a metaphor. Through such because he wants to prove tion on the faculty prompted an outpouring analysis, “you see the role that the aim was worth risk- of unusually gushy praise, with colleagues that values play in the in- ing his life. Halbertal claims calling him “beloved,” “a dear man,” and terpretive process,” says that this kind of sacrificial “joyful and soulful.” Halbertal. transcendence is morally Halbertal’s extraordinary dedication One of Halbertal’s misguided. Legitimate moral and generosity may be the result of lessons most notable works is demands may, in some cases, learned from his father. Born in Montevi- the 1997 book People of require sacrifice, but sacrifice deo, Uruguay, he grew up trilingual. His the Book: Canon, Mean- can never legitimize action father, Meir, spoke Yiddish, his mother, ing and Authority (Har- that would not otherwise be Henya, was fluent in Hebrew, and both also vard University Press), legitimate. Thomas Nagel, who spoke Spanish. A Jew born in Poland, Meir in which he applied his leads the colloquium along with survived the Holocaust by fleeing to Rus- deep knowledge of Ronald Dworkin, says Halbertal’s sia. While much of his family perished, he religious thought to argument boils down to, “If violent spent time in a Siberian gulag and an or- modern questions. action is right, it’s right with- phanage, and escaped pogroms by joining “Part of Halbertal’s out sacrifice. If it’s wrong, distant relatives in Uruguay. There he met gift is that he man- sacrifice won’t make it right” and married Henya, an elementary school ages to reveal how and described the paper as a

AUTUMN 2008 41 faculty focus “lucid and original discussion of self-tran- “Rob fully understands the policy and about the different ways of leading our lives scendence and its pathologies.” political context in which trade decisions that came from this experience of other- Living and teaching across an ocean are made, and this sets him apart from ness around me,” he says. and a continent can take its toll. But true many academics in the international trade In 11th grade, after being removed from to form, Halbertal, who is divorced and the area,” says Susan Esserman, chair of the his history class for misbehavior, he was father of three daughters, focuses on the international department at D.C.-based put into an independent study. “I used this positive. Living in two nations, he says, is “a Steptoe & Johnson and a former deputy chance to study the themes that interested gift” that confers the ability to be comfort- U.S. trade representative. “He has a great me, including the religious versus the secu- able among different people and in differ- eye for emerging issues in the field, and he lar life,” he says. He came upon Strauss, one ent situations, and he is especially grateful is endlessly creative,” says Esserman, who of many figures who influenced his career. to share that with his children. “We have a has written with Howse for the Council on Howse entered the University of To- sense of the world not being a small place, Foreign Relations’ Foreign Affairs magazine ronto to study Straussian thought under which is a good thing,” Halbertal says. and The Financial Times. the philosopher (and soon to be best-sell­ “There is empowerment in exploring and He’s best known for cowriting The Reg- ing author) Allan Bloom. He graduated in seeing and contributing.” ulation of International Trade (Routledge, 1980 with a B.A. in philosophy and political 1995), a comprehensive look at the evo- science. When Bloom left for the Uni- lution of international trade versity of Chicago, Howse enrolled Robert Howse theory and policy, which there, hoping to earn a master’s included analysis of the degree. But Howse, who was po- lloyd c. nelson professor General Agreement on Tar- litically left-leaning, left Chicago of international law iffs and Trade and the World disillusioned after a few disagree- asked who was most influential in Trade Organization. ments with Bloom and his neocon- shaping his illustrious academic career, Currently, he’s juggling a servative followers. Professor Robert Howse ran down a list of number of projects. Hav- In 1982, he joined the people before answering with a “thing”— ing been the principal Canadian diplomatic the typewriter. trade expert for the service. “[There] I de- Howse had difficulty reading and writ- Renewable Energy veloped a fascination ing until about age nine, when he learned and International for law as a discourse how to form words on a typewriter based Law Project (a con- of diplomacy in inter- on the spatial organization of the keyboard. sortium with Baker national politics,” says “All of a sudden there was this great sense & McKenzie and Howse. As a member of liberation,” says Howse, who has since Yale University), he of the Policy Planning learned he is dyslexic. “The sense of em- recently attended Secretariat, Howse powerment from overcoming that kind of the first high-level worked on then- obstacle may have put me into overdrive.” policy meeting ex- Prime Minister Pierre An understatement indeed. clusively focused on Trudeau’s global Soon Howse was a voracious reader, climate change and peace initiative. And tackling serious literature. Though he still trade, organized by as the Canadian Cul- suffers from aspects of dyslexia—he can’t the Danish Ministry tural attaché in Bel- drive a car—he now reads Plato in the origi- of Foreign Affairs. He grade, he promoted nal Greek (albeit slowly), writes extensively is collaborating with Canadian rock-and-roll on 20th-century political philosophers Leo Ruti Teitel, Ernst C. Sti- while also working on the Strauss and Alexandre Kojeve, is an expert efel Professor of Compara- former Yugoslavia’s debt in international trade law, and has shaped tive Law at New York Law refinancing negotiations. public policy in issues ranging from human School, on a series of proj- He returned to the rights to global warming. “He’s a rare com- ects that analyze the debate University of Toronto, bination of somebody who knows interna- on globalization in relation to earning a law degree in tional trade and investment law in detail, the human rights revolution in 1989 and a master’s from yet he’s got a broad-ranging and creative international law. He’s writing Harvard in 1990. Howse intellectual outlook,” says Richard Stewart, a book tentatively called Re- started teaching at the Uni- the John Edward Sexton Professor of Law. hearing the Case of Leo Strauss. versity of Toronto, where Howse joined the faculty in June from the In 2004, he self-published he stayed until joining University of Michigan Law School, where Mozart: A Novel, and he’s cur- the University of Michi- he taught international law and legal and rently writing another piece gan Law School in 1999. political philosophy. A full-time academic, of fiction. He’s had a long-stand- he also has a high profile in public policy cir- Raised non-religious by ing relationship with cles—he writes prolifically and has advised parents of Protestant origin, NYU, which Howse is government agencies and international or- mainly in a predominantly ready to formalize. As ganizations, such as the Organisation for Orthodox Jewish neighbor- his research has moved Economic Co-operation and Development, hood of Toronto, he became increasingly in and the United Nations Office of the High fascinated with philosophy. the direction of Commissioner for Human Rights. “I had a sense of wonderment foundational

42 THE LAW SCHOOL faculty focus and conceptual questions in international lematic. “My key contribution was Kane entered Yale University in- law, “NYU has seemed the logical center,” to suggest that one could best un- terested in computer science, but he says, citing his interest in the history and derstand arbitrage transactions soon became enamored with phi- theory of international law program. More- not as planning opportunities for losophy. By sophomore year, he was over, his recent focus on climate change taxpayers, but rather as oppor- a philosophy major with a focus on and trade is an excellent fit with the Global tunities for governments, in their the philosophy of law—having read Administrative Law Project. On leave for responses to the transactions, Ronald Dworkin’s work—as well as the the fall, he’ll teach international in- to behave strategically in philosophy of criminal law. vestment law and the history and the- the battle to attract Graduating from Yale ory of international law in the spring. global capital flows,” in 1993, he enrolled in a Howse is undergoing a divorce, and he says. joint degree program at has no children. In keeping with his pub- Recently, Kane the University of Virginia, lic policy positions, he leads a consciously has cultivated an earning his J.D. in 1996, responsible lifestyle—biking and walking interest in the role and an M.A. in philoso- whenever possible and buying organic. “I of tax policy in phy in 1997. That same know from my research there are trade- promoting capital year he started prac- offs,” he says, “but overall, I think that the flows to the de- tice at the D.C. office result is greener than otherwise.”—J.F. veloping world. In of Covington & Burl- a working paper ing, splitting his time called “Bootstraps, between tax and litiga- Mitchell Kane Poverty Traps, and tion. Two weeks into his Poverty Pits: Tax Treaties first litigation case, he was professor of law as Novel Tools for Devel- given boxes of documents to even dutiful students tend to ap- opment Finance,” Kane review. “After the first two proach introductory tax law like they would proposes a financing tech- boxes, I begged to be put a bitter medicine: hoping to get done with nique that he says offers full-time into the tax group,” the distasteful task as fast as possible. But significant improvements he recalls, finding the men- when students of then-Visiting Professor over common sovereign tal gymnastics required to Mitchell Kane’s class last fall swallowed debt arrangements. Typi- puzzle through the tax code their first dose, they asked for more, fol- cally, countries that attract far more compelling than lowing him after class to a conference room foreign investors to build a “plowing through mounds of where he held court on the tax ramifica- plant or another business paper looking for a needle in tions of stock options. have the primary ability to a haystack.” Kane sees this general enthusiasm for tax any profits. These tax rev- Out to lunch one day with his the subject as natural. “This is a body of law enues are used to repay for- tax colleagues in 1999, he learned that tells you who’s going to pay for what. eign creditors, as well as for that his firm wanted to bring an That goes to the core of what a lot of people other purposes. Rather than associate to London. He raced care about,” he says. waiting for a payment from back to his office to call his Previously in private practice special- a country that might already wife, Jessica. “We adored liv- izing in international tax law, Kane joins be in debt, Kane proposes that ing abroad,” says Kane, whose the faculty this fall from the University of developed nations negotiate practice morphed into interna- Virginia School of Law, where he has taught treaties in which they trans- tional tax law during his three since 2003. “He’s one of the best junior tax fer capital now in exchange for years in London. scholars in the country, and clearly the best the primary right to tax income In 2002, after Kane re- in international tax, leaving aside a hand- streams in the future. Critics turned to the U.S., ful of people who are considerably more contend “they’re trading back a a mentor invited senior,” says Daniel Shaviro, Wayne Perry piece of their sovereignty,” says him to take a fel- Professor of Taxation. “Mitchell is thus po- Kane. But he argues, “It’s a sover- lowship at the University of Virginia. sitioned to be an important leader in the eign decision to raise money more He was offered a teaching position the field for decades to come, and I’m delighted effectively. By world standards, our tax and following year. “I was 32 when I started, that he’ll be here.” compliance system is a pretty good machine.” and the students didn’t look much younger Kane is best known for his 2004 piece, So why not leave the taxing up to us? than I did. It was incredibly intimidating,” “Strategy and Cooperation in National Re- Kane and his two siblings were raised in recalls Kane, who spent two months pre- sponses to International Tax Arbitrage,” Norfolk, Virginia, by their parents Peter, 70, paring his first three lectures. published in the Emory Law Journal. In- and Claudia, 64. An engineer by training, Pe- In addition to visiting in Fall 2007, ternational tax arbitrage refers to instances ter now owns a family bar/restaurant; Clau- Kane has attended NYU’s annual Collo- where taxpayers intentionally structure dia, who also owns a deli, was a food broker. quium on Tax Policy and Public Finance. transactions to take advantage of varia- A self-professed loner and nerd for most of “The energy of the place is incredible,” he tions in the tax laws across jurisdictions. his youth—in sixth grade he tackled Fyodor says. “There’s something about NYU where The academic debate about such arbitrage Dostoevsky’s The Brothers Karamazov—he I always feel like there’s 30 things going on had generally centered on the question of came out of his shell in 11th grade when he that I want to be doing. That kind of rich- whether such tax planning activity is prob- joined the school’s golf team. ness of faculty dialogue is very appealing.”

AUTUMN 2008 43 faculty focus Aside from working with his tax colleagues, kidney specialist, and his mom, Barbara, a After Rascoff spent two years practic- he hopes to rekindle his interest in phi- homemaker and perennial volunteer. An ing litigation at Wachtell, Lipton, Rosen & losophy by attending and presenting the independent thinker, fluent in Arabic and Katz, NYPD Commissioner Raymond Kelly Colloquium in Legal, Political and Social Hebrew, he specialized in Islamic studies recruited him to set up the intelligence Philosophy, run by Professors Dworkin, at Harvard. During college, he spent one analysis unit. “We relied on Sam Rascoff’s Liam Murphy and Thomas Nagel. summer working on the Pentagon’s Middle superb legal training, combined with his Having been a visiting professor at sev- East desk, another at the State Department. extraordinary knowledge and command of eral universities in the past two years, in- After graduating in 1996, he received a Mar- geopolitics, to create an intelligence ana- cluding Harvard and Columbia, Kane is shall Scholarship to do a second bachelor’s lyst program that has earned worldwide eager to settle down with Jessica and their degree at Oxford University where he stud- acclaim,” says Kelly. “He was personally children: Olivia, five, and Simon, two. Kane, ied philosophy, politics and economics. responsible for recruiting top notch talent who inherited recipes from his Alsatian Viewing the legal profession as “the priest- into the NYPD and did so with remarkable mother, does the cooking at home. “I’m the hood of American public servants,” he at- success.” Much of what Rascoff did there re- master of the one-pot, stick-to-your-ribs, tended Yale Law, graduating in 2001. mains confidential, but he is willing to say French country recipes,” he says.—J.F. Outgoing and charismatic, with flaming that his job ran the gamut, from monitoring red hair and a flair for dramatic outfits, cyberspace chat rooms to participat- Rascoff always stood out, recalls col- ing in operational activities. Samuel Rascoff lege and law school buddy Professor Rascoff is currently working on Jedediah Purdy of Duke University. an article entitled “National Secu- assistant professor of law “He does orange and pink well, and rity Federalism,” in which he ar- samuel rascoff is probably the only can carry off a bow tie,” he says. gues that state and local entities badge-carrying member of the New York In spring 2003, in between clerk- should play a larger role in setting City Police Department to leave that ships that included a year national security policy, espe- gritty world for NYU Law. The director of with Supreme Court cially with regard to coun- the NYPD’s 25-person intelligence analy- Justice David H. ter-terrorism. “National sis unit for the last two years, he had the Souter, Rascoff as- security so far has been heady responsibility of assessing the terror- sisted Ambassador relatively impervious to ist threat to the city, on call 24/7 whenever Bremer in Bagh- analysis through the a threat emerged. dad. Sleeping with lens of federalism,” A dedicated public servant who previ- 25 other people on he says. “But with ously worked for Ambassador Paul Bremer cots covered with counter-terrorism in setting up a transitional government in mosquito netting figuring promi- Iraq, Rascoff nonetheless sees joining NYU in the auxiliary nently in the secu- in June as a professor and faculty codirector kitchen of Saddam rity agenda, we’ve at the Center on Law and Security as a logi- Hussein’s Repub- come to appreciate cal move. “I firmly believe that shaping the lican Palace, he spent that local govern- American response to terrorism and creat- his days meeting with ment agencies, such as ing a new architecture for counter-terror- Iraqi officials and criss- police departments, will ism law is as much an act of public service crossing the country, talk- inevitably shoulder more as providing day-to-day assessments of ter- ing with everyday Iraqis. responsibility in combat- rorist threats,” says Rascoff. “Sam was one of a tiny ing today’s threats.” Rascoff’s specialty is national security number of advisors who Those who know law, with an emphasis on counter-terror- spoke Arabic and under- Rascoff predict he will ism law—a burgeoning field that examines stood the political context,” make an easy adjustment the sources, allocation and limits of gov- says Professor Noah Feld- to academia. “A lot of young ernment authority in protecting its citi- man of Harvard Law, who associates are fairly invis- zens from terrorist attacks. While elements was in Baghdad with him. ible. That never happened of national security law are relatively well- One day Feldman, Rascoff with Sam. Everybody knew established in the law school curriculum, and a couple of other advi- who he was,” says Meyer counter-terrorism law is still in its infancy. sors drove without an escort Koplow, executive partner “We see ourselves as a leader in this new into the Shiite areas south of at Wachtell, Lipton, Rosen area of law. Having him join our faculty will Baghdad to talk to Iraqi citi- & Katz, adding, “He’s go- be important as we move forward in that zens. “A couple of weeks later, ing to make a great pro- project,” says Dean Richard Revesz, who Muhammad Baqir al-Hakim fessor because he’s just so first glimpsed Rascoff’s scholarly abilities was killed by a car bomb in approachable.” when the two collaborated on a law review the same spot where we had Rascoff and his wife article about risk regulation in the fall of just stood,” recalls Feldman. Lauren, 29, a resident in 2001. “Even as a recent law school graduate, Rascoff describes his time obstetrics and gynecology, he had the ability, maturity and creativity there succinctly: “I had a live in the city. They both of a seasoned academic.” front row seat when con- frequent the opera, One of three siblings, Rascoff was raised sequential decisions were and occasionally in New Rochelle by his dad, Joel, a retired being made.” Rascoff finds time to

44 THE LAW SCHOOL faculty focus play golf. Rascoff, a cantor in his synagogue, could exclude gays. Yoshino classmates. By the time he received his also attends daily services and enjoys hav- also coauthored a key amicus J.D. in 1996, he was openly gay, yet he ing coffee afterward with two congregants, brief in Lawrence v. Texas, the acceded to his colleague’s covering one in his 70s; the other in his 80s. “I always 2003 case that struck down demands—to write about and teach hit it off with the older set,” he says.—J.F. sodomy statutes across the nongay topics—until he couldn’t dis- country. “He is a superb lawyer semble any longer. who has reshaped anti-discrim- He joined the Yale faculty af- Kenji Yoshino ination law by making us ter clerking for judge and understand how forcing former Yale Law School chief justice earl people to ‘cover’ dimin- Dean Guido Calabresi warren professor of ishes their authenticity of the U.S. Court of Ap- constitutional law and personhood,” says peals for the Second when kenji yoshino started teaching Yale Law School Dean Circuit. (He earned at Yale Law School, he recalls a well-mean- Harold Hongju Koh. tenure at Yale in 2003 ing colleague who offered him this advice: Yoshino also dis- and became the inau- “You’ll have an easier chance at getting closes in his book his gural Guido Calabresi tenure if you’re a homosexual professional own identity struggles. Professor of Law in than if you’re a professional homosexual.” As a first-generation 2006.) Also a deputy In other words, it was okay to be gay; just American, Yoshino felt dean for intellectual don’t flaunt it. uncomfortable assimi- life, he coordinated That counsel, which Yoshino eventually lating while growing the non-curricular rejected, helped inspire his award-win- up. His father, a profes- academic life of the ning work. Covering: The Hidden Assault sor at Harvard Business law school, such as On Our Civil Rights (Random House, 2006) School, and his mother, scheduling work- is a memoir that blends his personal iden- a homemaker, raised Yo- shops and student tity struggles as a gay, Japanese American shino and his older sister fellowships. with legal arguments in order to question in a suburb of Boston. Yo- Currently, Yoshino is whether assimilation is always beneficial. shino attended Phillips Ex- working on an article called “We have a deep-seated belief as Americans eter Academy, and he and “The New Equal Protection,” that we all should melt into the pot,” says his sister spent summers in in which he proposes shift- Yoshino, a visiting professor for two years Japan attending public ing the legal paradigm from who joined NYU Law in July. “But if the de- school “to inhabit a Japanese group-based equality to one mand for conformity is itself illegitimate, body—to rise, to straighten, that protects liberty for all. then assimilation is a symptom of discrimi- and to bow: to sit ramrod He argues that the same- nation rather than an escape from it.” straight in my high collared sex marriage debate, for In Covering, Yoshino discusses three uniform,” he writes. instance, should be framed stages of coming out: “conversion,” “pass- His parents would tell Yo- not as the right of gays to be ing” and “covering.” The latter two terms shino and his sister to be “100 equal to straights but as the are adopted from the work of sociologist percent American in America, right of all people to marry Erving Goffman. Conversion is the period and 100 percent Japanese in the person they love. in which a gay individual longs to become Japan.” He says his sister, who His English lit back- straight. Passing is the phase in which a gay now lives in Tokyo, as do ground continues to shine individual has accepted his homosexual- his parents, perfected through Yoshino’s work. ity, but hides it from society. And covering these independent NYU University Profes- is a more subtle demand for assimilation, cultural identities in a way he never could. sor Carol Gilligan, who in which the individual is openly gay but “I think in many ways my exposure to an ex- cotaught a Shakespeare feels pressured not to “flaunt.” Covering is tremely conformist culture in Japan fueled seminar with Yoshino, says: “You can’t as much an assault on a gay individual’s my understanding of assimilation long be- read [Covering] without being stunned by civil rights as the 1981 case in which an fore I had any consciousness of being gay,” the sheer poetry of his writing.” Drawing African-American woman was fired by Yoshino explains. on his seminar with Gilligan, Yoshino is American Airlines for wearing her hair in Until he was a young adult, he says he writing a book tentatively called Shake- cornrows, Yoshino says. “His work gave was stuck in the “conversion” stage. After speare’s Law, in which he pairs five sets of us new categories for thinking about the graduating summa cum laude with a de- Shakespeare’s plays to show how the Bard types of discrimination that are relatively gree in English literature from Harvard argues both sides of fundamental ques- invisible to most people,” says David Go- in 1991, he earned a Master of Science in tions of justice. love, Hiller Family Foundation Professor of management studies at Oxford in 1993, on Yoshino, meanwhile, is eager to settle Law. “He’s had a major impact within con- a Rhodes Scholarship. While at Oxford, in at NYU. “It’s important for people at stitutional and discrimination law.” In fact, though, he says, “I routinely went to the col- some point to get away from their teachers, Supreme Court Justice John Paul Stevens lege chapel and prayed to the god I didn’t in the same way that you break from your used Yoshino’s arguments, in part, to fash- believe in to be straight.” At 22, he came out parents,” says Yoshino. “I came for the city, ion a dissent from the Court’s 2000 major- to his parents, but when he attended Yale then I stayed for the school. I really fell in ity ruling that the Boy Scouts of America Law, he continued to “pass” as straight to love with this institution.”—J.F.

AUTUMN 2008 45 faculty focus Revesz’s Recruits: A Professorial Pop Quiz New Hires (2002-08) by jennifer frey 15 Who was admitted to practice in New Zealand’s Supreme Court, turned down 1 Scott Turow based a character on this two Oxford chairs and left Columbia Law Emmy winner who had his own TV show and for NYU Law? left Harvard Law for NYU after 35 years. 16 Who sang opera wearing a black gown, 2 Who recently flew to Amsterdam to see Jennifer Oren Rachel a purple feather mask and stilettos last Leonard Cohen in concert? Hint: Barack Arlen Bar-Gill Barkow spring? Hint: This former Supreme Court Obama used his textbook to teach his class clerk is an expert in labor law. at the University of Chicago. 17 What Guggenheim Fellow helped found 3 What Argentinean turned her passion for positive political thinking and worked his virtual buying into research, and her passion way through college as an accountant by for chocolate into what is destined to be- day, and a sax player by night? Lily Stephen Kevin come a popular annual tasting for students? Batchelder Choi Davis 18 Who drafted an ethics code for the Israeli 4 He’s shy (but loves teaching), is an expert army, is an expert in Jewish philosophical in international tax arbitrage, and once slept thought and is equally comfortable in Israel right through his stop on an Italian train, and the United States? waking up in Verona. 19 Already a U Thant Scholar as a high 5 She avoids Chilean sea bass because it’s Cynthia John Moshe schooler, she won a human rights award Estlund Ferejohn Halbertal endangered, read in French before English, from India’s Supreme Court for her tireless and studied under Dean Revesz at Yale. efforts to improve conditions for Dalits. 6 What Arabic- and Hebrew-speaking 20 What Rhodes Scholar and language Marshall Scholar helped set up a transitional rights expert clerked for the Supreme Court, government in Iraq and ran an intelligence and auctioneered at the Public Service analysis unit of the NYPD? Roderick Robert Daniel Auction? Hint: She also talks fast in class. Hills Jr. Howse Hulsebosch 7 This “walking encyclopedia” once grew 21 Whose award-winning book is required a 1 1/2–pound tomato, studied chemical en- reading at two Southern universities, and gineering, and switched to law after hearing was once referenced by Supreme Court Supreme Court Justice Antonin Scalia speak. Justice John Paul Stevens? 8 Who edited his college newspaper and 22 Who was a former clerk for conser- considered pursuing a journalism career Samuel Mitchell Deborah vatives Judge Laurence Silberman and Issacharoff Kane Malamud before becoming a legal historian? Supreme Court Justice Antonin Scalia, 9 Who once lived on a commune in and worked on John Kerry’s and Barack Woodstock, NY, was on the Harvard Crimson, Obama’s presidential campaigns? and worked as a reporter before earning her 23 What international economic lawyer, J.D. and a Ph.D. in economics? novelist and former Canadian diplomat Florencia Troy Arthur 10 What Guggenheim and NEH fellow ran barged uninvited into University of Chicago Marotta-Wurgler McKenzie Miller a program at UC Berkeley modeled after seminars as a philosophy student, deter- NYU’s law and philosophy colloquium, and mined to hear Saul Bellow lecture? is a witty roast master to boot? 24 Who banned laptops in her class, sings 11 Once a rebellious punker, this RTK scholar to her students, testified on the Hill, just quit clerked at the International Court of Justice, playing softball at age 50 and came to NYU Smita Samuel Cristina speaks Kreyol and brought students to Law from its uptown rival? Narula Rascoff Rodríguez Yemen to investigate human rights abuses. 25 What one-time biochemistry major has 12 Who won funding to put his course over 40 published articles and wrote the first online, dreamed of becoming a scientist in casebook to include a hypothetical based on his teens, and got his J.D. when his peers Martha Stewart’s legal troubles? were still toiling as mere undergrads? 26 Who broke up fights in a soup kitchen as Margaret Samuel Catherine 13 Who earned four advanced degrees a social worker, managed a state senator’s Satterthwaite Scheffler Sharkey after his J.D., lawyered for the Israeli army, reelection campaign and left a tax practice and publishes about three articles yearly? at Skadden, Arps for NYU? 14 What Rhodes Scholar (who came to 27 Who ate in the White House kitchen NYU from Columbia Law) played goalie and during his childhood, and, before coming to became captain of the Yale Varsity lacrosse NYU, had to find a new home for Reflector, Jeremy Katrina Kenji team, winning MVP twice? his horse, as well as a brood of chickens? Waldron Wyman Yoshino

1 Arthur Miller 2 Samuel Issacharoff 3 Florencia Marotta-Wurgler ’01 4 Mitchell Kane 5 Katrina Wyman 6 Samuel Rascoff 7 Troy McKenzie ’00 8 Daniel Hulsebosch 9 Jennifer Arlen ’86 10 Samuel Scheffler 11 Margaret Satterthwaite ’99 12 Kevin Davis 13 Oren Bar-Gill 14 Catherine Sharkey 15 Jeremy Waldron 16 Deborah Malamud 17 John Ferejohn 18 Moshe Halbertal 19 Smita Narula 20 Cristina Rodríguez 21 Kenji Yoshino 22 Rachel Barkow 23 Robert Howse 24 Cynthia Estlund 25 Stephen Choi 26 Lily Batchelder 27 Roderick Hills Jr.

46 THE LAW SCHOOL faculty focus sara sun beale Visiting Faculty Sara Sun Beale will teach Criminal Law when she visits NYU in Spring 2009 from Duke University, where she is the Charles L.B. Lowndes Professor of Law. Her schol- arship encompasses the federal criminal justice system, federal procedural law, cor- porate criminal liability and the political and psychological forces influencing crimi- nal justice policymaking. Beale is the coauthor of Federal Crimi- albert alschuler josé alvarez nal Law and Its Enforcement (2006, fourth Albert Alschuler will teach criminal law dur- The Hamilton Fish Professor of Inter- edition), Federal Criminal Law and Related ing his Spring 2009 visit from Northwestern national Law and Diplomacy as well as Civil Actions: Forfeitures, the False Claim University School of Law. He also plans to founder and executive director of the Cen- Act, and RICO (1998) and Grand Jury Law work on two articles. The first, “The Exclu- ter on Global Legal Problems at Columbia and Practice (1997, second edition). She sionary Rule and Causation,” concerns the Law School, José Alvarez will teach Foreign has published arti- uncovering of evidence through unlaw- Investment: Law and Policy and The United cles in the Colum- ful searches, while “The Miranda Disaster” Nations and Other International Organiza- bia Law Review, the concerns the failure of Miranda rights to tions while visiting NYU in Fall 2008. Duke Law Journal, halt police interrogation abuses and rec- The author of International Organiza- the Fordham Law ommends that the tions as Law-Makers (2005), Alvarez has Review, the Michi- courts revisit the been published in journals including the gan Law Review underlying issues Columbia Law Review, the Duke Law Jour- and the Texas Law that gave rise to nal, the Michigan Law Review, the New York Review. Beale is the Miranda rights University Journal of reporter for the Judicial Conference Advi- in the first place. International Law sory Committee on Criminal Rules, and was Alschuler will also and Politics and the also reporter for the Three Branch Working engage in a long- Yale Journal of Inter- Group on the Principles to Govern the Fed- term project con- national Law. Much eralization of Criminal Law, convened by cerning two common fallacies in legal of Alvarez’s schol- then-Attorney General Janet Reno. thought that lawyers should guard against, arship and teach- After earning her J.D. from the Univer- and which argues that both empirical and ing focuses on the sity of Michigan, Beale was an associate moral knowledge hinge on perceived pat- post-World War II at Dykema, Gossett, Spencer, Goodnow & terns in sensory experience. turn to international institutions. He previ- Trigg in Detroit. She subsequently clerked The author of Law Without Values: The ously taught at the University of Michigan for Judge Wade H. McCree Jr. of the U.S. Life, Work and Legacy of Justice Holmes Law School, where he directed the Center Court of Appeals for the Sixth Circuit, (2000) and the coauthor of The Privilege for International and Comparative Law, and worked as an attorney adviser in the U.S. Against Self-Incrimination: Its Origins and George Washington University Law School. Department of Justice’s Office of Legal Development (1997), Alschuler has pub- Alvarez earned a J.D. from Harvard Law Counsel and served as assistant to the Jus- lished articles in journals including the School, where he was topics editor of the tice Department’s solicitor general. Beale Columbia Law Review, the Harvard Law Harvard International Law Journal. He sub- is past senior associate dean for academic Review, the Michigan Law Review, the Stan- sequently clerked for the late Judge Thomas affairs at Duke University School of Law. ford Law Review and the Yale Law Journal. Gibbs Gee of the U.S. Court of Appeals for He was the Julius Kreeger Professor of Law the Fifth Circuit, and was an attorney at barton beebe and Criminology at the University of Chi- Shea & Gardner with an appellate litigation A professor at Yeshiva University’s Ben- cago, and has also taught at the University and administrative law practice before serv- jamin N. Cardozo School of Law, Barton of Colorado Law School, the University of ing as an attorney adviser in the U.S. Depart- Beebe will teach trademark law and the Pennsylvania Law School and the Univer- ment of State’s Office of the Legal Adviser. seminar Intellectual Property Law and Glo- sity of Texas School of Law. Alvarez is currently president of the Ameri- balization during Alschuler earned a J.D. from Harvard can Society of International Law, with which his Fall 2008 visit to Law School, where he was case editor of he has a longstanding involvement, and a NYU. He will also the Harvard Law Review. He subsequently member of the Council on Foreign Relations research copyright clerked for Justice Walter V. Schaefer of the and the U.S. Department of State’s Advisory fair-use case law, Illinois Supreme Court, worked as special Committee on Public International Law. He write an essay on assistant to the assistant attorney general founded two public speaker series at Colum- intellectual prop- of the U.S. Department of Justice’s Criminal bia Law School, one on public international erty law understood Division, and was a Guggenheim Fellow. law and the other on challenges in global as a form of sumptu- Alschuler has taught criminal law, crimi- governance, and has served on numer- ary law and study the concept of similarity nal procedure, constitutional law, feminist ous boards and committees, including the in intellectual property law. Of the latter legal theory and professional responsibility, advisory board of Columbia Law School’s topic, Beebe says, “So much of intellectual among other subjects. Human Rights Institute. property law turns on judges’ assessments

AUTUMN 2008 47 faculty focus of similarity—is the defendant’s trademark Desai is the author of International Law Review. She clerked for Judge Guido or copyrighted work unduly similar to the Finance: A Casebook (2006), and has pub- Calabresi of the U.S. Court of Appeals for plaintiff’s?—but the doctrine itself offers lished articles in the Brookings Papers on the Second Circuit, and for Justice Stephen very little guidance on how judges should Economic Activity, the Journal of Finance, Breyer of the U.S. Supreme Court. go about making these assessments.” the National Tax Journal, the Quarterly Goluboff received a J.D. from Yale Law Beebe has been published in the Califor- Journal of Economics and the Review of School, where she was senior editor of the nia Law Review, the Michigan Law Review, Financial Studies, along with the Financial Yale Law Journal, and earned both an M.A. the Pennsylvania Law Review, the UCLA Times, the Harvard Business Review and the and a Ph.D. in history from Princeton Uni- Law Review and the Yale Law Journal. He Times of India. versity. As a Fulbright Scholar, she lectured has a Ph.D. in English from Princeton Uni- Desai is a research associate at the in sociology at the University of Cape Town versity and a J.D. from Yale Law School, National Bureau of Economic Research, a in South Africa, and won the Amy Biehl Ful- where he was senior editor of the Yale Law nonprofit research organization, where he bright Award as the highest-ranked Fulbright Journal. After law school, Beebe clerked for codirects the India Working Group. He was Scholar in Africa. In a 2007 article in the Vir- Judge Denise Cote of the U.S. District Court a financial analyst ginia Journal, Goluboff said, “Teaching law of the Southern District of New York. He at CS First Boston. students about constitutional law and civil was a special master in the trademark case He has testified rights gives me an opportunity to shape their Louis Vuitton Malletier v. Dooney & Bourke, before the U.S. Sen- understanding not only of the law but also of Inc. (2006). Beebe has taught trademark law ate’s Committee on the relationship between the law and larger and copyright law in addition to intellec- Homeland Security political and social questions.” tual property and globalization. and Governmen- tal Affairs, the U.S. kristin henning adam cox House Committee Kristin Henning is an associate professor Adam Cox, an assistant professor at the Uni- on Ways and Means, and the President’s and deputy director of the Juvenile Justice versity of Chicago Law School, will teach Advisory Panel on Federal Tax Reform on Clinic at Georgetown University Law Cen- Immigration Law and the Rights of Non- the issues of tax treatment of stock options, ter. When she visits NYU in Spring 2009, citizens in Fall 2008. the corporate tax, and taxation and global she will coteach the Juvenile Defender He will also work on competitiveness. In his House testimony, Clinic with Profes- a number of projects, Desai pointed out problems with the cor- sor Randy Hertz, including an empir- porate taxation reporting system. and Civil Litigation ical paper about the “While individuals are not faced with with Professor Paula transformation of this perplexing choice of how to char- Galowitz. voting rights litiga- acterize their income depending on the Henning was tion as well as papers audience,” he said, “corporations do find previously the lead on the organizing themselves in this curious situation. Dual attorney of the Pub- principles of immigration law, immigrant books for accounting and tax purposes are lic Defender Ser- voting rights and the institutional design of standard in corporate America and, judg- vice for the District of Columbia’s Juvenile immigration law, and the role of the presi- ing from recent analysis, are the province Unit. She serves on the oversight and advi- dent in immigration law. of much creative decision-making.” sory committees of the D.C. Department Cox has been published in the California Desai received an M.B.A. and a Ph.D. in of Youth Rehabilitation Services, as well Law Review, the Columbia Law Review, the political economy from Harvard University, as the boards and committees of several New York University Law Review, the Stan- and was a Fulbright Scholar in India. family and juvenile law organizations. She ford Law Review, the University of Chicago has published articles in the California Law Law Review and the Virginia Law Review. risa goluboff Review, the Nevada Law Journal, the New After earning a J.D. from the University of While visiting NYU in Fall 2008, Risa Gol- York University Law Review and the Notre Michigan Law School, where he graduated uboff, a professor of law and history at the Dame Law Review. first in his class and was articles editor of University of Virginia, will teach Constitu- The recipient of the 2008 Shanara Gil- the Michigan Law Review, Cox clerked for tional Law and work on scholarship pertain- bert Award from the Association of Ameri- Judge Stephen Reinhardt of the U.S. Court ing to the Supreme Court, vagrancy law and can Law Schools’ Section on Clinical Legal of Appeals for the Ninth Circuit. He was social movements in Education, which honors emerging clini- subsequently a Karpatkin Civil Rights Fel- the 1950s, ’60s and cians, Henning traveled to Liberia in 2006 low at the American Civil Liberties Union ’70s. In addition to and 2007 in coordination with the Ameri- Foundation and an associate at Wilmer, constitutional law, can Bar Association and the United Nations Cutler & Pickering in New York. she teaches civil Children’s Fund on a juvenile justice reform rights litigation and mission. Henning earned a J.D. from Yale mihir desai legal history. Law School and an LL.M. from Georgetown. Mihir Desai, professor at Harvard Business The coeditor of “In my work, I have met many wonderful School, will research corporate taxation Civil Rights Stories young people who make poor decisions in and governance, particularly the concept (2008) and the author of The Lost Promise of response to very challenging life circum- oda Baer of recentering the corporate tax on public Civil Rights (2007), Goluboff has published stances,” says Henning. “Few—if any—of financial statements, while visiting NYU in articles in the Duke Law Journal, the UCLA these children are hardened criminals who Spring 2009. He will also be in residence Law Review, the University of Pennsylvania cannot be rehabilitated. I hope to make a dif-

in Fall 2008. Law Review and the University of Toledo ference in the lives of many of these youth.” Kristin Henning: Rh

48 THE LAW SCHOOL faculty focus michael pinard Terror in the Balance: Security, Liberty and associate at Morrison & Foerster in San A professor at the University of Maryland the Courts (2007), New Foundations of Cost- Francisco, and continues to serve as spe- School of Law, Michael Pinard ’94 will teach Benefit Analysis (2006) and The Limits of cial counsel to the firm. the Offender Reentry Clinic when he visits International Law NYU during the 2008-09 academic year. He (2005); editor of richard schragger will also work on an article comparing the Social Norms, Non- When he visits NYU in Fall 2008, Richard collateral consequences of criminal con- legal Sanctions, and Schragger, the Class of 1948 Professor in victions and the reentry of formerly incar- the Law (2007) and Scholarly Research in Law at the University cerated individuals in the United States to Chicago Lectures in of Virginia School the experience of former prisoners in Eng- Law and Economics of Law, will teach land, Canada and South Africa. Another (2000), and coeditor Property and work article-in-progress argues that judges of Cost-Benefit Anal- on projects con- should consider the effects of sentences on ysis: Legal, Philosophical, and Economic cerning federalism, a defendant’s family and community. Perspectives (2001). He has been published urban economic Pinard has published articles in the Ari- in the Columbia Law Review, the Harvard development and zona Law Review, the Boston University Law Law Review, the Michigan Law Review, the the constitutional Review, the Connecticut Law Review, the Stanford Law Review and the Yale Law Jour- and economic status Nevada Law Journal and the New York Uni- nal. He also is the editor of the Journal of of cities—including a paper on municipal versity Review of Law & Social Change. He is Legal Studies. efforts to control, regulate and redistribute coeditor-in-chief of the Clinical Law Review After earning a J.D. from Harvard Law mobile capital. and president of the School and an M.A. in philosophy from Yale Schragger has published articles in the Clinical Legal Edu- University, Posner clerked for Judge Stephen Harvard Law Review, the Journal of Law & cation Association. F. Williams of the U.S. Court of Appeals for Politics, the Michigan Law Review, the Vir- Pinard was a Rob- the District of Columbia Circuit. He subse- ginia Law Review and the Yale Law Journal. ert M. Cover Clini- quently served as an attorney adviser in the He was an associate at Miller, Cassidy, Lar- cal Teaching Fellow U.S. Department of Justice’s Office of Legal roca & Lewin in Washington, D.C. Schrag- at Yale Law School, Counsel and taught at the University of ger earned an M.A. in legal and political taught at St. John’s Pennsylvania Law School. Posner testified theory from University College London. University School of before the U.S. House of Representatives’ After receiving a J.D. from Harvard Law Law, and worked as a staff attorney at the Committee on the Judiciary concerning the School, where he was supervising editor of Office of the Appellate Defender and the Bankruptcy Reform Act of 1999. the Harvard Law Review, Schragger clerked Neighborhood Defender Service of Harlem, for Chief Judge Dolores Sloviter of the U.S. both in New York City. r. anthony reese Court of Appeals for the Third Circuit. His Pinard serves on the executive com- R. Anthony Reese, the Arnold, White & teaching interests include local govern- mittee of the Public Justice Center in Bal- Durkee Centennial Professor of Law at the ment law, land use, urban law and policy, timore, the advisory committees of John University of Texas at Austin, will visit the constitutional law and church and state. Jay College of Criminal Justice’s Prisoner NYU School of Law in Spring 2009 to teach Reentry Institute in New York City and the Copyright Law. christopher serkin Maryland Reentry Partnership in Balti- Reese has published articles in the Christopher Serkin will teach a course on more, and the board of directors of the Jobs Journal of World Intellectual Property, the land use and coteach the Colloquium on Opportunities Task Force in Baltimore. He Stanford Law Review and the Texas Law the Law, Economics and Politics of Urban earned a J.D. from the NYU School of Law, Review, among other publications. He is Affairs when he visits the NYU School of and received the Shanara Gilbert Award for the coauthor, with Law in Spring 2009 from Brooklyn Law emerging clinicians in 2006 from the Asso- Paul Goldstein, of School, where he is an associate profes- ciation of American Law Schools’ Section the new edition sor. He also plans to on Clinical Legal Education. of Copyright, Pat- work on a number of ent, Trademark and articles as part of a eric posner Related State Doc- project concerning Eric Posner, the Kirkland & Ellis Professor trines (2008, sixth the constitutional of Law at the University of Chicago, will edition), and coau- protection of private teach Contracts during his Fall 2008 visit, thor as well of the property, includ- and also work on a book concerning the casebook Internet Commerce: The Emerging ing the question of legal ramifications of climate change, an Legal Framework (2006). He has recently why current uses of empirical project on state judiciary qual- joined Jane Ginsburg and Robert Gorman property receive stronger protections than ity in collaboration with Professor Stephen as coauthor of their casebook Copyright potential future uses as well as the effect of Choi, and a project on evolving constitu- (2007, seventh edition). those protections on the investment incen- tional law. Before law school, Reese taught English tives of property owners. Posner is the author of The Recurrent for the Yale-China Association in Tianjin Serkin has been published in the Colum- Illusion: Global Legalism and Interna- and Hunan. He earned his J.D. from Stan- bia Law Review, the Indiana Law Review, tional Relations (2009, forthcoming) and ford Law School and clerked for Judge Betty the Michigan Law Review, the Michigan Law and Social Norms (2000); coauthor of B. Fletcher of the U.S. Court of Appeals for State Law Review, the New York University Climate Change Justice (2009, forthcoming), the Ninth Circuit. He also worked as an Law Review and the Northwestern University

AUTUMN 2008 49 faculty focus Law Review. He worked as a litigation asso- Circuit, Judge Louis H. Pollak of the U.S. ciate at Davis Polk & Wardwell in New York, District Court for the Eastern District of Multi-year and was subsequently an acting assistant Pennsylvania, and Justice Antonin Scalia Returning Faculty professor in the NYU School of Law’s Law- of the U.S. Supreme Court. yering Program. alan auerbach After receiving a J.D. magna cum laude philip weiser Alan Auerbach is the Robert D. Burch Pro- from the University of Michigan Law School, Philip Weiser ’94 will teach Telecommu- fessor of Economics and Law at the Uni- where he was articles editor of the Michi- nications Law and Policy as well as the versity of California, Berkeley, where he gan Law Review, Serkin clerked for Judge Law and Innovation seminar when he vis- directs the Burch Center for Tax Policy J. Garvan Murtha of the U.S. District Court its in Fall 2008. At the University of Colo- and Public Finance. for the District of Vermont, and Judge John rado Law School, Weiser is associate dean He will coteach the M. Walker Jr. of the U.S. Court of Appeals for for research, and founder and executive Tax Policy Collo- the Second Circuit. At Brooklyn Law School director of Silicon Flatirons Center for quium with Profes- he has taught in the areas of property, land Law, Technology, and Entrepreneurship, sor Daniel Shaviro use, and trusts and estates. which focuses on technology policy issues when he visits the and technology NYU School of Law howard shelanski law. He special- in Spring 2009, During his Spring 2009 visit to the NYU izes in antitrust law, and also plans to School of Law , Howard Shelanski, a profes- constitutional law, continue his research in corporate taxa- sor and associate dean at the University of intellectual prop- tion, budget rules and their design, capi- California, Berkeley, School of Law and an erty, Internet law tal gains taxation and unfunded social affiliated faculty member of Berkeley’s Haas and telecommuni- security systems. School of Business, cations law. While Auerbach is a research associate at the will teach antitrust at NYU, Weiser National Bureau of Economic Research, law and a seminar plans to work on a scholarly project tenta- and was deputy chief of staff of the U.S. on antitrust in high tively titled “Ending the Reign of Lawless- Joint Committee on Taxation. He has taught technology markets. ness and Disorder at the FCC,” examining economics at Harvard University and at Shelanski, who is alternative institutional strategies for tele- the University of Pennsylvania, where he codirector of the communications regulation in the Internet chaired the economics department; he also Berkeley Center for age. “The project will focus on the defects chaired that department at Berkeley. Law and Technol- in the Federal Communications Commis- A former member of the U.S. Congres- ogy, also plans to spend time working on sion’s current management of its notice sional Budget Office’s Panel of Economic a book concerning the current debate over and comment rulemaking processes,” says Advisors and the U.S. Joint Committee how merger enforcement should proceed in Weiser, “highlighting both how it under- on Taxation’s Blue Ribbon Advisory Panel industries that are characterized by rapid mines rule of law values and is ill suited to on Dynamic Scoring, Auerbach currently technological change, and an article on the regulating an increasingly dynamic tech- serves on the International Tax Policy relationship between antitrust enforce- nological environment.” He will also serve Forum’s Board of Academic Advisors and ment and industrial regulation. as interim director of NYU’s Information the Advisory Committee of the U.S. Depart- Shelanski is the coauthor of Antitrust Law Institute. ment of Commerce’s Bureau of Economic Law, Policy, and Procedure: Cases, Mate- Weiser is the coauthor of Telecommu- Analysis. He was editor of the Journal of rials, Problems (2008, sixth edition, forth- nications Law and Policy (2006, second Economic Perspectives and now edits the coming) and coeditor of Antitrust and edition) and Digital Crossroads: American American Economic Journal: Economic Regulation in the EU and US (2008, forth- Telecommunications Policy in the Internet Policy, both publications of the American coming). He has also published articles Age (2005). He has published articles in Economic Association, of which he has in the Berkeley Technology Law Journal, journals such as the Columbia Law Review, been vice president. the California Law Review, the Columbia the Fordham Law Review, the Michigan Auerbach has edited, coedited and Law Review, the University of Chicago Law Law Review, the New York University Law coauthored numerous books, including Review and the Yale Journal on Regulation, Review and the Texas Law Review. Institutional Foundations of Public Finance: among other publications. He has been senior counsel to the assis- Economic and Legal Perspectives (2009, Shelanski has served as chief economist tant attorney general of the U.S. Depart- forthcoming), Taxing Corporate Income in at the Federal Communications Commis- ment of Justice’s Antitrust Division, and the 21st Century (2007) and Macroeconom- sion and senior economist on the Presi- testified before the U.S. Senate Committee ics: An Integrated Approach (1998, second dent’s Council of Economic Advisers. He on Commerce, Science and Transportation; edition). He has published articles in the was previously working as an associate the Federal Trade Commission; and the U.S. American Economic Review, the Brookings with a telecommunications, antitrust and House of Representatives Committee on Papers on Economic Activity, the Harvard general litigation practice at Kellogg, Huber, Energy and Commerce. He also served as Business Review, the Harvard Law Review Hansen, Todd & Evans in Washington, D.C. special master to the Colorado Public Utili- and the National Tax Journal. After receiving an M.A. and Ph.D. in eco- ties Commission. A Ph.D. graduate in economics from nomics and a J.D. from the University of Weiser received a J.D. from NYU Law, Harvard University, Auerbach has con- California, Berkeley, Shelanski clerked for and subsequently clerked for U.S. Supreme sulted for the Congressional Budget Office, Judge Stephen F. Williams of the U.S. Court Court justices Byron R. White and Ruth the International Monetary Fund, the New of Appeals for the District of Columbia Bader Ginsburg. Zealand Treasury, the Organisation for

50 THE LAW SCHOOL faculty focus Economic Co-operation and Development, He is also writing a book on the politics of and Econometric Models and Economic the Ministry of Finance, the U.S. Treasury, Supreme Court nominations. Forecasts (2000, fourth edition). Rubinfeld the World Bank and other organizations. Before joining the Princeton faculty, is a former deputy assistant attorney for the Cameron served as director of the M.P.A. Antitrust Division sir john baker program at Columbia University’s School of the U.S. Depart- A leading authority on the development of International and Public Affairs, where ment of Justice, a of English legal institutions, Sir John he was a tenured professor in the Depart- past president of the Baker will teach a course on the legal his- ment of Political Science. Cameron holds American Law and tory of England in an M.P.A. and a Ph.D. from Princeton’s Economics Associa- Fall 2008. He is the Woodrow Wilson School of Public and tion, and a fellow of Downing Professor International Affairs. the American Acad- of the Laws of Eng- emy of Arts and Sci- land at Cambridge richard epstein ences and the National Bureau of Economic University. Richard Epstein, who will make his fourth Research. He has both an M.S. and a Ph.D. In addition to visit to campus in Fall 2008, is known for in economics from M.I.T. his appointment his research and writings on a broad range as a Senior Golieb of constitutional, economic, historical and peter schuck Fellow at the Law School, Sir John has philosophical subjects. At the University of During his Spring 2009 visit to NYU, Peter also been a Hauser Global Law professor, Chicago Law School, where he is the James Schuck (LL.M. ’66) will teach advanced a fellow of the British Academy and a fel- Parker Hall Distinguished Service Profes- torts and the seminar Groups, Diversity low of St. Catharine’s College, Cambridge sor of Law, he has taught antitrust, com- and Law. He will also conduct research on University. munications, constitutional, criminal, topics including student suspensions from The author of more than 25 books and health, labor and Roman law; contracts; the New York City school system and the 100 articles, Sir John is the general editor jurisprudence; pat- law and politics of inefficiency. of the Oxford History of the Laws of Eng- ents; property, and The Simeon E. Baldwin Professor of land and the Cambridge Studies in English torts, to name a few Law and former deputy dean at Yale Law Legal History. He has held positions at Yale subjects. He will School, Schuck is the author, coauthor, edi- and Harvard law schools, the Huntington teach Torts dur- tor or coeditor of numerous books, includ- Library, the University of Oxford and the ing his visit to the ing Understanding America: The Anatomy European University Institute in Florence. Law School. of an Exceptional Nation (2008), Target- He was knighted in June 2003 for his signifi- Epstein is the ing in Social Pro- cant contributions to the study of English Peter and Kirstin grams: Avoiding legal history. Sir John holds an LL.B. and Bedford Senior Fellow at Stanford Universi- Bad Bets, Removing Ph.D. from University College London, and ty’s Hoover Institution on War, Revolution Bad Apples (2006), an M.A. and LL.D. from Cambridge. and Peace. A former editor of the Journal Meditations of a of Law and Economics and the Journal of Militant Moderate: charles cameron Legal Studies, he now directs Chicago’s Cool Views on Hot Charles Cameron, a prize-winning scholar John M. Olin Program in Law and Eco- Topics (2006), Foun- of American politics, returns to the NYU nomics. Among his books are Overdose: dations of Adminis- School of Law from Princeton Univer- How Excessive Government Regulation trative Law (2004, second edition), Diversity sity, where he is a professor of politics and Stifles Pharmaceutical Innovation (2006), in America: Keeping Government at a Safe public affairs. Cameron will visit the Law How Progressives Rewrote the Constitution Distance (2003), Citizens, Strangers, and School during the 2008-09 academic year; (2006) and Supreme Neglect: How to Revive In-Betweens: Essays on Immigration and in Spring 2009 he will teach Political Envi- Constitutional Protection for Private Prop- Citizenship (1998), Tort Law and the Pub- ronment of the Law. erty (2008). Epstein earned an LL.B. from lic Interest: Competition, Innovation, and Cameron’s research focuses on politi- Yale University. Consumer Welfare (1991) and Agent Orange cal institutions and policymaking, and his on Trial: Mass Toxic Disasters in the Courts writing has appeared in journals of political daniel rubinfeld (1987). He has published articles in journals science, economics Daniel Rubinfeld, the Robert L. Bridges including the Columbia Law Review, the and law. His recent Professor of Law and Professor of Econom- Fordham Law Review, the Michigan Law work includes game ics at the University of California, Berke- Review, the Stanford Law Review and the theoretic models of ley, will return in Fall 2008 for his seventh Yale Law Journal. bargaining on col- visit to NYU. Rubinfeld will be teaching Schuck earned a J.D. from Harvard Law legial courts and Quantitative Methods and Antitrust Law School, an LL.M. from NYU and an M.A. in a formal theory of and Economics. government from Harvard University, and judicial federalism, A leading law and economics scholar, has had Guggenheim and Fulbright fellow- as well as empiri- Rubinfeld has written articles on antitrust ships. After practicing law privately in New cal analyses of the “macropolitics” of the and competition policy, law and econom- York City, he served as director of Consum- U.S. Supreme Court; the effects of race and ics, and the political economy of federalism. ers Union’s Washington office and as princi- gender diversity on decision-making in the He has also cowritten two economics text- pal deputy assistant secretary for planning U.S. Courts of Appeals; and lower-court books with M.I.T. professor Robert Pindyck, and evaluation in the U.S. Department of compliance with Supreme Court decisions. Microeconomics (2008, seventh edition) Health, Education, and Welfare.

AUTUMN 2008 51 faculty focus geoffrey stone idential campaign, coordinating a national had to uncover the historical underpin- Geoffrey Stone, who will visit for the seventh voter protection program and serving on the nings, in some instances back to common time in Fall 2008, will teach First Amend- vice presidential selection vetting team. law or other historical origins that helped ment Rights of Expression and Association. Upon leaving private practice, Nathan explain things.” These cases touched on Stone is the Edward H. Levi Distinguished was a visiting assistant professor at Ford- issues as diverse as organ donation, worker Service Professor ham Law School, where she taught first-year safety, maternal rights, duty of innkeepers at the University of civil procedure and a capital punishment to guests and termination of life support. Chicago Law School, seminar and served as faculty advisor to Rosenblatt is currently counsel at where he earned his the Fordham Law Death Penalty Project. McCabe & Mack in Poughkeepsie. He is J.D. After clerking In that capacity, she authored an amicus also president and a charter trustee of for Judge J. Skelly brief that was cited in Chief Justice John the Historical Society of the Courts of the Wright of the U.S. Roberts’s plurality opinion in the lethal State of New York, as well as a fellow of the Court of Appeals injection case Baze v. Rees. Nathan recently New York Bar Foundation. He has judged for the District of coordinated primary voter protection pro- moot court competitions, served on Columbia Circuit and Justice William J. grams in several states for Barack Obama’s various legal committees and received Brennan Jr. of the U.S. Supreme Court, he presidential campaign. numerous awards. returned to his alma mater as a professor before serving as dean and then provost. A preeminent First Amendment scholar, Judicial Fellow Global Visiting Stone wrote about the effects of war on the judge albert rosenblatt Professors of Law First Amendment in Perilous Times (2004), Judge Albert Rosenblatt will visit NYU which received the Los Angeles Times Book as a Judicial Fellow in the 2008-09 aca- bina agarwal Award and the Robert F. Kennedy National demic year. He will be teaching the State A professor at the University of Delhi’s Book Award. His most recent books are War Courts and Appellate Advocacy Seminar Institute of Economic Growth, Bina Agar- and Liberty (2007) and Top Secret (2007). both semesters, and working with the Law wal has written eight books and numerous School’s Dwight D. Opperman Institute for papers on subjects ranging from land and Judicial Administration. property rights to agriculture and techno- Alexander Fellow Now retired from the New York State logical change and the political economy alison nathan Court of Appeals, Rosenblatt has had a dis- of gender. Her research is steeped in inter- Alison Nathan’s primary research project tinguished career disciplinary and intercountry explora- as a 2008-09 Alexander Fellow will explore as a New York State tions. Agarwal has the interest in “finality” as a key procedural Supreme Court jus- been vice president value in American procedural law. She will tice; an associate of the International also work on an article concerning “proce- justice of the New Economic Associa- dural, historical, sociological and struc- York State Supreme tion and president tural factors that have led to a failure of the Court’s Appellate of the International democratic deliberative process regarding Division, Second Association for the humaneness of lethal injection as it is Department; chief Feminist Econom- pervasively practiced in a majority of death administrative judge of New York State ics, and currently penalty states.” courts; and both a county judge and district serves on the United Nations Economic Nathan earned a B.A. in philosophy attorney in Dutchess County, New York. He and Social Council’s Committee for Devel- and women’s studies from Cornell Univer- was also a visiting judge at the Harvard Law opment Policy and the Indian Prime Min- sity, and graduated magna cum laude from School Trial Advocacy Workshop, a faculty ister’s National Council for Land Reforms. Cornell Law School, member of the New York State Judicial She holds an honorary doctorate from the where she was edi- Training Seminars, and a course presenter Institute of Social Studies at The Hague. tor-in-chief of the in the Newly Elected Judges Education Pro- This year she received the Padma Shri, one Cornell Law Review gram in New York City. of the highest civilian honors conferred by and a member of Rosenblatt’s books include The Judges of the Indian government. She is now com- Order of the Coif. the New York Court of Appeals: A Biographi- pleting a book on environmental gover- She clerked for Judge cal History (2007) and New York’s New Drug nance and gender. Betty Binns Fletcher Laws and Sentencing Statutes (1973). He has of the U.S. Court of been published in the Albany Law Review, eyal benvenisti Appeals for the Ninth Circuit, and for Justice the Cardozo Law Review, the New York Law Eyal Benvenisti is Anny and Paul Yanow- John Paul Stevens of the U.S. Supreme Court. Journal and the Washington University Law icz Professor of Human Rights at Tel Aviv As an associate at Wilmer Cutler Pickering Quarterly, and has served five times as an University Faculty of Law. Benvenisti’s Hale and Dorr in Washington, D.C., she was issue coeditor of the New York State Bar teaching and research specialties include a key member of the appellate and Supreme Journal with New York State Chief Judge constitutional law, international law, Court litigation groups, and represented Judith S. Kaye ’62. human rights and administrative law. He death-row inmates in federal habeas corpus Looking back on the many cases he has was previously director of the Cegla Cen- litigation in her pro bono practice. While on judged over the years, Rosenblatt, a Har- ter for Interdisciplinary Research at Tel leave in 2004, Nathan worked as assistant vard Law graduate, says, “The ones I most Aviv University, Hersch Lauterpacht Pro- national counsel to the Kerry-Edwards pres- enjoyed writing up were those in which I fessor of International Law at the Hebrew

52 THE LAW SCHOOL faculty focus University of Jerusalem Faculty of Law and Wicked Legal Systems: South African Law crimination, affirmative action, antiterror, director of the Minerva Center for Human in the Perspective of Legal Philosophy (1991); family taxation, fertility and childcare, Rights. A former law clerk to Justice M. Ben- the editor of Recrafting the Rule of Law: environmental taxation, mandated bene- Porat of the Supreme Court of Israel, Ben- The Limits of Legal fits and labor economics. Margalioth holds venisti received his Order (1999) and an LL.B. from Hebrew University, and an legal training at the Law as Politics: Carl LL.M. in taxation and a J.S.D. from NYU Hebrew University Schmitt’s Critique School of Law. He has clerked for Justice of Jerusalem and of Liberalism (1998), Shoshana Nethanyahu of the Supreme Yale Law School. and a coeditor of Court of Israel; has served as deputy direc- He has been a vis- Law and Morality: tor of Harvard University’s International iting professor at Readings in Legal Tax Program, teaching Tax and Develop- leading law schools Philosophy (2007, ment; and has visited Northwestern Uni- in the United States, third edition). Dyzenhaus has taught in versity, teaching Tax Policy. and a visiting fellow at the Max Planck South Africa, England and Canada, and is Institute for Comparative Public Law a fellow of the Royal Society of Canada. ziba mir-hosseini and International Law in Heidelberg, Ziba Mir-Hosseini is an independent con- Germany. He has written or edited eight annette kur sultant, researcher and writer on Middle books, and published many articles in Annette Kur is a senior member of the Eastern issues, specializing in gender, fam- prominent journals. research staff and unit head at the Max ily relations, Islamic law and development. Planck Institute for Intellectual Prop- A senior research associate at the School sujit choudhry erty, Competition and Tax Law in Munich, of Oriental and African Studies’ London Sujit Choudhry holds the Scholl Chair and an associate professor at the Univer- Middle Eastern Institute at the Univer- and is associate dean at the University of sity of Stockholm. She serves as president sity of London, she Toronto’s Faculty of Law. His research and of the International Association for the obtained her Ph.D. teaching are focused on constitutional Advancement of Teaching and Research in in social anthro- theory and comparative constitutional law. Intellectual Property, and has advised the pology from the Choudhry has published more than 50 arti- American Law Institute’s project Intellec- University of Cam- cles, book chapters tual Property: Principles Governing Juris- bridge. She has held and reports, and is diction, Choice of numerous research currently writing a Law, and Judgments fellowships and book titled Rethink- in Transnational visiting professor- ing Comparative Disputes. Kur has ships. Mir-Hosseini’s publications include Constitutional Law. lectured on trade- the monographs Marriage on Trial: A Study The editor of Con- mark law, intellec- of Islamic Family Law in Iran and Morocco stitutional Design tual property law (2001, revised edition), Islam and Gender: for Divided Societ- and private interna- The Religious Debate in Contemporary Iran ies: Integration or Accommodation (2008) tional law at Munich (1999), and (with Richard Tapper) Islam and and The Migration of Constitutional Ideas University and the Munich Intellectual Democracy in Iran: Eshkevari and the Quest (2007) and coeditor of Dilemmas of Soli- Property Law Center. Kur is a member of for Reform (2006). She has also directed darity: Rethinking Redistribution in the the foreign faculty at Santa Clara Univer- (with Kim Longinotto) two award-winning Canadian Federation (2006), Choudhry sity and the author of books and numerous feature-length documentary films on con- is also the symposium editor of the Inter- articles in the fields of national, European temporary issues in Iran: Divorce Iranian national Journal of Constitutional Law. and international trademark, international Style (1998) and Runaway (2001). Extensively involved in public policy devel- jurisdiction, and unfair competition and opment, Choudhry has consulted for the industrial design law. tunde ogowewo United Nations Development Program, the A professor at King’s College London, Uni- World Bank Institute and the Royal Com- yoram margalioth versity of London, Tunde Ogowewo teaches mission on the Future of Health Care in Yoram Margalioth (LL.M. ’95, J.S.D. ’97), corporate finance Canada, among other organizations and a professor of law at Tel Aviv University, law, corporate gov- government entities. teaches tax, tax policy, welfare and eco- ernance and merg- nomic growth poli- ers and acquisitions david dyzenhaus cies, and supervises law, and is recog- A professor of law and philosophy as well as the Micro-business nized as a leading associate dean of Faculty of Law graduate and Economic Jus- expert on U.K. take- studies at the University of Toronto, David tice Clinical Pro- over law. Ogowewo Dyzenhaus previously taught at Queen’s gram. His areas of has written three University Faculty of Law. He is the author research include books and numerous articles, has been of Judging the Judges, Judging Ourselves: optimal tax and coeditor of the Journal of African Law, and Truth, Reconciliation and the Apartheid transfer systems, serves on the editorial boards of the Afri- Legal Order (1998), Legality and Legitimacy: international taxation, tax and develop- can Journal of International and Compara- Carl Schmitt, Hans Kelsen, and Hermann ment, economic growth, social security tive Law and the Securities Market Journal. Heller in Weimar (1997) and Hard Cases in and pension law, racial profiling, antidis- He has been cited in numerous legal cases.

AUTUMN 2008 53 faculty focus Ogowewo has consulted for the U.K. Prime the oldest German-language journal on of the Italian Association of Comparative Minister’s Strategy Unit, the Presidency commercial and corporate law. Schön has Law’s steering committee, and director or of Nigeria, the Queen’s Proctor and the delivered the David R. Tillinghast Lecture codirector of several publication series, Commonwealth Secretariat. In 2003 he on International Taxation at the NYU School Varano is also the director of the University cochaired an international conference of of Law and has been the Anton Philips Pro- of Florence’s Ph.D. program in compara- legal experts in association with the U.S. fessor at Tilburg University’s Center for tive law. He has been a visiting professor Department of Commerce, leading to the Company Law in the Netherlands. at institutions including Brooklyn Law adoption of the Model Law on Investment School, Cornell Law School, the European in Africa. Ogewewo belongs to the U.K.’s roger van den bergh University Institute and Northwestern Chartered Institute of Arbitrators. Roger Van den Bergh is the director of Eras- University School of Law. mus University Rotterdam’s Rotterdam sharon rabin-margalioth Institute of Law and Economics (RILE). armin von bogdandy Sharon Rabin-Margalioth (LL.M. ’96, J.S.D. Prior to his current Armin von Bogdandy is the director of the ’97), a top Israeli scholar in the areas of labor position as a profes- Max Planck Institute for Comparative Pub- and employment law, teaches at the Inter- sor of law and eco- lic Law and International Law and a profes- disciplinary Center’s Radzyner School of nomics at RILE, he sor of law at the University of Heidelberg, Law in Israel. In her scholarship, Rabin- held positions as an Germany. Von Bog- Margalioth has examined a wide range of associate professor dandy also teaches legal issues, including the decline of union- at the University of at the University of ization, employ- Antwerp and as a Frankfurt. Previ- ment class actions, professor at the Uni- ously, he taught at the growth of the versity of Hamburg and Utrecht University. the Humboldt Uni- contingent work- Van den Bergh has been a visiting professor versity in Berlin. force and the impli- at many universities. From 1987 until 2001 he After completing his cations of various was the president of the European Associa- studies in law at the antidiscrimination tion of Law and Economics. Since 2000 he University of Freiburg and philosophy at and accommoda- has been the coordinator of the European the Free University of Berlin, von Bogdandy tion mandates. Her Master in Law and Economics program. Van earned a doctorate in law from the Univer- articles are frequently cited by the Israeli den Bergh’s publications cover a wide range sity of Freiburg. In 2001, he was appointed Supreme Court and the National Labor of topics in law and economics. He has pub- to the bench of the OECD Nuclear Energy Court. Rabin-Margalioth, a former clerk to lished extensively in both books and leading Tribunal, Paris, and became its president in Justice Gabriel Bach of the Israeli Supreme journals on competition law and economics, 2006. Von Bogdandy served as a member of Court, earned an LL.B. from Hebrew Uni- European law and economics, tort law and the German Science Council from 2005 to versity, and an LL.M. and a J.S.D. from the insurance, and harmonization of laws. Van 2008, and is currently a member of the Sci- NYU School of Law. She is the coeditor of den Bergh is a member of the editorial board entific Committee of the European Union Labor, Society and Law, a leading employ- of several scientific journals, including the Agency for Fundamental Rights. ment law journal in Israel. Journal of Consumer Policy and the Review of Law & Economics. he xin wolfgang schön An assistant professor at the City Univer- Wolfgang Schön, managing director in the vincenzo varano sity of Hong Kong’s School of Law, He Xin Max Planck Institute for Intellectual Prop- A professor at the University of Florence earned his LL.B. and LL.M. from Peking erty, Competition and Tax Law’s Depart- Faculty of Law, where he was also a dean, University, and his J.S.M. and J.S.D. from ment of Accounting Vincenzo Varano is a prominent European Stanford Law School, and Tax and a pro- comparative lawyer. His main research where he was an fessor at Ludwig interests include comparative methodol- Asia-Pacific Scholar; Maximilians Univer- ogy and compara- he was also a Hauser sity of Munich, is an tive civil procedure, Research Scholar at expert in private law, and he has writ- the NYU School of trade and corporate ten extensively on Law. He has pub- law, accounting law the subject of civil lished widely in the and fiscal law. He is justice. Varano is fields of the Chinese chair of the German Law Professors’ Work- coauthor of Civil legal system and law and society. Most ing Group on Accounting Law as well as of Litigation in Com- recently his work has appeared in journals the German Tax Law Association’s Scientific parative Context such as the American Journal of Compara- Council; an international research fellow at (2007), and the editor of L’altra giustizia: tive Law (forthcoming), the China Quar- the University of Oxford’s Center for Busi- I metodi alternativi di soluzione delle con- terly, the International Journal of Law in ness Taxation; a member of the French Insti- troversie nel diritto comparato (2007) and Context, the International Journal of Law, tute for Tax Policy’s Scientific Committee as The Reforms of Civil Procedure in Compara- Policy and the Family (forthcoming) and well as the International Fiscal Association’s tive Perspective (2005). He has also written the Law & Society Review. His research Permanent Scientific Committee, and the dozens of articles in Italian and English. interests include legal enforcement, law managing editor of Zeitschrift für das gesa- A member of the editorial board of the and court, law in transition economies and mte Handelsrecht und Wirtschaftsrecht, Rivista di diritto civile, a former member property law.

54 THE LAW SCHOOL faculty focus the losing side in the larger battle for a Even if the Supreme Court decides in en- The Environment cleaner environment if they don’t adopt a vironmentalists’ favor in the Entergy case, new strategy outside the courtroom. it’s clear that now is the time for environ- and Economics History has proved that cost-benefit mentalists to drop their blanket rejection of analysis is not going away, even if envi- cost-benefit analysis. Without cost-benefit Aren’t at Odds ronmental groups manage to rack up a analysis, we are essentially regulating in the few legal victories here and there. In most dark, a bad idea when thousands of lives and richard l. revesz cases, cost-benefit analysis is required by billions of dollars might be at stake. This op-ed originally appeared June 10, 2008 Executive Orders that have been in place This summer, New York University on Forbes.com. Reprinted by permission of since 1981, with only minor modifications, School of Law is launching the Institute for Forbes.com. © 2008 Forbes.com. under both Democratic and Republican the Study of Regulation to reform cost-ben- administrations. Further, with the efit analysis and show that smart regulation as the presidential race con- country in the midst of an economic is economically justified. By showing that otinues t unfold, John McCain and slowdown, environmental groups even-handed economic analysis justifies Barack Obama have explained their and policymakers will find it difficult, strong environmental regulation—includ- positions on a range of environmen- if not impossible, to muster public sup- ing controls on greenhouse gases—envi- tal issues from climate change to drilling port for tough environmental standards ronmentalists can short-circuit industry in the Arctic National Wildlife Refuge, but if they can’t prove these policies make attacks and build a broad political coalition they have said little about one of the most economic sense. that favors a strong regulatory agenda. hotly contested questions in environmen- It’s easy to understand why most envi- With a new administration taking of- tal policy. ronmental groups and policymakers who fice in January 2009, environmental groups Should cost-benefit analysis play a role care about the environment have opposed will have an opportunity to participate in when creating environmental standards? cost-benefit analysis. In researching our the federal policymaking apparatus. For In a case the Supreme Court is slated book, my co-author Michael Livermore too long, they have allowed cost-benefit to hear just after the presidential election, and I spent three years studying how cost- analysis to be the tool of their enemy, and Entergy Corp. v. EPA, the New Orleans- benefit analysis has been based utility company is challenging a used—and abused—in envi- 2007 federal appeals court decision that ronmental law. We found that struck down a set of industry-friendly wa- the methodologies used to ter regulations adopted by the Bush Ad- count the costs and benefits of ministration. Power companies support environmental policies have these Clean Water Act rules because they been largely shaped by anti- do not require the installation of expensive regulatory academics and “closed cycle cooling” systems that would interest groups representing reduce the killing each year of billions of industrial polluters and are fish and other aquatic wildlife. In federal thus systematically biased court, environmental groups, along with against good regulation. six northeastern states, had successfully The problem is that envi- opposed the Environmental Protection ronmentalists have fought to Agency’s use of cost-benefit analysis to end, rather than mend, cost- justify the new regulations. benefit analysis and in the It’s a familiar dance, one in which I took process have lost valuable part back in 2001, when the Supreme Court opportunities for reform. considered similar questions in Whitman v. During the Clinton years, American Trucking Associations. In that case, I served on an Environmen- I wrote the amicus brief for the Environmen- tal Protection Agency advisory committee over time that tool has taken on the shape tal Defense Fund and dozens of other envi- that was helping to write the rules for how of its master’s hand. They will face the ronmental organizations, arguing that the cost-benefit analysis should be conducted. daunting challenge of convincing the next Clean Air Act prohibited the agency from I saw first-hand how effective industry president and Congress to take significant considering costs when setting key air qual- groups were at making their voices heard— steps to reduce greenhouse gas emissions. ity standards. and how environmental groups were ab- To do so, they must show the American As before, the challenge in the Entergy sent from these discussions. Reluctant to public that they are not zealots on a fool’s case will rest on arcane rules of statutory be seen as endorsing cost-benefit analysis, errand, but rather responsible voices work- construction—what exactly does the Clean they essentially boycotted the process and ing to address very real threats with real Water Act say, and what did Congress in- lost the ability to influence policy at a time economic consequences. tend when it passed this law in 1972? It may when there was a sympathetic ear in the well be that the Supreme Court decides in White House. Richard L. Revesz, dean of New York Univer- the environmentalists’ favor, as it did unan- The result: methodologies for conduct- sity School of Law, is the author, with Mi- imously in 2001, that cost-benefit analysis ing cost-benefit analysis that are inconsis- chael A. Livermore, of Retaking Rationality: cannot be used. tent with economic theory and empirical How Cost-Benefit Analysis Can Better Pro- But no matter what the Supreme Court evidence—and inherently biased against tect the Environment and Our Health, pub- rules in this case, these groups will be on regulation. lished in May by Oxford University Press.

AUTUMN 2008 55 faculty focus The basis of that orthodoxy, derived Faculty Scholarship from standard theories of fiscal federalism and urban economics, is straightforward: Local governments cannot successfully or efficiently redistribute wealth. That con­ clusion is predicated on a simple and com­ pelling premise. Residents and firms that bear the burden of local redistribution can too easily exit to neighboring jurisdictions that impose only benefit-based taxes of the sort that underwrite goods and services for taxpayers themselves. Residents who move Local Redistribution to escape redistributive taxes impose a greater redistributive burden on those who remain, inducing them to follow suit in a and Judicial Intervention continuing downward spiral. Redistribu­ Although municipalities, in theory, cannot effectively tive exactions, the theory goes, should be the exclusive domain of more centralized redistribute wealth, living wage ordinances are on the rise. jurisdictions—state and federal govern­ clayton gillette examines this theoretical and legal ments—from which taxpayers cannot eas­ ily exit without simultaneously giving up puzzle, and how and whether courts should get involved. jobs, friends or lifestyle. Orthodox theory predicts that localities that defy this logic will lose the interjurisdictional competi­ tion for residents and tax base. Although redistributive programs may assist either the relatively wealthy or the relatively poor, opponents of local redis­ tribution tend to focus on the latter. Lo­ cal redistribution to the wealthy receives a more mixed response, at least when it takes the form of business subsidies or tax expenditures (as opposed to openly regressive forms of taxation or the dispro­ portionate delivery of municipal services to the wealthy). These subsidies are typically justified as inducements for local economic development that will redound to the ben­ efit of all residents. Numerous studies ei­ ther contest these claims, or contend that benefits garnered by the attracting locality will be more than offset by losses to other localities from which firms emigrate. Standard theories of fiscal federalism are even less receptive to local redistribu­ tion for the poor, such as living-wage ordi­ nances. Again, the underlying theory is that local residents and firms can too easily es­ cape redistributive burdens by emigrating to localities that impose only benefit taxes. pproximately 130 municipal­ controversial. Some claim that the ordi­ Emigrants are likely to be the relatively ities nationwide have adopted nances distort locational decisions of firms wealthy, who bear a disproportionate share “living wage” ordinances that and retard the growth of employment, while of the redistributive burden and thus have require cities that enact them, others contend that the ordinances have had incentives to find alternative residence. As employers that do business little or no adverse impact on employment in they exit, the redistributive burden falls in­ A with those cities, or particu­ adopting cities. But perhaps even more puz­ creasingly on those who remain, heighten­ lar employers located in those cities to pay zling is the fact that these ordinances are pro­ ing incentives for them to emigrate as well. low-wage workers higher hourly rates than posed at all. Insofar as they are enacted by Nevertheless, contrary to both intuition would otherwise apply. These ordinances municipalities, they contravene the con­ and the orthodox theory of fiscal federalism, certainly have a positive effect on the income ventional wisdom that localities should play there are many instances of local redistri­ of low-wage workers. Their effect on employ­ little role in fulfilling the redistributive func­ bution. On reflection, this phenomenon ers and on the cities that adopt them is more tions of government. can be explained in a manner consistent

56 THE LAW SCHOOL faculty focus with the principle that decentralized gov­ local area decrease. Next Quigley suggests clustered within a small geographic area. ernment maximizes preference satisfac­ that diverse localities may be more produc­ Firms benefit from locating near profes­ tion by permitting like-minded individuals tive because the large labor pool they can sionals with whom they consult, such as to congregate in jurisdictions that offer a theoretically attract reduces the costs of their lawyers, bankers, and accountants, bundle of goods and services that a more matching labor and skills. and near other firms in the same business centralized jurisdiction might reject. That Finally, diverse localities may be better so that they can exchange ideas about is­ principle may have particular force where, able to achieve stability notwithstanding sues of common interest. as in the case of redistribution, the central fluctuations in the economy because some These agglomeration economies con­ government provides a baseline level of the firms and consumers may be thriving when strain the locational decisions of firms. good, but some individuals desire to fund others are not. Reductions in variability are There is at least some evidence that ag­ services in excess of that baseline. Thus, if likely to be correlated with the diversity of glomeration benefits dissipate rapidly be­ residents of one locality desire to have and economic activity, which itself depends on yond short geographical distances. Thus, pay for a higher level of redistributive ser­ diversity of the population. those who wish to take advantage of these vices than other localities, there seems to These productive effects are possible, benefits cannot readily migrate far from the be little basis for objection. however, only where the locality is able to cluster that generates them; instead, they Most benign explanations for local re­ attract residents who promote diversified must stay in a relatively concentrated geo­ distribution to the poor apply this basic use of public resources or who provide the graphic area, and it is unlikely that subur­ conception of heterogeneous preferences labor and consumption that allows real­ ban areas will be able to accommodate all to allow individuals to sort themselves into ization of the benefits of diversity. Thus, a related firms that wish to take advantage decentralized jurisdictions by preferences locality may attempt to attract low-wage in­ of these economies. Moreover, given the for redistribution, just as individuals sort dividuals who at first will need assistance benefits that networks of firms provide to themselves for the delivery of other local in assimilating into the local environment. their members, once a cluster has formed, public goods. But the strongest claim for lo­ The desirability of a low-income population no individual member has an incentive to cal redistribution does not rely on altruism. explains why cities that face declining pop­ depart except in the unlikely event of a si­ Instead, self-interest may motivate local res­ ulations have initiated programs to attract multaneous movement by large numbers of idents to support redistribution to the local immigrants who can reduce labor shortages other network participants. poor, at least where those programs can be and forestall the degradation of housing. But the same situational monopoly that justified in the same terms that support lo­ This optimistic story of benign redistri­ permits a locality to impose redistribu­ cal redistribution on behalf of the relatively bution threatens to collapse, however, once tive exactions for benign reasons without wealthy. Local economic growth may be we reintroduce the premises of the more fear that dissenters and free riders will correlated with socioeconomic diversity. If conventional theory of local redistribution. exit also reduces the ameliorative effects attracting a diverse population would pro­ If potential subsidizers can obtain many of against undesirable redistribution that ex­ vide an advantage in interjurisdictional the benefits of local redistribution while mi­ iting provides. Just as firms cannot obtain competition for residents and firms, then grating just outside the redistributive juris­ agglomeration benefits without paying be­ localities should be willing to make redis­ diction, then why would any but the most nign local redistributive taxes, so immobile tributive expenditures necessary to attract a altruistic remain? Hence, the risk of free rid­ residents are unable to avoid redistributive socioeconomically diverse population. ing may dampen implementation even of lo­ taxes imposed for objectives that serve The argument that socioeconomic diver­ cally beneficial redistributive programs. much narrower interests. A firm that enjoys sity increases municipal economic welfare Benign explanations for successful lo­ higher productivity because of its proxim­ flows from speculation that the value of hu­ cal redistribution, therefore, still require a ity to networks of competitors, suppliers man capital increases with the diversity of mechanism by which cities can either re­ and customers is unlikely to exit, even if it the population; thus, a locality that attracts strain residents from exiting or attract new believes that its tax payments are applied a socioeconomically heterogeneous popu­ residents who obtain sufficient benefits from to malign objectives, as long as the costs of lation is likely to be more productive than city residence to offset their personal redis­ being exploited are less than the agglom­ one that is homogeneous. In a summary of tributive burden. Cities will be better able eration benefits the firm receives. theoretical and empirical studies on this to implement benign redistribution, that is, In an ideal world, we would retain be­ issue, John Quigley attributes the relation­ if they can exploit some form of situational nign local redistribution and invalidate its ship between diversity and local economic monopoly that discourages residents from malign forms. But the various rationales for growth to five effects generated by socioeco­ departing and encourages potential new local redistribution, combined with the co­ nomic heterogeneity. First, different groups subsidizing residents to immigrate, not­ nundrum in which the same phenomena have different knowledge and knowledge withstanding redistributive taxes. explain the availability of both malign and spillovers may permit greater growth by This monopoly may take the form of benign distributive programs, reveal the increasing the variety of options that firms agglomeration economies—benefits real­ difficulty in classifying any given proposal can deploy to increase productivity. ized by proximity to other firms within the as either an effort to enhance local welfare Second, local economies thrive on the industry or related to the industry—that or as a sop to narrower political interests. capacity to realize economies of scale by cannot readily be duplicated in other ju­ Is the proposed living-wage ordinance supporting amenities that are susceptible risdictions. Geographical benefits, such as a signal of an enlightened community’s to multiple uses. Third, heterogeneity in­ proximity to a river or a necessary source sympathy for low-wage workers? Or is it creases productivity by permitting more material, obviously are not easily sub­ a concerted effort by local unions to in­ varied outputs for similar inputs. As the stitutable. But interaction among firms crease wages for more skilled workers or to different uses for the same inputs expand, within an industry or related industries enhance their ranks in ways that may ulti­ unit costs of obtaining them within the may be equally effective in retaining firms mately reduce local employment?

AUTUMN 2008 57 faculty focus One might conclude that resolution of Even if state courts possess the consti­ a more robust explanatory tool. The intu­ these difficult issues necessarily lies out­ tutional authority to safeguard the politi­ ition here, consistent with the literature on side the domain of legal doctrine. On re­ cal processes of local government against fiscal illusion, is that legislators who imple­ flection, however, neither the ballot box nor exploitation by interest groups, judicial ment a redistributive program from pub­ the market for residence is likely to provide capacity to fulfill this objective is by no licly interested motives expect that most sufficient controls on malign redistribution. means self-evident. Perhaps, however, subsidizers would acquiesce. Thus, legis­ Individual projects that confer benefits on courts could identify particular charac­ lators should tend to make the costs of the a small group are unlikely to be sufficiently teristics that systematically correlate with program transparent to signal fidelity to salient to the uninterested majority to gen­ malign local redistributive programs. To constituents’ preferences. Conversely, local erate a negative reaction at the polls. After the extent courts can do so, they would legislatures that deviate from constituents’ all, if the majority were, in fact, sufficiently have a basis for using those characteristics interests will raise constituents’ monitor­ agitated about a project, one might think to construe the scope of local authority to ing costs by obfuscating the expenditures. that some entrepreneur would have been enact the program. It is, therefore, worth Nevertheless, there is reason to be cau­ able to organize the opposition into a viable investigating some plausible proxies for re­ tious about equating on-budget expen­ political force to prevent its passage. This distributive legislation that fails to satisfy ditures with benign redistribution and means that projects that do not enjoy pop­ local preferences and thus is susceptible to off-budget expenditures with malign re­ ular support can proceed nonetheless, not judicial intervention. distribution. Those equations rest precari­ that the redistributive projects are an ac­ We might, for instance, presume that ously on the assumption that legislators curate expression of local will that warrants successful rent-seeking is present when balance the costs and benefits of on-budget deference from other political institutions. the redistribution that is being challenged expenditures but not of off-budget expen­ Moreover, no single project—even one of favors the relatively wealthy, but that the ditures. Officials who appropriate munici­ little benefit to the locality as a whole—is opposite conclusion should obtain where pal funds are spending the public’s money, likely to affect the local economy suffi­ redistribution favors the relatively poor. On not their own. There is little reason to be­ ciently to be the focal point of voter revolt the demand side, interest groups that favor lieve that officials who spend the public’s against incumbents who are otherwise the relatively wealthy may better be able to money have incentives to internalize the perceived as performing adequately. The bear the costs of organization and lobbying costs of their activities in the manner that market for residence, in turn, will be dis­ necessary to procure favorable legislation. residual owners decide how to invest the torted by the same agglomeration econo­ On the supply side, legislators may be more funds of their own firm. The constraint of mies that induce firms to remain within a desirous of currying support from groups maintaining broad-based political sup­ particular jurisdiction, notwithstanding that can provide funds necessary to sup­ port by operating an efficient budget can that each firm would prefer that all those port political campaigns. It might be ap­ be offset by the desire to maintain political within its network migrate to some alterna­ propriate, therefore, to begin by asking who support of particular groups by allocating tive jurisdiction. benefits from the proposed subsidy. funds in a manner consistent with their Courts that invalidate legislation they This simple dichotomy of the politically more limited interests. perceive as serving rent-seeking groups powerful wealthy and the politically disen­ Alternatively, group size may be thought may be seen as acting consistently with franchised poor, however, fails. Redistribu­ to correlate with benign or malign legisla­ admonitions by scholars that courts should tion to the wealthy does not tend to signify a tion. If burdens are imposed on a small resolve statutory ambiguities against inter­ political process failure, and redistribution group, there may be a presumption that est groups. But these scholars have focused to the poor does not necessarily signify a those bearing the costs were unable to cre­ primarily on judicial interpretation of fed­ working political market. Even when ben­ ate or join a majority coalition that could eral Congressional statutes. The state rela­ efits are concentrated and costs are diffuse, avoid exploitation. tionship between courts and legislatures redistribution to the wealthy may have pos­ But here, too, the issue is more compli­ may be different. This point is buttressed itive effects that would be impeded by ju­ cated than first impressions suggest. The by the presence in many state constitu­ dicial invalidation based on the economic group that bears redistributive costs may tions of provisions that have no federal status of the immediate beneficiaries. Simi­ be too small to have significant political constitutional analogue and that are best larly, the interests of the poor may be better effect. For instance, an amendment to the explained as reflecting a concern about the represented than a simple identification of living-wage ordinance in Berkeley, Cali­ redistributive tendencies that will emerge the poor with diffuse, disorganized groups fornia, extended coverage to employers of from unchecked state and local legislatures. would suggest. First, even if the relatively a certain size or that are located in certain The common theme among state constitu­ poor constitute a small percentage of the areas of the city. The recent Chicago living- tional provisions such as public-purpose voting electorate, they may still compose wage ordinance applied only to retailers requirements, limitations on credit, prohi­ an effective voting bloc if they commonly that occupy more than 90,000 square feet bitions on special legislation, gubernatorial vote their economic interests. Second, even and make more than $1 billion in annual line-item vetoes, prohibitions on unfunded if the poor cannot readily coalesce, they gross revenue. But small size may also fa­ mandates, and single-subject requirements may have surrogates within relatively pow­ cilitate the kind of communication and is that they all constrain the capacity of erful groups and whose interests coincide organization that underlies successful po­ state and local legislatures to enact rent- with those of the poor. litical action. Members of the burdened seeking laws. Their history reveals that they While we cannot presumptively equate group have incentives to identify and op­ were frequently enacted in response to, and redistribution to the wealthy with malign pose the proposal, to emphasize competing as safeguards against, legislative grants of expenditures or redistribution to the poor priorities and to serve as surrogates for oth­ governmental largesse that were perceived with benign, the transparency or salience ers adversely affected by the proposal but as serving narrow interests. of the redistributive payment may provide who have neither the information nor the

58 THE LAW SCHOOL faculty focus proposed expenditure fails to serve a “pub­ lic purpose” could overturn the compromise among municipal residents about proper ex­ penditures from the municipal budget. The story of local redistribution and its re­ lationship to judicial competence is complex. But it is worth understanding the sources of this complexity, since they reveal something about the proper role of a variety of actors in implementing government’s redistributive role. The proper functions of cities, courts and even private interest groups are impli­ cated in the lessons that emerge from living- wage ordinances and similar redistributive programs. The inherent difficulty of distin­ guishing between malign and benign redis­ tribution makes it difficult to emerge from this analysis without some level of agnosti­ cism or frustration. Concerns about the ef­ fects of judicial intervention may lead one to a more restrictive view about invalidating local redistributive programs. If I am correct that institutional constraints prevent courts from considering the global effects of invali­ dation, however, then selective intervention may actually increase the amount of ma­ lign legislation by moving decision making “See, Jimmy? If they give a big tax cut to the wealthy, those guys’ll about local activity to a forum (the state) feel good and have us come fix their roof and stuff.” more susceptible to capture by dominant interest groups, or may perversely alter the incentive to defend those interests. Under appear to reflect an effort to exploit those mix of benign and malign legislation in ways these circumstances, there is little reason without political voice. that disfavor local redistribution to the poor to believe that decision makers will be left Even if courts could identify proxies for in favor of local redistribution to the rich. Ul­ unaware of opportunity costs. malign local redistribution, it is unclear timately, perhaps even a desire to provide Local legislators may also avoid rigorous that courts should act on that recognition. some safeguard against distortions of the examination of costs and benefits, and thus Narrow judicial interpretation of the scope political process must yield to the possibility be more likely to enact malign legislation, of local autonomy to invalidate malign lo­ that cures by constrained institutions could where redistributive costs are imposed on cal redistributive programs does not nec­ only exacerbate the disease. nonresidents. The inability of nonresidents essarily foreclose malign redistribution. to influence local decisions that have sig­ Local redistributive programs constitute clayton gillette, Max E. Greenberg nificant external effects is frequently the part of a much larger redistributive puzzle. Professor of Contract Law, joined the fac- eserved. basis of claims that such decisions should When seen from a broader perspective, that ulty in 2000 from the University of Virginia R s t be made at more centralized levels of gov­ puzzle may satisfy overall social prefer­ School of Law, where he was Perre Bowen igh R ernment. For that same reason, the scope ences for redistribution, even though indi­ Professor of Law. Gillette’s scholarship ll A of local autonomy, even for home rule juris­ vidual pieces are inconsistent with those concentrates on commercial law and local c om. dictions, is typically constrained to an area preferences. Imagine, for instance, a com­ government law. He is the author of the k. n designated “municipal affairs.” munity that consists of the very wealthy casebooks Local Government Law (with ba n But it would be a mistake for courts to and the very poor, the budget of which in­ Lynn Baker) and Payment Systems and oo t

ar identify externalized costs with malign cludes redistributive allocations in the form Credit Instruments (with Alan Schwartz c redistribution. There may be legitimate of subsidies for an opera that is frequented and Robert Scott) and a textbook, Mu­ reasons to impose exactions in the form of primarily by the rich, support for a munici­ nicipal Debt Finance Law (with Robert eberfrom taxes or fees on nonresidents. The tourists pal golf course also frequented primarily by S. Amdursky). He has also served as the W t and commuters on whom these exactions the rich, subsidy of a municipal homeless reporter for the ABA Intersectional Task o R typically fall, after all, consume municipal shelter, and grants to small businesses in Force on Initiatives and Referenda and has ber 1999 services such as police and fire protection, low-income areas. This combination may consulted on cases ranging from the Agent n io but do not help defray their costs through represent an implicit bargain within the Orange products liability litigation to the ct the standard system of local property community about how to spend redistribu­ default on municipal bonds by Orange taxes. Thus, to the extent that the exactions tive dollars in order to ensure that different County, California. This excerpt is taken reflect the pro rata costs of the municipal groups (here, the rich and the poor) receive from “Local Redistribution, Living Wage services that tourists and commuters con­ pro rata shares of the budget. Invalidat­ Ordinances and Judicial Intervention,” sume, the fact that the those costs dispro­ ing expenditures on municipal funding published in the Spring 2007 issue of the

© The© New Yorker Colle portionately affect nonresidents does not of the golf course on the grounds that the Northwestern University Law Review.

AUTUMN 2008 59 faculty focus a rule stating that such state policies could not be enforced against the subsidiaries A Presumption of nationally chartered banks, because, under the National Bank Act, such banks were governed exclusively by OCC’s own Against Preemption much more lenient policy on predatory Sidestepping the debate over whether state law is efficient, lending. The Watters Court held that the OCC had exclusive power to regulate the roderick hills jr. analyzes the politics behind key lending practices of national banks’ sub­ preemption rulings and argues that the courts should sidiaries, largely on the strength of the argument that state regulation would sig­ remove themselves from the preemption business— nificantly impair national banks’ powers for the national good. to use subsidiaries. As the “bipartisan” dissent written by Justice Stevens (joined by Justice Scalia and Chief Justice Roberts) observed, the Court’s holding was a per­ plexing inference from congressional si­ lence: The National Banking Act provided that “[n]o national bank shall be subject to any visitorial powers except as autho­ rized by Federal law,” implying that state- chartered subsidiaries of national banks ought to be subject to state law. In short, the issue of preemption in Watters was up for grabs as a purely textual matter. This is the usual state of affairs; the Court re­ peatedly deals with this sort of ambiguity about preemption virtually every term. Most scholars and courts tend to think about this choice between state power and federal preemption as posing a conflict between the virtues of state diversity and federal uniformity. But this way of think­ ing about preemption overlooks one of the most important characteristics of state laws: Such laws tend to inspire Congress to address important but controversial is­ sues that Congress would prefer to ignore. Industries burdened by state regulation fre­ quently seek federal legislation to preempt the offending state laws. Their lobbying to be free from state law brings to Congress’s attention important issues that members of Congress would prefer to duck. In this way, even if state law is preempted in the end, it is a catalyst for federal action that might otherwise never occur. Giving Congress an incentive to take a he most burning issue of Given the open-ended language of most stand is a valuable virtue. Individual con­ federalism today is preemption. federal laws, either option is usually avail­ gresspersons’ votes reveal to their constitu­ State legislatures are making able. For a typical example of such statu­ ents their representatives’ priorities. These policy on issues ranging from tory ambiguity, consider the Court’s recent votes give ammunition to candidates chal­ predatory lending to green­ decision in Watters v. Wachovia Bank, 127 lenging incumbents. They mobilize vot­ T house gases. These are often S. Ct. 1559 (2007). Michigan (along with ers who might otherwise be mystified by issues on which Congress cannot enact leg­ several other states) had enacted statutes the banalities of TV ads. But such votes islation because of the pervasive gridlock prohibiting “predatory loans”—loans on tough issues are actually hard to come that afflicts the federal legislative process. with excessive fees, penalties on refi­ by. The reason is easy to guess: Incumbent Should courts presume that existing federal nancing, kickbacks to brokers for inflat­ congresspersons do not like taking politi­ legislation preempts these new state initia­ ing interest rates, unnecessary insurance, cal risks, and votes on controversial issues tives, or should they presume that federal or other signs of abuse of consumer ig­ are always risky because it is impossible to statutes leave room for states to try their norance. In response, the Office of the know for sure how constituents will react. hand at policymaking? Comptroller of the Currency (OCC) issued The electoral consequences of a vote depend

60 THE LAW SCHOOL faculty focus preemption for the sake of federal diversity. Repealing federal preemption, one would predict, is harder than enacting new pre­ emptive law. Therefore, if one wants to get the issue of preemption on Congress’s agenda, the safest bet is to interpret federal statutes, not to preempt state law. The courts’ decisions interpreting the Employee Retirement Security Act (ERISA) provide a good example of how preemp­ tion decisions can stifle or inspire con­ gressional debate. Enacted in 1974, ERISA regulates employers’ fiduciary duties un­ der the benefits plans that they provide to their employees. The statute contains a clause providing that “the provisions of [ERISA] shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan [cov­ ered by ERISA].” The apparent purpose of the law was to protect multistate employ­ ers from conflicting fiduciary duties in dif­ ferent states. There is not a shred of evidence in ERISA’s legislative history or text that Con­ “Sorry, but all my power’s been turned back to the states.” gress intended to protect third parties hired by employers from liability. Yet fed­ not only on public opinion but also on in­ jurisdiction can give industries an incen­ eral courts took the position in the early tangible factors such as the relative power of tive to seek federal laws preempting state 1980s that states could not impose liability different interests to mobilize their troops. regulation even when federal laws could on managed care organizations (MCOs) If given the choice, therefore, the average turn out to be relatively stringent. Of for failure to provide medically necessary incumbent congressperson would prefer course, interest groups opposing preemp­ services under an ERISA benefit plan, be­ to duck controversy by cutting ribbons at tion also have incentives to lobby Congress cause such liability “relate[d] to” such a federally funded pork-barrel projects and to reverse judicial decisions interpreting plan within the meaning of ERISA’s pre­ tracking down social security checks for federal law to wipe out state protections for emption clause. grateful elders. Bills that threaten to arouse consumers, the environment, employees As a matter of policy, ERISA’s preemp­ tion of MCO liability seems odd for several reasons. First, ERISA does not have any The average incumbent congressperson provisions that deal with managed care, would prefer to duck controversy by so preempting state-law liability will tend to create a regulatory black hole. Second, it cutting ribbons at federally funded pork- is unlikely that Congress ever intended to eserved. deregulate the managed care industry in s R t barrel projects and tracking down social this way. MCOs barely existed when ERISA igh

ll R was enacted, because most benefit plans security checks for grateful elders. during the 1970s reimbursed fees charged c om. A

k. for medical services. Immunity for MCOs, n

ba public controversy can quietly die in com­ and so forth. But these anti-preemption therefore, seems far from the original pur­ n

oo mittee, obviating a difficult floor vote. The groups tend not to value regulatory dis­ pose of ERISA, which was to ensure that t ar result is a dearth of specific and serious uniformity for its own sake: They simply employers would not be subject to con­ policymaking on Capitol Hill. want the toughest standard possible. By flicting state demands. Third, MCOs do not z from c Congressional incentives change im­ contrast, the interest groups favoring pre­ seem to be afflicted with any serious risk n

ore mediately if the states shift the status quo emption value regulatory uniformity for of regulatory confusion if they are sub­ ee L L

in ways that step on the toes of industries. its own sake, even if accepting uniformity ject to state laws: The choice-of-law rules Congressional silence then is tantamount means accepting a tougher standard. Thus, for medical malpractice are well defined n 1981 io to a decision to burden a specific group, say interests in regulatory uniformity and di­ and uniformly choose the law of the place ct the National Association of Manufacturers, versity are asymmetrically in favor of the where the medical service is performed with a heavy burden of multiple, possibly former. The result is that industry groups as the relevant legal standard. Finally, the conflicting, state regulations. The fear of can cooperate with public interest groups immunity from liability seemed to create being dragged into the most aggressive to preempt state laws for the sake of unifor­ perverse incentives: MCOs had nothing to state’s regulatory system by permissive mity, but public interest groups will not co­ lose by resolving all doubts about medical

© The New Yorker Colle doctrines of choice of law or personal operate with industry to eliminate federal necessity against patients who would have

AUTUMN 2008 61 faculty focus no right to recovery if they were injured or during the summer of 2000, when House incentives so much toward inaction? One killed by an MCO’s denial of service. and Senate conferees faced an intractable possibility would be for the courts to adopt Not surprisingly, members of Congress impasse over their different versions of the presumption that, absent clear indica­ made several attempts in the 1990s to cut patients’ rights. The decision immediately tions to the contrary, state law does not con­ back on ERISA preemption. These attempts transformed the political incentives of flict with the goals of federal law. Such a rule suggest that the courts’ attitude toward the managed care industry and Congress. would be roughly analogous to the doctrine ERISA preemption has a big effect on Con­ To plug the apparent hole in their ERISA of deference to administrative agencies’ gress’s willingness to confront the issue shield, the industry had to ask for specific interpretation of ambiguous federal stat­ of MCO liability. In the early 1990s, bills preemption protection from the 107th Con­ utes announced in Chevron v. National Re- to repeal ERISA immunity went nowhere. gress. Members who supported a right to sources Defense Council. Two purposes are Between 1992 and 1994, five bills were intro­ sue MCOs repeatedly brought Pegram to frequently invoked to justify Chevron. The duced but none made it out of committee. the attention of their colleagues. Perhaps doctrine is said to economize on judicial By contrast, between 1997 and 2001, there as a consequence, every major “patients’ resources and to ensure that democrati­ was a blizzard of bills reported out of com­ bill of rights” introduced in the summer cally accountable agencies supervised by mittee that cut back on ERISA preemption, of 2001 contained some sort of right to sue the president replace courts as the primary and some versions of these bills passed a MCOs along with limits on liability. interpreters of federal law. A presumption against preemption of state law serves simi­ lar functions. Such a rule is easy for courts Why did one set of proposals die an to apply: When in doubt, do not preempt. This would promote democratic account­ ignominious and obscure death in ability by encouraging Congress to take a stand on issues that individual members of committee, while the other provoked Congress would rather avoid. a full-fledged legislative battle? In short, one does not need to love fed­ eralism in order to hate preemption. Even if one distrusts state politicians, there is rea­ floor vote every year in either the House or In 2004, the U.S. Supreme Court put son to believe that they can break congres­ the Senate. The bills were all eventually de­ an end to this ambiguity about the scope sional gridlock that can be just as costly as feated, but only after massive public-rela­ of preemption. Aetna Health Inc. v. Da- state incompetence. Courts can help states tions efforts from the MCOs. vila held that ERISA preempted liability perform this function by refusing to find for Why did one set of proposals die an of MCOs administering ERISA-covered preemption absent clear evidence that state ignominious and obscure death in com­ benefits plans, thus preempting the Texas law announces policies that contradict pol­ mittee, while the other set provoked a Health Care Liability Act. Not surprisingly, icy judgments contained in federal statutes. full-fledged and highly visible legislative the stream of initiatives to address MCO Lacking such evidence, the courts would battle? One possible explanation is that liability ground to a halt. Although there be well advised to leave state law unpre­ the courts’ preemption doctrine changed are, no doubt, many reasons for the change empted, secure in the knowledge that con­ between 1995 and 2004. In particular, the in the congressional agenda, the Supreme gresspersons will have strong incentives to Third Circuit held in 1995 Dukes( v. U.S. Court’s ERISA preemption jurisprudence strengthen the statutes’ preemptive force if Healthcare Inc.) that employees could sue should be on the list: Davila already de­ this is the wish of their constituents. an MCO for the negligent treatment de­ livered preemption to the Health Benefits cisions of its physicians. Three 1997 deci­ Coalition, an industry lobbying group, suf­ roderick m. hills jr., William T. Comfort, sions by the U.S. Supreme Court seemed ficient to curb its appetite for further de­ III, Professor of Law, joined the faculty in to confirm Dukes. Between 1997 and 2004, bate on the question. Ironically, at least 2006 from the University of Michigan Law 14 states quickly exploited this new oppor­ two members of the Davila majority rec­ School. He teaches and writes in a variety tunity to impose liability on MCOs. Just as ognize that Davila’s view of ERISA is likely of public law areas—constitutional law quickly, Congress addressed the issue of not Congress’s view. Justices Ginsburg and (with an emphasis on doctrines govern- preemption, urged on by the managed care Breyer, concurring in Davila, stated that ing federalism), local government law, industry. Between 1997 and 2001, the Re­ Davila’s broad view of ERISA’s preemptive jurisdiction and conflicts of law, land-use publican leadership of the House and Sen­ force created a “regulatory vacuum” in regulation and education law. His interest ate repeatedly introduced various “patients’ which “[v]irtually all state law remedies are in these topics springs from their com- bills of rights” providing new remedies for preempted but very few federal substitutes mon focus on the problems and promise patients aggrieved by MCOs but also limit­ are provided.” This black hole of regulator of decentralization. He is working on a ing the scope of MCO liability. The pace of responsibility, however, might be the indi­ long-term project to describe the ways in proposed legislation quickened even fur­ rect result of the Court’s own preemption which federal regimes in the United States, ther after the Supreme Court’s apparent re­ jurisprudence: Having removed the prod Canada and Germany have decentralized treat on preemption in Pegram v. Herdrich, of state legislation, the Court also removed the definition of complex private rights 530 U.S. 211, 214 (2000), which seemed to Congress’s incentives to take up a conten­ to subnational governments as a way of assume that ERISA did not preempt what tious issue. The result is a policy that a ma­ managing cultural conflict. This excerpt is amounted to ordinary state malpractice jority of no legislature, state or federal, has taken from the article “Against Preemption: liability arising out of an MCO’s negligent ever approved. How Federalism Can Improve the National exercise of medical judgment in denying Could the Court design preemption Legislative Process,” published in the April plan coverage. Pegram was handed down rules that did not skew congressional 2007 NYU Law Review.

62 THE LAW SCHOOL faculty focus relationship between its regulation and state law tort claims; or by filing an amicus A Model for Products brief in a pending court case. Agencies sometimes argue that their regulations should preempt tort claims, and some­ Liability Preemption times argue otherwise. What is clear is that whichever direction the agency’s thinking catherine sharkey exposes the Supreme Court’s takes, the Court follows suit. reliance on agencies and proposes a framework for But the Court only rarely acknowledges its reliance on an agency’s position. And preemption jurisprudence. when it does, its discussion of precisely why, or the extent to which, it is relying on the agency’s views is often cryptic at best. The Court only intermittently explains in these cases whether it is employing Chevron’s mandatory deference to agencies standard or, instead, some lesser amount of deference. Consequently, it is difficult to understand where these cases fall in the body of admin­ istrative law as it is understood today. I propose a new “agency reference model” to fill the doctrinal gap. The model serves two functions: a lens through which we might better understand what the Court has been doing for the past 16 years in its product liability preemption cases, and a prescriptive approach for the cases that it, and lower courts, will face down the road. agency reference model Not surprisingly, the thorniest preemp­ tion cases arise where Congress has been silent as to the preemptive effect of its own legislation; where a statute it has issued says nothing—or else says contradictory things—about the relationship of that law reemption is the fiercest When the Court decides that a state law to state law claims. When Congress enacts battle in products liability litiga­ claim is preempted, it is deferring to a pre­ piecemeal legislation concerning specific tion today. The stakes are high in established federal regulatory policy and products, like the Motor Vehicle Safety Act, this collision between common ensuring that that policy will be uniformly it has been anything but clear. Typically, law tort and the modern admin­ applied across state lines. In contrast, a de­ these statutes include broad clauses that P istrative state. The regulation of cision to allow a state law claim to proceed expressly preempt any conflicting state public health and safety via tort actions falls usually means that other considerations requirement. Congress usually says that within the traditional purview of the states. outweigh the need for a uniform policy. state “requirements” or “standards” are In recent decades, however, the federal gov­ Is the Court the appropriate actor to de­ preempted, using language that has been ernment has played an increasingly signifi­ cide whether a uniform national regulatory read by some courts to include common law cant role in the regulation of products. policy makes sense? The Court might be the state tort actions. These broad preemption The Supreme Court’s products liabil­ first to say that it is not. clauses are coupled with very broad sav­ ity preemption jurisprudence is a small For a closer view of products liability ings clauses that purport to leave common but expanding area that traces its begin­ preemption cases reveals an unmistak­ law actions intact. The tall interpretive task nings to the early 1990s with Cipollone v. able pattern: In all but one case, the Court is left to courts and to agencies. Liggett Group, Inc., and continues, most has adopted the position of the relevant The agency reference model is an effort recently, through the 2008 decision of Rie- federal agency as to whether the plaintiff’s to clarify the relationship between these gel v. Medtronic. At first glance, the Court’s state law claims should be preempted by two actors, a relationship that is already preemption jurisprudence in this realm is that agency’s regulations. There are vari­ firmly entrenched but one that needs direc­ a nearly incoherent muddle. There appears ous ways in which a federal agency might tion and parameters, not only to provide co­ to be little rhyme or reason to the Court’s inform the Court of its position: via regu­ herence and predictability to the law in this decision to allow plaintiffs’ state law tort lations that are the outgrowth of formal area but also to guide courts to the optimal claims to proceed in some instances and to notice-and-comment rule-making pro­ result in preemption cases. bar them at the threshold, on the grounds cedures; or, more informally, in a pream­ Under this model, courts should look of preemptive federal legislation or federal ble to a regulation that it has issued; or in to agencies to supply the data and analy­ agency regulations, in others. an informal interpretive ruling as to the sis necessary to determine if preemption is

AUTUMN 2008 63 faculty focus appropriate; i.e., to determine when a uni­ form, national regulatory policy with re­ spect to a certain product makes sense, and if so, whether a plaintiff’s state law claims would conflict with that federal policy. This model acknowledges and exploits the fact that agencies are best equipped to provide the information central to this determination, as the Court apparently al­ ready recognizes. Agencies regularly collect empirical data about the products within their jurisdiction and analyze whether the products’ benefits outweigh the risks. And agencies are most intimately familiar with their own regulatory review processes. They themselves know best the extent to which a particular product was assessed before be­ ing put on the market. An agency’s role is significant for several reasons. First, there is a degree of regulatory scrutiny employed by the agency in its re­ view and approval of products. In addition, an agency often contemporaneously weighs in on factors that arguably determine the preemptive effect of its regulatory actions. Second, an agency may assume a dis­ tinct interpretive role as administrator of congressional legislation and can express its views in formal notice-and-comment “These medicines all taste pretty good—let’s approve them.” rule making or less formal interpretive statements and preambles. and approval process. While it is certainly “presumption against preemption” in areas Finally, an agency may share its views the case that an agency might manipu­ “traditionally occupied by the States” has in briefs before courts (including the Su­ late its regulatory record at the time of acquired preeminent status. preme Court) tasked with deciding pre­ its product review, that danger pales in To date, however, the Court’s applica­ emption questions. Reliance upon federal comparison to the risk of an agency’s post tion of the presumption has been haphaz­ agency interpretation at each of these hoc rationalization of its actions in litiga­ ard at best. The Medtronic v. Lohr Court, three levels (issuance of regulations re­ tion briefs, or promulgation of interpre­ for example, began its preemption analy­ garding preemptive scope; contempora­ tive rules and preambles. For this reason, sis with an invocation of the presumption: neous views interpreting regulatory action, the model incorporates various checks on “[B]ecause the States are independent sov­ and expressions of views in amicus briefs agency preemptive power. ereigns in our federal system, we have long before courts) is contentious—increas­ presumed that Congress does not cava­ ingly so, with the FDA’s move away from departure from the lierly pre-empt state-law causes of action.” eserved.

conventional approach s R formal regulations toward less formal in­ Paradoxically, the Court has applied the t terpretive positions. Previous interpretive approaches to the presumption when interpreting express igh An important aspect of the model is that, Court’s products liability preemption cases preemption provisions (as in Lohr), but ll R in those cases where the relevant agency has all but ignore the role of agencies, and focus not when called upon to engage in implied c om. A k. not filed an amicus brief or otherwise made entirely upon Congress and the courts. preemption analysis, where it would seem n ba its views known to the court before which more warranted given the absence of ex­ n oo a preemption issue is pending, it would re­ congressional intent press statutory language. And it is striking t ar quire that court to solicit the agency’s opin­ The conventional take on preemption that in the single implied preemption case ion as to whether its regulation preempts the frames the question theoretically as a pure in which the presumption is invoked (Buck- z from c t state law claim at bar. A court implementing matter of statutory interpretation based man Co. v. Plaintiffs’ Legal Committee), it is a this model would therefore have, at its dis­ upon congressional intent. But because for the purpose of disavowing it, given the y K arle posal, the maximum information from the Congress is so often silent, this approach primacy of the federal interest at stake. F source best equipped to provide it, before only goes so far, and it opens the door to a n 2008 making its own preemption decision. more functional approach, centered on is­ toward a functional approach io At the same time, the model acknowl­ sues of tort and regulatory policy. Failure on the part of the more formalist ct edges that there is good reason to be chary Given Congress’s track record in fail­ statutory canons to explain the case law of agencies acting in their interpretive, as ing to address squarely the question of makes way for a more functional approach. distinct from regulatory, capacity. Most ar­ preemption in the products liability realm, Inherent in the functional approach that I guments for agencies’ comparative exper­ interpretive canons should, at least in have devised is the complicated question of

tise speak to the rigor of the product review theory, take on added significance. The the role of tort law in our society, a question © The New Yorker Colle

64 THE LAW SCHOOL faculty focus that has at least two answers that are often regulation was “complex and extensive.” in policy preferences, or where a uniform in tension. Tort law exists to compensate The Court recognized that “the agency is policy of regulation is unworkable, as victims of wrongful conduct, and to provide likely to have a thorough understanding of shown in Sprietsma. There, plaintiff’s state them a mechanism to obtain redress for its own regulation… and is ‘uniquely qual­ law claims stemmed from injuries allegedly damages arising from a defendant’s negli­ ified’ to comprehend the likely impact of arising from a boat manufacturer’s failure gence or other wrongful acts. Tort law also state requirements.” to install proper propeller guards. The serves the purpose of regulation; by im­ The Court tracked the FDA’s pro-preemp­ Coast Guard weighed in to explain that, at posing liability in certain circumstances, tion position in Buckman and Riegel; and it the time it considered the issue, there was it establishes standards that potential de­ tracked the FDA’s anti-preemption position no workable prescriptive rule of general fendants can choose to abide by or, where in Lohr, the NHTSA’s anti-preemption posi­ applicability to all boats with respect to more efficient, to pay damages instead. tion in Freightliner Corp. v. Myrick and the propeller guards, due to great differences These “two faces of tort law” are, I posit, Coast Guard’s anti-preemption position in between boats. The Court used this infor­ at the core of the products liability preemp­ Sprietsma. Only in Bates v. Dow AgroSci- mation to conclude that individualized tion inquiry. The Court’s preemption deter­ ences LLC did the Court depart from the po­ tort suits made sense and that the claims minations track its view of the role of tort law sition asserted by the relevant agency (the should proceed. Because uniform federal in a particular case. Where the Court has EPA), and this was in large part on account regulation was unsuitable, local regulation focused on the compensatory role of torts, of the Court’s recognition that the EPA had in the form of tort claims was appropriate. it is less likely to find a plaintiff’s tort claim taken an antithetical view in a nearly identi­ preempted. When the Court has deemed cal case only five years before, without any regulatory review process paramount the regulatory role of tort law, it explanation of its change of heart. Agencies can inform courts about the de­ will find common law tort claims redundant Viewed through the lens of the agency tails of their regulatory review process. In of, and thus preempted by, federal regula­ reference model, these cases reveal that an Lohr, the FDA revealed that the medical tory legislation. A good example of the lat­ agency does not always advocate preemp­ device at issue had not been put to a rigor­ ter is Geier v. American Honda Motor Co., tion, as one might expect. The key point ous review, and, instead, the manufacturer where the Court, in preempting plaintiffs’ is that an agency, and not a court, is best had received a special “grandfathering” claims arising from a car manufacturer’s equipped to decide between the two, and dispensation, because its device was “sub­ failure to install air bags, characterized the courts would be remiss in not taking such stantially equivalent” to an existing device pro-plaintiff trial verdict as a “jury-imposed input into account. on the market. The FDA also explained safety standard.” In contrast, the Court, in that, at the time it issued its “substantial declining to preempt a plaintiff’s tort law normative model for equivalence” letter to the device manufac­ claim in Sprietsma v. Mercury Marine, made judicial decision making turer, “[t]he agency emphasized… that this a point of stating that common law claims Agencies are unquestionably a source to determination should not be construed as serve an important remedial function. which courts should turn before deciding an endorsement of the [device’s] safety.” The While this approach may be a helpful preemption cases in the products liability Court therefore concluded that plaintiff’s guide to understanding why the Court has context. They are best equipped to deter­ tort claims should proceed. In so holding, reached a particular result in a particular mine whether a particular product is best the Court essentially recognized that any case, it falls short as a normative prescrip­ regulated by means of a uniform federal federal regulation was actually incomplete, tion for cases yet to be decided, as it does policy, without potentially inconsistent and that tort claims would neither be re­ not explain when the compensatory role or results from state law claims, or whether dundant nor upend an otherwise intact and the regulatory role of tort law should have state or local regulation is desirable. They comprehensive regulatory policy. primacy in any particular case. can speak with intimate familiarity about their own review processes as concerns level of appropriate deference precedents viewed through a particular product. Armed with such The agency reference model does not insist agency reference approach information, a court can determine the upon a Chevron level of mandatory defer­ The agency reference model provides a feasibility of a federal regulatory policy, ence to agencies but instead on a Skidmore satisfying explanation for Supreme Court the rigor with which a product has been level of deference. Whereas Chevron re­ precedent in the products liability context. tested, and, in turn, the necessity of addi­ quires a court to defer to an agency’s in­ Beginning with Geier, the case in which it tional compensatory or regulatory relief terpretation of a statute where Congress was most candid about its reliance upon via tort suits. has been silent and agency interpretation agency expertise, the Court, holding that is based on a permissible construction of plaintiff’s claims were preempted, relied federal or local regulation? the statute, Skidmore holds that a court may upon the National Highway Traffic Safety Agencies can best determine whether fed­ defer to an agency’s position if it finds that Administration’s interpretation of the rele­ eral or local regulation is the wisest course position persuasive. vant regulation and upon its determination in the context of a particular product. Fac­ This lower level of deference acknowl­ that individual tort suits would interfere tors that tend to weigh in favor of federal edges the problems that might arise were a with its regulatory objectives. The Court regulation are the promotion of national court to be held captive by an agency’s posi­ expressly recognized that the agency had uniformity, solving coordination problems tion, and it is an effort to impose checks on the authority to implement that regulation between states that will otherwise export agencies’ power. Agency critics are quick to and, furthermore, that the subject mat­ their regulatory costs to their neighbors, point out that agencies have, at their helm, ter, i.e., the appropriate level of passive and the creation of economies of scale. human regulators who may have political restraints in automobiles, was a technical In contrast, state or local regulation is de­ motivations, self-aggrandizing agendas, one, and the history and background of the sirable where there are regional differences tunnel vision or an inability to keep pace

AUTUMN 2008 65 with an ever-changing world. A Skidmore Supreme Court), went so far as to say that At issue in Perry was whether a par­ level of deference would protect against given the presumption against preemption, ticular drug’s label should have indicated these potential issues. Moreover, this and the fact that the purpose of the FDCA a risk of cancer. The FDA’s Pediatric Advi­ weaker level of deference also takes into is to protect health and safety, it was virtu­ sory Subcommittee, as the FDA explained account the very real problem of preemp­ ally inconceivable that any state tort action in a letter to the court, had concluded that tion, in some instances, leaving a plain­ could be preempted. the available information was insufficient tiff without any remedy whatsoever, and At the other pole lie courts that, with­ to indicate whether the drug did cause can­ it gives courts leeway to avoid that result out reservation, grant Chevron deference cer, and the FDA took no position on the where appropriate. to the FDA’s “misbranding” pro-preemp­ issue. The Perry court found that, in the tion argument: that a manufacturer can absence of any specific FDA determination the model in action never unilaterally strengthen or alter a la­ about the link between the drug and cancer, To illustrate the model, I turn to two very bel warning, lest it risk being prosecuted plaintiffs’ state law failure-to-warn claims recent cases that have arisen in perhaps by the FDA for misbranding the drug. The should proceed. the most controversial area of preemption FDA has said (correctly, in my view) that In Dusek , the middle-course approach litigation today: prescription drug labeling. “State laws conflict with and stand as an resulted in preemption. There, the court These cases, Perry v. Novartis Pharmaceu- obstacle to achievement of the full objec­ evaluated plaintiff’s claim that Zoloft labels tical Corp. and Dusek v. Pfizer Inc., mark a tives and purposes of Federal law when should include a warning that the drug “can reasoned, middle-ground approach in an they purport to compel a firm to include and does cause suicide in some patients.” area where previous precedents have gravi­ in labeling or advertising a statement that But the FDA had, on at least four prior oc­ tated to extremes. FDA has considered and found scientifi­ casions between 1991 and 1997, considered The state law claims are those brought cally unsubstantiated.” But the FDA has such a warning and, each time, rejected it. by individuals harmed by allegedly dan­ (wrongly, in my view) maintained that state The court determined that plaintiffs’ claims gerous drugs against a drug manufacturer law claims should be preempted even when were accordingly preempted: “The Court for failure to provide adequate warnings on the FDA has not made a specific determina­ does not hold that FDA drug approvals in the pharmaceutical label. tion before the litigation as to the particular general preempt failure-to-warn claims. The federal statutory backdrop here is the risk at issue. In other words, the FDA’s pre­ The Court merely rules that permitting 1962 amendments to the Federal Food, Drug market new drug approval process would Plaintiffs’ claim would be authorizing judi­ and Cosmetic Act (FDCA), where Congress grant drug manufacturers immunity from cially what the FDA already has expressly required that drug manufacturers establish state common law tort actions (most often disallowed…. Plaintiffs’ failure-to-warn that their drugs are both safe and effective as failure-to-warn claims), even in situations claim is preempted because it is in direct, preconditions for FDA premarket approval. where new risks (of which the manufac­ actual conflict with federal law.” The statute expressly provides that noth­ turer was aware) come to light in the post- The extent to which the FDA had consid­ ing in the amendments “shall be construed approval period. ered and issued a conclusive determination as invalidating any provision of State law… as to the risk at issue in these cases was, ap­ unless there is a direct and positive conflict agency reference approach propriately, central to the courts’ approach. between such amendments and such provi­ Applied to the drug labeling context, the These cases are powerful endorsements of sion of State law.” The amendments do not agency reference approach would preempt the agency reference approach, perhaps in provide for a private right of action. state law failure-to-warn claims based no small part because their disparate hold­ A major question in these cases is upon a risk for which the FDA has made a ings show that the model is ultimately “pre­ whether the standards that the FDA pro­ specific determination. State law failure- emption neutral.” mulgates in the course of the drug approval to-warn claims would not be preempted context are minimal, or instead optimal, where the FDA has not made a specific de­ the road ahead safety standards. The FDA has recently ex­ termination about a particular risk at the Following on the heels of two products liabil­ pressed its views on preemption in amicus time the cause of action arises. That is, the ity preemption cases decided last Term (Rie- briefs and, most recently, in a preamble to a mere fact that the FDA has not required gel and Warner-Lambert Co. v. Kent), Wyeth 2006 prescription drug labeling rule: “FDA a warning on a product label would not, v. Levine is now pending before the Supreme believes that under existing preemption in and of itself, preempt failure-to-warn Court. The Court is well poised to fashion a principles, FDA approval of labeling under claims; the FDA would need to have taken new preemption framework. The agency ref­ the act… preempts conflicting or contrary some action and specifically rejected a pro­ erence model might provide a start. State law.” The FDA has justified its position posed warning, or reviewed evidence and in the interests of uniformity, expertise and chosen not to require a change, in order to catherine sharkey joined the NYU Law safety concerns. justify preemption. faculty in 2007 from Columbia Law School. This approach relies upon courts’ ability Her scholarship and teaching focus on torts two extreme positions and willingness to examine the FDA review and regulation; she uses torts and product Lower courts have gravitated towards op­ process and to evaluate the reasons that the liability as a lens through which to exam- posing poles of the preemption spectrum. At FDA proffers for its labeling decisions. ine the interplay between private law and one pole, courts have applied an extremely In Perry and Dusek, courts did just that. public law. She is an editor of the peer-re- broad “presumption against preemption” to Interestingly, despite employing a strik­ viewed Journal of Tort Law. This excerpt is allow state law claims to go forward with­ ingly similar approach, the Perry court taken from the article “Products Liability out any effort to ascertain the FDA’s views held that the state law claims were not pre­ Preemption: An Institutional Approach,” on the particular claims at hand. One case, empted, whereas the Dusek court found published in the April 2008 George Wash­ Levine v. Wyeth (now pending before the U.S. that they were. ington Law Review.

66 THE LAW SCHOOL faculty focus

Editor. Judaism and the Report to the U.N. Commit- Silberman, Linda Good Reads Challenges of Modern Life. tee on the Elimination of Civil Litigation in Compara- New York: Continuum, 2007 Racial Discrimination. New tive Context. St. Paul: Thom- (with Donniel Hartman). York: Human Right Watch; son/West, 2007 (with Oscar Center for Human Rights Chase, Helen Hershkoff, Hershkoff, Helen and Global Justice, New York Yasuhei Taniguchi, Vin- Civil Litigation in Com- University School of Law, cenzo Varano and Adrian parative Context. St. Paul: 2007 (with Stephanie Bar- Zuckerman). Thomson/West, 2007 (with bour, Jayne Huckerby, Tiasha Oscar Chase, Linda Silber- Palikovic and Jeena Shah). man, Yasuhei Taniguchi, chapters and Pildes, Richard supplements By the full-time faculty. Estlund, Cynthia Vincenzo Varano and The Law of Democracy: Le- Adler, Barry January 1, 2007 through Editor.Employment Law Adrian Zuckerman). gal Structure of the Political “Questionable Axiom of December 31, 2007. (Short Stories. New York: Founda- Holmes, Stephen Process. 3rd edition. New Butner v. United States,” pieces have been omitted.) tion Press, 2007 (with The Matador’s Cape: Ameri- York: Foundation Press, in Bankruptcy Law Stories. Samuel Estreicher and ca’s Reckless Response to Ter- 2007 (with Samuel Issacha- Robert K. Rasmussen, Gillian Lester). ror. New York: Cambridge books roff and Pamela S. Karlan). editor. New York: Founda- University Press, 2007. Adler, Barry Regulating Labour in the tion Press, 2007. Wake of Globalisation: Richards, David A. J. Cases, Problems, and Issacharoff, Samuel New Challenges, New Patriarchal Religion, Bar-Gill, Oren Materials on Bankruptcy. The Law of Democracy: Le- Institutions. Oxford: Sexuality, and Gender: A Consent and Exchange. 4th edition. New York: gal Structure of the Political Hart Publishing, 2007 Critique of New Natural Cambridge, MA: National Foundation Press, 2007 Process. 3rd edition. New (with Brian Bercusson). Law. New York: Cambridge Bureau of Economic Re- (with Douglas G. Baird and York: Foundation Press, University Press, 2007 (with search, 2007. NBER working Thomas H. Jackson). 2007 (with Pamela S. Karlan Estreicher, Samuel Nicholas Bamforth). paper no. 13267 (with and Richard Pildes). Allen, William T. Editor.Employment Law Lucian Bebchuk). Stories. New York: Founda- Schulhofer, Stephen Commentaries and Cases Narula, Smita tion Press, 2007 (with Criminal Law and Its Pro- Barkow, Rachel on the Law of Business Americans on Hold: Profil- Cynthia Estlund and cesses: Cases and Materials. “The Rise and Fall of the Organization. 2nd edition. ing, Citizenship and the Gillian Lester). 8th edition. Austin: Wolters Political Question Doc- Austin: Wolters Kluwer Law “War on Terror.” New York: Kluwer Law & Business/As- trine,” in The Political & Business/Aspen Publish- Global Issues in Employ- Human Right Watch; Center pen Publishers, 2007 (with Question Doctrine and the ers, 2007 (with Reinier ment Discrimination Law. for Human Rights and Sanford H. Kadish and Supreme Court of the United H. Kraakman and Guhan St. Paul: Thomson/West, Global Justice, New York Carol S. Steiker). States. Nada Mourtada- Subramanian). 2007. University School of Law, Sabbah and Bruce E. Cain, 2007 (with Jennifer Kim, Shaviro, Daniel Alston, Philip Labor Law: Cases, Materials editors. Lanham, MD: Naseem Kourosh, Jayne Taxes, Spending, and the International Human Rights and Problems. 6th edition. Lexington Books, 2007. U.S. Government’s March in Context: Law, Politics, Austin: Wolters Kluwer Law Huckerby and Kobi Leins). Toward Bankruptcy. New Morals: Text and Materials. & Business/Aspen Publish- Hidden Apartheid: Caste Dis- York: Cambridge University 3rd edition. Oxford: Oxford ers, 2007 (with Michael C. crimination against India’s Press, 2007. University Press, 2007 (with Harper and Joan Flynn). Untouchables. A Shadow Ryan Goodman and Henry Labor Law: Selected Statutes, Steiner). Forms, and Agreements. Report of the Special Rap- New York: Aspen Publish- porteur on Extrajudicial, ers, 2007 (with Michael C. Judaism and the Summary, or Arbitrary Ex- Harper and Joan Flynn). ecutions, to the UN Human Editor.Workplace Discrimi- Challenges of Modern Life Rights Council. U.N. Doc. nation, Privacy and Secu- A/HRC/4/20 (2007). rity in an Age of Terrorism: edited by moshe halbertal and donniel hartman Chase, Oscar Proceedings of the New York The Bible orders the destruction of the pagan Civil Litigation in Com- University 55th Annual Con- parative Context. St. Paul: ference on Labor. Alphen religions found in the land of Israel, because it Thomson/West, 2007 (with aan den Rijn: Kluwer Law does not allow for the existence of compet- Helen Hershkoff, Linda International, 2007 (with ing gods. For the adherents of monotheistic Silberman, Yasuhei Tanigu- Matthew Bodie). religions, it is not only important that the God that they chi, Vincenzo Varano and Fox, Eleanor represent be admired and worshipped; it is also important Adrian Zuckerman). Editor. Antitrust Stories. that he be the one and only God. The biblical God does not Civil Litigation in New New York: Foundation tolerate the worship of other gods alongside himself.... The internal York. 5th edition. Newark, Press, 2007 (with Daniel nexus between monotheism and exclusivity might lead to violence and NJ: LexisNexis Matthew A. Crane). intolerance. How do adherents of monotheistic faith confront the demand for Bender, 2007 (with Robert exclusivity, particularly when accompanied by the call for total war against its rivals? Gillette, Clayton A. Barker). This question became sharpened and exacerbated at the beginning of the present Payment Systems and Credit century, during which it seems possible that two monotheistic civilizations—Islam and Edwards, Harry T. Instruments. New York: Christianity—might stand against one another in a violent confrontation. Is it indeed Federal Courts—Standards Foundation Press, 2007 of Review: Appellate Court (with Robert E. Scott). correct to say that there is a connection between the structure of monotheism, and intol- Review of District Court De- erance and violence? Is there a place in which monotheistic religions could move on from Halbertal, Moshe cisions and Agency Actions. a clash of civilizations to a collaboration between civilizations? The negation of idolatry is Concealment and Revela- St. Paul: Thomson/West, the ultimate basis of Judaism. What is a possible approach of Judaism to tion: Esotericism in Jewish 2007 (with Linda Elliott). this painful and complex subject? Thought and Its Philosophi- From the chapter “Monotheism and Violence” by Moshe Halbertal. cal Implications. Princeton: Published by Continuum, 2007. Princeton University Press, 2007. AUTUMN 2008 67 Batchelder, Lily Dreyfuss, Rochelle “Rambling Through “Rethinking the Symbolic- Issacharoff, Samuel “Taxing Privilege More “Harmonization With- Economic Theory: Topco’s Instrumental Distinction: “A Cosmopolitan Judge Effectively: Replacing out Consensus: Critical Closer Look,” in Antitrust Meanings and Motives in for a Cosmopolitan Era: the Estate Tax with an In- Reflections on Drafting Stories. Eleanor Fox and American Capital Punish- An Essay in Honor of Carl heritance Tax.” 7 Hamilton a Substantive Patent Law Daniel A. Crane, editors. ment,” in Governance and Baudenbacher,” in Econom- Project Discussion Paper Treaty,” in Intellectual Prop- New York: Foundation Regulation in Social Life: ic Law and Justice in Times 1 (June 2007). erty, Trade and Develop- Press, 2007 (with Peter C. Essays in Honour of W. G. of Globalization: Festschrift ment: Strategies to Optimize Carstensen). Carson. Augustine Bran- for Carl Baudenbacher. M. Bell, Derrick Economic Development in a nigan and George Pavlich, Monti, N. Liechtenstein, B. Fox, Eleanor Foreword in After the Storm: TRIPS-Plus Era. Daniel Ger- editors. Abingdon, U.K.; Vesterdorf, J. Westbrook, L. “GE/Honeywell: The Black Intellectuals Explore vais, editor. Oxford: Oxford New York: Routledge- Wildhaber, editors. Bern: U.S. Merger that Europe the Meaning of Hurricane University Press, 2007 (with Cavendish, 2007. Stämpfli, 2007. Stopped—A Story of the Katrina. David Dante Jerome H. Reichman). Troutt, editor. New York: Politics of Convergence,” “Zu den Formen und “Supreme Court Preemp- The New Press, 2007. Intellectual Property in Antitrust Stories. Eleanor Funktionen der US-ameri- tion: The Contested Middle Cases and Materials on Fox and Daniel A. Crane, kanischen Todesstrafe,” Ground of Products Liabil- Foreword inRace, Law, and Trademark, Copyright and editors. New York: Founda- in Rationalitaten der ity,” in Federal Preemption: American Society: 1607 to Patent Law, 2007 Supple- tion Press, 2007. Gewalt. S. Krasmann and J. States’ Powers, National Present. Gloria J. Browne- ment. New York: Founda- Martschukat, editors. Biele- Interest. Richard A. Epstein “Industrial Policy and Marshall. New York: tion Press, 2007 (with feld: Transcript, 2007. and Michael S. Greve, Competition—Developing Routledge, 2007. Roberta Rosenthal Kwall). editors. Washington: AEI Countries As Victims and Gillers, Stephen Press, 2007 (with Catherine Choi, Stephen Estlund, Cynthia Users,” in International An- Regulation of Lawyers: Sharkey). “Contract as Statute,” in “The Story of NLRB v. Wash- titrust Law & Policy. Barry Statutes and Standards. Boilerplate: The Foundation ington Aluminum: Labor Hawk, editor. New York: Wolters Kluwer Law & Kumm, Mattias of Market Contracts. Omri Law as Employment Law,” Fordham Corporate Law Business/Aspen Publishers, “Political Liberalism and Ben-Shahar, editor. New in Employment Law Stories. Institute, 2007 (with Dennis 2007 (with Roy D. Simon). the Structure of Rights: On York: Cambridge University Cynthia Estlund, Samuel Davis). the Place and Limits of the Gillette, Clayton Press, 2007 (with G. Mitu Estreicher and Gillian Proportionality Require- “Monopolization and Domi- “Preapproved Boilerplate,” Gulati). Lester, editors. New York: ment,” in Law, Rights, nant Position: U.S. and E.U. in Boilerplate: The Founda- Securities Regulation Foundation Press, 2007. and Discourse: The Legal Views,” in Competition Law tion of Market Contracts. Statutory Supplement, 2007 Philosophy of Robert Alexy. “Working Together Under and Economics: Advances Omri Ben-Shahar, editor. edition. New York: Founda- S. Paulson and G. Pavlakos, Antidiscrimination Law: in Competition Policy and New York: Cambridge Uni- tion Press, 2007 (with A. editors. Oxford: Hart, 2007. Paradoxes and Possibili- Antitrust Enforcement. Abel versity Press, 2007. Pritchard). ties,” in NYU Selected Moreira Mateus and Teresa Marotta-Wurgler, Florencia Hershkoff, Helen Davis, Kevin Essays on Labor and Coelho Moreira, editors. Al- “‘Unfair’ Dispute Resolution 2007 Civil Procedure “La Demande de Bi- Employment Law, Vol. 3. phen aan den Rijn: Kluwer Clauses: Much Ado About Law International, 2007. Supplement: For Use with juristes Canadiens,” in Le G. Mitu Gulati and Michael Nothing?” in Boilerplate: All Pleading and Procedure Bijuridisme: Une Approche “World Competition Law— The Foundation of Market J. Yelnosky, editors. Alphen Casebooks. St. Paul: Thom- Économique. Albert Breton Conflicts, Convergence, Contracts. Omri Ben- aan den Rijn: Kluwer Law son/West, 2007 (with Jack and Michael J. Trebilcock, Cooperation,” in Competi- Shahar, editor. Cambridge International, 2007. Friedenthal, Arthur Miller editors. Paris: ESKA, 2007. tion Law Today: Concepts, University Press, 2007. Estreicher, Samuel and John Sexton). “The Role of Non-Profits Issues, and the Law in Miller, Arthur “Employment Arbitration. Practice. Vinod Dhall, Hertz, Randy in the Production of 2007 Civil Procedure Saturns for Rickshaws: Federal Habeas Corpus Boilerplate,” in Boiler- editor. New Delhi: Oxford Why Predispute Employ- Supplement: For Use plate: The Foundation of University Press, 2007. Practice and Procedure ment Arbitration Should Be with All Pleading and Market Contracts. Omri Supplement, 2007. Albany: Preserved,” in Handbook Garland, David Procedure Casebooks. Ben-Shahar, editor. New LexisNexis, 2007 (with on Employment Arbitra- “Death, Denial, Discourse: St. Paul: Thomson/West, York: Cambridge University James S. Liebman). tion and ADR. Thomas The Forms and Functions of 2007 (with Jack Friedenthal, Press, 2007. E. Carbonneau, Philip J. American Capital Punish- Hills, Roderick Jr. Helen Hershkoff and “What Can the Rule of Law McConnaughay and Crystal ment,” in Crime, Social “State Autonomy in John Sexton). Variable Tell Us About Rule L. Stryker, editors. Hunting- Control and Human Rights: Germany and the United Miller, Geoffrey P. of Law Reforms?” in Judi- ton, NY: JurisNet, 2007. From Moral Panics to States States,” in American Inter- cial Reform in India: Issues of Denial: Essays in Honour governmental Relations: “Selected Ethical Consid- “The Story of Gilmer v. and Aspects. Arnab Hazra of Stanley Cohen. Christine Foundations, Perspectives erations in Class Action Interstate/Johnson Lane and Bibek Debroy, editors. Chinkin, David Downes, and Issues. Laurence J. Practice,” in Class Action Corp.: The Emergence of New Delhi: Academic Paul Rock and Conor Gearty, O’Toole, editor. Washing- Litigation 2007: Prosecu- Employment Arbitration,” Foundation, 2007. editors. Cullompton, Devon, ton: CQ Press, 2007 (with tion & Defense Strategies. in Employment Law Stories. U.K.; Portland, OR: Willan Daniel Halberstam). New York: Practising Law Davis, Peggy Cooper Cynthia Estlund, Samuel Publishing, 2007. Institute, 2007. “Moore v. East Cleveland: Estreicher and Gillian Holmes, Stephen  Constructing the Suburban Lester, editors. New York: “High Crime Societies and “Making Sense of Liberal Narula, Smita Family,” in Family Law Foundation Press, 2007. Cultures of Control,” in Imperialism,” in J.S. Mill’s “Criminal Injustice: Impu- Kontrollkulturen: Texte Stories. Carol Sanger, edi- First, Harry Political Thought. Nadia nity for Communal Violence zur Kriminalpolitik im An- tor. New York: Foundation Antitrust: Statutes, Treaties, Urbinati and Alex Zakarias, in India,” in Human Rights, schluss an David Garland. Press, 2007. Regulations, Guidelines, editors. New York: Cam- Justice and Constitutional H. Hess, L. Ostermeier and Policies, 2007-2008. New bridge University Press, Empowerment. K. Chocka- B. Paul, editors. Hamburg: York: Foundation Press, 2007. lingam and C. Raj Kumar, Kriminologisches, 2007 2007 (with John J. Flynn editors. New York: Oxford (special issue of Kriminolo- and Darren Bush). University Press, 2007. gisches Journal).

68 THE LAW SCHOOL faculty focus

Revesz, Richard Stewart, Richard B. Amsterdam, Anthony G. Bell, Derrick “The Market Penalty for “Environmental Law,” Administrative Law 2007 “Opening Remarks: Race “A Prophesy for Effective Mutual Fund Scandals,” in Handbook of Law and Case Supplement. Austin: and the Death Penalty Schooling in an Uncaring 87 Boston University Law Economics. A. Mitchell Wolters Kluwer Law & Before and After McCleskey,” World,” 27 Boston College Review 1021 (2007) (with Polinsky and Steven Shavell, Business/Aspen Publish- 39 Columbia Human Rights Third World Law Journal 1 Marcel Kahan). editors. Amsterdam; ers, 2007 (with Stephen G. Law Review 34 (2007). (2007). “The Problems with London: Elsevier, 2007 Breyer, Cass R. Sunstein Arlen, Jennifer Choi, Stephen Analysts,” 59 Alabama Law (with Robert Stavins). and Adrian Vermeule). “Regulating Post-Bid “Do the Merits Matter Less Review 161 (2007). Environmental Law and “Instrument Choice,” in Embedded Defenses: After the Private Securities “Ranking Judges According Policy: Statutory and Regula- Oxford Handbook of Inter- Lessons from Oracle Litigation Reform Act?” 23 to Citation Bias (As a Means tory Supplement, 2007-2008. national Environmental versus PeopleSoft,” 12 Journal of Law, Economics, to Reduce Bias),” 82 Notre New York: Foundation Law. Daniel Bodansky and Harvard Negotiation & Organization 598 (2007). Dame Law Review 1279 Press, 2007. Junetta Brunee, editors. Law Review 71 (2007). (2007) (with G. Mitu Gulati). Oxford: Oxford University Satterthwaite, Margaret Press, 2007. “Migrant Women,” in International Migration “International Environ- Law: Developing Para- mental Protection and digms and Key Challenges. Regulatory Innovation,” Ryszard Cholewinski, Euan in Umweltrecht und Um- Fighting for the City: Macdonald and Richard weltwissenschaft. Martin Perruchoud, editors. The Führ, Rainer Wahl and A History of the Hague: T.M.C. Asser Press, Peter von Wilmowsky, 2007 (with Nicola Piper). editors. Berlin: Erich New York City “Torture by Proxy: Interna- Schmidt Verlag, 2007. tional and Domestic Law Waldron, Jeremy Corporation Counsel Applicable to ‘Extraordinary Foreword in The Story of Renditions,’” in The Imperial Cruel and Unusual. Colin william e. nelson Presidency and the Conse- Dayan. Cambridge, MA: quences of 9/11: Lawyers MIT Press, 2007. While New York City was growing, React to the Global War on America was democratizing. When they “Locke, Adam and Eve,” in Terrorism. James R. Silkenat rejected monarchy in the Declaration of Feminist Interpretations and Mark Shulman, editors. of John Locke. Nancy Independence, Americans forced themselves to invent a new form of Westport: Praeger, 2007. Hirschmann and Kirstie government, and slowly, over the half-century that followed, the nation as a whole, “Using Human Rights McClure, editors. Univer- and the city in particular, moved in the direction of government of the people, by the Law to Empower Migrant sity Park, PA: Penn State people, and for the people. Together with New York’s enormous growth, which fueled Domestic Workers in the University Press, 2007. the city’s demand for legal services, democracy transformed the job of the city’s legal Inter-American System,” in “Why Is Indigeneity Impor- advisor. Increasing legal needs tended to professionalize the office, while democracy New Perspectives on Gender tant?” in Reparations: Inter- tended to politicize it. and Migration: Livelihood, disciplinary Inquiries. Jon By the time he assumed the office of Recorder in1798 , Richard Harison, the last Rights and Entitlements. Miller and Rahul Kumar, man to serve the city simultaneously both as Recorder and as lawyer to the corpora- Nicola Piper, editor. Lon- editors. Oxford: Oxford tion, found that he could not personally perform all the tasks of the office…. Accord- don: Routledge, 2007. University Press, 2007. ingly it became necessary to employ additional outside counsel as assistants. The Sexton, John Common Council authorized Harison to do so, but the authorization raised a problem. 2007 Civil Procedure articles Traditionally, the Recorder had been compensated by fees provided to all judges and Supplement: For Use with lawyers under a state fee schedule…. Other work, such as advising the council or All Pleading and Procedure Adler, Amy drafting legislation for it, had been provided for free. As Harison’s work increased and Casebooks. St. Paul: Thom- “All Porn All the Time,” he needed to hire others to substitute for him, he faced an impossible choice: either 31 New York University son/West, 2007 (with Jack he had to pay other lawyers to do the work for which he received no compensation or Friedenthal, Helen Hersh- Journal of Law and Social Change 695 (2007). he had to give them the fees for compensated work and perform all the uncompen- koff and Arthur Miller). sated labor by himself. In the end, he avoided having to choose by asking the Com- “Symptomatic Cases: Hyste- Sharkey, Catherine mon Council to pay him for the work previous Recorders had done without pay, and ria in the Supreme Court’s the council agreed to give him a $500 annual retainer. “Supreme Court Preemp- Nude Dancing Decisions,” The retainer and the authorization to employ assistant counsel altered the tion: The Contested Middle 64 American Imago 297 Ground of Products Liabil- (2007). character of Harison’s position. When the office of Recorder had first been cre- ity,” in Federal Preemption: ated in the seventeenth century, everyone knew that the man whom the Governor States’ Powers, National Alston, Philip appointed to fill it necessarily would serve as a judge on the city’s court and as the Interest. Richard A. Epstein “Non-State Actors and city’s legal counsel. That was what English Recorders always had done, and what and Michael S. Greve, Human Rights,” 77 they always had done defined the office. But now the Common Council, the city’s editors. Washington: The British Year Book of elected legislative body, exerted its local, popular power by appointing counsel of AEI Press, 2007 (with International Law 419 its own choice. Harison or lawyers substituting for him would now act as attorneys Samuel Issacharoff). (2007). for the city not because the Governor had appointed them Recorder but, at least Silberman, Linda “Remarks on Professor in part, because the Common Council had created a mechanism for retaining and Civil Procedure: Theory B.S. Chimni’s ‘A Just World compensating lawyers to represent it. And those lawyers would be responsible and Practice. 2007-2008 Under Law: A View from not only to the Governor and to centuries of customary law, but to the the South,’” 22 American Supplement. Austin: Wolt- electorate of New York City. ers Kluwer Law & Business/ University International Law Review 221 (2007). Published by the New York Law Journal with the New York City Law Aspen Publishers, 2007 Department and the Mayor’s Fund to Advance New York City, 2008. (with Allan R. Stein and Tobias Barrington Wolff). AUTUMN 2008 69 Davis, Kevin Britain and India in the Estlund, Cynthia ”The Ossification of “Las Contradicciones de la “Taking the Measure of Nineteenth and Early “Between Rights and Con- American Labor Law Sociedad Punitiva,” 15(22) Law: The Case of the Doing Twentieth Centuries,” 82 tract: Arbitration Agree- and the Decline of Self- Delito y Sociedad Año 93 Business Project,” 32 Law Chicago-Kent Law Review ments and Non-Compete Governance in the Work- (2007). & Social Inquiry 1095 (2007) 1243 (2007). Covenants as a Hybrid place,” 28 Journal of Labor “The Peculiar Forms of (with Michael Kruse). Form of Employment Law,” Research 591 (2007). “Diversifying Without American Capital Punish- 155 University of Pennsylva- Dorsen, Norman Discriminating: Comply- “Something Old, Something ment,” 74 Social Research nia Law Review 379 (2007). “Reflections on In Re Gault,” ing with the Mandates of New: Governing the Work- 435 (2007). the TRIPS Agreement,” 13 “Free Speech Rights at Work: place by Contract Again,” 28 60 Rutgers Law Review 1 “Race and the Penal State,” Michigan Telecommunica- From the First Amendment Comparative Labor Law & (2007). 6 Contexts: Understand- tions and Technology Law to Due Process,” 54 UCLA Policy Journal 351 (2007).  ing People in Their Social ”The Supreme Court of Review 445 (2007) (with Law Review 1463 (2007). Estreicher, Samuel Worlds 62 (2007). Japan,” 5 International Graeme B. Dinwoodie). “Harmonizing Work and “The Non-Preferment Journal of Constitutional Gillers, Stephen Law 294 (2007). “Harmonization With- Citizenship: A Due Process Principle and the ‘Racial “Eat Your Spinach?” 51 Saint out Consensus: Critical Solution to a First Amend- Tiebreaker’ Cases,” 2007 Dreyfuss, Rochelle Louis University Law Jour- Reflections on Drafting ment Problem,” 2006 Cato Supreme Court Review nal 1215 (2007). “Creative Lawmaking: A a Substantive Patent Law Supreme Court Review 115 239 (2007). Comment on Lionel Bently, Treaty,” 57 Duke Law Jour- “A Tendency to Deprave and (2007). “The Shift from Defined Copyright, Translations, nal 85 (2007) (with Jerome Corrupt: The Transforma- Benefit Plans to Defined and Relations Between H. Reichman). tion of American Obscenity Contribution Plans,” 11 Law from Hicklin to Ulysses Lewis & Clark Law Review II,” 85 Washington Univer- 331 (2007) (with Laurence Gold). sity Law Review 215 (2007). “Twenty Years of Legal Eth- First, Harry ics: Past, Present, and Fu- “Controlling the Intellectual Retaking Rationality: ture,” 20 Georgetown Jour- Property Grab: Protect In- nal of Legal Ethics 321 (2007) novation, Not Innovators,” (with Lauren Weeman and How Cost-Benefit 38 Rutgers Law Journal 365 Milton C. Regan Jr.). (2007). Analysis Can Better Gillette, Clayton Fox, Eleanor “Local Redistribution, Liv- “Economic Development, ing Wage Ordinances, and Protect the Environment Poverty and Antitrust: The Judicial Intervention,” 101 Other Path,” 13 Southwest- Northwestern University ern Journal of Law and and Our Health Law Review 1057 (2007). Trade in the Americas 211 richard l. revesz and michael a. livermore (2007). Guggenheim, Martin Franck, Thomas M. “A Law Guardian By Any Progressive groups have had many important successes in challenging Other Name: A Critique of “Individual Criminal Li- the status quo by framing their arguments in terms of individual rights. the Report of the Matrimo- ability and Collective Civil The civil rights movement provided the template for other important nial Commission,” 27 Pace Responsibility: Do They Re- Law Review 785 (2007). social justice movements like the women’s and gay rights movements, inforce or Contradict One and the environmental justice movement. There are important tactical advantages to Another?” 6 Washington “Parental Rights in Child arguing in terms of rights—perhaps most important, for these groups, has been ac- University Global Studies Welfare Cases in New York cess to the courts as a lever of power to move their agendas. Rights-based arguments Law Review 567 (2007). City Family Courts,” 40 Co- are also professionally attractive to the cadre of lawyers that staff many proregula- lumbia Journal of Law and “Tribute to Louis B. Sohn,” Social Problems 507 (2007). tory groups. And the rhetoric of rights resounds strongly within the American public. 48 Harvard International Because cost-benefit analysis argues in terms of aggregate welfare, rather than indi- Law Journal 23 (2007). Hershkoff, Helen vidual rights, it is unfamiliar to many progressive organizations. That does not mean, “United States. Hamdan “Poverty Law and Civil however, that it is ineffective. v. Rumsfeld: Presidential Procedure: Rethinking The same story can be told in many ways. In order to reach as broad an Power in Wartime,” 5 Inter- the First-Year Course,” 34 audience as possible, proregulatory groups must be able to tell their stories so national Journal of Consti- Fordham Urban Law that every sector of American society can hear them. Environmental, consumer, tutional Law 380 (2007). Journal 1325 (2007). and labor organizations know how to tell compelling narratives of the consequences  Hills, Roderick Jr. of governmental failure—the children with asthma, the young father crushed in an “When Nations Collide, Why Must Law Be Silent?” 19 “Against Preemption: How industrial accident. These stories are important and should be told. They galvanize Peace Review 227 (2007). Federalism Can Improve public support, and speak to our essential humanity by calling on our compassion the National Legislative Friedman, Barry for the troubles of our fellow human beings. But such narratives can lose their power Process,” 82 New York Uni- in judicial or regulatory proceedings—in the eyes of judges or regulatory agencies, “Popular Dissatisfaction versity Law Review 1 (2007). these are soft and unscientific, mere anecdotes that lack concrete, quantifiable with the Administration meaning. And there are many Americans who require not only individual stories, of Justice: A Retrospective Hulsebosch, Daniel but hard numbers to convince them that regulation is justified. It is in these contexts (and a Look Ahead),” 82 “Somerset’s Case at the Bar: that proregulatory groups can reach for cost-benefit analysis. The heart of any Indiana Law Journal 1193 Securing the ‘Pure Air’ of (2007). English Jurisdiction Within movement may be individual stories of hardship and struggle, of injustice and the British Empire,” 2 Texas Garland, David redemption. But at some point, reason—coolly calculating, rational, disinterested— Wesleyan Law Review 699 must be applied. Proregulatory groups need not lose their souls in “Adaptations Politiques et (2007). order to embrace cost-benefit analysis. They only need to Culturelles des Sociétés be reminded that reason is often on their side as well. à Forte Criminalité,” 31(4) Published by Oxford University Press, 2008. Déviance et Société 387 (2007). 70 THE LAW SCHOOL faculty focus

Issacharoff, Samuel Law, Sylvia A. “Fragile Democracies,” 120 “Who Gets to Interpret the Patriarchal Religion, Harvard Law Review 1405 Constitution? The Case (2007). of Mayors and Marriage Sexuality, and Gender: “The Law of Politics: Equality,” 3 Stanford Jour- Concluding Remarks by nal of Civil Rights & Civil Professor Issacharoff,” 95 Liberties 1 (2007). A Critique of New Georgetown Law Journal Marotta-Wurgler, Florencia 1369 (2007). “What’s in a Standard Form Natural Law Contract? An Empirical “Protected from Politics: nicholas c. bamforth and Diminishing Margins of Analysis of Software david a. j. richards Electoral Competition in License Agreements,” 4 U.S. Congressional Elec- Journal of Empirical Legal [W]hat motivates the new natural law- tions,” 68 Ohio State Law Studies 677 (2007). Journal 1121 (2007) (with yers’ [quite bad normative] arguments? Miller, Geoffrey P. Jonathan Nagler). We offer... a historical, cultural, and psycho- “Do Juries Add Value? logical study of the impact of patriarchal assumptions  “Regulating After the Fact,” Evidence from an Empirical on the formation, development, and continuing existence of the Catholic 56 DePaul Law Review 375 Study of Jury Trial Waiver Church’s traditionalist views concerning sexuality and gender. We consider how (2007). Clauses in Large Corporate such patriarchal views arose in the works of Saint Augustine and Saint Thomas and Contracts,” 4 Journal of Jacobs, James B. Empirical Legal Studies 539 on this basis evaluate the motivations that led the new natural lawyers to defend “Administrative Criminal (2007). such views today in the way that they do. We argue that whatever may once have Law & Procedure in the been a reasonable basis for such views, they are today demonstrably unappealing in  Teamsters Union: What “The Flight from Arbitra- substantive moral terms. If this analysis is correct, then the new natural lawyers’ ar- tion: An Empirical Study Has Been Achieved After guments about important questions of individual liberty and public and private mo- of Ex Ante Arbitration (Nearly) Twenty Years,” 28 rality—relating to marriage, the role of women, lesbian and gay sexuality, pregnancy, Berkeley Journal of Employ- Clauses in the Contracts of contraception, and abortion—can be seen as playing a role in unjust contemporary ment and Labor Law 429 Publicly-Held Companies,” (2007) (with Dimitri D. 56 DePaul Law Review rationalizations of constitutional and moral evils such as sexism and homophobia. In Portnoi). 335 (2007) (with Theodore many ways, these points go to the heart of our critique: for we suggest that the new Eisenberg). natural lawyers’ argument will strike anyone with a concern for individual liberty as “Ban the Box to Promote being morally unappealing (indeed, radically so) and as unintelligible without a prior Ex-Offender Employment,” Morawetz, Nancy commitment of a sectarian religious nature. The new natural lawyers’ underlying 6 Criminology & Public “Back to Back to the Future? motivation is to defend the authority of a patriarchal Church, with a rigid and un- Policy 755 (2007) (with Lessons Learned from Jessica S. Henry). Litigation Over the 1996 changing set of doctrines, against reasonable internal criticism from other Catholic thinkers and reasonable external criticisms from society at large. The legitimacy “Finding Alternatives to the Restrictions on Judicial problem currently posed by patriarchal Papal authority is, we argue, well illustrated Carceral State,” 74 Social Review,” 51 New York Law Research 695 (2007). School Law Review 113 by the Catholic Church’s inadequate response to the recent priest abuse scandal in (2007). the United States. Viewed in this light, new natural law must ultimately be seen as a “Introduction: What and “Citizenship and the Courts,” defense of anachronistic patriarchal religion, a key reason for thinking How We Punish,” 74 Social that the theory’s arguments cannot be acceptable in modern-day Research 349 (2007). 2007 University of Chicago Legal Forum 447 (2007). [secular] constitutional democracies. “Monitors & IPSIGS: Emer- Published by Cambridge University Press, 2007. gence of a New Criminal “The Invisible Border: Justice Role,” 43 (2) Crimi- Restrictions on Short-Term Travel by Noncitizens,” 21 nal Law Bulletin 217 (2007). Pildes, Richard Satterthwaite, Margaret “In Defense of Requiring Georgetown Immigration “The Decline of Legally “Rendered Meaningless: Ex- Back-Flips,” 26 Virginia Kahan, Marcel Law Journal 201 (2007). traordinary Rendition and “Hedge Funds in Corporate Mandated Minority Rep- Tax Review 815 (2007). the Rule of Law,” 75 George Governance and Corporate Murphy, Liam resentation,” 68 Ohio State “Why Worldwide Welfare Washington Law Review Control,” 155 University of “Razian Concepts,” 6 Law Journal 1139 (2007). as a Normative Standard 1333 (2007). Pennsylvania Law Review American Philosophical in U.S. Tax Policy?” 60 Tax Association Newsletter on Revesz, Richard 1021 (2007) (with Edward Sharkey, Catherine Law Review 155 (2007). Philosophy and Law 27 “Grandfathering and B. Rock). “Federalism in Action: FDA (2007). Environmental Regulation: Wyman, Katrina Regulatory Preemption in “The Market Penalty for The Law and Economics “Is Formalism Inevitable?” Pharmaceutical Cases in Mutual Fund Scandals,” Neuborne, Burt of New Source Review,” 101 57 University of Toronto Law State versus Federal Courts,” 87 Boston University Law “Campaign Finance and Northwestern University Journal 685 (2007). Review 1021 (2007) (with Political Gerrymandering Law Review 1677 (2007) 15 Brooklyn Journal of Law “The Measure of Just Com- Stephen Choi). Decisions in the October (with Jonathan Nash). & Policy 1013 (2007). pensation,” 41 U. C. Davis 2005 Term,” 22 Touro Law “Preemption by Preamble: Kornhauser, Lewis Rodríguez, Cristina Law Review 239 (2007). Review 939 (2007). Federal Agencies and the “Comparisons of the Incen- “Guest Workers and Inte- Federalization of Tort Law,” Zimmerman, Diane tive for Insolvency under “Hommage à Louis Favoreu,” gration: Toward a Theory 56 DePaul Law Review 227 “Can Our Culture Be Saved? Different Legal Regimes,” 36 5 International Journal of What Immigrants and (2007). The Future of Digital Ar- Journal of Legal Studies 141 of Constitutional Law 17 Americans Owe One (2007). chiving,” 91 Minnesota Law (2007) (with Elizabeth Klee). Another,” 2007 University Shaviro, Daniel Review 989 (2007). “Introduction of Justice of Chicago Legal Forum 219 “Beyond the Pro- Ruth Bader Ginsburg,” 95 (2007). Consumption Tax “Living Without Copyright Consensus,” 60 Stanford in a Digital World,” 70 California Law Review 2213 Rosenbloom, H. David Law Review 745 (2007). Albany Law Review 1375 (2007). “Cross-Border Arbitrage: (2007). The Good, the Bad and the

Ugly,” 85(3) Taxes 115 (2007).

AUTUMN 2008 71

miscellaneous “Standards for Judicial Murphy, Liam “Political Avoidance, Con- Engage: The Journal of the Review of Arbitration Book Review. “Liberty, Des- stitutional Theory, and the Federalist Society Practice Amsterdam, Anthony Awards,” New York Law ert and the Market: A Philo- VRA,” 117 Yale Law Journal Groups 4 (October 2007). “Verbatim: Lady Justice’s Journal, July 12, 2007 sophical Study by Serena Pocket Part 148 (2007). Blindfold Has Been Waldron, Jeremy (with Steven C. Bennett). Olsaretti,” 23 Economics Shredded,” Champion 51 “What Kind of Right is the Book Review. “Is This Tor- and Philosophy 125 (2007). (May 2007). Garland, David ‘Right to Vote’?” 93 Vir- ture Necessary? Less Safe, “Moral Panics: Then and “Contract and Promise,” 120 ginia Law Review In Brief Less Free: Why America Is Batchelder, Lily Now,” British Academy Harvard Law Review Forum 43 (2007). Losing the War on Terror by “Reforming Tax Incentives 10 (2007). Review, Issue 10, p. 4 (2007). Rodríguez, Cristina David Cole and Jules Lobel,” Into Uniform Refundable 54(16) New York Review of Gillers, Stephen Nagel, Thomas “E Pluribus Unum: Tax Credits,” 2 (2) Basic Books 40 (Oct. 25, 2007). Income Studies Article 8 “Free the Ulysses Two. “Tribute to Ronald Dwor- A Democratic Case for (2007) (with Fred T. Joyce’s First U.S. Publishers kin,” 63 New York University Bilingualism,” Democracy: Book Reviews. Goldberg Jr.). Were Convicted of Obscen- Annual Survey of American A Journal of Ideas, Issue 4 “Temperamental Justice. ity. It’s Time to Clear Them,” Law 5 (2007). (Spring 2007). The Supreme Court: The Bell, Derrick 84 (7) The Nation 20 Personalities and Rivalries 2 Noble, Ronald Satterthwaite, Margaret “Desegregation’s Demise— (Feb. 19, 2007). That Defined America by Does the Standard of Strict Foreword in Bioviolence: “What’s Wrong with Rendi- Jeffrey Rosen. Supreme Scrutiny Spell Doom for “The Way Out: Don’t Rely Preventing Biological Terror tion?” 29 National Security Conflict: The Inside Story of Racial Diversity in Schools?” on Your Assumptions,” 93 and Crime. Barry Kellman. Law Report 1 (2007). the Struggle for Control of ABA Journal 60 (2007). New York: Cambridge 53 (45) Chronicle of Higher Schenk, Deborah the United States Supreme University Press, 2007 Education B11 (July 13, “The Way Out: Know— The Income Tax Map. St. Court by Jan Crawford (with Ronald Goldstock). 2007); reprinted in 73 (4) or Learn—the Law,” 93 Paul: Thomson/West, 2007 Greenburg,” 54(8) New York The Education Digest 15 ABA Journal 36 (2007). Pildes, Richard (with Shari H. Motro). Review of Books 15 (May 10, (2007). Book Review. “Congress 2007). Hershkoff, Helen Sharkey, Catherine Dreyfuss, Rochelle and the Constitution. Neal “Tribute to Ronald Dwor- Book Review. “Defining “The Roberts Court Wades “Fragile Equilibria,” Virgin- Devins and Keith E. Whit- kin,” 63 New York University Civil and Political Rights: into Products Liability ia Law Review In Brief (Jan. tington, editors,” 69 Journal Annual Survey of American The Jurisprudence of the Preemption Waters: Riegel v. 22, 2007), available at www. of Politics 268 (2007). Law 23 (2007). United Nations Human Medtronic, Inc.,” 8(4) virginialawreview.org. Rights Committee,” 8  Dworkin, Ronald Human Rights Review 277 “The Court & Abortion: (2007). Worse Than You Think,” Hills, Roderick Jr. Releasing Prisoners, 54(9) New York Review of Book Review. “Mistaking Books 20 (May 31, 2007). the Window-Dressing for Redeeming Communities “The Supreme Court the Window. The Myth of Phalanx,” 54(14) New York Judicial Activism: Making anthony c. thompson Review of Books 92 Sense of Supreme Court De- (Sept. 27, 2007). cisions by Kermit Roosevelt Years after becoming a law professor, as a III,” 91(3) Judicature 146 Estlund, Cynthia participant in criminal justice meetings and (Nov./Dec. 2007). “Are Unions Doomed to in conducting Socratic dialogues with judges, Being a ‘Niche Movement’ Holmes, Stephen often I heard them say, ‘Oh, I have learned so in a Competitive Economy? Book Review. “Apoca- much about relapse and recovery. I remember when I used A Response to Professor lypse Now? Nemesis: The to send someone to prison for one dirty test.’ Strikingly, Wachter,” 155 University of Last Days of the American as we developed our knowledge base, we did not go back Pennsylvania Law Review Republic by Chalmers John- and adjust sentences or sentencing schemes to compen- PENNumbra 101 (2007). son,” 285(13) The Nation 32 sate for our new knowledge. Rather, the criminal justice players and policy (Oct. 29, 2007). Estreicher, Samuel makers simply sat back idly and let a generation of young men and women, most “California Court Cre- Book Review. “The Euro- often persons of color, sit needlessly and uselessly behind bars. Too often, those men ates Class-Arbitration pean Dilemma. Infidel by and women received no treatment, vocational training, or education.... Slowly, the Waiver Test,” New York Law Ayaan Hirsi Ali and Murder political discourse began to include and embrace broader notions of punishment and Journal, Nov. 8, 2007 (with in Amsterdam: The Death community corrections. But reconnecting with the community is difficult for recently Steven C. Bennett). of Theo van Gogh and the released individuals. We never stopped to think that limiting access to education and Limits of Tolerance by Ian “Disqualification of Arbitra- vocational training would make reentry so terribly challenging. Buruma,” 18(4) American tors: Before or After the At the same time, no one focused on the fact that employers habitually discrimi- Prospect 43 (2007). Award?” New York Law nated in hiring ex-offenders. Moreover, by limiting access to drug treatment both Journal, May 4, 2007 (with Jacobs, James B. inside and outside of prison, we did not recognize that the temptation ex-offenders Steven C. Bennett). “Can Handguns Be faced upon release was a recipe for disaster. We spent so much time trying to fend off “New Jersey Weighs In on Effectively Regulated?” 156 the incredibly long and harsh prison sentences that we lost sight of how our clients Class-Action Waivers,” University of Pennsylvania were being transformed in prison.... We didn’t anticipate the long-term negative con- New York Law Journal, Law Review PENNumbra sequences of the policies that were developing. Jan. 4, 2007 (with Steven 188 (2007) (with David Racial imagery, mixed with police practices and racial profiling, transformed C. Bennett). Kairys). our society. The confluence of pervasive media images, popular culture, and our “RICO Usage Against nation’s history has led us to an almost unconscious acceptance of racial stereotyping Employers for Immigration and a deep-seated fear of people of color.... A collision course of race, and the pre- Misdeeds,” New York Law sumptions about crime, and the tacit acceptance of police misconduct Journal, Jan. 26, 2007 (with began a chain of events whose effects and implications we are only Joseph J. Bernasky). now beginning to feel. Published by New York University Press, 2008.

72 THE LAW SCHOOL Student Spotlight

Sima Gandhi Finds Tax Law Rewarding | 74 Reena Arora Keeps Watch | 75 Jeffrey Sachs Urges Action in Africa | 76 Public Service Auction Gets Athletic | 78 Alternative Spring Break in New Jersey | 79 Viet Dinh on Judicial Restraint | 82 Outstanding Student Scholarship | 81

The Class of 2010 divided into four sections to com- pete in a year-long series of student orientation events including an all-New York City scavenger hunt, an NYU School of Law trivia contest—see the cheering crowd above—and a variety of health, wellness and community service activities. student spotlight subsidies. Gandhi identified inefficiencies in the government’s subsidy process, and felt that improving the system was crucial. “It’s just common sense,” she says. “In terms of equality of opportunity and creating a more democratic society, education is one of the pillars to get there. Forget about wel- fare. If you don’t give people hope and the chance to have an education, how are they supposed to climb the ladder?” With Batchelder’s encouragement, Gandhi submitted a condensed version of the paper to the Brookings Institution, winning its inaugural Hamilton Project Economic Policy Innovation Prize for the most “innovative policy proposal” written by a graduate student; the selection com- mittee included former Congressional Budget Office Director Alice Rivlin and treasured connection Gandhi received her award plaque former Treasury Secretary Robert Rubin. from former U.S. Secretary of the Treasury Robert Rubin. In addition to a $15,000 award, Gandhi was invited to a writer’s conference to help her turn her plan into a discussion paper published by the Hamilton Project. Many Happy Returns Now a tax associate at Simpson Thacher, Sima Gandhi finds her tax law studies literally rewarding. Gandhi has not ruled out the possibility of working in the public sector someday. The hile looking through tax she said. “It was a late-developing interest, beauty of tax law, she says, is that “it does materials as a second-year but I love it and I’m glad I went with it.” blend a very real private-sector practice summer associate at Simpson Gandhi found herself challenged in with the potential to go to D.C. It’s not a W Thacher & Bartlett, Sima learning so much tax law in one year, but surprise, considering how strong a mar- Gandhi ’07 (LL.M. ’10) discovered that tax her enthusiasm didn’t flag. She took Pro- riage there is between social policy and law intrigued her more than corporate liti- fessor Leo Schmolka’s demanding Corpo- the practice of tax law.” This unique mix, gation. “There are gray areas, and part of rate Tax class at the same time as the basic says Gandhi, is why tax law is never boring. understanding them is grasping the intent income tax course. On Acting Assistant “It’s not just common law judicially dictated. behind it and the legislative history,” she Professor Joshua Blank’s Tax Procedure and It’s Congress, it’s politics, it’s lobbying, it’s said. “I found it made even reading the Timing, she exclaimed: “He’s such a fantas- budget constraints. So many factors go into paper a little more interesting because you tic teacher that he even made tax procedure it.... It’s an evolving beast.” understand to a greater degree why some- interesting, and that’s about filing forms!” Having the chance to publish her tax thing was relevant in Congress.” It was while taking Batchelder’s Tax and paper profoundly affected Gandhi’s law Returning to law school in the fall, Gan- Social Policy seminar that Gandhi had the school experience. “It showed me that dhi dived into tax, taking five tax courses inspiration for an A-paper that proposed in- there is a very real possibility that ideas in her third year. “[Associate Professor Lily] creasing college enrollment among low-in- can make a difference,” she says. “I find Batchelder looked at me like I was nuts,” come students by accelerating student loan that incredibly rewarding.” A Survivor of Secret CIA Detentions Gets a Voice Little is known for sure about the CIA’s secret Jama Fakih ’08, Michael Price ’08 and Brenda The case was dismissed in February by the detention facilities, or “black sites”—such as Punsky ’09. The report is unprecedented and U.S. District Court for the Northern Dis- where exactly the sites are located and the groundbreaking because, said Margaret Sat- trict of California, on the basis of the state identities and number of those imprisoned. terthwaite ’99, faculty director of the center, secrets privilege, but the case is on appeal This is why students and faculty from NYU’s it presents “the first-hand experience of one to the U.S. Court of Appeals for the Ninth International Human Rights Clinic and the of a handful of people walking around who Circuit. Center for Human Rights and Global Justice can talk about what it was like to be held at Satterthwaite said that hearing Bash- spent countless hours taking the testimony a CIA ‘black site.’” Prior to these revelations, milah’s story was difficult, but that her of Mohamed Farag Ahmad Bashmilah, a Ye- the clinic joined the American Civil Liberties students had learned important lessons. meni national who spent more than a year Union in August 2007 in a lawsuit against “Although it can be painful for students to and a half in CIA detention and lived to tell Jeppesen Dataplan, Inc., a subsidiary of the hear about their clients’ experiences of the tale. His experience was published in a Boeing Corporation, alleging that Jeppesen abuse,” she said, “it is also important for

report, “Surviving the Darkness,” based on provided flight services to transport Bashmi- them to learn how empowering such legal lswang the work of clinic students Reena Arora ’08, lah and four others to the detention centers. storytelling can be.” Ralph A

74 THE LAW SCHOOL student spotlight

Witness for Justice Students Win Grants ometimes blind justice requires interpreted one-tenth of the proceeding, Reena Arora and Anna Gay have eyes—or so goes the philosophy leaving most of the immigrants incredibly received 2008 Helton Fellowships from behind the Detainee Working Group confused. I remember thinking, ‘Here their the American Society of International S (DWG) begun by Reena Arora ’08 two rights aren’t being protected, and these peo- Law. The fellowships, honoring refugees’ years ago to help improve the experience ple are stripped of all the human dignity rights advocate Arthur C. Helton, of defendants at the U.S. Department of that they have.’” include microgrants of up to $1,500 Justice’s Immigration Court. Arora believes that the DWG’s work has for research and fieldwork related to As a 1L, Arora became aware of a simi- made judges more conscientious and less international law, human rights and lar group that had been started in Massa- arbitrary. David Stern, chief executive officer humanitarian affairs. Arora ’08 will work chusetts, and decided to launch her own of Equal Justice Works, said, “The students to enlarge the capacity of the Migrant Assistance Programme (MAP), an version in New York. Arora’s concerns help assert procedural due process rights— organization addressing Burmese with problematic courtroom procedures and keep our country’s promise of migrant worker issues in Thailand, were broad: lack of proper translation equal justice under law. We by instituting an international services; the need for information on applaud Reena’s passion human rights framework for basic rights to relief in the immigration and commitment to pub- the organization, bolstering system; mistreatment of and bias against lic service.” its capabilities for regional defendants, and collusion between gov- The hearings in the and international advocacy, ernment attorneys and judges. Immigration Court and assisting workers in Arora, who spent two years working system, in which more defending their rights on human rights issues in India, Thailand than 50 courts nation- through strategic plan- ning. Gay (LL.M. ’08) will and South Africa before enrolling at NYU, wide are not subject to work with the United developed a simple but apparently effec- the same standards of Nations High Commis- tive solution: Students would be assigned as due process required sioner for Refugees observers in the courtrooms of the Immi- of regular courts, are in Bangkok, gration Court, where Department of Home- only a small part of the Thailand. Her land Security attorneys bring cases against immigrant detain- research will immigrant detainees. Arora described her ees’ world. Detain- examine Thai- initial impressions of Immigration Court ees are often sent land’s selection in a speech in Washington, D.C. last Octo- elsewhere to receive of asylum seek- ber, when she received the LexisNexis hearings by detention ers under its resettlement Martindale-Hubbell Exemplary Public commissions; many policies and Service Award from Equal Justice Works removal proceedings how that in recognition of her role in creating the take place in prisons and fulfills its in- DWG. “Immigrants were brought in wear- jails. But, in two tiny ternational ing orange jumpsuits and shackles, treated courtrooms in a nonde- obligations like criminals for what is a civil violation,” script building on Var- under she said. “Their lawyers came in ick Street, Arora says the 1951 mumbling and rambling, rarely law students are “trying Geneva Convention. having the adequate defenses, to help restore due pro- mask + clipping path and the interpreters barely cess in a small way.”

A Victory on Drug Misdemeanors After arguments made by students in the trafficking offenses. “This may seem Law School’s Immigrant Rights Clinic, the obvious,” Professor of Clinical Law Nancy Board of Immigration Appeals ruled en Morawetz ’81 said, “but hundreds of legal banc last December that legal immi- permanent residents were being deported grants with one or two state drug pos- on these charges.” Despite the victory— session misdemeanors should not be credited to work by students Caroline Cin- treated as though they had been convicted cotta ’07, Carlin Yuen ’07, Mandy Hu ’08 of federal drug trafficking felonies. and Hays Fellow Kristen Connor ’08, The victory is the result of previous who all collaborated with the Immigrant work by students in the same clinic, such Defense Project—“the struggle continues,” as the U.S. Supreme Court’s agreeing to Morawetz said. The Board maintained that hear a case in 2006 in which it decided that if a court of appeals rules differently, it will state drug possession charges should not follow the court’s lead, as it has already be automatically treated as felony drug done in several circuits.

AUTUMN 2008 75 student spotlight An Economist Calls for Legal Action Student Symposia Tradeoffs of Candor: Does Judicial Transparency Erode Legitimacy? Annual Survey of American Law University Professor Jeremy Waldron, Thomas Phillips, former chief justice of the Texas Supreme Court, Judge Nancy Gertner of the U.S. District Court for the District of Massachu- setts and others explored the ten- sions between judicial independence and democratic transparency.

Breaking the Logjam: An Environ- mental Law for the 21st Century Environmental Law Journal, see page 92

Contemporary Issues in Private Equity after the Credit Crunch Journal of Law & Business Private equity players examined the economic and political forces behind the credit crunch, the way they are dealing with current challenges, and the impact on how deals are done enowned economist jeffrey sachs Simple, low-cost medical solutions exist, he today and will be done in the future. sounded the alarm in his keynote said, but the international community has Rule of Law Symposium R address at the 12th Annual Herbert not delivered them on an adequate scale. Journal of Law and Liberty Rubin and Justice Rose Luttan Rubin The reason is that international law is Legal scholars David Dyzenhaus, International Law Symposium, in which too easy to neglect. “I don’t actually believe Richard Epstein, Trevor Morrison, he spoke out for long-suffering children liv- that there’s really something so quali- Peter Strauss, Brian Tamanaha and ing a continent away: “There is no question tatively different between domestic and Jeremy Waldron debated normative that the state of Africa’s children is a state international law, that here you have a sov- visions of the rule of law, applied rule of dire crisis, and pervasively so in all parts ereign to enforce the law and with interna- of law theory and experience to the of sub-Saharan Africa. Sub-Saharan Africa tional law you don’t,” Sachs said. “In both rule of law after 9/11, and examined is really the epicenter of the global develop- cases, domestic and international law sur- the relevance of the rule of law in ment challenge.” vive because people believe in it, subscribe the modern administrative state. Sachs confessed that Africa’s problems to it, and follow it as a norm.” Leviathan’s Network: Municipal were not his areas of expertise or interest The solution—wisely applied, low-cost Wireless and Civil Liberties until a dozen years ago, but when he became interventions—is obvious, Sachs con- Journal of Legislation and Public Policy acquainted with that region, he felt com- cluded. And our international agreements Despite recent uncertainties in the pelled to learn more, because “the sense to contribute significantly to those solu- municipal wireless market, cities of death and vulnerability everywhere was tions already exist. The key is to enforce across the country continue to build overwhelming.” He ran through a series of them. “We’re letting it happen. It’s con- their own Wi-Fi networks. Panel- sobering statistics in laying out the dimen- trary to all the international promises ists explored the unique legal ques- tions raised by these networks, with sions of the crisis, whose aspects include that have been made over the years, and particular attention to users’ First Africa’s extremely young population struc- also contrary to the Universal Declara- Amendment and privacy rights. ture, deficient health care, lack of education, tion of Human Rights, the constitution of widespread orphanhood, violence, gender the World Health Organization,” he said, The Hart-Fuller Debate at Fifty inequities and, finally, a lack of employment “and a lot of the rest of international law.” NYU Law Review, see page 97 opportunities for those children who do Exhorting law students in the audience to Alternatives to Mass Incarceration: reach adulthood. The problems begin with take action, he said, “So I want you to take Promises and Challenges a lack of resources at the pre- and neonatal someone to court, basically….At a tiny Review of Law and Social Change stages and snowball from there. On aver- fraction of what we’re squandering in Iraq The U.S. prison system is in crisis due age, 16.3 percent of sub-Saharan African right now killing people, we could afford to prison overcrowding, recidivism and children die before age five. to make universal access to health care a the harsh impact of incarceration on “There’s no reason for these deaths,” said reality just by ourselves alone, much less minorities and the poor. Panelists con- Sachs, director of Columbia University’s in partnership with the other rich coun- sidered the viability of alternatives from Earth Institute. “These are deaths from tries of the world. This is about choice, it’s theoretical and practical perspectives. readily preventable and treatable causes.” about rights, it’s about law. Go at it.”

76 THE LAW SCHOOL student spotlight

november 13, 2007 1 2 3 Scholarship Reception

a show of appreciation 1 Trustee George Lowy ’55 and Cravath, Swaine & Moore LLP Scholar Sandra Mayson ’09; 2 Craig Medwick ’77, U.S. managing partner of Clifford Chance; 3 Trustee Evan Chesler ’75 with Evan and Barbara Chesler Scholar Mario Ortega ’10;  4 Trustee Leonard Wilf (LL.M. ’77) with Wilf Tax Scholar Cristiane Coelho (LL.M. ’08), 4 5 left, and Wilf J.D. Merit Scholar Marianna Konnaya ’10; 5 AnBryce Scholar and Carroll and Milton Petrie Scholar Helam Gebremariam ’10, left, with Chandra Johnson, executive director of the AnBryce Foundation; 6 Trustee Kenneth Raisler ’76 (second from right) with Sullivan & Cromwell Public Interest Scholars Jeanette Markle ’10, Anna Purinton ’09 and Nick Durham ’08; 7 Gail Quackenbush, left, a member of the Jacob Marley Foundation board of directors, with Leah Morfin ’10, Diana Holden, Jacob Marley Foundation executive director, and Nicholas Fogg ’10. Morfin and Fogg are recipients of the Jacob Marley Foundation Scholarship in memory of Chris Quackenbush ’82. 6 7

the wise and the worthy Standing: Starr Foundation Global Law School Scholars Jan Bischoff (LL.M. ’08) and Petr Briza (LL.M. ’08); C.V. Starr Scholars Margot Pollans ’10, Jonathan Horne ’09, Andrew Gehring ’09, Jeffrey Goetz ’09, Christopher Turney ’08 and Andrew Lin ’10; Starr Foundation Root-Tilden-Kern Scholar Elizabeth Lynn George ’10, and Ernest E. Stempel Foundation Scholar Rachel Williams ’10. Seated: C.V. Starr Scholar Mingpei Li ’10 with Ernest Stempel (LL.M. ’48, J.S.D. ’51) and Brendalyn Stempel.

AUTUMN 2008 77 student spotlight Win by a Loss

In retaliation for last year’s close NYU win, Columbia’s law students routed NYU’s at the sev- enth annual Deans’ Cup last April. From the first basket of the evening, the Lions were ahead and never fell off their pace. The final score: 83 to 68. The 10-minute faculty half- time game provided no relief, either, as the Violets suffered from a clear height deficit against the scholarly six-plus-footers who showed up for Columbia.  This year’s Deans’ Cup raised more than $140,000 for public interest law programs; the pot will be evenly split by the two law school rivals. Since 2002, the games have raised more than a half million dollars. The Sirens’ Song Homer’s epic poem provided the broad outline for The Lawdyssey, the 2008 student-produced Law Revue.

You’ve Been Served: Public Interest Auction Raises $140,000

avid jacobson ’10 demolished Terrorist Financing and Dean Richard Revesz in a best- Financial Crimes this of-three set of video tennis. But summer. “It’s a privi- D Jacobson’s athletic domination was lege to contribute to altruistic; he had paid $350 for the privi- next year’s class, and it lege of doing so at the 2008 Public Interest was a blast to play Dean Auction. All the monies raised that evening Revesz.” Other auction- go to fund students who take public-ser- goers showed their vice summer internships. generosity by bidding Revesz arrived at Tishman Audito- big bucks for the use rium ready to attack the net in a ’70s-era of faculty- and alumni- ensemble of a terrycloth sweatband worn donated vacation across the forehead, Adidas warm-up jacket homes in upstate New and striped athletic socks pulled up to his York, tickets to attend calves. He even carried a wood-framed a Yankees game with racket. “It was clear, based on the dean’s NYU’s President John ground strokes, lateral movement and John Sexton, VIP NASCAR McEnroe apparel, that he’s a far better ten- box seats and brunch nis player than I’ll ever be,” Jacobson said. at the home of Dean “Unfortunately for him, Wii Tennis has abso- Revesz and Professor lutely nothing to do with real tennis.” Vicki Been ’83. Jacobson shut out Revesz 2-0 during back- The final tally from to-back play. Afterward, the two fierce com- bids made during the petitors shook hands and celebrated with live and silent auctions champagne. Revesz even signed a few tennis totaled $140,000. This game on Dean Revesz getting psyched up for his match balls and flung them to adoring spectators. year, the Law School “It’s wonderful that NYU makes it possi- reaffirmed its already strong commitment But the Jacobson-Revesz rivalry is not ble for students, including me, to do public to public service by increasing the amount over yet. The dean is rumored to be training interest work over the summer,” said Jacob- of summer grants: First-year students can for a rematch. “He’s got a competitive fire in son, who used his grant to work for the receive $4,500, up from $4,000; 2Ls receive him,” says Jacobson, “so I’m sure it will be a U.S. Treasury Department in the Office of $6,500, up from $5,000. much closer match next time around.”

78 THE LAW SCHOOL student spotlight

at the new jersey institute for social justice NJISJ intern Jewel McGowan Watson, Gregg Stankewicz ’10, Trisha Trigilio ’10, Jarrod Loadholt ’10, NJISJ Legal and Policy Counsel Laurel Dumont, Mayor Cory Booker, Angela Gius ’10, Daniel Meyler ’09, Molly Tack ’09 and NJISJ Senior Counsel and Policy Director Craig Levine ’91. at newark city council chambers Gius, Tack, Meyler, Trigilio (seated), Loadholt, Stankewicz. Spring Break Across the Hudson River One student finds inspiration and encouragement when she volunteers to provide legal services for a week to needy and neglected residents of embattled Newark, New Jersey.

aking your way into the project, he learned from his neighbors employment that was available to ex-offend- World Trade Center PATH sta- to see beneath the troubled surface of ers. Other students drafted petitions to tion at 8:30 on Monday morning the world around him. Tears streamed expunge stale criminal records, including M is like being a lone salmon swim- down my face. He impressed upon me the a petition on behalf of a 40-year-old client ming upstream to spawn. One escalator at impact my classmates and I could make who had just been denied a job promotion the station descends to the trains headed just by the way in which we live our lives. because of a conviction for shoplifting to Jersey, while seven ascend from the plat- “Stand tall,” he said. when she was 17. forms, carrying Newark residents from their Less than a year later, I was standing Our work with NJISJ also touched affordable housing to their jobs in lower before the mayor with my fellow spring on New Jersey handgun regulation, an Manhattan. Even though lower Manhattan breakers at a meeting arranged by NJISJ. integral part of Booker’s public safety is in many ways still reeling from the dev- Booker was every bit as inspiring in the platform, as well as collateral damage astation of 9/11, the economic opportunities intimate meeting as he had been on the from aggressive law enforcement policies, it offers to the people of Newark sparkle stage of Madison Square Garden. He asked such as a “juvenile waiver” rule that meant in comparison to the prospects available each of us in turn about our backgrounds, that young defendants accused of certain at home, a once-thriving center of indus- interests and ambitions, engaging us on crimes were automatically tried as adults. try where, today, the city government is topics ranging from high school nicknames Our accomplishments were modest, but lin k Newark’s largest employer. to same-sex marriage. Although Newark had an impact nonetheless. Along with five other NYU Law students, is the largest city in New Jersey, Newark’s For me, the week was an opportunity on Mac r I made this counterintuitive commute daily public interest lawyers and community to take a step back from school and draw ha

: S for a week in March to the New Jersey Insti- organizers emphasize how small and close- encouragement from the inspiring people r e k tute for Social Justice (NJISJ) as part of the knit their community feels to them. around me—from the Newarkers over- Alternative Spring Break (ASB) program of During the week, the six ASB interns coming major obstacles every day just to ey Boo r Law Students for Human Rights (LSHR)—a took turns working on behalf of Reentry survive to the attorneys advocating for the week of working, observing and learning. Legal Services, one of NJISJ’s partners, city and still making time to embrace us Last spring, when the Public Interest calling ex-offenders to offer legal services. visitors with open arms, to our site leader, Law Center first urged LSHR to consider I spent hours on the phone on behalf of Dan Meyler ’09, who spent months learning tudents with C o Newark, I thought we might have trouble one man, recently released from prison, about Newark, attending conferences, and ; S r selling the city as an appealing spring who suffered from short-term memory making connections in order to present us break destination, even to the most public loss and cognition difficulties, helping him with the array of hands-on opportunities interest-minded law students—and then, to navigate an expansive array of entities that we enjoyed. I got to remove my law t: Matt Klappet: r in May, I saw Cory Booker speak at NYU comprising the Motor Vehicles Com- school blinders and see a troubled New Law’s convocation. mission and several municipal courts Jersey city as something else—a testament Booker related to the Class of 2007 whose approval he needed to get his to America’s urban plight, but also to its how, as a young Yale Law graduate living driver’s license restored. This was neces- enduring spirit of revitalization, just five

students cou at in a violence-plagued Newark housing sary for him to be eligible for most of the miles from Manhattan. Molly Tack ’09

AUTUMN 2008 79 student spotlight Civil Rights after the Flood Sheinberg lecturer deplores atrocities in New Orleans.

n the three years since hurricane Hurricane Katrina did not serve as a spot- Katrina hit the Gulf Coast, Tracie light on holes in the safety net, as is often Washington has done more to protect suggested, but rather revealed the “delib- I the rights of New Orleans’ poor citi- erate removal of the social safety net.” zens than many people do in a lifetime. Her speech emphasized the importance She has litigated cutting-edge civil rights of individuals and the role they can play in issues in the fields of housing, education creating change and fighting injustice. She and health, has served on the board of a fondly described Miss Lucille, a named new charter school, and has founded and plaintiff in Washington’s lawsuit to reopen led the Louisiana Justice Institute, all while “Big Charity,” formerly New Orleans’ largest raising a son. A native of New Orleans, public hospital. Miss Lucille came forward to Washington had maintained a general participate in the lawsuit declaring, “I want workers; the dissolution of the New civil rights practice and had served as you to use me to get the hospital reopened Orleans public school system and adop- general counsel to the New Orleans public because I know people need help.” tion of a charter school privatization plan school system until the appalling events Washington refuses to allow Katrina with little accountability. She connected following Hurricane Katrina compelled to provide a blanket excuse for bureau- the consequences of these policy deci- her to greater action. In “The Dog Ate My cratic dysfunction and racism: “Katrina sions to the lives of her clients: the family Hospital: Fighting Civil Rights Atrocities did not do everything; people have done members who cannot return home and Post-Hurricane Katrina,” the 14th annual this to us.” She challenged audience mem- the generation of black children who have Sheinberg Lecture, Washington, president bers to consider the implications of the unwittingly become part of an educational and CEO of the Louisiana Justice Institute, demolition, with minimal replacement, experiment. By thinking creatively about discussed her work and the lessons she has of thousands of public housing units in advocacy strategies, she said, “We can learned in the process. She described how a city whose economy runs on low-wage have a just society.” Korematsu Lecture: Labels Cannot Be Used to Deny Basic Rights karen narasaki has a habit of asking indiscriminate rounding up and detention Stressing the importance of sharing sto- uncomfortable questions. In a meeting of Muslims, Arabs, South Asians and other ries about discrimination, bringing more with the CEO of Wal-Mart, Narasaki, the specific groups based on racial profiling. Asian Americans into legal aid services and president and executive director of the But perhaps the hardest question she ever the courts, and speaking out against anti- Asian American Justice Center, wondered asked was directed to her parents, as Nara- immigrant sentiment and questionable gov- why there were no Asian Americans on saki recounted when she delivered the ninth ernment policies, Narasaki also talked about annual Korematsu Lecture. the power of language. Her parents, born in The question concerned the the United States, had been labeled “non- infamous mass internment of aliens,” she said, “to disguise the fact that Japanese Americans such we were really talking about imprisoning as Fred Korematsu during citizens without any due process of law.” World War II. Narasaki had Drawing parallels between the govern- been unaware that both her ment’s actions during World War II and parents had been interned; in its current policies, Narasaki argued that fact, she had known nothing “the fact that we’re still holding people in about that historical episode. Guantánamo, claiming that they have no “I heard about the intern- rights under our constitution or anybody ment in a junior high school else’s or military law or international law, social studies class, and is beyond outrageous, and the fact that I was stunned,” Narasaki President Bush is still trying to argue that recalled. “I went home and waterboarding is not torture is an embar- I asked my parents, ‘Do you rassment for all of us. know about this?’ And my “We employ such phrases as ‘enemy Narasaki with Bo Han ’09 of the Asian Pacific American Law mother started crying, and noncombatant’ or ‘illegal immigrant’ in Students Association Korematsu Lecture Commmittee my father started yelling at an attempt to justify the denial of basic me for bringing it up. The rights,” she said. “It reminds me of the use the corporation’s employment practices pain and the bitterness and the shame in of ‘non-alien’ because it’s so dehumaniz- advisory panel. After 9/11, she met with my parents’ eyes is still very much seared ing and makes us forget that we’re really the deputy attorney general of the United into my heart.” She shed tears while tell- talking about parents, their children and States and asked him about the often ing the story. their grandparents.”

80 THE LAW SCHOOL student spotlight No Small Change upon his honorary induction into the Order of the Coif, NYU School of Law Trustee Daniel Straus ’81 urged the best and brightest of the Class of 2008 to apply their knowledge to big ideas. “Academic excel- lence is tremendous, but it’s what you do with this that really [matters]. If it’s sim- ply put in a drawer or used for individual purposes, that’s not what this law school is about, and what has impressed me about the Law School is all the people that go out into the world and change it.” Straus continued, “Something else that has impressed me in all my dealings with the Law School: There’s a sense of pur- pose here, there’s a mission here, there’s a culture here. It pervades and permeates engaging in dialogue Michelle Meertens ’98, Dorothy Smith ’09, Jenny Rivera ’85 and Tulani Thaw ’09 everything.” In 1984, Straus and his brother Moshael inherited a family business of four nursing homes from their father, Joseph Straus ’37 The Effect of Gender Plus Race (LL.M. ’43). From this modest base, the he women of color collective, Students Association and the Multiracial Law brothers built Multi-Care, which at one a student group begun by Dorothy Students Association, respectively—there is point had 17,500 beds in 11 states and 170 Smith and Tulani Thaw in 2007, no group at the Law School that focuses on skilled nursing and assisted-care facilities. T was inspired by a comment in an both together. “The tendency is for society to In 1997, the Straus family sold Multi-Care instant message. “I was sitting in one of make us choose between our race and gen- for $1 billion. Straus is now the chairman my classes, and I was like, ‘I just can’t take der,” Thaw says. “This type of binary thinking and CEO of Aveta, which integrates health- it anymore,’” says Smith. She sent a mes- is exactly what we want to avoid.” care provider networks in Medicare to sage to Thaw, who tapped back, “We need Smith and Thaw put their plan into serve the elderly and chronically ill. a support group.” action in the summer of 2007, and the In 2002, Straus honored his father At issue were Smith and Thaw’s feel- group was officially accepted by the Stu- by endowing the Joseph Straus Profes- ings that there were pressures on women dent Bar Association last November. The sorship in Law, a chair currently held of color that they couldn’t release in the heart of their endeavor is simply to pro- by Joseph Weiler. More recently, Straus classroom. “We felt that, as women of color, vide an opportunity for their members to made a gift to establish the Straus Insti- the law school experience can be isolating,” share their stories and seek advice, but tute for Advanced Study of Law, modeled Smith says. For instance, “when you are in they also aim to educate the student body on an institute at Princeton that served a classroom reading about a case in which about issues related to women of color as a haven for Albert Einstein and others four black youth are shot at in self-defense, in society and the legal profession. For to conduct research. you either have a sterile conversation that example, they cosponsored a panel with It will receive its first objectively analyzes the case for the self- Law Women and the Battered Women’s scholars in 2009. defense elements without talking about Project on violence against women of “The idea,” said Dean the obvious racism at play, or you have a color. They also held an alumnae/stu- Richard Revesz, “is shallow dialogue in which either you get to dent banquet, where guest speaker Jenny that every year we be the black voice, or you say nothing while Rivera ’85, special deputy attorney gen- will welcome the 14 everyone tries to be politically correct.” eral for civil rights in the New York State Einsteins of law.” Apparently, this experience is mirrored Attorney General’s office, discussed the Straus has made in law firms, too, as the American Bar ABA report, highlighting challenges faced these investments not Association found in 2006 when it commis- by women of color in law firms to get good only to honor the past, sioned a report on women of color in firms assignments, have access to clients and but for the future—his with more than 25 lawyers, concluding that networking and move up the career lad- niece Dori will begin “women of color fare worse than women in der. In 2004, only 17 percent of law part- her law studies this general or men of color.” It cited a 2005 ners were women, and only four percent fall, “the third gen- National Association of Law Placement were attorneys of color—of either sex. eration of Strauses study that found 81 percent of minority “We hope our group can provide a at NYU School of female associates had left their law firms space where women of color can discuss Law,” he said within five years of being hired. [their unique issues], how to adequately proudly. While Smith and Thaw acknowledge deal with them and then how to refocus,” that there are already groups for women or says Thaw. “Our role in law school is first for ethnic minorities—in fact, the two are or as students, and we want our members to have been members of the Black Allied Law feel they can focus on academics.”

AUTUMN 2008 81 student spotlight Free Speech at Issue judges guido calabresi, julia gibbons and Roger Gregory of the U.S. Court of Appeals for the Second, Sixth and Fourth Circuits, respectively, adjudicated the final argument of the 36th Annual Orison S. Marden Moot Court Competition last April. Alan Lawn ’08 and Shaun Van Horn ’08, as petitioners, bested Andres Correa ’08 and Kelly Graves ’08 in the fictitious First Amendment case of Webber v. Smith, pre- pared by Andrew Dulberg ’09 and James Miller ’09. Lawn won Best Oralist.

In Praise of Restraint n 2001, as a u.s. assistant attorney the International Court of Justice ruled general, Viet Dinh was instrumental in that the United States was noncompliant drafting the USA PATRIOT Act, which with the Vienna Convention for failing to I lengthened the reach of the president notify Mexican nationals on death row of and law enforcement and reduced limita- their right to counsel. (In March 2008, the tions on intelligence-gathering within our Supreme Court ruled in Medellin v. Texas Van Horn borders. Since then, Dinh has expressed that international treaties and execu- some regret about unintended effects, such tive memos are not binding upon state as the section of the act that combats inter- courts until they are enacted into law national money laundering to fund terror- by Congress, nullifying 51 case reviews ism. He says prosecutors, given greater prompted by Avena.) authority, have been too quick to limit inter- Dinh warned that membership in national businesses in the name of national international legal institutions should security. “Like any sword, it has two edges,” not be taken for granted. “We who seek to he said to the London Sunday Telegraph in develop and participate in those institu- November 2007. tions need to build the case that they do So in speaking at the Journal of Law their jobs with a healthy dose of humility & Liberty’s third Friedrich A. von Hayek and restraint,” he said, “and that they take Lecture in Law last October, Dinh, now a the autonomy, authority and competence Lawn Georgetown Law professor, praised judi- of domestic institutions seriously.” cial restraint, and pressed international courts to do more by doing less. Dinh argued that they will become more dura- ble global institutions by treading lightly in the affairs of individual nations. To make his point, Dinh used a domes- tic example of corporate misbehavior, Graham v. Allis-Chalmers, in which the Supreme Court of Delaware ruled in 1963 that the board of directors of Allis-Chalm- ers Manufacturing had no reason to suspect price-fixing on the part of its employees and thus could not be held liable for the violations. Dinh praised the decision for signaling to corporate directors that the on the bench and behind the scenes The Moot Court Board organized and hosted its third Immigration court is watching, but not overreaching. Law Moot Court Competition; the University of California at Davis and the University of Louisville com- He contrasted this to a case in which peted in the finals. Above, Judges John Walker and Emilio Garza of the U.S. Court of Appeals for the Second and Fifth Circuits, respectively, and George Kazen of the U.S. District Court for the Southern he said a court overstepped. In the 2004 District of Texas were flanked by Moot Court Board members Kathleen Baer-Truer ’08 and Lee Turner- Case Concerning Avena and Other Mexi- Dodge ’08, on the left, and Matthew Haggans ’08, Kyle Hallstrom ’08 and Sima Fried ’08. can Nationals (Mexico v. the United States),

82 THE LAW SCHOOL student spotlight Fall Ball

november 1, 2007

Spring Fling

march 13, 2008 Barristers’ Ball

may 16, 2008

AUTUMN 2008 83 student spotlight

“President Bush’s tax cuts have made Student Scholarship the tax code more progressive.” —White House press release, July 11, 2006

“[The] Bush tax cuts reduced the pro- gressivity of the federal income tax and the federal tax system in general.” —Report from Democratic staff of the House Ways and Means Committee, April 12, 2005

hese two quotes are char­ What Is a Progressive acteristic of a fierce debate about tax equity that has persisted in Washington since the enact­ Tax Change? ment of the first Bush tax cuts T in 2001. Tax cuts have been the centerpiece of the Bush Administration’s domestic economic policy, and over the last seven years, number crunchers have “followed the money,” producing a myriad of distributional analyses showing the effects of the tax law changes by income category. Nonetheless, controversy con­ tinues to swirl around whether the Bush tax cuts are, in fact, progressive, shifting the tax system in favor of lower-income Americans, or, instead, regressive, shift­ ing the system in favor of higher-income Americans. Policymakers and Washington analysts, often looking at numbers that are fully consistent with one another, have arrived at opposite conclusions, with opinions tending to fall along party lines. Thus, despite extensive economic analysis, there remains stark disagreement regard­ ing a fundamental question: Are the Bush tax cuts distributionally “progressive,” “regressive,” or “neutral”? This controversy is indicative of a more general confusion, both in Washington and in the academic literature, about how to measure the progressivity of a tax change. The confusion is particularly vexing be­ david kamin cause policymakers and analysts often rely on progressivity as a guidepost when con­ structing and analyzing policy, but do little to explain or justify the particular progres­ Before entering NYU Law, David Kamin The following is an abridged version of an sivity measures they employ. Progressivity worked at the Center on Budget and Policy April 2008 New York University Law Review measures—which can differ considerably Priorities, a think tank devoted to analyzing note, “What Is a Progressive Tax Change?: from one another—tend to be haphazardly how tax and transfer policy affects low- and Unmasking Hidden Values in Distributional chosen based on arguments that have rhe­ middle-income Americans. There, while ana- Debates.” Kamin graduated Phi Beta Kappa torical flair but lack normative substance. lyzing and writing about the distributional and with highest honors from Swarthmore Thus, important policies are being devel­ effects of major tax legislation, he sensed that College in 2002 with a B.A. in economics and oped and evaluated based on distributional there was something lacking in the debate political science. He is a Furman Scholar measures that may not be meaningful and about progressivity measures—even as these with a full-tuition merit scholarship and is may, in fact, be misleading. measures were affecting the course of policy an articles editor of the NYU Law Review. The academic literature is replete with debates. Kamin’s note “represents my at- After his expected January 2009 graduation, arguments regarding which measure is tempt to push forward the discussion and to Kamin will become the special assistant to best for assessing the progressivity of tax better define exactly what we mean when we the director of the Congressional Budget Of- changes, but this debate has largely de­ call a tax change ‘progressive’ or ‘regressive.’” fice in Washington, D.C. volved into empty rhetorical assertions. The

84 THE LAW SCHOOL student spotlight literature fails to explain why any particular These labels are also used later in this note.) resource inequality is the scale upon which progressivity measure is necessarily a bet­ On the one hand, Low has seen her tax li­ tax fairness is judged, then a progressive ter gauge of a tax change’s effect on equity. ability cut by a greater percent than High tax change should be one that shifts the tax This note takes an alternative approach. (Measure A) and, as a result, Low’s share of system more in favor of those with lower in­ It argues that, if progressivity measures are total taxes paid has dropped, while High’s comes by closing the gap between the high­ to accurately gauge how a tax change affects share has increased (Measure B). Both these est earners and those below them. the fairness of the tax system, they must be measures indicate that the tax change is Two of the progressivity measures stand rooted in a theory of distributive justice that progressive. (In fact, Measures A and B are out as good measures of a tax change’s effect motivates our concern for how the tax sys­ very closely related—always agreeing as to on resource inequality. These measures are tem distributes resources. This means that whether a tax change is progressive or re­ percent change in after-tax income (Mea­ a measure should indicate that a tax change gressive.) On the other hand, High’s after- sure D) and tax change in dollars (Mea­ is progressive if the tax change, according tax income has seen a somewhat greater sure E). Percent change in after-tax income to the relevant theory of distributive justice, percent increase than Low’s after-tax in­ (Measure D) defines the extent to which rel­ has meaningfully shifted the tax system in come (Measure D), and High has also re­ ative income differences shift due to a tax favor of low-income Americans. Where a re­ ceived a larger tax cut in dollars (Measure E). change, while tax change in dollars (Mea­ gressive change is indicated, the opposite Seen through these measures, the tax cut is sure E) indicates how a tax changes affects should be true, and a neutral tax change, by regressive. And, finally, in terms of percent­ the absolute differences in income between distributing its benefits or burdens equally age point change in average tax rate, the tax different economic classes. But, whether across all income levels, should leave the cut is perfectly neutral, with both taxpay­ inequality is best measured in relative or fairness of the tax system unchanged. ers having their average tax rates fall by two absolute terms is a difficult question which percentage points (Measure C). can only be answered by a deeper probing the measures and So, how to choose? The literature is of why resource inequality is harmful. how they differ split as to which measure is best—and ar­ A handful of progressivity measures serve guments for a given measure have largely equal sacrifice as the fodder for Washington tax debates failed to probe the normative underpin­ The equal sacrifice doctrine does not con­ and are used widely throughout the tax nings of the concern for progressivity. This cern itself with the fair distribution of re­ literature. The table below uses a simple note proposes that the answer to this ques­ sources but, instead, the fair distribution example to illustrate how five prominent tion lies in one’s choice of a particular the­ of tax burdens. This theory posits that fair progressivity measures can diverge. These ory of distributive justice. taxation would require equal sacrifice five measures—or ones closely related from all, leaving the distribution of wel­ to them—dominate the debate about tax measures of progressivity and fare generated by the market unchanged. fairness in Washington and the discourse theories of distributive justice Three of the measures of progressivity dis­ among many academics. The question of how resources should be cussed here, percent change in taxes paid For the purposes of this example, as­ fairly or optimally distributed and, in turn, (Measure A), percentage point change in sume that there are two taxpayers in soci­ how government should allocate the tax share of taxes paid (Measure B), and per­ ety: “High” and “Low,” with High earning burden among the citizenry has elicited a cent change in after-tax income (Measure $100 and Low earning $50. Prior to the tax vast body of literature. The discussion be­ D), are plausible measures of progressiv­ change, High pays $30 in taxes and Low low briefly summarizes how three domi­ ity under this theory of fairness. Mea­ pays $10. The tax change involves cutting nant theories of distributive justice relate sures A and B (which, as noted before, are High’s taxes by $2 and Low’s taxes by $1, re­ to the measures of progressivity that have closely related) indicate how a tax change ducing revenues by a total of $3. been introduced here. affects relative differences in tax sacrifice, Under these circumstances, the five while Measure D serves as a good proxy measures do not agree as to whether the tax equality of resources for changes in the absolute level of sac­ change is progressive, regressive, or neutral. Those who concern themselves with equal­ rifice, assuming that the marginal utility (Note that the table labels the measures ity of resources believe that a reduction in of income descends at a plausible rate as “Measure A,” “Measure B,” and so forth. resource inequality is “an end in itself.” If income rises.

A Hypothetical Tax Cut measures of progressivity measures of progressivity diverge

hypothetical income and tax liability A B C D E Percent Percentage Percentage Percent Tax Change Change in Point Change Point Change Change in in Dollars Income Pre-Tax Tax Liability Tax Liability Taxes Paid in Share of in Average After-Tax Level Income Before Tax Cut After Tax Cut Taxes Paid Tax Rate Income

Low $50 $10 $9 –10.0% –0.7% –2.0% 2.5% –$1

High $100 $30 $28 –6.7% 0.7% –2.0% 2.9% –$2

progressive progressive neutral regressive regressive

AUTUMN 2008 85 student spotlight utilitarianism The utilitarian principle requires that soci­ ety be organized so as to maximize social Student Tax Notes Win Prizes welfare as calculated by summing the util­ yu tax scholars had profitable timal tax base for land holdings; it is more ity of all members of society. From the utili­ returns in 2007. David Kamin ’09 and equitable than a property tax, she argues, tarian perspective, the entire progressivity N Michelle Christenson ’08 won second since it ignores improvements and better framework, irrespective of the measure place and honorable mention, respectively, reflects what landowners can pay and re­ employed, should be rejected because it fo­ in the 2007 Tannenwald Writing ceive as benefits. Christenson cuses on the wrong issue—namely, which Competition, cosponsored by also explores whether a land income classes have done better than oth­ the Tannenwald Foundation for value tax should be weighted, ers, as opposed to whether aggregate utility Excellence in Tax Scholarship with a higher tax rate for low- has been maximized. This does not mean and by the American College value land use. “It was really that distributional tables are irrelevant to of Tax Counsel. The judges useful to discuss—as well utilitarianism; in fact, they are quite impor­ received 50 papers from full- as defend—my paper with a tant for evaluating the optimality of a tax and part-time law school stu­ group of other students and change, since a dollar in the hands of those dents from around the nation professors versed in law and with lower incomes would be expected to who wrote on any federal or economics,” says Christenson. generate more utility than a dollar in the state tax topic. Kamin’s paper Kamin is gratified for the hands of those with higher incomes. But, in (excerpted at left, beginning on page opportunity to bring the issue of accurately employing tax distributional tables, the util­ 84), “What’s a Progressive Tax Change? measuring tax progressivity to a wider au­ itarian would not be concerned with which Unmasking Hidden Value of Distributional dience: “I consider how to measure the income groups have done better than others Debates,” earned him a $2,500 cash prize. progressivity of a tax change to be an im­ (or trying to discern what it means to do bet­ Christenson’s paper, “Optimal Prop­ portant issue. I was very happy to see that ter)—the sine qua non of progressivity. In­ erty Taxation: An Endowment Tax on Land I convinced readers that I am proposing a stead, the utilitarian would be focused solely Value,” proposes a land value tax as the op­ credible approach to this problem.” on maximizing aggregate utility, which is an entirely different issue. conclusion This note does not arrive at a determina­ tive conclusion as to which progressivity measure is “best,” instead finding that “it depends.” But, in outlining exactly what this decision depends on, this note moves the discussion forward in a number of ways. First, this note provides a mapping of theo­ ries of distributive justice onto progressiv­ ity measures, allowing a person to choose which measure of progressivity to use de­ pending on how that person conceives of tax justice. Second, this analysis cautions that the progressivity framework is not necessarily consistent with all theories of distributive justice. In fact, according to one dominant theory of justice—utilitari­ anism—the progressivity framework is a flawed one. This point highlights the impor­ tance of analyzing progressivity measures with a theory of distributive justice in mind and warns against adopting a progressivity framework without understanding how it connects to one’s conception of tax justice. Finally, this note’s approach pushes the debate beyond bald assertions of which progressivity measure is superior. There will still be disagreements about progres­ sivity measures, but these disagreements should be framed in terms of theories of justice. This allows for a richer debate that addresses substantive issues about how fairness should be conceived and offers greater potential for moral progress.

86 THE LAW SCHOOL student spotlight the U.N. currently enjoys as an intergov­ ernmental organization. A Remedy for The question of legitimacy becomes one of efficacy for the U.N. in situations where missions are attempting to rebuild Victims of Abuse by post-conflict societies and depend on the support of donors as well as of the local population. U.N. officials recognize that U.N. Peacekeepers individual criminal acts have an effect on the ability of the U.N. to carry out its mis­ sions. The Special Rapporteur on Violence Against Women, Radhika Coomaraswamy, stated that “[t]he United Nations will [lose]… its moral force if it fails to respond when those within the United Nations system violate human rights.” In this note, I focus on the same group of people that the General Assembly’s Group of Legal Experts’ recent report targets: peacekeeping personnel. The term “peace­ keeping personnel” encompasses officials of the United Nations—both staff and vol­ unteers—and experts performing missions, including United Nations police, military observers, military advisers, military liai­ son officers and consultants. Troops are often subject to very little if any control by the U.N., raising difficult questions for the responsibility of the U.N. toward violators, but peacekeeping personnel operate as em­ ployees of the U.N. and are subject to both functional immunities under the privileges and immunities convention and broader immunities under specific agreements with host states. As such, their behavior reflects most strongly on the organization. catherine sweetser current practice and response The U.N. has responded to problems with peacekeeping personnel through ex ante measures: specifically, encouraging deci­ Catherine Sweetser ’08 wrote two theses on espite an official “zero sion making that focuses on women’s rights peacekeeping when she was at Yale, where tolerance” policy and a commit­ and the disparate impact of measures on she graduated magna cum laude in 2005 ment to international humani­ women and including “gender units” with with a B.A. in political science and interna- tarian law and international teams of troops. It has also taken ex post tional studies. Since coming to NYU, she has human rights, stories of exploi­ measures on an ad hoc basis, setting up become fascinated by global administrative D tation by United Nations peace­ investigations by the Office of Internal law, in particular by how international in- keeping troops and personnel continue to Oversight Services into scandals in the stitutions are accountable to the people they surface. From 2004 to 2006, the U.N. inves­ Congo, Liberia, and Haiti, creating Boards serve and to the governments that create tigated 319 individual peacekeepers for of Inquiry under transitional administra­ them. This excerpt is from “Ensuring Account- sexual abuse and disciplined 179 soldiers, tions and setting up specific hotlines and ability of Peacekeeping Personnel for Human civilians and police officers. Most recently, complaint procedures for missions. Recent Rights Violations,” which was presented at BBC investigators uncovered allegations cases have implied that the organizational the 2007 Emerging Human Rights Scholar- of an assault on a 15-year-old girl in Liberia immunity provided the U.N. is contin­ ship Conference. It will be published in the and of a number of assaults in Haiti. The gent on provision of alternate remedies for NYU Law Review in November. Sweetser was U.N. has made a genuine effort to reform people injured. Where there is a gap in the a Furman Scholar and an articles editor of policy around peacekeeping but has not yet provision of compensation and remedies to the NYU Law Review. She is an Institute for provided compensation to victims. The per­ victims, the U.N. must fill that gap. International Law and Justice Scholar. She ceived lack of recourse for victims under­ The U.N. has given financial compen­ expects to earn a 2009 LL.M. in international cuts the legitimacy of the U.N., thereby sation to states and, in cases of arbitrary legal studies and ultimately plans to teach weakening peacekeeping efforts, and has detention, to individuals in the past, thus international and administrative law. distinct ramifications for the immunity potentially recognizing some form of

AUTUMN 2008 87 liability when peacekeeping personnel com­ Universal Declaration of Human Rights country, with costs to be covered from ex­ mit illegal acts. Where a claim is brought and the right to life under the International isting mission budgets,” is the only current against a country or against the U.N. during Covenant on Civil and Political Rights. The remedy available to victims. This remedy a military operation, a claims review board fact that such a violation does not rise to the clearly falls far short of true compensation, may be formed. These ad hoc mechanisms level of jus cogens norms generating univer­ particularly because medical and psycho­ are slow and costly but show that the U.N. sal jurisdiction, and probably will not fall social services may simply not be widely already has experience in compensating for under the rubric of international criminal available in post-conflict situations. claims against peacekeeping personnel. law, means that the U.N. must take positive The U.N. should implement a default Such compensation by the U.N. for un­ steps to ensure that victims have a forum in policy of waiving civil immunity for seri­ lawful acts by U.N. personnel has come on which to file complaints and bring claims. ous crimes and gross human rights viola­ a case-by-case basis and seems largely con­ The current structure of immunities tions. However, there are practical reasons tingent on international pressure or litiga­ creates gaps in liability and adds to the cli­ such a waiver may not be sufficient. In some tion by the victim’s state. It thus does not mate of impunity. Although international cases, a waiver might impair the efficacy of systematically establish confidence in the human rights law often relies on domestic the mission; in others, victims may not be U.N. system. It also privileges those victims legal systems for enforcement, functional able to bring suits. Thus, where immunity who have the resources to bring their own immunities attach to U.N. personnel while applies, the U.N. should also create an al­ lawsuits or who live in a state that has the on mission. Even when alleged violations ternative forum, such as a compensation functional capacity and political will to act fall outside a peacekeeper’s given function, commission, for victims to file complaints. on their behalf. The U.N. response will fail domestic courts on the ground may require The trust fund of the International to provide an adequate remedy for abuse by a waiver of immunity before a suit can be Criminal Court (ICC), which will soon be employees unless it deploys more system­ brought. The International Court of Justice formed and administered, provides a good atic ex post mechanisms to ensure financial has held that the Secretary-General has a potential model for a compensation mecha­ compensation and civil liability, such as a pivotal role to play in determining whether nism in the peacekeeping context. The U.N. blanket waiver of civil immunity or a com­ immunity attaches. The power of the Secre­ should follow the model of the ICC and cre­ pensation commission. tary-General to refuse to waive immunity ate a trust fund from which to compensate in the face of a serious crime thus hinges victims and should tie it to existing com­ the liability gap on the question of whether a human rights plaint and investigatory mechanisms. This In order to ensure legitimacy, the U.N. sys­ violation can constitute an official act of the fund should also be part of the peacekeep­ tem must be poised to engage with each in­ U.N. or whether the protection of a violator ing budget since voluntary funds such as cident, whether or not the incident rises to can be functionally necessary for the op­ the U.N. Voluntary Fund for Victims of Tor­ the level of an international crime. Although eration of the U.N. ture have struggled for funding. criminal acts by peacekeeping personnel Part of the power of the Secretary-Gen­ may arguably be said to violate interna­ eral to refuse to waive immunity comes conclusion tional human rights law through violating from countervailing human rights consid­ Although financial compensation can­ an individual’s right to life or right to bodily erations of due process for alleged perpe­ not truly restore a survivor of abuse to his integrity, international law does not pro­ trators. Due process protections are much or her former state, it can make a crucial vide universal jurisdiction for civil suits in stronger in the civil context; during a sub­ difference. A 2005 report by Prince Zeid, these situations. Individual sexual abuses by sequent enforcement action, the courts of special adviser to the Secretary-General, peacekeepers are not considered crimes vio­ the peacekeepers’ home nation can exam­ proposing a voluntary fund, points out that lating peremptory norms, and peacekeepers ine the fairness of the original action in “[m]any victims, especially those who have are currently protected by status-of-forces the host country. Nonetheless, for practi­ ‘peacekeeper babies’ and who have been agreements giving them significant immu­ cal reasons, a waiver of immunity may not abandoned by the fathers, are in a desper­ nities within the country of the mission. fill the liability gap: Many individuals will ate financial situation.” In addition to child Rape and sexual abuse are increasingly not have the resources to pay judgments support, compensation can be important recognized as war crimes and crimes against against them; most victims will not have for those who have contracted HIV/AIDS humanity by international criminal tribu­ the resources to bring complicated suits and who will need long-term health care. A nals but the recognition generally requires and subsequent enforcement proceedings; compensation commission or mechanism that the act be part of a widespread or sys­ and in a country undergoing or in the after­ would not only provide a useful alternative tematic attack against a population, rather math of serious armed conflict, the courts forum for victims, thus enabling a princi­ than an isolated incident. In crafting a gen­ may not yet be equipped to hear claims. pled denial of waiver of immunity in do­ eral system that corresponds to all sexual mestic courts should due process concerns abuse by peacekeepers, U.N. officials cannot filling the gap arise, but could also ensure recognition of assume that all such crimes will fall into the The U.N. is currently taking action to fill in and concern for victims by the U.N. itself, category of crimes against humanity. the enforcement gap left in criminal law, but restoring legitimacy to the organization in Despite the absence of peremptory or there is no system in place to fill in the gap the eyes of the public. The steps taken thus international criminal norms against such in civil law. The General Assembly’s Group far by the U.N. to provide for criminal ju­ conduct, peacekeepers may still be violat­ of Legal Experts has created a draft conven­ risdiction in the country of nationality and ing the human rights of their victims, if non- tion to ensure that states exercise criminal to strengthen complaints and investiga­ state actors can be said to be violators of jurisdiction over their own nationals, but it tory procedures will prove crucial; yet in human rights. Commentators have derived has purposely avoided altering the structure the course of reform, the U.N. should not a right to bodily integrity from the right to of immunities. A referral “to medical and forget to provide compensation to victims “life, liberty, and security of person” in the psychosocial services available in the host who have no access to a civil suit.

88 THE LAW SCHOOL around the law school

Around the Law School

Global Economic Policymakers Convene | 90 Ginsburg Speaks at Hays Anniversary | 91 Scholars Give Environmental Forecast | 92 Argentina’s President Talks Human Rights | 93 Conference Discusses Privatizing Defense | 94 Photos: This Year at the Law School | 98-99 Chinese Legal Education’s Growing Pains | 100 Senator Salazar on Bipartisanship | 102 Antitrust Modernization Debated | 105

United Nations Secretary-General Ban Ki-Moon gave the keynote at the Global Colloquium of University Presidents held at the Law School last November. President Bill Clinton also spoke at the two-day event, which included 50 university presidents and faculty experts and focused on the university’s role in shap- ing climate change policy in the post-Kyoto era.

AUTUMN 2008 89 around the law school European Central Bank President Discusses Downturn at Policy Forum he last eighteen months have Domestic panel speakers included Donald In the immediate aftermath of the rate not been kind to the U.S. economy. Marron, senior economic adviser on the cuts, however, high oil and other com- The collapse of American subprime President’s Council of Economic Advis- modity prices have made consumer prices T asset-backed securities have left ers; Tevi Troy, deputy secretary of the U.S. higher, causing inflation concern in recent housing numbers weak and financial insti- Department of Health and Human Services, months. Until credit markets regain their tutions continuing asset write-downs; the and Kevin Warsh, member of the Board of stability, more financial shocks could take economic future remains uncertain. Governors of the Federal Reserve System. place in the near future as companies con- Prominent domestic and global pol- Warsh and Marron cited actions that the tinue to write-down overvalued assets, icy makers who participated in the NYU Federal Reserve and the Bush administra- Warsh said. Already, the collapse of the School of Law’s second annual Global tion have taken to ameliorate volatile credit subprime mortgage market has caused Economic Policy Forum (GEPF) on April 14 and financial markets and boost the slug- about $245 billion in asset write-downs and gish U.S. economy. How- related credit losses. ever, they said it would Of course, write-downs in the subprime take time for these poli- housing and related credit markets have cies to become effective. negatively affected more than just the U.S. For example, the Federal economy and credit market. Global finan- Reserve had cut inter- cial markets also face a “situation of high est rates by three and uncertainty,” said European Central Bank a quarter percentage President Trichet in his keynote speech fol- points between Septem- lowing the domestic policy session. ber 2007 and May 2008, Trichet referred to the recommendations and it has offered banks from the April 11 Group of Seven Nations hundreds of billions of Conference, which called for more indus- dollars in liquidity to try oversight and transparency, saying that keep their credit flow- financial institutions should immediately ing. The U.S. government disclose the extent of their losses. He also passed a $150 billion noted the need for continued cooperation Jean-Claude Trichet fiscal stimulus plan in among the world’s central banks, as well as February, which pro- greater regulatory oversight of the financial vided tax incentives to industry. “The present turbulences have, encourage businesses to once more, demonstrated that opacity as spend, as well as stimu- regards markets, financial instruments and lus checks ranging from real situations of financial institutions is a $300 to $1200 per house- recipe for catastrophe,” Trichet said. hold, mailed in late April. Buoyed by an abundance of liquid- Marron said he expects ity and profits, as well as the creation of Tevi Troy Kevin Warsh Donald Marron these two moves to add increasingly sophisticated financial prod- 500,000 to 600,000 jobs ucts, the beginnings of the current finan- addressed the worldwide effects of the to the economy, but not until the end of cial crisis began well before last August, downturn. Jean-Claude Trichet, president 2008. “People sometimes forget how quickly when signs of U.S. mortgage related trou- of the European Central Bank, gave the we’ve reacted, given some of the delays that bles began to show, Trichet said. At that keynote address with a decidedly inter- are involved,” Marron said. time, market participants operated under national focus, expressing concern about Most importantly, it will take time for the false assumption that asset prices wobbling global markets and emphasizing the full impact of the Fed’s rate cuts to be would continue to climb indefinitely. “The that only an immediate, global response felt, Marron said. Fed studies show that it much higher degree of contagion that fol- could revive them. takes a year after rate cuts are implemented lowed stemmed from and was reinforced by The GEPF program, cochaired by for half of their effects to be felt in the econ- [these] factors,” Trichet said. Stuyvesant P. Comfort Professor of Law omy. Therefore, he said, the Fed’s rate cuts Trichet commended U.S. Treasury Sec- Geoffrey Miller, director of the Center for from the past several months should make retary Henry Paulson’s recent proposal to the Study of Central Banks, and Adjunct a noticeable difference in the economy overhaul the American financial system’s Professor Alan N. Rechtschaffen, was split during the second half of this year and the structure, but said any solution to the cur- into two sessions. In the first, participants start of 2009. Though not back up to speed rent financial crisis must involve the com- discussed domestic policies, and, in the yet, credit markets have already shown mitment of many countries together. “The other, international responses to the ongo- “early, encouraging signs of repair,” Warsh present turbulences are a global phenom- ing turmoil in the U.S. economy and its asserted. “Our tools are incredibly power- enon,” Trichet said. “Only a global response reverberations in world financial markets. ful, but they don’t work overnight.” can be effective.” Kelly Nolan

90 THE LAW SCHOOL around the law school

jolly good fellows At the Hays anniversary gathering, faculty directors Helen Hershkoff, Norman Dorsen and Sylvia Law; Justice Ruth Bader Ginsburg; Anna Deavere Smith

1960, and Evelyn Palmquist, longtime assis- tant to the program. Hays Celebrates 50th; In her keynote, Ginsburg discussed important civil liberties cases in the cur- Ginsburg Gives Keynote rent Supreme Court term, including Baze v. Rees, which upheld the constitutionality e are just entering heavy gay, lesbian and transgendered rights in the of Kentucky’s method of lethal injection “ duty time at the Court, with deci- 1980s and 1990s, and, most recently, immi- in death penalty cases; Riegel v. Medtronic, sions in over half of the term’s gration and executive-power issues. Inc., which held that Food and Drug Ad- W cases still to be released before Each year, the Hays Program awards fel- ministration approval of a medical device the summer recess,” said U.S. Supreme lowships to a select group of 3Ls to pursue exempted manufacturers from common- Court Justice Ruth Bader Ginsburg, begin- civil liberties work, either with outside or- law tort claims, and Crawford v. Marion ning her keynote address at the Arthur ganizations or through research and special County Election Board, which left in place a Garfield Hays Civil Liberties Program’s projects guided by one of the program’s fac- law requiring Indiana voters to show photo 50th anniversary celebration dinner in May. ulty directors. The current directors are Nor- identification. Ginsburg explained the rea- Even so, she said, she “could hardly resist” man Dorsen, Frederick I. and Grace A. Stokes soning of her dissents in all those cases. the invitation to speak. “I applaud the Professor of Law and director since 1961; Syl- University Professor and playwright efforts of [Hays] Fellows past and present via Law ’68, Elizabeth K. Dollard Professor of Anna Deavere Smith ended the evening to play a meaningful part in repairing tears Law, Medicine and Psychiatry, herself a Hays on a powerful note, performing several in our communities, country and world.” Fellow, and Helen Hershkoff, Anne and Joel pieces on human dignity. These included It made sense that Ginsburg—first in her Ehrenkranz Professor of Law. Hays excerpts from Representative Bar- class at Columbia Law, first woman to serve directors and fellows bara Jordan’s 1974 commencement on both the Harvard Law Review and the also work on litigation, address at Howard University Columbia Law Review, first director of the produce scholarship and on the erosion of civil lib- Photo of American Civil Liberties Union Women’s hold conferences. erties, and the words book TK Rights Project, and first Jewish woman on The Hays Program of a doctor at a New the Supreme Court—would speak at a din- marked its milestone with an Orleans hospital in ner celebrating the Hays Program. After all-day program that, aside from Hurricane Katrina’s af- all, the Hays, founded at the Law School in the dinner, included a luncheon termath. Smith’s final piece came from an interview she 1958 in honor of pioneering civil liberties and two panels, one on issues documenting 50 years lawyer Arthur Garfield Hays, was the first arising from challenging clients A 400-page book by conducted with Studs Terkel, program focused on training law students and the other concerning shift- Norman Dorsen chronicles whose observations on the loss for public service, and remains the fore- ing positions on civil liberties the Hays Program’s history. of “the human touch” in pub- most one. The program has taken the lead issues. In a testament to the Hays Fellows’ lic life, combined with Smith’s delivery, in addressing pressing constitutional issues, ongoing dedication, about 45 percent of the prompted a resounding ovation. “In cel- whether those were free speech and church- program’s 263 living alumni participated. ebrating you,” Smith said, “I wanted to and-state issues in the 1950s and 1960s; gen- Honored at the dinner were Professors celebrate the language of law and those der discrimination cases and the Vietnam Donald Wollett (now 89) and the late Paul of you who uphold that language and War’s implications in the 1960s and 1970s; Oberst, the first Hays directors from 1958 to the law.” Atticus Gannaway

AUTUMN 2008 91 around the law school So how can the next administration con- vince the Big Three (as well as the U.S.) to A Green Agenda for the tackle this problem multilaterally? While some conference participants proposed building new international coalitions, as Next U.S. President well as continuing to take part in existing Legal scholars, economists, policymakers, and a leading organizations, the general consensus was that a greenhouse gas cap-and-trade sys- climate change scientist met at NYU to discuss various tem is the most promising environmental solutions to a logjam of global proportions. legislation in the near future. Cap-and-trade works by placing a price- tag on pollution: Each company is given permits for releasing a certain amount of pollution, but companies are free to buy and sell those permits. Currently, several nations, including many in the European Union, and several states in the U.S. have established cap-and-trade protocols, but a global system has yet to be established. Still, Princeton Professor of Geosciences and International Affairs Michael Oppen- heimer, who is a climate change scientist and a lead author of an IPCC report, argued that nations need to take additional, bolder measures—a prospect some participants deemed unlikely. “China will not elimi- nate coal and CO2 emissions,” said Andrew Morriss, H. Ross and Helen Workman Professor of Law and Business at the ot since 1990 has a new environ- widely publicized 2007 reports by University of Illinois College of Law. mental statute been passed in this the Intergovernmental Panel on Cli- It wants “to stay in power with rapid country. Additionally, of those mate Change (IPCC) and the Supreme economic growth.” When America N statutes that are decades old, such Court case Massachusetts v. EPA in which sees that, he added, it won’t endorse radi- as the Clean Air Act of 1970, many aren’t the Court ruled that the EPA is in charge of cal change, either. being fully implemented or enforced. The regulating carbon dioxide and other green- Others, though, pointed out that the upcoming election offers an opportunity house gas emissions from motor vehicles. adoption of tougher state laws could cause a to break the impasse. So in March, NYU However, Sharp noted that the “diversity domino effect. “I would suggest that working Professors Richard Stewart and Katrina of viewpoints” on the issue of how best to within our state boundaries is working in- Wyman and New York Law School Professor confront climate change will make political ternationally,” said Peter Lehner, executive David Schoenbrod joined with the NYU compromises difficult. The two challenges director of the Natural Resources Defense Environmental Law Journal to present the facing the incoming administration will be Council, in his luncheon speech. “State ac- symposium, “Breaking the Logjam: An creating national legislation and negotiat- tion will pressure the federal government,” Environmental Law for the 21st Century.” ing collective, global agreements. agreed David T. Buente Jr., a partner at Sid- During the two-day event attended by 300, Other than the U.S., which emitted over ley Austin LLP, where he heads the envi- environmental legal scholars, economists, 6 billion tons of greenhouse gases in 2004, ronmental practice. And once Capitol Hill researchers, policymakers and a leading cli- the three countries that are the biggest follows the states’ lead, the U.S. can pressure mate change scientist assessed the state of polluters are Brazil, China and India. But other nations to follow suit. What’s clear is U.S. environmental policy and debated the even if one of these countries drastically re- that the status quo—in the U.S. and abroad— direction policy should take under the next duces its greenhouse gas emissions, it still is no longer acceptable, participants said. administration. The discussion focused not will be affected by the greenhouse gases Update: In a meeting in early July in only on national policy, but also on how to spewed by other nations. Recent scientific Washington, D.C., conference organizers strengthen international policies in 2012, research shows that aerosols, or small par- Stewart and Schoenbrod discussed the when the Kyoto Protocol Treaty ends. ticulate matter, thrown up into the air in project recommendations from this sym- Not surprisingly, climate change is- Asia are reaching as far east as the Rocky posium with the top environmental advis- sues dominated. “The overwhelming pri- Mountains in the U.S. In fact, this may be ers to presidential candidates, Senator John ority that will crowd out others is climate the first national problem that cannot be McCain and Senator Barack Obama. “Each change,” said keynote speaker Phil Sharp, resolved with unilateral action. “Climate was very receptive and encouraging,” said president of Resources for the Future, a change is really the first major example of Stewart. He, Wyman and Schoenbrod also Washington, D.C.-based nonprofit envi- a problem [to be] dealt with internationally,” are preparing a report detailing the propos- ronmental and energy research organi- said E. Donald Elliott, chair of the world- als and plan to release it in November, in zation. He pointed out that already this wide Environmental, Health and Safety De- advance of the new Congress and admin-

issue is on the national agenda, citing the partment at Willkie Farr & Gallagher LLP. istration. Molly Webster Harry Campbell

92 THE LAW SCHOOL around the law school was arrested, then interrogated, stripped naked, beaten and electrocuted during his year-long detention. “Knowing what happened to those who disappeared and obtaining the truth is a debt we still owe to the family members of those who were kidnapped,” Kirchner said regarding the thousands of Argentines who were seized and are, in many cases, still missing more than 30 years later. Kirchner added that justice for these disappearances must ultimately be meted out by the Argen- tine judiciary. Garzón, too, has played a significant role in bringing many of the perpetrators to justice. On July 25, 2003, he requested the extradition of 46 military officials to Spain Then-Senator Cristina Fernández de Kirchner who were involved with the disappear- ances of Spanish citizens. The very next day, President Kirchner lifted an executive Argentina’s Señora Presidenta order that prohibited such extraditions of Argentine military officers to foreign coun- tries. Garzón commended Argentina’s swift Talks of Justice Delayed reaction to his extradition requests, and ne month before argentina’s Kirchner made a case for Argentina’s contrasted it with the “schizophrenic” re- first lady, Senator Cristina Fernández efforts to address past human rights vio- sponse he received from Chile’s executive de Kirchner, became the first woman lations. She recalled how her husband, and judicial branches during his 1998 move O elected president of Argentina, she President Néstor Kirchner, strongly sug- to extradite General Augusto Pinochet for took part in the Emilio Mignone Lecture gested that the Argentine congress elimi- his human rights crimes. on Transitional Justice. The discussion cen- nate impunity laws established during the Philip Alston, John Norton Pomeroy tered on Argentina’s attempts to prosecute mid-1980s, which set unreasonable limits Professor of Law and a director of CHRG, military officers who ordered kidnappings on victims who wished to file charges for applauded Argentina for not only diligently of people during the “Dirty War” of the crimes committed during the “Dirty War” seeking justice, but also for its social and 1970s and ’80s. and absolved army officers of their partici- economic progress after a troubled past. Kirchner was joined by Judge Baltasar pation in torture and murder. “The subject of disappearances is regret- Garzón of Spain’s High Criminal Court There was dramatic tension to the dis- table, but it is, in a happier way, associated and Juan Méndez, president of the Inter- cussion as moderator Méndez was him- with the history of Argentina,” Alston said. national Center for Transitional Justice, self kidnapped and tortured just prior to “Happy in the sense that Argentina was able which cosponsored the event with the Law Argentina’s first military coup of President to respond to that curse and has demon- School and the Center for Human Rights Isabel Perón. In 1975, when he was an at- strated to the world the steps that can be and Global Justice (CHRGJ). torney representing political prisoners, he taken after such an era of darkness.” Developing Nations Have a Say in Global Policy launched in 2004, the institute for approach improves insti- International Law and Justice’s Project on tutional accountability Global Administrative Law (GAL), is cred- at the international level, ited with encouraging scholars to examine and promotes adminis- administrative procedures that affect the trative due process at the neja accountability of global bodies. However, domestic level. Many felt founders and Professors Benedict Kings- that the presentations ankaj A bury and Richard Stewart recognized that helped advance think- this emphasis has drawn criticism in the ing on how to improve developing world; some say GAL’s strong regulators’ ability to pro- t kingsbury: P Euro-American focus on imparting legiti- tect public interests in c macy to structures of global governance has India’s various economic Richard Stewart Benedict Kingsbury diminished its potential effectiveness. Last sectors. The general con- January, in a two-day conference in New sensus also was that GAL hasn’t adequately institutions that serve to perpetuate the Delhi, NYU’s GAL Project, in collaboration addressed significant concerns of devel- power imbalance between developing and with the Centre for Policy Research in India, oping nations, such as power disparities. developed nations. This also helped set the ard stewart and benedi brought together 35 scholars to explore this Attendees discussed ways to extend the GAL agenda for future conferences on South ch ri issue. Attendees agreed that the procedural Project’s scope so as to avoid legitimizing Africa and on climate change.

AUTUMN 2008 93 around the law school “No, Mr. Hammond,” responded Scahill, “it is an enforcement-free zone.” Outsourcing U.S. Defense Contractors’ lack of accountability may hen war is a business, supply like the September 2007 shooting in Ni- be inherent to being part of the private sec- and demand become a driving sour Square, Baghdad, for which priva- tor. “The oath matters,” said Paul Verkuil, force. Journalists, lawyers and tized security became notorious. As Nation a professor at the Benjamin N. Cardozo W executives gathered this spring contributor Jeremy Scahill put it, “[The de- School of Law. While contracts in the pri- at NYU’s Center on Law and Security to mand for private contractors] is born of an vate sector emphasize efficiency, they ig- debate the pros and cons of this trend. unquenchable thirst for wars of aggression.” nore accountability. On the other hand, In the half-day conference, “Privatizing Legislation, like the Stop Outsourcing Verkuil said, “public sector values include the accountability that any government employee swears him- or herself into when taking an oath of pub- lic service.…Certain duties cannot be performed by the private sector, [and this in- cludes] war.” Accountability or not, said Hammond, the vio- lence perpetrated by private contractors in Iraq reveals less about the environment of the private sector than it does the environment of a Stephen Holmes and Nir Rosen Marty Strong combat zone. Verkuil ended the dis- Defense: Blackwater, Contractors and Security Act, “is worthless as long as corpo- cussion on a more hopeful, if idealistic, American Security,” the panelists reached a rate profits are tied to war,” he added. note. “It is impossible to outsource sover- consensus: As long as defense is a demand- Blackwater USA and its counterparts eignty in the American system because the based industry, private contractors will be see the violent acts in Iraq as the inevita- people own sovereignty,” he observed. in large supply. ble byproducts of working in a war zone. Furthermore, with only 6,000 of the For some speakers, like Marty Strong, Nonetheless, Hammond stressed, “This is 180,000 contractors in Iraq assigned to vice president of Blackwater USA, or David not an oversight-free zone.” Scahill and security, Verkuil also asked an important Hammond, his lawyer, this is a positive Nir Rosen, a fellow at the Center on Law question: Why can’t we hold them to the statement, suggesting more profits. For and Security, countered that contractors same oath that all government employees others, it conjures up images of violence, who commit crimes should be prosecuted. are required to take? With a Little Help from His Friends Six weeks after signing a 99-year lease for It was here that the worlds the World Trade Center, Larry Silverstein, of real estate development, president and CEO of Silverstein Properties, insurance and law converged: found himself paying $120 million in annual “[Wachtell and Lipton] came rent for a vast pile of smoldering rubble. To up with this concept of two overcome the seemingly insurmountable ob- events. Why? Because you stacles in trying to rebuild, he relied on a few had two separate planes hit- NYU School of Law alumni, as he explained ting two separate towers at in a talk to students last fall hosted by the different times, and therefore Pollack Center for Law & Business. we were entitled to $7 billion, Silverstein’s legal saviors were two of the not $3.5 billion.” founding partners of Wachtell, Lipton, Rosen For the better part of six & Katz: Herb Wachtell ’54, Silverstein’s close years, Silverstein’s litigation against his in- development plans for the site clashed with friend for nearly six decades, as well as Mar- surers moved through the courts. It finally Silverstein’s. His pride in the outcome was tin Lipton ’55, with whom Silverstein had took the intervention of both New York State clear. Describing the safety measures un- served for years on NYU’s Board of Trustees. Insurance Department Superintendent Eric dertaken in rebuilding 7 World Trade Cen- “I got on the phone with Herb and I said, ‘Herb, Dinallo ’90 and then-Governor Eliot Spitzer ter, he said, “What we decided to do was I’ve got a problem.’ He said, ‘Ha! Do you have to broker a deal in 2007. Meanwhile, Silver- to take everything we learned on 9/11 about a problem!’” Silverstein’s insurance coverage stein also sparred with the Port Authority of how not to build a high-rise office building of the World Trade Center site, cobbled to- New York and New Jersey, which owned the and put those lessons into the design of 7.... gether with policies from 25 insurers, totaled land at Ground Zero, and the Lower Man- It’s the best damn building built in America $3.5 billion, much less than needed. hattan Development Corporation, whose by a huge standard.”

94 THE LAW SCHOOL around the law school Experts Debate Terrorist Threat ith no terrorist attacks on officials and journalists, mostly from the cooperation; the “Iraq Effect,” or how the  U.S. soil in the seven years since U.S. and Europe, convened to discuss how war has affected terrorists in the broader 9/11, a great debate has formed to counteract terrorism, as they have every Middle East, and foreign policy in the next W in the inte lligence community year since the Center on Law and Security administration. But it was the debate over regarding the threat that al-Qaeda poses. (CLS) was founded in 2003. Participants al-Qaeda and the “state of the threat” that On one side are those who believe al-Qaeda included Yosri Fouda, chief investigative stirred the most impassioned disagree- continues to pose a powerful threat, as evi- correspondent and executive producer at ment, even spilling onto the pages of The denced by a resurgence of its presence in Al Jazeera, and Armando Spataro, deputy New York Times. Pakistan. On the other are those who argue chief prosecutor in Milan. They were joined One attendee, Baltasar Garzón, Spain’s that radicalized individuals and small by Admiral William Fallon, whose off-the- anti-terror investigatory magistrate and for- independent groups who congregate on record keynote speech was his first appear- mer distinguished fellow of the Center on the Internet and in their neighborhoods ance since retiring after 40 years of service Law and Security, struck a cautionary note have usurped terrorist organizations such with the U.S. Navy. His last assignment had in the Times: “The danger of this ‘either-or’ as al-Qaeda. This clash was one focus of the been as commander of the U.S. Central argument could lead us to the mistakes of Center on Law and Security’s fifth annual Command, overseeing U.S. military opera- the past. In the ’90s, we saw atomized cells Global Security Forum last May at NYU’s tions in the Middle East, the Horn of Africa as everything, and then al-Qaeda came La Pietra campus in Italy. and Central Asia. along. And now we look at al-Qaeda and A core group of lawyers, terrorism The group held off-the-record dis- say it’s no longer the threat. We’re making experts, policymakers, law enforcement cussions on the future of transatlantic the same mistake again.”

cls conversations 1 NPR correspondent Dina Temple-Raston and 2 New Yorker writer and CLS Fellow Lawrence Wright at “Prosecuting Terrorism” 3 Carnegie Endowment for International Peace’s Karim Sadjadpour and Council on Foreign Relations’ Steven Simon at “Fever Pitch: The United States and Iran”; 4 Wright and National Security Network president Rand Beers at “Today’s Terror Threat”; 5 Washington Post reporter Walter Pincus, CLS exec- utive director Karen J. Greenberg, Washington Post reporter Dana Priest and New York Times reporter Tim Weiner at “Intelligence in the Age of National Security”; 6 Princeton professor Sean Wilentz and Ted Sorensen, former special counsel to John F. Kennedy, at “State of the Party: Democrats at a Crossroads”; 7 Judge Baltasar Garzón and Professor Stephen Holmes at “Prosecuting Terrorism” event 1 2

3 4

5 6 7

AUTUMN 2008 95 around the law school A lawyer by trade, as well as an excel- bomb scenarios. “Torture would work well Scars and Stripes lent reporter, Sands documents the dis- when organisations remain coherent and by karen j. greenberg cussions that led to the memo written by well integrated, have highly professional This essay is an excerpt from a May 31, 2008 William “Jim” Haynes and approved by interrogators available.” The case of Alge- article in the Financial Times. Donald Rumsfeld on December 2, 2002. The ria seems superficially to defy this analysis, memo’s greatest import lies in its “request and has often been cited when discussing in april 2004, “60 minutes” aired a now for approval of counterresistance tech- US torture. The Pentagon helped popular- infamous set of photographs depicting tor- niques to aid in the interrogation of detain- ise this comparison when it publicised its ture at Abu Ghraib prison in Iraq. Images ees at Guantánamo Bay.” own screenings of The Battle of Algiers in of US servicemen and women taunting Attached was a list of 18 “counter-resis- 2003. The film documents the use of torture prisoners with leashes and dogs, and of a tance” interrogation techniques. Rumsfeld to elicit information about the rebels. Bush hooded man connected to electrodes, over- made most policy. According to FBI analy- last year also revealed that he was reading a night brought the word torture into present- sis at the time, 10 of the 18 violated US law, book on Algeria, A Savage War of Peace. day consciousness. including “hooding, twenty-hour inter- In Torture and the Twilight of Empire, Later, a Department of Defense paper, rogations, the removal of clothing, stress Marnia Lazreg, professor of sociology at the Taguba Report, catalogued positions and dogs.” The admin- Hunter College, again uses French torture countless instances of prisoner istration says they do not consti- in Algeria as a window on to a panoply of mistreatment at Abu Ghraib. tute torture; Sands disagrees. issues. Among them are gender politics as The photos, it seemed, hinted at Under these new measures, evidenced in “the sexual core of torture” just a small part of a larger pol- Mohammed Al-Qahtani, a practised by the French and the National icy of coercive interrogation. young Saudi in custody at Guan- Liberation Front, and the role of decolo- Since then, investigations tánamo, was isolated for more nisation. Lazreg’s analysis includes one and rebuttals have created two than 160 days and subjected of Sands’ and Rejali’s essential points: the battling narratives over this is- to coercive interrogation. This attack on civilian institutions as a means to sue, between law and action. reduced him to a state of disar- a political end. On November 13, 2001, Bush The law is clear. In the US torture—defined ray documented in FBI logs. Torture Team’s signed a military order giving the Pentagon as an act intended to inflict severe physical purpose is not solely to ascribe blame, how- civilian leadership authority over military or mental pain or suffering—is illegal. Un- ever. Sands’ other goal is to consider redress commissions. The Department of Justice der international law, it is also illegal. for these crimes. To Sands’ incomprehension, and the uniformed military were sidelined. How has the world’s leading democ- those lawyers who disagreed with Bush on As Lazreg notes of the militarisation of racy, a model for the ideal that power and the grounds of the rule of law—among them French government in Algeria, the “trans- decency reinforce one another, become judge advocate generals and general coun- fer of power from civil to military court” the place where torture is debated rather sels to the armed services—were excluded started the repression that was to follow. than outlawed? Freedom of Information from the decision-making process. Sands, Rejali and Lazreg agree that tor- Act suits, government leaks and tireless This is not, of course, the first time that ture is a sign of a political order that has reporting have yielded information about a modern state power has used bureau- rejected the standards and practices of the chronology, the prime architects cratic radicalism to subvert the law. Han- democracy’s revered institutions, notably and the politically approved abuses that nah Arendt pointed to this, for example, in the realm of the law. The more we know have occurred in the “war on terror.” In when she wrote Eichmann in Jerusalem about torture, the less we can understand the run-up to the presidential election and (1963), about the postwar trial of the Nazi how a civil society can choose to implement a new administration, several new books Adolf Eichmann. For Arendt, the banality of it. Perhaps this is why Americans remain document, explain and contextualise the evil was rooted in the way the bureaucracy stymied by the question of accountability story of US torture. itself, rather than some overarching evil for torture. The need to ascribe responsibil- The most accessible of these focuses genius, allowed laws to be pushed aside by ity underlies all three books. on the pragmatic details. In Torture Team: the human proclivity to follow orders. Meanwhile, the quagmire over torture Deception, Cruelty and the Compromise of In Torture and Democracy, Darius Rejali, persists. No amount of reasoning—not that Law, British barrister Philippe Sands uses professor of political science at Reed Col- based on domestic law, international law or interviews and documents to portray what lege, Oregon, begins where Sands leaves off. security concerns about alienating infor- occurred in the White House—and shows Documenting modern torture techniques mants—seems to deter the current admin- that it did so because government lawyers to consider the larger philosophical context, istration from its insistence that these at the highest levels enabled it to happen. his book is both horrifying and compelling. “practices” work. Perhaps the only possible The small team included Cheney’s law- Like Arendt, he focuses on the systems that response can be to suggest that, all other yer David Addington, Rumsfeld’s undersec- produce and implement torture policies. reasons aside—legal, political, strategic— retary of defense for policy Douglas Feith, Like Sands, Rejali sees banal profession- it is a moral wrong. It is soul-wounding for William Haynes, general counsel at the alism as key to the rise of government tor- those who do it—and, we may surmise, for Department of Defense, Alberto Gonza- ture, which he argues has increased since those in whose name it is done. les at the White House, Jay Bybee, head of the 1970s. Citing the case of France in 1950s the Office of Legal Counsel (the legal arm Algeria, Rejali concludes that “democratic Karen J. Greenberg is the executive direc- i

of the executive branch) and his deputy institutions were unwilling or unable to tor of the Center on Law and Security at the cc John Yoo. Together, they penned memos stop the turn to torture.” NYU School of Law and coeditor of The Tor- that redrafted existing law to prepare the Rejali argues that torture fails when ture Papers: The Road to Abu Ghraib Cam-( uido manu ground for “coercive interrogation.” it’s needed most—in last-minute, ticking bridge University Press, 2005). G

96 THE LAW SCHOOL around the law school The husband was sentenced to death, and after the war in 1949, the woman was Should Laws Be Moral? prosecuted for illegally depriving her hus- Eight leading scholars from around the world revisit a band of his liberty. Her defense was that her conduct had been lawful at the time—and, 50-year-old debate between H.L.A. Hart and Lon Fuller. indeed, the law did forbid comments like her husband’s. A German appeals court nonetheless found her guilty. That deci- sion, Hart said, was improper. He said the woman had committed no crime. Fuller, in contrast, said there are laws so evil they cannot be valid. In his paper for the conference, Dyzen- haus deftly pointed out that Hart’s account of the case was misleading, and in telling ways. The German appeals court’s ruling, which Dyzenhaus provided to the confer- ence in a new translation, turned largely on the fact that the woman was under no duty to speak, violated her husband’s privacy and did so for base motives. It was possible, then, to justify its ruling through conven- Standing: NYU Law Review’s Dimitri Portnoi, Liam Murphy, Frederick Schauer, Jules Coleman, Law Review’s tional legal reasoning to reach its result. The Ben Kingsley, Leslie Green, Nicola Lacey, David Dyzenhaus. Seated: Jeremy Waldron and Benjamin Zipursky. appellate ruling, while perhaps not entirely convincing, was not an example of a mis- n april 30, 1957, the english legal newer shadows now, cast by Guantánamo guided application of natural law. philosopher H.L.A. Hart gave the Bay and questions about the rule of law in Nicola Lacey, professor of criminal law Oliver Wendell Holmes lecture at the age of terror. and legal theory at the London School of O Harvard Law School. His topic, he The conference was organized by Jeremy Economics, spoke next, first declaring her- later wrote, “was, and was intended to Waldron, University Professor at New York self a “Hart-Fuller baby” for being born in be, provocative.” Hart called his lecture University School of Law, and Benjamin February 1958. She went on to discuss the “Positivism and the Separation of Law and Zipursky, James Quinn Professor of Law importance of the history that colored the Morals,” and his central point was that at Fordham Law School, and sponsored by original debate. Waldron seconded that there is no necessary connection between the NYU Law Review. In a series of papers of point, discussing the “historical anxiety law and morality. extraordinary depth and sophistication, the that pervades the rule of law.” Lon Fuller, a law professor at Harvard, conference addressed the substance of the “An interesting feature of the concept of found that assertion infuriating. He paced debate. But there were also distinct echoes law,” Waldron continued, “is that it involves “back and forth at the back of the lecture hall of the original confrontation, building from all the time looking over your shoulder.” like a hungry lion,” a colleague recalled, and cool analysis to a crescendo of insistent feel- He added: “Why is it that people feel when he left during the question-and-answer ses- ing in Waldron’s final remarks. they have political power in their hands, sion afterward, unable to bear any more. On the first day of the conference, Les- and they have ends and purposes that they When the Harvard Law Review an- lie Green, professor of philosophy of law think are noble and good, why nevertheless nounced plans to publish Hart’s lecture at Oxford University; Jules Coleman, Wes- do they think that’s not enough to justify in February 1958, Fuller demanded a re- ley Newcomb Hohfeld Professor of Juris- the use of coercion? You have to be looking ply, one insisting that law is not a neutral prudence and professor of philosophy over your shoulder for a statute or looking concept but one necessarily embodying at Yale Law School; Liam Murphy, vice over your shoulder for how some past doc- an inner morality. What the Nazi courts dean and Herbert Peterfreund Professor trine would justify what you’re proposing to applied, for instance, was not entitled to of Law and Philosophy at NYU; Frederick do. What would be the point of that?” be called law, Fuller said. “The two articles Schauer, Frank Stanton Professor of the Waldron’s own remarks were, in part, a quickly became, and still remain, the stan- First Amendment at the Kennedy School at rousing elaboration on that question and, dard scholarly reference point and teaching Harvard University, and Professor Zipursky in part, an attack on Hart that would have resource for the opposition between legal focused for the most part, as Coleman put pleased Fuller. He pointed out contradic- positivism and natural law theory,” Nicola it, on “the philosophically interesting rela- tions and inconsistencies in Hart’s writings, Lacey wrote in her 2004 biography of Hart. tionships between law and morality.” noting that “Hart himself toyed with many The Hart-Fuller debate, as it came to be The next day, David Dyzenhaus, profes- of the positions that Fuller held.” These are known, continues to resonate and deepen. sor of law and philosophy at the University “hard things to say” about the “godfather” Almost exactly 50 years later, on a rainy of Toronto, took a fresh look at “the case of of jurisprudence, he noted. But, he added, Friday in February, eight leading scholars the grudge informer,” one that had divided “I weep when I think of the number of good from around the world gathered for two Hart and Fuller. It involved a woman who political and jurisprudential instincts that days to revisit the debate, which had taken was having an affair and wished to be rid of have been stifled in classes taught by posi- place in the shadow of the Second World her husband. She accomplished that by de- tivist legal philosophers who are following War and the Nuremberg Trials. There were nouncing him for insulting Hitler in 1944. Hart’s example.” Adam Liptak

AUTUMN 2008 97 A Year in the Life of the Law School

Above left, Jody McCrory, Lindsay Shea McCrory ’10 and Michael McCrory at “Family Day”; Above center, Judith Kaye ’62, Chief Judge of the State of New York, with Raymond Lohier ’91, deputy chief of securities and fraud unit of the U.S. Attorney’s Office, Southern District of New York, at “Diversity Initiatives in the Practice of Law”

Above, NYU President Emeritus John Brademas with China Supreme People’s Court Justice Wan Exiang; above right, Cass Sunstein with Stephen Holmes; below right, Moshe Halbertal with Jewish Theological Seminary’s Arnold Eisen, at “Conservative Judaism and the Re-imagining of Jewish Law”; below, Dean Richard Revesz with Richard Stewart, at the Hauser Global dinner Above left, Yuri Schmidt speaking at “The Prosecution of Mikhail Khodorkovsky”; above, Arizona Gov. Janet Napolitano at the Brennan Center’s first “Living Constitution” lecture; below, Judge Richard Posner at “Countering Terrorism: Blurred Focus, Halting Steps”

Above, NYC Schools Chancellor Joel Klein at “School Reform and Lawyers”; below right, Susan Hirsch, at “Prosecuting Terrorism: America’s Challenge Then and Now”; below, Harvey Dale, with Justice Albie Sachs, at “An Afternoon Program with Justice Albie Sachs of the Constitutional Court of South Africa” around the law school Healing a Divided Nation These are exceptionally partisan and polarized times, says Judge J. Har- vie Wilkinson III of the U.S. Court of Appeals for the Fourth Circuit. In his 2007 James Madison Lecture, “Toward One America: A Vision in Law,” he argued that the law can heal our frac- tured nation. “If law is part of the prob- lem of polarization, it should likewise be part of the solution,” he said. Wilkinson cited myriad examples of divisiveness in politics and the law: Dean Chenguang Wang Gerrymandering, for instance, reorders congressional districts to benefit can- didates. Electioneering pulls politicians away from public service and tethers Eager for Clinical Education them to special interests. And both parties have made judicial confirma- Chinese legal scholars discuss the next step in legal tion hearings vicious, and overzealously education in China at the Timothy A. Gelatt Dialogue called for presidential impeachment. To promote national unity, Wilkin- here is no excuse for legal Huang, deputy director of the Department son said the balance between the “ education to be boring,” observed of Criminal Legislation of the Standing three branches of government must be Professor Jerome Cohen, and so Committee Legislative Affairs Commis- maintained; the collective rights of all T began the 12th annual Timothy A. sion, the legislative body of the National American citizens upheld, and, most Gelatt Dialogue on Law and Development People’s Congress, stated the issue suc- important, constitutional amendments must never take the place of legis- in Asia. Sponsored by the U.S.-Asia Law cinctly: “The biggest problem is that teach- lation on hot-button issues such as Institute in cooperation with the Council ing is separate from practice. Law schools same-sex marriage or abortion rights. on Foreign Relations, this year’s dialogue do not teach how to use legal knowledge “Legislation implies temporary winners focused on the role of legal education in to resolve the practical problems.” Dean and temporary losers,” Wilkinson said. China’s rapidly changing society. Yixin Liao of Xiamen University Law “Constitutionalizing tampers with our Keynote speaker Dean Chenguang School, located in Southern China, agreed, legal birthright and common heri- Wang of Tsinghua Law School in Beijing but noted that progress recently had been tage—with what we as a nation hold highlighted the importance of legal edu- achieved, especially by introducing some most dear.” cation in China’s reform process: “Through U.S. teaching methods. The judiciary, too, must shoulder the development of legal education, law has Consider, for instance, the growing use some of the burden of uniting the divided nation. Independence, neu- become an independent subject, separate of clinical legal education. Ira Belkin, pro- trality and due process need to remain from politics and party policies.” Wang gram officer for law and rights of the Ford foremost in the minds of judges. Exer- reminisced about his decision to enter law Foundation, discussed one of the founda- cising judicial restraint, Wilkinson said, school at the end of the Cultural Revolution, tion’s largest legal projects in China, the can help convince a sometimes-skep- during the late ’70s. “There were only two development of clinical courses in Chi- tical public that judges are arbiters of law schools in China. When I told my father nese law schools. The foundation began its justice rather than privileged activists. that I was going to study law, he just asked project in 2000, when clinical education Otherwise, Wilkinson warns, “The ‘What? Is there any law in China?’” was completely absent from the law school inevitable elitism of a judicial ruling Today there are 604 law schools in curriculum. There are now more than 6,000 class will spawn a populist rancor in China, and more than 300,000 law students. clinical courses offered throughout China, America that will frustrate the attempt to bridge our most basic divides.” However, this growth has not been without covering subjects ranging from environ- problems. According to Wang, the most mental pollution and labor law to human pressing issue today is the growing dispar- rights and legislative drafting. In addition ity between what is taught in law schools to giving students professional skills, clin- and the skills actually needed as a practic- ical legal education also helps inspire in ing attorney. “Many law professors say we them a commitment to public interest law. should teach doctrine, something more ab- For Belkin, this is key: “Currently, there is stract and philosophical,” observed Wang. not a well-developed public interest legal

“But what about professional skills and pro- profession. The challenge going forward Norman Dorsen and fessional ethics?” is how to increase the number of lawyers Hon. J. Harvie Wilkinson III Wang’s comments were echoed by who serve underrepresented and vulner- many of the night’s panelists. Taiyun able groups in China.”

100 THE LAW SCHOOL around the law school Judge Advocates Sentencing Reforms that they stay out of trou- ing upon release, and made recommenda- ble. Factors such as social tions to factor this probability into their stigma and easing reen- sentences. A 2007 report from the com- try into society therefore mission heralded the news that Missouri’s should be considered. In prison population and recidivism rates Missouri, 97 percent of all have since dropped substantially. felony offenders are even- Wolff has also been at the forefront in tually released from prison. addressing disproportionate sentencing. Many of them return to a Under current drug laws, for instance, crack life of crime; some commit users and dealers receive much harsher violent offenses. The prob- sentences than those caught with powder lem is that ex-convicts find cocaine. This is inherently biased, Wolff it difficult to find employ- said, as crack cocaine use is more com- Judge Michael Wolff ment, support a fam- mon among urban, poor African-Ameri- ily and restart their lives can males. “Judges must develop analytical entencing is more complicated once they are back in society, even if their tools to make sure race, gender and loca- than the maxim, “If you do the crime, crimes were non-violent, and likely drug- tion do not result in disparity,” he said. you do the time,” implies, says Judge related. The public is further at risk, Wolff Other improvements to sentencing, S Michael Wolff of the Missouri State adds, because aggression and violence are Wolff said, include abandoning minimum Supreme Court. In his speech, “Evidence- learned and reinforced in prison, and ex- requirements and replacing judicial dis- Based Judicial Discretion: Promoting offenders carry these behaviors into society cretion with evidence-based sentencing. Public Safety through State Sentencing after their release. “The non-violent learn Alternative sentences, such as restorative Reform,” for the 14th annual Brennan from the violent in jail, and not the other justice circles and community service, Lecture on State Courts and Social Justice, way around,” he said. should strongly be considered for certain Wolff argued that trial judges must face the In 2005, the Missouri Sentencing Ad- non-violent offenders. The bottom line, he reality that most convicts will eventually be visory Commission, which Wolff chairs, said, is that punishment should never be released, and that it is in society’s interest began analyzing prisoners’ risks of reoffend­ harsher than is absolutely necessary. Native Americans Still Deprived of Legal Rights

the notion that native americans the forest. To leave them in could not grasp the concept of land own- possession of their country ership has been ingrained in American was to leave the country a culture since the arrival of the Europeans wilderness.” on this continent. But Robert Williams, This legal reasoning, E. Thomas Sullivan Professor of Law and Williams argued, was pred- American Indian Studies at the University icated entirely on myths: of Arizona’s James E. Rogers School of Law, “Do you see how these ste- argued in his 2007 Derrick Bell Lecture that reotypes frame legal dis- this was a “ridiculous stereotype” used to course? The only possible justify taking property from Indians. way to justify this rule is According to Williams, a long history of to use the stereotype of In- Native American diplomacy preceded the dian savagery.” More than arrival of the white man; extensive trading a century later, in the ma- and diplomatic networks covered North jority opinion for Oliphant America. But once European settlers and, v. Suquamish Indian Tribe later, the U.S. government had the land they (1978), Justice William Rehnquist wrote enous Peoples. Only four countries voted wanted, treaties were broken and forgotten. that Indian tribal courts did not have ju- against the declaration, the U.S. among And the justice system didn’t help. risdiction over non-Indians who broke the them. Williams recently shifted his atten- Chief Justice John Marshall wrote the law while on Indian land. Once Rehnquist tion from Native American rights in the U.S. mages majority opinion for Johnson v. M’Intosh became chief justice in 1986, the Court con- to international cases involving indigenous etty I (1823), which determined that Native Amer- sistently ruled against Native Americans in peoples. Now he runs the University of Ar- G

ive/ icans had merely the right of occupancy to cases involving jurisdiction claims, prop- izona’s Indigenous Peoples Law and Policy ch r their land, but not the right to sell it to any- erty rights and protection of sacred sites. Program, which won a property rights vic- one but the government: “The tribes of In- Still, Williams is encouraged by recent tory for the Maya in Belize. “Imagine work- dians inhabiting this country were fierce developments. In September 2007, the ing in a legal system in which you can’t use savages, whose occupation was war, and United Nations General Assembly approved a language of racism about Indians,” said

poster: Hulton A whose subsistence was drawn chiefly from the U.N. Declaration on the Rights of Indig- Williams. “You’ll win a lot.”

AUTUMN 2008 101 around the law school have electricity or a telephone. Along with each of his seven siblings, Salazar was part Pragmatic, Not Partisan of the first generation of his family to grad- Salazar argues the benefits of political compromise at uate from both high school and college. the Attorney General Robert Abrams Public Service Lecture. After attending the University of Michigan Law School and working as an attorney in the private sector, Salazar became the Colorado governor’s chief legal adviser and then the state director of natural resources before being elected Colorado’s first His- panic attorney general. He was voted into office as the first Hispanic U.S. senator in the state in 2004, the same year that his brother John won a seat in the U.S. House of Representatives. As a senator, Salazar has tackled issues as diverse as working on behalf of farmers whose wells were shut down because of in- terstate litigation and founding a new Of- fice of Rural Health within the Department of Veterans Affairs. In his speech, Salazar also touched on a wide range of continuing issues, including water rights in the West, the conflict in Iraq and an energy policy heavily dependent on fossil fuels. The solutions to these and other quan- Senator Ken Salazar daries, Salazar said, remain within the country’s grasp, but a new kind of leader- n the polarized world of wash- Yet Salazar does not hesitate to criticize ship is necessary. ington politics, acts of bipartisanship the Bush administration, as he did during “It is time for ideas to help people in their can be seen as inflammatory. Just ask the 11th annual Attorney General Robert everyday lives,” he said. “Pragmatism, in I freshman U.S. Senator Ken Salazar Abrams Public Service Lecture last Janu- my view, demands humility, for when our of Colorado. He found controversy as part ary. Stressing the importance of pragma- ideas do not solve the problems they were of the “Gang of 14,” a group of moderate tism, he referred to “a neoconservative rush intended to solve, we have to admit that Republicans and Democrats who signed a to war in Iraq” and the “false promises” of they were wrong, no matter what the po- 2005 agreement to permit filibustering in the compassionate conservativism. “Our ideas litical consequences are. But pragmatism judicial nomination process in “extraordi- either work or don’t,” he said. “When they is also inherently hopeful because it holds nary” circumstances. And weeks after join- don’t, we have to find a new way.” out that our ideas, our institutions and our ing the Senate, Salazar, a Democrat, parted Salazar described his humble begin- society can always be improved upon and ways with his party and voted to confirm nings as part of a farming family in a remote made more perfect, and perfecting them is Alberto Gonzales as U.S. attorney general. part of Colorado, in a home that did not our rightful pursuit.”

Leaders in Public Interest Series, 2007-08 On Monday evenings throughout the year, scholars and practitioners in public interest law came to the Law School to share their observations and experiences.

School Reform and Lawyers: Confronting Injustice Practicing Public Interest The Road Less Traveled Bryan Stevenson, Law in Private Practice Joel Klein, Chancellor of the NYU School of Law Professor Jonathan Abady ’90, New York City Department and Executive Director, Equal Partner, Emery Celli of Education Justice Initiative of Alabama Brinckerhoff & Abady

Diminished Capacity Disability Rights and Using the Law to and Poverty Law: Health Law on Behalf of Advance Global Health Representing the Seriously Low Income People Jonathan Cohen, Project Mentally Ill in Civil Matters Cary La Cheen ’88, Senior Director, Law and Health Initia- Lynn Kelly ’82, then-Executive Attorney, National Center tive, Open Society Institute’s Director, MFY Legal Services for Law and Economic Justice Public Health Programs

102 THE LAW SCHOOL around the law school around the implications raised in tiny Jena, Louisiana, where in 2007 six black teens charged initially with attempted murder of a white classmate became a national fo- cal point for concerns of racism in criminal prosecution. She posited that the tremen- dous attention paid to Jena is not because these events are unusual but because they are typical. “Young black men get overcharged all the time,” she said. In some places in the South, she noted, black men have a one in two chance of going to prison in their lifetime, and the chance that a black man would be placed in jail, on probation or in prison in his lifetime is nearly 100 percent. Kung tied together the history of the crim- inal justice system in the South and how it has led to the current events in Jena. Starting with the “loophole” of the Thirteenth Amend- Lisa Kung ment, which prohibits involuntary servi- tude “except as a punishment for crime,” Kung described the post-Reconstruction criminal leasing system whereby impris- What is Southern Justice? oned people were leased out in the South to Kung exposes the intent behind Southern legal codes solve labor shortage problems following the at the 2007 Weiss Public Interest Forum. emancipation of slaves. She compared the ef- fects of the post-Reconstruction black codes, isa kung’s bona fides as a south- has also been lead or cocounsel in cases which for the first time criminalized acts like ern lawyer are impeccable. As a staff involving guard brutality at a Georgia loitering and vagrancy, to President Nixon’s attorney for the Southern Center for prison incarcerating the state’s most seri- War on Drugs. Both, she said, accomplished L Human Rights, which was created ously mentally ill men; the lack of indigent three things: They created a presumptive il- in 1976 to respond to the deplorable condi- defense in Coweta County, Georgia, and legality, allowed people to say, “This is not tions in prisons and jails in the South, Kung the welfare of all women incarcerated in about race; this is about crime,” and were ’97 won one of her biggest victories: a class Alabama. Kung became the center’s direc- designed to maintain white power structures, action representing women prisoners who tor in January 2006. In January 2007, she creating an environment where people of were housed in overcrowded conditions was named by American Lawyer as one of color are disproportionately prosecuted and in an Alabama prison. Laube v. Campbell the nation’s top 50 litigators under age 45. overcharged. successfully reduced the number of women Kung framed her talk, “Twenty Years The problem, Kung said, is that “the in a prison meant for 300 from more than After McCleskey: Race and Racism in the [Southern criminal justice] system is not bro- 1,000 to the current population of 700. She Criminal Justice System in the Deep South,” ken. It’s working exactly as it’s designed to.”

Access to Justice: Fighting It’s Not About Trade: What a for High Quality Representa- Public Interest Lawyer Needs tion For Low Income Communi- to Know about the WTO ties in Civil & Criminal Matters Lori Wallach, Director, Public David Udell ’82, Director, Citizen’s Global Trade Watch Justice Program, Brennan Center for Justice Government and Public Service Scholarship in the Public Interest (from left, Jimmy Yan ’97, Office of Manhattan clockwise) Professors Lily Batchelder and Beyond Lawyering: Borough President, and Suzanne Demitrio, Randy Hertz, Matt Squires ’08 and Laura A Holistic Vision of Public U.S. Department of Labor Abel, Deputy Director of the Justice Program Defense Robin Steinberg ’82, at the Brennan Center Founder and Executive Director, The (Im)Perfect Victim: Bronx Defenders Representing Real Victims of Human Trafficking in Promoting Community Equity the U.S Ivy Lee ’98, Director, in the Fight Against Discrimi- Anti-Trafficking and Immi- natory Lending Practices Sarah grant Rights Project, Asian Pa- Ludwig ’92, Executive Director, cific Islander Legal Outreach Neighborhood Economic Devel- opment Advocacy Project around the law school Studying the Fallout from Data at a Glance

Black New Yorkers are the Subprime Mess four times as likely With foreclosures mounting, the Furman Center crunches to hold a subprime home purchase loan data and uncovers the groups in the most economic peril. as white New Yorkers. Hispanics are Hispanic populations; the 10 areas with the s the subprime and mortgage three times as likely foreclosure crisis exploded over the lowest rates, however, were mainly white. as whites. (2006 data) last year, new research by the Law The analysis also showed that in 2006, New A School’s Furman Center for Real York City had one of the highest percent- Black homeowners received Estate and Urban Policy captured the spot- ages of subprime loans, with 19.8 percent of 50% light, gaining the attention of national media home purchase loans from subprime lend- of all the subprime refinance loans as well as local and federal authorities. ers, higher than Boston (14.2%), San Fran- issued in New York City, despite First, in a study released last October, cisco (8.4%) and Chicago (15.9%). making up only 20% of homeowners. the Furman Center analyzed the concen- This data also prompted a Times edito- (2006 data) tration of subprime loans among various rial in which the paper called on lenders to meet their burden to less than 1% prove “no discrimination of Manhattan home purchase loans has occurred.” (Lenders are subprime, compared to have disputed the statis- a whopping 20% citywide and 13% nationwide. tics, claiming they don’t (2006 data) take into account “risk characteristics.”)

Meanwhile, New York 76% of New York City households State’s Division of Hu- facing foreclosure are in man Rights revealed the Brooklyn and Queens. agency is investigating (2007 data) “a number of subprime lenders to see if they are ten of the 15 targeting communities New York City neighborhoods of color.” Commissioner with the highest rates of foreclosure Kumiki Gibson told in 2007 also had the highest rates the Times, “There was of subprime lending in 2006. enough data to compel From 2005 to 2007, racial and ethnic groups and within certain us to look into” whether lenders’ practices New York City New York City neighborhoods and came are discriminatory. to a distressing conclusion: Race matters. Turning to the growing foreclosure cri- foreclosure ts reserved. k anderson and

Even when income levels were compara- sis, in April, the Furman Center released filings doubled, h c ble, home buyers in predominantly black new data showing New York City renters are up from approximately i ll rig and Hispanic areas were far more likely to especially vulnerable. In 2007, some 60 per- 7,000 to nearly 15,000. be saddled with these high-risk mortgages cent of buildings that entered foreclosure Compiled by the Furman Center than those in white neighborhoods. were multifamily properties; that left at least e permission of N In fact, compared to whites in New York 15,000 renter households—the majority liv- h h t

City, African Americans were four times ing in two-family and four-family buildings Center’s research suggested that the fore- artoonist group. A e c more likely and Hispanics were three times in Brooklyn and Queens—in danger. closure crisis could have a ripple effect, in- h more likely to have received subprime “The national discussion about foreclo- flicting damage on neighborhoods overall, h t eprinted wit loans. “The racial composition of neigh- sures has largely focused on owners,” Vicki by displacing renters, reducing property tion wit borhoods is a stronger predictor of the rates Been, Elihu Root Professor of Law and di- values and lowering tax revenues. c of subprime loans than the income levels rector of the Furman Center, told the Times. House Democrats on the subcommittee k anderson. R of the neighborhood,” Ingrid Gould Ellen, “There’s a whole group here that is not being called on President Bush to sign a bill that c associate professor of public policy and ur- talked about”: renters. would provide $15 billion in federal funds ban planning at NYU’s Wagner School and This Furman Center analysis not only for communities to mitigate the potential codirector of the Furman Center, told The resulted in headlines; it also focused the impact. The hearing was featured in The artoon © ni Washington Post. attention of lawmakers. Wall Street Journal. The New York Times devoted much space In May, Been testified at a hearing of the Since then, Furman Center officials have to the Furman Center analysis, noting it “il- U.S. House of Representatives Committee met with city housing officials, community ington post writers group in c onjun lustrates stark racial differences.” The 10 ar- on Oversight and Government Reform’s leaders, and state legislators, as policymak- h eas with the highest rates of mortgages from Subcommittee on Domestic Policy. In her ers and activists assess the best way to re- as k anderson editorial c e w c h ni subprime lenders had largely black and testimony, Been noted that the Furman spond to the ongoing crisis. t

104 THE LAW SCHOOL around the law school Antitrust Reform, One Year Later fter microsoft settled char- debate in years to come. “It’s still too early from suing for antitrust damages in federal ges of breaking antitrust laws, some to pronounce this report dead,” added court and limit defendants’ defenses by di- in the Republican-led Congress Bobby Burchfield, a partner at McDermott, rect purchasers. The District of Columbia A worried whether antitrust law was Will & Emery. He was one of five commis- court and 36 state courts allow indirect keeping up with the new Internet era. sion members to participate in a round- purchasers to sue. The AMC recommended So, in 2002, Congress created a panel to table comoderated by Walter J. Derenberg consolidating direct and indirect purchaser propose revisions to federal law. In 2007, af- Professor of Trade Regula- ter more than three years of meetings and tion Eleanor M. Fox ’61 and study, the Antitrust Modernization Com- Charles L. Denison Profes- mission (AMC) issued a 449-page report, sor Harry First, also direc- with some 80 recommendations. tor of the Law School’s Trade At a time when antitrust law is widely Regulation Program. seen as at its weakest point in decades, the AMC member and Sul- commission—made up of 11 private firm livan & Cromwell partner attorneys and one economist—made mild John Warden said that there suggestions. Focusing on issues of effi- wasn’t unanimous agree- ciency in enforcement, it avoided thornier ment on the panel and he questions, such as how to analyze exclu- was disappointed that most sionary conduct—business tactics that are AMC members were largely anticompetitive and harm consumers. satisfied with the state of Comoderators and conference organizers Still, at a Law School conference last antitrust law. “I thought we Professors Eleanor Fox and Harry First April, called “One Year Later: The Antitrust should have recommended Modernization Commission’s Report and more reform of treble damage actions, and claims under state and federal law into one the Challenges that Await Antitrust,” Com- more curtailment of state actions, and federal forum and capping damages to mission Chair Deborah Garza declared the more reform of patents,” he said. overcharges to direct purchasers. AMC a success. While acknowledging that The commission did call for giving “seri- Students in Fox and First’s AMC semi- the AMC made few proposals for strong ous consideration” to a Federal Trade Com- nar (who also participated in the confer- change, Garza, a partner at Fried, Frank, mission proposal to limit patent grants, ence) largely supported the report but were Harris, Shriver & Jacobson who has since reflecting the common view that patent most enthusiastic about patent reform and become U.S. deputy assistant attorney gen- grants are too broad. It also recommended indirect purchase recommendations, said eral of the antitrust division, contended legislation to overrule two Supreme Court Timothy Foster ’08. Those proposals, he the report would help frame the legislative rulings that prevent indirect purchasers said, “hit a home run.” The Thanks of a Lifetime

“I have fond memories of my time at NYU School of Law. Thanks to the philanthropy of alumni, I was awarded a John Norton Pomeroy Scholarship as well as other financial grants. My career achievements were attained in large part via the opportunities afforded to me by the Law School.

My wife Lyn, also an NYU Graduate School alumnus, and I want to show our appreciation to the Law School in our will by creating the Lyn and Gilbert M. Kapelman-John Norton Pomeroy Scholarship. It is our expectation that this program will provide Law School students with opportunities similar to those afforded to me.” —Gilbert M. Kapelman ’63 (LL.M. ’73) If you would like to learn more about planned giving, please call Marsha Metrinko at (212) 998-6485.

AUTUMN 2008 105 around the law school Should Private Equity Fund Managers Be Subsidized?

rivate equity funds manage over of the New York University Law Review that $1 trillion in assets. The managers of is widely credited with sparking a fierce P these funds are paid generously for debate in Washington about reforming their services, with much of their incomes the treatment of carried interest. He con- John Samuels (left), with David Tillinghast coming in the form of “carried interest.” cluded that private equity firms are “taking Carried interest is a specified share (nor- [the subsidy] further than Congress initially mally 20 percent) of the returns of the intended,” with detrimental consequences An Alternate View investment fund. But, instead of being taxed for both economic efficiency and tax equity. In arguing against the status quo, of Tax Policy he was joined on the panel by At the 12th annual David R. Tillinghast Mitchell Engler ’90 (LL.M. ’91), Lecture on International Taxation, John visiting professor of law at NYU, Samuels (LL.M. ’75), vice president and and Noël Cunningham (LL.M. senior counsel for tax policy and plan- ’75), professor of law at NYU and ning at General Electric, argued against conventional wisdom, criticizing the the session’s moderator. The latter standard U.S. view of international tax two cowrote an article building on policy as aiming to promote worldwide Fleischer’s work and advocating a economic welfare. Instead, he said, the specific approach to reform. goal should be to advance our national Fleischer’s article and ensuing economic well-being. calls for reform have engendered In a talk entitled “True North: a strong response from the private Charting a Course for U.S. International equity industry. At the panel ses- Tax Policy in the Global Economy,” sion, Jon Talisman spoke on the Samuels—chair of the International industry’s behalf. Talisman, who Tax Policy Forum, a coalition of 30 U.S. multinationals that sponsors tax was assistant secretary for tax research—took on the theory of capital policy in the Clinton administra- export neutrality. This posits that U.S. tion and is now a lobbyist for pri- firms should face as high a tax rate on vate equity firms, argued that the outbound investment as on domestic treatment of carried interest fol- investment; then, companies will pur- at the 35 percent top individual income tax lows naturally from the general tax prefer- sue the investment with the highest rate, carried interest paid to these private ence for long-term investment returns and yield. Samuels questioned the notion equity managers is often treated as a long- that reform proposals would discriminate that U.S. investment overseas is a sub- term capital gain and taxed at a preferred against private equity relative to other stitute for domestic investment. He rate of 15 percent. forms of entrepreneurship. said data suggests that foreign invest- ments are actually complementary to Last fall, the New York University Tax Much like the panel itself, Washington U.S. corporate domestic investments. Law Review and the Law Review cospon- is sharply divided on the issue of carried Given this lack of capital flight, Samu- sored a panel discussion on the tax treat- interest. As a new Congress and adminis- els contended that the U.S. should ment of the vast compensation received by tration come to town in 2009 looking for move to a territorial tax system, taxing private equity fund managers. ways to raise revenue, carried interest is entities on domestic income, not for- Victor Fleischer, associate professor at expected to remain a hot topic, with panel eign income. Doing this, he said, will the University of Illinois College of Law, is members continuing to play important make the U.S. more competitive. author of an article in the April 2008 issue roles in the debate. Another Perspective on the Taxation of U.S. Foreign Income james hines, richard a. musgrave pro- view is that, in order to avoid distortions, discussion was that it is incorrect to think fessor of Law and Economics at the Univer- foreign business income ought to be taxed about foreign tax policy one investment at sity of Michigan, proposed an innovative at the same rate as domestic income. Since a time. Rather, tax policy ought to consider new way of thinking about international tax rates around the world vary, one of the the effect on all investments, since where tax at a discussion of his new paper, “Recon- prevailing goals of the U.S. worldwide sys- domestic firms choose to invest may influ- sidering the Taxation of Foreign Income.” tem of taxation has been to largely undo ence investment by foreign firms. Rather c om Hines argued that U.S. foreign tax policy has these differences. Hines scrutinizes one of than level the playing field, says Hines, been stuck in a political and intellectual rut the assumptions underlying the traditional home country taxation of foreign business and that the capital import neutrality, na- debate, that foreign firm activities are not income actually distorts the ownership of tional neutrality and capital export neutral- changed by the effects of home-country tax- business assets—reducing both productiv-

ity debate has run its course. The standard ation of foreign income. His key point in the ity and aggregate income. illustrationworks.

106 THE LAW SCHOOL Alumni Almanac

The Trustees’ Changing of the Guard | 108 Nicholas Bagley on the Subprime Mess | 110 Debating New York’s Judicial Elections | 111 Martha Stark Has a Knack for Numbers | 112 Billy Sothern on Policy and Katrina | 113 Dean Esserman Cleans Up Providence | 114 2008 Law School Reunion in Photos | 116 David Lamb Brings Race to the Stage | 117 Alumni Achievements | 118

Noted entrepreneur and philanthropist Anthony Welters ’77 was named chair of the Law School’s Board of Trustees. He succeeds Lester Pollack ’57, one of the Law School’s “founding fathers,” who held the top slot for a decade. Welters Named New Chair of Trustees ust three decades after becoming D.C., and president of UHG’s Public and young minds from under-resourced and the first person in his family to graduate Senior Markets Group, which includes the challenging environments for lives of per- Jfrom college and pursue an advanced Ovations and AmeriChoice business units. sonal and professional success. They first degree, Anthony Welters ’77 will become Ovations is the largest U.S. company dedi- launched Camp Dogwood Summer Acad- the new chair of the Law School’s Board of cated to meeting the health and well-being emy, a residential and educational program Trustees at its first meeting of the new aca- of people age 50 and older. Welters previ- for needy youths. The AnBryce Scholarship demic year on October 3. ously was president and chief executive of- followed in 1998. The Welters have contrib- “I am honored to take the helm of this ficer of AmeriChoice Corporation, which uted major gifts to the Law School of $11.5 remarkable institution,” said Welters, he founded as Healthcare Management million; this year, they committed an addi­ who is currently vice chair and has been tional $7.5 million as a matching gift to a board member since 1997. “I greatly ap- complete the needed endowment of the preciate the lessons that I have learned in AnBryce Scholarship. They also funded a leadership and philanthropy from Lester chaired law professorship for a faculty men- Pollack. I see this as a defining moment tor to oversee the academic components of in the history of the Law School.” Moving the program, which reached its target of 10 forward, he said, NYU Law needs to make students per J.D. class in 2007. Additionally, sure that financial barriers are not a factor they have donated another $10 million to in students’ attendance of or participation the NYU Partners Fund. in the school. A vice chair of NYU Law’s trustee budget Dean Richard Revesz said he is “thrilled” and finance committee, Welters also chairs that Welters will assume the chairmanship. the campaign steering committee and has “Tony is one of our nation’s leading entre- been instrumental in helping NYU meet its preneurs and an inspirational philanthro- Alternatives in 1989 with $200,000 in seed goal of $400 million. In 2004, he received pist,” said Revesz, noting that Welters’s money. Under his leadership, the company the Vanderbilt Award, the highest honor “extraordinary generosity and vision” are became a thriving enterprise and was ac- bestowed upon an NYU Law graduate. responsible for the AnBryce Scholarship, a quired in 2002 by United Healthcare. A dedicated philanthropist, Welters 10-year-old NYU Law program that offers After graduating from NYU Law, Wel- is vice chair of the Morehouse School of full scholarships and support to excep- ters worked at the Securities and Exchange Medicine’s board of directors. He serves tional J.D. students who were severely eco- Commission, spent two years as the execu- on the boards of the Smithsonian Insti- nomically disadvantaged and are the first tive assistant to Senator Jacob Javits ’26 and tution, the Horatio Alger Association of in their families to pursue graduate studies. then held various positions at the U.S. De- Distinguished Americans and the Health- “Tony’s bold leadership of the Law School’s partment of Transportation. care Leadership Council. He has received capital campaign will allow us to continue In 1995, Welters, who grew up with three the National Medical Fellowships Humani- to set ambitious goals,” Revesz added. brothers in a one-room tenement in Har- tarian Award, the Horatio Alger Award and Welters is executive vice president of lem, and his wife, Beatrice, launched the the African American Chamber of Com- UnitedHealth Group (UHG) in Washington, AnBryce Foundation. The goal: to cultivate merce Chairman’s Award. Lester Pollack: An Illustrious Record of Leadership After serving 10 years as chair of the Law School’s Pollack is founder and chairman of Centre Part- Board of Trustees, Lester Pollack ’57 will step down ners Management, a private equity firm, where on October 3 and become chair emeritus. he has been a managing director since 1986. He “It has been exciting to lead such a talented serves on the board of Bank Leumi USA and is di- group of trustees, and to partner with two dynam- rector emeritus of U.S. Bancorp. He has served as ic and visionary deans,” said Pollack. “The Law director of numerous corporations, including the School has experienced a remarkable transforma- Loews Corporation, Paramount Communications, tion, rising to become one of the most outstanding SunAmerica Inc. and Tidewater Inc. academic centers in our nation with a global pres- A University trustee from 1987 through this ence. I am confident that the Law School will con- summer, Pollack chairs the board of NYU’s National tinue to reach new heights under Tony Welters.” Center on Philanthropy and the Law. Widely known The Law School community owes “a huge debt for his humanitarian and philanthropic work, Pol- of gratitude” to Pollack, Dean Richard Revesz said, lack was chairman of the Conference of Presidents noting Pollack’s key role in the 1970s in establish- of Major American Jewish Organizations and hon- ing the Law School’s governance arrangements, orary chair of the Anti-Defamation League. Last including the Board of Trustees. “His visionary year Pollack received the Edward Weinfeld Award leadership has been essential to our success, and his extraordi- from the Law School Alumni Association and NYU’s Albert Gallatin nary generosity is reflected in the Pollack Center for Law & Busi- Medal in recognition of his professional achievements, commitment ness and the breathtaking colloquium room in Furman Hall.” to philanthropy and dedication to NYU.

108 THE LAW SCHOOL alumni almanac The First Decade: The AnBryce Scholarship Program Celebrates

2 3

Ten years after Beatrice and Anthony Welters ’77 began funding full-tuition scholarships to outstanding J.D. students who are the first in their families to pursue a graduate degree, they joined current and former scholars and other distinguished guests to mark the anniversary at Le Bernardin. 1 Beatrice Welters graciously acknowledging the gift of a commemorative photo album; 2 The Welters with Lester Pollack ’57, chairman of the board of trustees of the march 4, 2008 NYU School of Law; 3 Tony Welters with fellow trustee Dwight D. Opperman, who hosted the dinner 1 The Law School in the East: Tokyo and New Delhi Receptions

april 1, 2008 1

the other side of the world 1 Masako Mori, Yukiko Yamada, Satomi Ushijima and Yoiko Ando, and 2 Kei Ito (LL.M. ’97) and Yasuhiro Fujie (LL.M. ’97) at the Washington Square Club of Japan’s Tokyo reception; 3 Professor Benedict Kingsbury and R.V. Anuradha (LL.M. ’02) at a reception in New Delhi january 4, 2008 2 3 Take the A-Train: 2007 Weinfeld Gala at Jazz at Lincoln Center llard

n Po september 17, 2007 o 1 2 3 4

aj aneja; weinfeld gala: d 5 k ; n ew delhi: pan 84 k ’ 5 6 7 8

hitting a high note 1 Diana Chavez and Andrew Boruch ’07; 2 Sabrina Ursaner ‘10 and Daniel Blaser ’06; 3 Lois Nacht Rosen ’79, Adam Hahn and Jessica Rosen ’08; 4 Jeffrey Greenblatt ’83 and Lisa Greenblatt; 5 Jason Washington ’07 and Thalia Theodore; 6 Peter Lallas ’04 and Sara Dean; 7 Laurie Ferber ’80 and Morris Podolsky; 8 Phylis Fogelson, Robert Fogelson ’93 and Victoria Voytek TOKYO: eric sedla

AUTUMN 2008 109 downstream owners of loans to fines if they Subprime Safeguards We Needed bought predatory loans. Enter the feds. Some of the biggest play- by nicholas bagley ’05 lenders. In 2002, Georgia became the first ers in the secondary mortgage market are This op-ed first appeared on January 25, state to tell players in the secondary mort- national banks, and the states’ efforts to 2008 in The Washington Post; a longer gage market that they might be on the hook curb predatory lending clashed with banks’ version was published in Slate. if they purchased loans deemed “predatory” fervent desire to keep the market rolling. under state law. Before, downstream own- So the banks turned to the Treasury De- as the federal government scurries ers of mortgage-backed securities might see partment’s Office of the Comptroller of the to prevent the subprime mortgage crisis the value of their investments drop, but that Currency. The primary regulatory responsi- from sending the economy into a deep re- was generally the worst that could happen. bility of the OCC is ensuring the safety and cession, people are asking why it waited so Under the Georgia Fair Lending Act, how- soundness of the national bank system, but long to intervene. But, in fact, a few years ever, players in the secondary mortgage almost its entire budget comes from fees it ago an obscure federal agency torpedoed market could face serious liability if they imposes on banks, which have the option legislation from a handful of states that so much as touched a predatory loan. of incorporating under state law. Put an- would have made institutional investors far The secondary market has an extraordi- other way, the agency’s funding depends more chary of buying mortgages that were narily difficult time distinguishing preda- on keeping the banks happy. Little surprise, likely to fail. If the legislation had been per- tory loans (bad) from appropriately priced then, that the OCC acted when the national mitted to take effect, the crisis we now face subprime loans (good). Even if the line banks asked it to preempt subprime-mort- would probably look a lot less grim. could be drawn with confidence, the market gage laws such as Georgia’s, arguing that Historically, few lenders would give lacked the resources to gather the necessary they conflicted with federal banking law. mortgages to borrowers with poor credit. information. As the then-General Account- Despite the banks’ thin legal arguments, The risk of default was simply too great. ing Office noted in its comprehensive review the OCC issued regulations in early 2004 During the 1990s, however, major insti- of predatory lending legislation in January nullifying the state laws as they applied to tutional players became more willing to 2004, “even the most stringent efforts can- national banks. The agency reasoned in part purchase subprime loans as investments. not uncover some predatory loans.” that the states just got it wrong. As the then- Those loans would be pooled with similar Inevitably, the secondary mortgage comptroller explained in a 2003 speech: loans, and slices of that pool were bought market in Georgia’s subprime loans ground “We know that it’s possible to deal effectively and sold as mortgage-backed securities. to a halt. And that was the point: If buyers with predatory lending without putting im- The ready flow of capital from the sec- couldn’t satisfy themselves that the loans pediments in the way of those who provide ondary mortgage market led to an explo- weren’t predatory, they should take their access to legitimate subprime credit.” sion in subprime lending. Unscrupulous money elsewhere. Georgia legislators un- With the state laws nullified, national lenders could reap the greatest profits by derstood that impeding the capital flow banks and their subsidiaries were free to issuing subprime loans packed with un- to subprime loans might raise the cost of engage in the practices the states were hop- favorable terms and then selling them for borrowing for some with poor credit but ing to stamp out. (Indeed, Georgia scuttled cash. A rash of borrowers found themselves judged that this was more than balanced its law because it didn’t want to give na- saddled with predatory loans they had no by protecting the most vulnerable from tional banks a competitive advantage over hope of paying off. the scourge of predatory lending. New its state institutions.) Facing pressure from To combat this surge in predatory lend- York, New Jersey and New Mexico made subprime lenders and Wall Street, and left ing, some state legislatures decided to the same call and within two years had en- without a real chance of holding investors stanch the flow of easy credit to subprime acted their own versions of laws exposing responsible for purchasing ill-advised loans, state legislatures gave up on trying to mean- ingfully expose downstream buyers to lia- bility for facilitating predatory lending. In retrospect, the OCC’s decision looks wrongheaded. What the agency took to be shortsighted consumer protection laws laden with hidden costs turned out to be prescient market-corrective reforms. It’s impossible to know for sure, but had the state laws been permitted to go into effect, investors would probably be sitting on fewer subprime loans that will never be repaid. The feds ignored the basic principle that no level of government has a monopoly on

good policy. As federal officials move to n o i clean up the subprime mess, it’s worth re- t cia membering that they helped to create it. o ss

ideas rewarded Last October, Richard Parker, chair of the American Bar Association’s Administrative Law and Regulatory Practice Section Scholarship Committee, presented Dean Richard Revesz and Nicholas Bagley with Nicholas Bagley works as an attorney for the section’s 2006 scholarship award for their article, “Centralized Oversight of the Regulatory State.” the U.S. Department of Justice’s civil appel- merican Bar A

late division. A

110 THE LAW SCHOOL alumni almanac Debating New York’s Judicial Elections Lawyers argue the finer points of how the state chooses trial judges to run for the bench.

the judges’ jury Andrew Rossman, Caitlin Halligan, Samuel Issacharoff, Lawrence Mandelker, Richard Pildes and Kent Yalowitz

ew york has a unique system changing the event’s title to “Are Judicial election campaigns. “[Lawmakers] didn’t do of nominating its candidates for Elections a Crisis?” calling them “a truly this in a vacuum,” Rossman said. “They did state trial court: Political parties bad idea” and the worst American contribu- it after a nine-year experiment with prima- N hold behind-closed-doors conven- tion to the design of government and law. ries that proved to be a complete failure.” tions to select who runs in judicial elec- No other nation holds judicial elec- Alas, the final word was not to be found tions. This contrasts with the process for tions, which lead some to wonder how a in the Supreme Court decision in Janu- other courts in the Empire State, such as judge remains impartial while seeking ary 2008. By ruling unanimously that New city court, family court and surrogate court, contributions and political endorsements. York’s conventions are constitutional, the where nominees are selected through pri- Lawrence Mandelker ’68, an election-law Court placed the responsibility on lawmak- mary elections. The convention system’s expert and then-president of the NYU Law ers in Albany to continue to determine New constitutionality was at the center of López- Alumni Association, discussed the pros York’s system of judicial nominations. Torres v. New York State Board of Elections, and cons of elective versus appointive a case that made its way to the Supreme methods of judicial selection, noting that Court in October 2007. while López-Torres involves important Before the Court handed down its ver- constitutional issues concerning specific dict, a panel including lawyers from both methods of nominating candidates, “it sides of the case and faculty experts in does not address the normative question Your election law analyzed New York’s conven- of whether it’s a good idea for judges to be tion process and debated the value of judi- elected in the first place.” cial elections, during the NYU Law Alumni In the basic argument of López-Torres, Annual Fund Association’s annual fall lecture, “Are New however, critics allege conventions vio- York Judicial Elections in Crisis?” late the First Amendment by denying vot- at Work Moderator Samuel Issacharoff, Bonnie ers a direct choice in whom to nominate, and Richard Reiss Professor of Constitu- and that they lack transparency and give tional Law, provided background. Surrogate political party leaders, not rank-and-file Judge Margarita López-Torres first sued the party members, the power to choose ju- New York State Board of Elections in 2004 dicial candidates. It is the secrecy of these Exhibit A: after she claimed that her refusal to hire “smoke-filled rooms” that panelist Kent Ya- the daughter of a prominent Democrat as a lowitz said promotes corruption and undue clerk led to the denial of her nomination to favoritism in judicial nominations. “Every LRAP increases run for a spot on the State Supreme Court. district in New York, for every party, is con- The suit alleged that the closed convention trolled by one person,” said Yalowitz, who from $2.3 million process allowed the spurned party boss to has represented López-Torres since 2004. give the nod to another judge. Issacharoff “Party members who want to participate in in 2002 to $4.4 pointed out the inherent constitutional dif- the system get frozen out.” ficulty in deciding a case like López-Torres. But Caitlin Halligan, the former solici- “We pride ourselves on being a democracy tor general for New York, argued that politi- million in 2008. and living under a constitutional order,” he cal parties have the right to opt for a closed said, “but our constitution says very little convention nominating system. Andrew about the greater future of our democracy, Rossman, counsel of record for the Man- which is how people get elected.” hattan Democratic Party in López-Torres, Richard Pildes, Sudler Family Professor further explained that New York’s sys- Make a gift to the annual fund of Constitutional Law, saw López-Torres as tem was enacted by a 1921 law designed to 212 998 6061 just one flare-up in the greater epidemic of stop judges from having to take campaign www.law.nyu.edu/alumni troubling judicial elections. He suggested contributions during their primary and

AUTUMN 2008 111 The Collector Law Women’s Alumna of the Year is New York City Commissioner of Finance Martha Stark. pend an hour with martha stark “She keeps you on your toes,” ’86, and you’ll come away with little says Mary Gotsopoulis, chief doubt that she’ll find a simple solu- administrative law judge for S tion to any complex problem pre- Finance’s adjudication divi- sented to her. She spent a winter afternoon sion, who reports to her. “She assembling a bookshelf and television may not agree with you, but stand just for the fun of it. Puzzles, thorny she’ll always listen to what you math problems, the intricacies of the tax have to say. You have to really code, build-it-yourself furniture, you convince her though, because name it; New York City’s Commissioner of she knows every aspect of this Finance isn’t afraid to roll up her sleeves. agency. She’s very hands-on.” “I like to fix things,” she says simply with Stark’s detailed grasp of a broad smile, her right leg tucked neatly how her agency works again under her left while she sits on a sofa in her demonstrates her innate tal- toy-and-artifact-filled office. “I like putting ent for pushing aside noise things together in a logical way.” and static to focus on what’s For the chief of a department that important. That helps ex- oversees a staff of 2,300 and collects $23 plain her natural affinity with billion in taxes from New York residents math and statistics. Born and every year, that’s a handy attribute to raised in Brownsville, Brook- have. Martha Stark is the recipient of the lyn, this graduate of Brooklyn NYU Law Women’s third annual Alumna Tech High School has been intrigued with also worked as the head of policy opera- of the Year Award and the city’s first Afri- numbers since she played math games tions under Manhattan Borough President can-American woman to serve as finance with her bookkeeper father, a high school Ruth Messinger. commissioner. She holds a complex job: dropout who taught her to fill out tax re- Stark didn’t always intend to work The finance department not only collects turns when she was 15. “I believe in the for government. At first, she thought she the city’s property and business taxes, power of numbers,” she said in a 2006 wanted to be a journalist, but after a seri- but also runs the city treasury, records commentary on the National Public Radio ous biking accident in 1980 during her ju- all mortgages and deeds and even adju- program All Things Considered. “Maybe it nior year at NYU, she changed her mind. dicates parking tickets. That last item ex- is just that numbers don’t lie.” So when To make up for time lost due to her hospi- plains why she’s so attached to the retired you hear Stark say with utter sincerity, “I talization, she switched majors to political meter parked behind her desk. have a passion for property tax,” you can’t science, which eventually led her to law Stark is not your typical bureaucrat. help believing her. For Stark, her job is the school. That was the positive aftereffect of Her office is jam-packed with an eclectic equivalent of a math junkie’s Nirvana: the her accident; the negative robbed her, at least in the short run, of her other passion: basketball. As an undergrad, she played “What’s great about the law is that the forward for NYU—and now she frequently cheers on her favorite Women’s National rules can be changed. It gives you the Basketball Association team, the Liberty. freedom and the flexibility to be creative.” Her love of basketball and the disci- pline and teamwork it requires fits into her can-do approach to the law. While mix of objects, from a basketball net to a intersection of policy, law and numbers, a she worked as a tax attorney for only four Jamaican cooking pot. A Mr. Potato Head place she firmly believes has a direct im- years before she moved into city govern- shares space with an antique bowling tro- pact on people’s lives. ment, she believes that studying the law phy on her credenza, and an inflatable Her stint as finance commissioner—she helped her figure out how to effectively SpongeBob hangs below a dartboard. “He was appointed by Mayor Michael Bloom- push for change. “Knowing the law mat- can be whomever I want him to be when berg in 2002—is not her first in city govern- ters,” she says. “But far too often we say, I throw those darts,” she chuckles. “It de- ment. She served in several management ‘Here are the rules; this is what you can’t pends on who I’m mad at.” positions in the city’s finance department do.’ What’s great about the law is that the That SpongeBob doesn’t have a single under Mayor David Dinkins from 1990 to rules can be changed. It gives you the free- puncture hole says a lot about the 47-year- 1993. Among her accomplishments: the es- dom and the flexibility to be creative.” old Stark—and her aim. She has such an tablishment of a unit that allows for the ar- In the end, that’s what matters most to easygoing manner, it’s hard to imag- bitration of business tax disputes. In 1993, Stark: using her prodigious intellectual, ine her angry at anyone. But don’t she was named a White House Fellow, as- legal and financial skills to keep the city’s be fooled; Stark is no pushover. signed to the Department of State. She has ship afloat. Dody Tsiantar

112 THE LAW SCHOOL alumni almanac be to tell only half of it. Besides, my vantage point as a lawyer provided a lens to view the Breakdown on the Bayou broader social-justice issues in the city. Billy Sothern chronicles life in post-Katrina New Orleans. How has your work changed as a result of ative new yorker billy sothern ’01 Returning to his pre-Emancipation- Katrina? The storm and its exposure of became acquainted with New Or- era home less than two months after the the wholesale failure of the government to N leans as a summer associate at a storm, Sothern began writing a series of address the needs of people widened my capital defense nonprofit agency, where he essays that were published in The Nation, sense of mandate to write not only about worked alongside idealistic lawyers and ac- Paris Review, Salon and elsewhere. In 2007, what I know as an attorney, but to look at tivists from around the world. Seeing the those and new essays were assembled other issues—public housing, urban pov- government’s indifference to the abject into Sothern’s first book, Down in New erty—that impact my clients’ lives. Orleans, which he describes as “an interrogation of the Your description of the poverty and racism conservative notion that a is overwhelming. How do you stay hopeful government which governs that things can be improved? I believe that least, governs best.” In this what people saw in New Orleans was hor- first-person account of the rifying to them. I hope the disaster was year following the storm, the pendulum’s apex for governance that Sothern lays bare the fed- leaves the weakest to fend for themselves eral government’s failures under difficult circumstances. in response to the disaster, and ties in the myriad racial Are you still committed to calling New Or- and social-justice issues that leans your home?  My wife and I have this continue to plague the city. big old falling-over place that we’ll be fix- Now the director of the ing up for the next 25 or 30 years. I’d no Capital Appeals Project, So- sooner leave New Orleans than anyone thern represents death-row would their home in a time of great need. inmates from across Louisi- poverty and racism in the city through the ana in trial and post-conviction appeals. eyes of his non-American colleagues, he In Louisiana v. Kennedy, which went be- became convinced that he could do mean- fore the Supreme Court in April, Sothern’s ingful work in New Orleans and adopted office directed Patrick Kennedy’s appeal the city as his home upon graduation. and served as cocounsel in the case. So- Four years later as Hurricane Katrina thern was also recently awarded a Soros approached, a reluctant Sothern and his media fellowship to write his next book, wife left for Oxford, Mississippi, where they Put Childish Things Away, about unfair watched the suffering and devastation on prison sentencing. television as thousands of residents, most Senior Writer Graham Reed spoke with of them poor, black and elderly, were aban- Sothern about his first book,Down in New doned and left to die in the rising waters. Orleans, and life as a New Orleans resident Exhibit B: The nation was shocked to see images of three years after Hurricane Katrina. New Orleans that compared to third-world Scholarships countries, but Sothern responds that the Your book reads like a catharsis. Why treat “city had long displayed such signs to any- this national tragedy so personally? I was a one who cared to look at them.” part of the story, so to disengage that would increase 75% since 2002. Eleven Minutes with Dennis Jacobs ’73 The chief judge of the U.S. Court of Ap- peals for the Second Circuit gave a charm- ing and heartfelt keynote speech at the Annual Alumni Luncheon in which he re-

age flected on career milestones. “The great- i P

kk est distinction that any lawyer can have i is simply to represent real clients in a real Make a gift to the annual fund hern: N crisis,” Jacobs said. “It is one of the things 212 998 6061 ot I miss about law practice.”

y s www.law.nyu.edu/alumni Bill

AUTUMN 2008 113 17 percent. “The police department in Provi- dence is helping to bring crime rates down at a time when, across the nation, crime rates are stubbornly stable,” says Andrew Karmen, criminologist at John Jay College. Esserman was raised in a progressive Jewish home in Manhattan that became “a salon” on weekends, filled with musicians and artists whom his physician dad treated for free. Every summer his father volun- teered in developing nations and took his family along. “That’s how I learned about service,” says Esserman. He vividly remem- bers helping his father stitch up a Guate- malan man’s arm that had been sliced open with a machete, and decided to follow his dad into medicine. In high school at the Ethical Culture Fieldston School, he trained as an EMT and volunteered in the Central Park Med- ical Rescue unit. He realized that police are the first responders at most accidents, and should be trained as medics. “For po- lice to see themselves simply as law en- forcers misses the point,” he says. After entering Dartmouth College, he created A Guardian of Providence a medical rescue unit for the NYC Transit Dean Esserman, a lawyer-turned-cop, transforms the police Police, and raised enough money to send force of New England’s second-largest city. officers to Dartmouth to study Spanish. Esserman nonetheless dropped medi- ne horrific night in april 2005, and payoffs. Positions and promotions cine and graduated from Dartmouth in 1979 four people, including a police could be bought for $3,500 to $5,000. as a history major. A year later, he entered detective sergeant, were shot in David Cicilline, the new mayor, gave him NYU School of Law: “NYU was the doorway O Providence, Rhode Island. The per- carte blanche. “I had the entire command to the beginning of my career as a prosecutor, petrator was in one hospital room while staff retire, and I promoted great people who which started my career in law enforcement.” the dying officer lay a few doors down. never played the game to get ahead,” says Es- In 1987, Esserman left the district attorney’s Police Chief Dean Esserman ’83 stationed a serman. One of his first actions was to decen- office to become general counsel to the NYC guard outside the shooter’s room, “setting tralize—dividing the city into nine districts Transit Police. Bratton became chief of the a moral tone: We don’t hurt the person who with a neighborhood police substation in transit police in 1990, and their two years did it,” says Teny Gross, executive direc- each. He also embraced the community together would prove deeply transfor- tor of the city’s Institute for the Study and policing model in which cops walk mative. In 1991, Esserman made the Practice of Nonviolence. And Esserman the beat to identify neighborhood unprecedented move to police work. stayed by the officer’s side all night. concerns and consult the appropriate “He liked the nuts and bolts of policing Since taking office in January 2003, Es- social service agencies. Equally key, he and understood he could make more of serman has exhibited a compassionate adopted the weekly CompStat (computer a difference,” says Bratton. leadership style, showing up at nearly ev- statistics) strategy meetings that Bratton Esserman landed a job as the assistant ery homicide scene and at every wake. “He had used in NYC, tracking crime and hold- police chief in New Haven, Connecticut, shows that we care tremendously when ing precinct commanders accountable for and entered the police academy. “I was someone gets hurt in this city,” says Gross. bringing the numbers down. the oldest recruit and the highest ranking,” A one-time lawyer and a friend of for- Results-oriented and innovative, Es- Esserman says proudly. He graduated in mer NYC Police Chief William Bratton, serman launched successful programs 1992, the year he married Gilda Hernandez, Esserman is credited with cleaning up a to combat drugs and violence: One gives a detective turned school administrator. corrupt department and cutting crime. corrigible drug offenders a second chance, They have three children. “He’s a consensus builder,” says Bratton, and another created a gun task force after Esserman now earns $158,000 a year now head of the Los Angeles police. “He’s a 14-year-old boy was shot by a friend. as police chief—slightly less than a first- a listener. He’s an inspirational leader, Providence has seen a steady drop in vi- year associate at some of the large firms. and he’s liked by the community.” olent crime since Esserman took office. Ac- “I don’t regret that, not even for a minute,” When Esserman arrived in Providence, cording to figures provided by Providence he says. “I’ve been shot at. I’ve put hand- the police “had become a king’s army,” officials, murders were above the national cuffs on a lot of people, and I’ve delivered h he says, in which the former mayor— rate in 2002 and reached par by 2007, a 39 eight babies. I’ve done a lot more than I t convicted of racketeering conspiracy— percent drop. Rape fell 64 percent; robbery thought I would when I put on that uni- mi ana S

controlled the police force with cronyism dropped 30 percent, and aggravated assault, form way back when.” Jennifer Frey D

114 THE LAW SCHOOL alumni almanac

1 2 Analyzing Presidential Elections As we approach the final months of the2008 presidential election, issues such as the wartime powers of the president and the role of the courts in elections assume critical importance. In mid-July, Supreme Court Justice Clarence Thomas and Richard Pildes, Sudler Family Professor of Consti- tutional Law, considered these matters when they convened “Presidential Powers, Presidential Elections,” a three-day conference for members of the Law School’s Board of Trustees, faculty, alumni and their guests at 3 NYU’s Villa La Pietra in Florence, Italy. 4

6 7 8

1 Justice Clarence Thomas and panelist Gregory Maggs, a professor at George Washington University School of Law; 2 Beatrice Welters, Board Chair-Elect Anthony Welters ’77, Board Chair Lester Pollack ’57 and Geri Pollack; 3 Beth Wilf and Trustee Leonard Wilf (LL.M. ’77); 4 Trustee Alan Fuchsberg ’79; 5 The conference’s opening dinner at Florence’s famed Orsanmichele; 6 Traditional flag throwers provide entertainment; 7 Former U.S. Representative Frank Guarini Jr. ’50 (LL.M. ’55) and his sister C. Marie Mangin; 8 Professor Richard Pildes with Nira; 9 Trustee Dwight Opperman; 10 Anthony Welters and Trustee Ronald Moelis ’82; 11 Lunch at Castello di Vincigliata. 5 9 lleri

10 11 chiara to

AUTUMN 2008 115 Weekend at the Waldorf... and at Washington Square At this year’s reunion, guests explored legal issues by day and danced away the night. Daytime panels included “Private Enforcement of the Securities Laws,” moderated by Stephen Choi, Murray and Kathleen Bring Professor of Law; “Climate Policy—Beyond Kyoto,” moderated by University Professor Richard Stewart; “Role of the Courts in Immigration,” mod- erated by Professor Nancy Morawetz ’81, and “Privacy—Is There Any Left?” moderated by University Professor Arthur Miller. Later, the celebration continued well into the evening at the Waldorf-Astoria.

116 THE LAW SCHOOL alumni almanac A graduate of Hunter College himself, Examining Black-Latino Mr. Lamb grew up in a housing project in Queens before going on to graduate work at the Woodrow Wilson School of Public and Relations, Gently International Affairs at Princeton and later to New York University, where he studied by ginia bellafante law. It was at NYU that he began writing earlier this spring, in train stations consumption—particularly in the theater, hip-hop fiction, self-publishing a novel “Do and subway cars across the city, advertise- where projects attracting ethnically di- Platanos Go Wit’ Collard Greens?” in 1995 ments began appearing for a play that was verse audiences, either by design or in ef- after he finished studying for the bar. Soon to begin a limited engagement at Florence fect, come upon us with the regularity of after the book was completed, Mr. Lamb Gould Hall of the Alliance Française. This orange groves in a cold climate. André 3000 was asked to talk to students at a public might easily pass without comment, were is a crossover artist. Tyler Perry is not. high school in the city where conflict had it not for the matter of the show’s already “Platanos & Collard Greens” concerns developed between African-American quiet if substantial success. “Platanos & itself with the tension between the Afri- and Puerto Rican students on one side and Collard Greens” was first produced in a tiny can-American and Latino communities in newly arrived Dominican immigrants on Midtown theater—70 seats—in 2003 and New York and the overwhelming majority the other. Eventually, the book became has moved gradually and intermittently to of men and women who go to see it, some part of the curriculum of a handful of al- larger spaces since, with virtually nothing over and over, are nonwhites. ternative schools in New York; Mr. Lamb but conversation to endorse it. In its ethos and sentiment, the play rests was a popular speaker. Though the show’s creator, David Lamb, somewhere between a civics lesson and The teenagers he encountered, Mr. had taken out a few spots on urban radio over Howard Finster’s folk art. Mr. Lamb doesn’t Lamb and his wife Jamillah, explained, the years, he relied primarily on his audi- traffic in the imperatives of angry reproach. introducing “Platanos” to its audience at ences to do his promotional work for him. The “Platanos & Collard Greens” is a simplistic the 400-seat Gould Hall Sunday afternoon, show functions without a press agent; until a morality tale rendered in cheerful tones, a began expressing a wish to see the charac- few weeks ago, it had no Web site. The cast is look at the refraction of racial prejudice from ters in the novel come to life. With no the- entirely anonymous, in the purest, hoariest one minority group to another, and a primer atrical experience at all, Mr. Lamb—then sense of the term. The production notes for in how best to curtail pernicious stereotype. working as a lawyer for a low-income hous- “Platanos & Collard Greens” may be singular The story, some of which is told in bela- ing fund—and Jamillah, a banker, invested in the world of New York theater for featur- bored hip-hop rhymes, revolves around a $20,000 of their own to stage the play at the ing not one actor whose credits include an group of ambitious students at Hunter Col- Producers Club four years ago. outing on “Law & Order” or its subsidiaries. lege, an election for student body president “Platanos & Collard Greens” wears its al- By the end of its run at Gould Hall in and a chaste love affair between a young legiance to political solidarity obligatorily, September, though, about 90,000 people African-American man and Dominican like a host who inquires after the health will have seen “Platanos & Collard Greens,” woman whose mother disapproves of the of his dinner guests when all he wants to a figure that exceeds the number who have relationship. Mr. Lamb removes the po- do is pour the wine and ladle the dirt. Mr. taken a seat at “The Year of Magical Think- tentially complicating factor of class so Lamb surely believes on some level that ing” on Broadway by close to 20,000. that the mother’s criticism of her daugh- ending factionalism in the inner city could Mr. Lamb’s play represents the stron- ter’s boyfriend is rooted purely in the color help to put to rest the afflictions that de- gest evidence at the moment of the blunt of his skin. Hard working, the boy comes grade it. But it is the idea of racial harmony racial divide that marks so much cultural from a well-educated family. The mother, as a lifestyle choice—a lot easier than the in denial of her own Af- alternative, and considerably more fun— rican roots, is the sort of that compels him instead. woman who admonishes His inspiration for the story, he said her daughter to stay out recently, came not from any personal of the sun so as not to look experience with the kind of relationship like “those Haitians.” he depicts. It came instead from his in- The particulars of the ternship during college for Representa- storyline have made the tive José E. Serrano, the Bronx Democrat, play quite popular on col- then a state assemblyman. When the two lege campuses, where Mr. men met, Mr. Serrano remembered the Lamb is typically asked name Lamb as belonging to someone he to stage it at the invita- fondly recalled from middle school. Mr. tion of student minority Serrano, as it happened, had known Mr. groups. In the past few Lamb’s uncle. And from that point on, Mr. years, “Platanos & Col- Lamb said, he recognized congeniality as lard Greens” has been the best preparation for riding the cur- produced at more than rents through which life might carry you.

rda 100 colleges and univer- o

h B sities across the country, From the June 20, 2007 New York Times, t e David Lamb ’91 b including Princeton, Cor- © 2007 The New York Times. Reprinted by liza

E nell and Wesleyan. permission. All rights reserved.

AUTUMN 2008 117 BLAPA Annual Spring Dinner

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1 Black, Latino, Asian Pacific American Law Alumni Association (BLAPA) president Eddie Rodriguez ’97 with distinguished service honoree Raymond Lohier ’91 and BLAPA board member Jimmy Yan ‘97; 2 BLAPA Scholar April Gu ’10; 3 Visiting Professor april 18, 2008 Derrick A. Bell Jr. with Lisa Marie Boykin ’95 1 Recent Grad Reception

3

At Mannahatta in the Bowery: 1 Nicholas Arons ’04, Anna Roberts ’03, John Kleeberg ’03 and Nathaniel Kolodny ’04; 2 Jade Hon ’04, Robyn Eaton ’04 and Emily Fishman ’06 caught up with former class- mates; 3 Emily Bushnell Johnston ‘05, Daniel Blaser november 1, 2007 ‘06, Marsha Metrinko and Peter Lallas ’o4 1 2 Applause, Applause: Notable Alumni Career Highlights William H. Bowen (LL.M. ’50), former CEO Sandra Sosnoff Baird ’76 has been ap- Paul Berman ’95 is the new dean of the of First Commercial Corp., was inducted pointed chief magistrate of the Connecticut Sandra Day O’Connor College of Law at into the Arkansas Business Hall of Fame. Family Support Magistrates. Arizona State University. He was president of Commercial National Bank, chief of staff for Governor Bill Clinton, William Finkelstein (LL.M. ’78) received Megan Lewis ’99 has been appointed chief president and CEO of Healthsource Arkan- the International Trademark Association’s of the newly created Affirmative Litigation sas Ventures and dean of the University of 2007 President’s Award. He is a partner with Section of the Division of Law in the New Arkansas at Little Rock Law School. Dreier Stein & Kahan in Santa Monica. Jersey Attorney General’s office.

The U.S. Post Office building in Jersey City Edwin Villasor (LL.M. ’78) has been ap- Billy Sothern ’01 of the Louisiana Capital has been named for former U.S. congress- pointed assistant court administrator of the Assistance Center, Caroline Cincotta ’07 man and state senator Frank J. Guarini ’50. Supreme Court of the Philippines. He has of the ACLU’s Immigrants’ Rights Project been a judge in the Philippines since 1991. and Joshua Perry ’07 of the Orleans Parish C. Judson Hamlin ’63 received the James Public Defender are among 18 Soros Justice J. McLaughlin Award from the Civil Trial Bar Lawyers For Children, founded by execu- Fellows named by the Open Society Insti- Section of the New Jersey State Bar Associa- tive director Karen Freedman ’80, received tute. Fellows receive up to $79,500 for their tion. He served on the superior court for 20 the Hodson Award for public service from work to reform the U.S. justice system. years until 1998, and is now counsel with Pur- the American Bar Association’s Govern- cell Ries Shannon Mulcahy & O’Neill. ment and Public Sector Lawyers Division. Chukwuemeka Onyejekwe ’06 has filmed a reality program about his transition from Robert Lipp ’69 received an honorary de- John Coates ’89 was presented with the corporate lawyer to hip-hop rapper. He’s gree from Williams College. John F. Cogan Jr. Professorship of Law and now known as “Mekka Don” and his series, Economics at Harvard Law School, where “Mekka Don: The ‘Legal’ Hustle,” can be Barbara Grumet ’69 was named dean of he has been on the faculty since 1997. seen on YouTube. the School of Professional Studies at New York City College of Technology. Amy Silverstein ’90 published Sick Girl, a Stephen Long (LL.M. ’07) tied for the top memoir that describes her life since her 2L score on the Texas Bar Exam, taken by 2,800 Harold Max Messmer ’70 won a 2007 Ernst year when she received a donor heart trans- people in July 2007. Long is an associate in & Young Entrepreneur of the Year Award. planted from a 13-year-old. the Dallas tax practice of Jones Day.

118 THE LAW SCHOOL making the grade

Making the Grade

New Jersey Attorney General Addresses 2008 Graduates at Convocation | 120 Singapore Program’s First Graduation | 121 Face-to-Face with the Class of 2008 | 122 Sharing the Moment: Hooding Album | 124 Commencement at Yankee Stadium | 127

Josh Warren ’08 rides the subway to the university- wide NYU commencement at Yankee Stadium in the Bronx. The University distributed roundtrip Metro- Cards to graduates making the northward pilgrimage on the B, D and 4 trains.

AUTUMN 2008 119 making the grade Class of 2008: “The Sky is the Limit”

Anne Milgram Gregory Scanlan Coralie Colson

nne milgram ’96, the second- While extolling NYU Law’s first-rate Thurgood Marshall, for whom the LL.M. youngest attorney general in New education, Milgram offered this key advice: Class of 2008 is named. “His example of Jersey history, stepped up to the “If you make a choice that you don’t like, in goodwill toward the opposition showed that A microphone at the WaMu Theater your life or in your career, make another difference does not always have to be adver- at Madison Square Garden on May 21, pro- one. There is not one path.” sarial,” she said. Born and raised in France, viding living proof for the Class of 2008 that Gregory Scanlan, the J.D. student speaker, Colson has worked as a pro bono immigra- a degree from the Law School could take also spoke about paths, likening the law tion attorney for individuals seeking refu- these graduates wherever they want to go. school experience to “the search for the me- gee status in France. She plans to pursue a During her convocation address, she re- dallion,” an annual tradition in his native St. career in international arbitration. called ribbing Law School friends for study- Paul, Minnesota, where, during the winter Dean Richard Revesz praised the grad- ing too hard for a criminal procedure exam; carnival, town residents would follow clues uates and noted several initiatives that she took the course pass-fail because she to find a small white disk hidden in the snow- grew out of their “energy, creativity, en- was convinced that she would never prac- filled landscape. “NYU is a place where, no thusiasm and leadership.” For instance, tice criminal law. As it turned out, Milgram matter where you’re starting from or what the Leadership Program in Law and Busi- was the only one of her pals to pursue a you imagine your medallion looks like, you ness, a program that trains students in the criminal law career, starting out as a Man- can choose a path that will lead you to it,” intersection of law and business, was the hattan assistant district attorney before said Scanlan. His path will take him home to brainchild of Andrew Klein ’08. The Alter- eventually becoming the lead prosecutor clerk for a judge on the Minnesota Court of native Spring Break Program, which funds for human trafficking crimes at the U.S. De- Appeals, the same court where he success- student travel during spring break to per- partment of Justice and then New Jersey’s fully argued a Fourth Amendment case after form law-related community service proj- top law enforcement officer at age 36. his first year of law school. ects, was spearheaded by Mimi Franke ’08 “If I can be attorney general, you can, too,” Coralie Colson, the LL.M. student in the wake of Hurricane Katrina. The 2008 Milgram said, adding later, “The sky is the speaker, urged fellow graduates to follow in class also contributed to the larger New York limit for NYU Law grads.” the footsteps of U.S. Supreme Court Justice City community through the Rewarding

120 THE LAW SCHOOL making the grade Achievement Program, the Unemployment Action Center, the Battered Women’s Proj- ect and other programs. “You have man- Singapore Graduates aged to make a real difference while you’ve also developed important professional First Global LL.M. Class skills,” Revesz noted. The Law School’s Singapore Program Sir Thomas Stamford Raffles, a British co- Continuing the tradition of giving a marked a milestone, graduating its first lonial administrator credited with found- class gift for the fifth consecutive year, class. Thirty-nine students from 21 coun- ing the port city of Singapore: “It would Alexis Hoag and Vincent Sieber presented a tries across six continents graduated from be difficult to name a place on the face of $131,000 gift from the Class of 2008 to Lester the 10-month dual-degree program, earn- the globe with brighter prospects or more Pollack ’57, chair of the Law School’s Board ing an LL.M. in Law and the Global Econ- present satisfaction.” of Trustees. (In October, Pollack will be- omy from NYU and an LL.M. from the Na- “In a world-embracing city,” Kaniaru come chair emeritus, and Anthony Welters tional University of Singapore (NUS). noted, “we have experienced a world- ’77 will become chairman. Please see page Attending the March ceremony at ­embracing program, and the challenge and 108.) The Law School also honored Har- Singapore’s Asian Civilizations Museum, opportunity we have been given is to be vard Law Professor Laurence Tribe and the Singapore Minister for Finance and Minister world-embracing lawyers.” for Education Tharman Shanmugaratnam The program grew out of a conversa- Honorable Thomas Buergenthal ’60 of the lauded the program for its “unique content tion in 2002 between University Professor International Court of Justice with honorary and multinational composition.” U.S. Am- and Joseph Straus Professor of Law Joseph doctorate of law degrees at the all-university bassador to Singapore Patricia L. Herbold, Weiler, then-director of NYU’s Hauser commencement ceremony at Yankee Sta- Singapore’s Chief Justice Chan Sek Keong, Global Law School Program, and NUS Dean dium. Both made brief remarks, and Uni- and Permanent Secretary to the Ministry of Tan Cheng Han. Demand for the program versity President John Sexton addressed the Law Chan Lai Fung also were guests. has been strong, with about 200 applicants graduates at both ceremonies. One highlight was a speech by Wangui each year. More than 50 students from 24 A highlight of the convocation was the Kaniaru ’07 (LL.M. ’08) in which she quoted countries are due to graduate next year. hooding ceremony—the distinctive pre- sentation and hooding of each degree candidate. Jordan and Trudy Linfield and trustees Jay Furman ’71, M. Carr Ferguson ’60, Norma Z. Paige ’46, Warren Sinsheimer (LL.M. ’57) and Welters hooded recipients of the scholarships they endow. Two graduates from the Class of 2008, Jessica Rosen and Kevin Neveloff, were hooded by relatives and became third-generation alumni. Revesz reminded the 2008 graduates that they will always be part of the Law School. “This morning you entered this the- ater as students. This afternoon you leave as 1 alumni,” he said. “You join a distinguished community that is eager to welcome you as you make this important transition.”

2 3

4 5 6

1 and 2, some of the 2008 graduates; 3 Professor Joseph Weiler; 4 NUS Dean Tan Cheng Han; 5 Simon Chesterman, director of the Law School’s Singapore Program; 6 from left, Dean Tan, NUS President Shih Choon Fong, and Minister for Finance and Minister for Education Tharman Shanmugaratnam.

AUTUMN 2008 121 3Ls Look Back–and Ahead

I will remember walking‘‘ into Professor Arthur Miller’s first-year class and how he said that all the stories we’d heard were true, that he was going to make our lives hell for six months, that he was the professor and we were the stu- dents and to always act like it. And don’t ever laugh at I’m going to lawyer jokes. take away‘‘ a certain confidence with which to approach the world and all the ’’ challenges I face as an attorney and just as a person. And friends, of course. ’’

I’m so glad that I’ve had‘‘ this chance to live in New York City. It’s such a vibrant place, and there’s so much going on. ’’ 122 THE LAW SCHOOL I think I’m a lot less intimidated‘‘ than I was. I’ve worked with intimidating people, hard workers, demanding professors for the last three years. I can say, I will remember ‘No.’ Nothing’s going walking into to happen to me. Professor Arthur I can deal with it. Miller’s first-year class and how he said that all the stories we’d heard were true, ’’ that he was going to make our lives hell for six months, that he was the professor and we were the stu- dents and to always act like it. And don’t ever laugh at lawyer jokes.

When you come here, you think you‘‘ know a lot. But then you meet all these people from everywhere [and] realize you know very little. That was surprising to me— to see how little I knew before, and how much I’ve learned. ’’

I can now say that I have‘‘ a friend in every single Latin American country and in Europe. It feels good that you can go to Scotland, Ireland, Peru or Chile and know someone.

’’AUTUMN 2008 123 making the grade

4

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5 6 7 Convocation Kudos Proud relations and scholarship donors celebrate with graduates of the Class of 2008 and share in the joy and honor of attaining degrees from New York University School of Law.

8 9 10 124 THE LAW SCHOOL making the grade

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11 14 15

16 17 18

5. Noam Haberman 10. Jeremy Lacks 13. Kevin Neveloff 17. Jessica Lynn Rosen 20. Daniel Wachtell Who’s Who with his sister, and his father, with his father, with her father, and his fiancée, Sharon Haberman- Stanton Lacks ’77 Jay Neveloff ’74, Philip Rosen ’79, her Genevieve Treuille, 1. Melissa Bogorotty Perry (LL.M. ’03) 11. Alexandra Fidler and his great-uncle mother, Lois Rosen with his father, Law with her fiancé, Elie Sanford Pollack ’56 ’79, and grandfather, School Trustee Sherique (LL.M. ’06) 6. Brian Johnston Metzl with her with his wife, Emily father, Josh Fidler 14. Carla Piedra Nathan Rosen ’49 Herbert Wachtell ’54 2. Carl Duffield with Bushnell Johnston ’05 ’80, and her mother, with her mother, 18. Jason Roth with his 21. Yang Wang with his his partner, Loran Genine Fidler ’80 Janett Fuentealba father, Law School fiancée, Meng Ni Li Smith Jr. (LL.M. ’03) 7. Andrew Klein with his father, Law 12. Sarah Mordu- (LL.M. ’75) Trustee Eric Roth ’77 (LL.M. ’07) 3. Alejandro Fernandez School Trustee chowitz with her 15. Laura Rosanna 19. Adam Taubman (Next page) with his father, Benito Charles Klein ’53 sister, Daphne Ricciardi with with his brother, 22. Josh Warren and Fernandez (LL.M. ’90) Morduchowitz ’05, her sister, Sara Jarrett Taubman ’04 8. Adam Kopald his mother-in-law, and her fiancé, Ricciardi ’02 4. Rachel Goldbrenner with his father, Professor Laurie Alan Nissel with her father, Ned Kopald ’64 16. Nathan Richman Malman ’71 Ronald Goldbrenner (LL.M. ’03) with his sister, 9. Andrew Kwee with 23. David Young ’65 (LL.M. ’68) Emily Richman ’03 his uncle, Peter with his father, Garam (LL.M. ’73) Edward Young ’75

19 20 21 AUTUMN 2008 125 making the grade

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Scholars and Donors 26. Furman Academic 28. Norma Z. Paige Not photographed: 24. AnBryce Scholars Fellows (from back): Scholar Katie Reece Sinsheimer Public (from back): Donesha Benjamin Kingsley, was hooded by Law Service Scholar Dennis, Charlesa Kevin Hickey, Alexis School Trustee Ryan Downer was Ceres, Viviana Blane, Kevin Arlyck Norma Paige ’46 hooded by Law Betancourt and and Ian Samuel were 29. Starr Foundation School Trustee Brandilyn Dumas hooded by Law School Global, RTK and C.V. Warren Sinsheimer were hooded by Trustee Jay Furman ’71 Starr Scholars (from (LL.M. ’57) Law School Trustee (not photographed: back): Jan Bischoff, Anthony Welters ’77 Alexander Guerrero, Christopher Turney, Making the Grade and Beatrice Welters Catherine Sweetser Gautam Gandotra, Petr photographs by and Charlotte Taylor) Leo Sorel 25. M. Carr Ferguson Briza and Tafadzwa Fellow Lyubomir 27. Deborah Rachel Pasipanodya were Georgiev was hooded Linfield Fellow Ian hooded by Dr. Ernest by Law School Trustee Vandewalker was Stempel (LL.M. ’48, M. Carr Ferguson hooded by Jordan J.S.D. ’51) and his wife (LL.M. ’60) and Trudy Linfield Brendalyn Stempel (not photographed: Neslihan Gauchier) 27

28 29 126 THE LAW SCHOOL making the grade With Washington Square Park, the usual commencement location, under Commencement construction, students traveled north to the Bronx, where they marked their graduation at the 85-year-old Yankee Stadium during its final season before being demolished. Graduates received special baseball caps, individual schools handed out noisemakers and other playful items, and concession stands were open for business.

“The very concept of New York City and the life of our university stand as a rebuke to those who say that...we are condemned to a ‘clash of civilizations’ in a ‘jagged world’ of separateness.”

President John Sexton’s commencement address to the Class of 2008

“As a survivor of the hell which was Auschwitz and Sachsenhausen concentration camps, you have devoted your life to developing law, institutions and understanding among nations and peoples.”

Professor Thomas Franck introducing Thomas Buergenthal ’60, judge on the International Court of Justice, who was presented an honorary doctorate by President Sexton

AUTUMN 2008 127 A Chat with Ma Ying-jeou

n a landslide victory last everywhere. One of my campaign spring, Ma Ying-jeou (LL.M. ’76) promises was to let [mainland] uni- I was elected president of Taiwan, versity students come to Taiwan. I winning in part on his campaign would like to see more young people pledge to finally clean up the govern- cross the Taiwan Strait so 20 years ment. (In 1996, Ma had been dismissed down the road we will see them as as justice minister after investigating the leaders of their respective societ- allegedly corrupt Taiwanese govern- ies. Education is the best way to bring ment officials.) Ma also had vowed the two sides together. to support the Dalai Lama’s firm stance on Tibetan autonomy, and to How has the advanced legal education strengthen relations between Taiwan of the kind you got at NYU influenced and mainland China. you as a leader? My studies taught But the political acumen of this me about the ideas of constitutional former chairman of his Kuomintang democracy—freedom, human rights Party and mayor of Taipei may be and rule of law. Those are probably rivaled only by his good looks and the most important that have influ- appeal: According to one poll, Tai- enced me in the days since I left the wanese women declared Ma the man United States. other than their husband whom they would most like to have as the father As you know, Hong Kong and Tibet of their children. have taken unique paths toward au- Born in Hong Kong and raised in tonomy. What formula might work for Taiwan, Ma attended the National Taiwan? Beijing has tried to apply the Taiwan University. Moving halfway “one country, two systems” formula to around the world in order to con- Taiwan, but with frustrating results. tinue his legal career, first at NYU and Ma Ying-jeou (LL.M. ’76), Taiwan’s My election generated the opportu- then at Harvard, opened doors for new president, talks about his plans nity for the two sides to interact, and Ma—personal as well as professional. Beijing now understands that they While earning his LL.M. degree at for his country and how NYU Law must trade with and invest in Taiwan, the Law School, Ma became engaged shaped him. Professor Jerome Cohen and let Taiwan have a presence in the to fellow Taiwanese classmate Chow international arena. Mei-ching (LL.M. ’76). The couple interviewed Ma in his Taipei office. married in New York and had two There was a debate in Taiwan as to daughters. Kelly graduated from Brown University in May; Lesley whether your wife should leave her 26-year career after your elec- is a 2005 graduate from NYU’s master’s program in museum studies tion. She did resign when you became president. What does this and lives in New York City. Chow Mei-ching became a successful mean for Taiwanese society? For the last 26 years, Mei-ching has lawyer for a Taiwanese bank. remained my sounding board without ever stepping into my office. NYU Law Professor Jerome Cohen, who was Ma’s professor at She worked at the International Commercial Bank of China, now Harvard in the late ’70s, interviewed the president in his Taipei Megabank, and even though Megabank has government stocks [to- office just days after his inauguration. taling] less than 50 percent, there’s a slight chance that her bank’s loan to a government enterprise might present a conflict. We must What steps are you contemplating with respect to economic cooper- consider the political realities. Taiwanese society still thinks of ation with the mainland? Direct flights on weekends to the mainland the wife of a president as someone who has to give up her career. began in July. We are also considering a comprehensive economic But think about the hypothetical situation where she is president. agreement covering investment guarantees, avoidance of double Should I resign [from my bank job]? It’s a double standard. taxation and setting standards for high-tech industry. Your daughter Lesley, another NYU grad, is also building bridges Have you seen changes on the mainland with regards to human with the mainland through art. [Lesley has worked with Chinese rights? Compare [this spring’s] Sichuan earthquake to the Tang- artist Cai Guo-Qiang on his spring exhibition at the Guggenheim shan earthquake of 1976. Back then, the mainland sealed off all Museum in Manhattan.] My daughter [is] much like my wife: inde- information channels and refused aid from the United Nations. pendent and not much interested in politics. She chose to stay in Taiwanese planes carrying food to the mainland were shot down the United States, even during my inauguration. by jet fighters. You can see how much they have opened up. I hope we’ll see you at NYU despite the fact that U.S. policy bars Back in the 1970s, when you were a student at NYU, we couldn’t Taiwan’s president from making public appearances in the U.S. When ges get mainland people to come to the States. And now people I visit countries in Central or South America on diplomatic errands, a

from Taiwan and the mainland are on university campuses maybe I can change planes in New York. I will let you know. AP Im

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