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Summer 2009 | Volume 27 Number 2 4`][bVS2SO\
We continue to strengthen our skills training and our practice curriculum. We have nine clinics, each offering excellent experience with real cases and clients. Our moot court and mock trial programs are among the best in the country. Supreme Court Justice Samuel Alito will teach a weeklong intensive course this fall, further expanding our programs in appellate litigation. We have one of the strongest legal writing programs in the country, thanks to the addition of more full-time writing faculty and new upper-level writing courses. We also have added to the ranks of our professors of the practice, who are now offering an array of courses to students seeking the most challenging coursework in specialized areas, including transactional work and litigation. And we continue to develop our curriculum to further unite the study of substantive law with the problem solving, organizational, writing, and speaking skills needed for practice. Our interdisciplinary approach will become ever more critical. Throughout Duke University, our students’ future clients are receiving their education. Through collaboration with those in other professional fields, we have the opportunity to teach our law students how their future clients will think and what their goals 23/<2/D724 :3D7 will be. Through new courses in the Law School, we are teaching the basics of business, accounting, and finance. Through joint ventures with our counterparts, 2SO`4`WS\Ra such as our Environmental Law and Policy Clinic, we are bringing law students UKE LAW SENT ANOTHER CLASS of talented, young lawyers into the world together with colleagues across campus to problem solve. We are part of a great 2this past May. They are among the most accomplished students this Law university that allows us to draw upon the knowledge and teaching of faculty who School has ever seen. They have had the benefit of studying under a remarkable are leaders in the fields of business, environmental studies, public policy, medi- faculty and, equally important, they have had the benefit of learning from one cine, engineering, and more. What a huge benefit this is to our students — and another. They now join our distinguished alumni body and look forward to fulfill- to their future employers. ing careers in the law. One example of how fully integrative a Duke Law education can be is our new Even as we admire their accomplishments and ability, we are somewhat con- Duke in D.C. program. During the spring semester, eight Duke Law students cerned for them and the classes behind them. They are launching their careers worked full time in congressional offices, the judiciary committee, and lobbying during a time of great uncertainty. None of us knows whether the changes and con- organizations. They worked on legislation by day, and by night studied their work tractions in the legal economy are permanent. But we and they must be prepared from an academic perspective under the tutelage of two scholar-practitioners, for a period of continued disruption in the legal profession — just as the Law Sen. Ted Kaufman and Professor Chris Schroeder. We are expanding Duke in D.C. School and Duke must be prepared for a period of declining endowment revenue. this fall and spring to include the regulation of financial institutions and the One way we are meeting this challenge is by working harder than ever to open making of environmental policy. up the broadest range of career opportunities for our students. We are encourag- Difficult times call for new ideas and new approaches. At the Law School, we ing them to think expansively about places and positions they may not have have tightened our belt, but we remain focused on recruiting and retaining the previously considered. Through our Bridge to Practice Program, funded in part by strongest possible teaching and research faculty and on helping our students alumni, we have created internships for graduating students, many of which have with scholarships, internships, and other opportunities. We have been success- led to permanent employment. ful this year on both fronts — we have hired remarkable new faculty and at the Alumni all over the country, under the leadership of our Law Alumni Association same time have expanded our financial aid. We see opportunities for growth and its chair, Kodwo Ghartey-Tagoe ’88, sprang into action this spring to find amidst the challenges we face. I have every confidence that with the help of the employment possibilities for our graduating class. As a result of these efforts, all entire Duke Law community we will emerge stronger than ever, with graduates of our 3Ls had jobs by the time they graduated, even though many have been told who are prepared for the most demanding and fulfilling kinds of law practices to report to work months later than expected. I thank all of our alumni who help to and who will take their place within the leadership of our profession. mentor and place our graduates; you have made a difference. We will continue to I am grateful for the support of our friends and alumni and look forward to need your help in the years ahead. hearing from you. Of course, the most important way to meet the challenge of a weak legal econ- omy is to make sure that our graduates are ready on “Day One.” Duke graduates are still in high demand. These troubled times serve to emphasize the value of a Duke Law degree and an education that integrates the interdisciplinary study of David F. Levi the law with skills training in an intellectually rigorous setting. Dean and Professor of Law
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"& AcOA^]\bS !' 8CAB713/ 2cYS:Oe;OUOhW\SAc[[S` ' 8CAB713/ 1O[^PSZZ¸ 'O\R/^^SZZObS:WbWUObW]\1ZW\WQeW\W\2 1 1W`QcWb HIS IS HOW reporter Mike Scarcella put it in The district court erred in granting absolute prosecuto- BBLT, the blog of the Legal Times, on March 6: rial immunity to an assistant U.S. attorney and “Sarah Campbell greeted the panel judges today in granting absolute judicial immunity to a D.C. and jumped right into presenting her case. By the jury officer. The court also held — as the clinic time it was all over, more than 45 minutes later, argued — that Atherton’s procedural due process Judge Brett Kavanaugh called the performance claim should be remanded for the district court to ‘superb’ — not a bad compliment for a third-year evaluate qualified immunity in the first instance. law student making her debut in the U.S. Court of “Whether the defendants in this case are entitled Appeals for the D.C. Circuit.” to qualified immunity on the due process claim is Campbell was arguing in support of Peter Atherton, a challenging question,” wrote Senior Circuit Judge a Washington, D.C., resident who challenged his Harry T. Edwards in the opinion. dismissal from a D.C. Superior Court grand jury. Andrussier, a partner and co-chair of appellate The D.C. Circuit assigned Duke Law’s Appellate practice at Womble Carlyle Sandridge & Rice in Litigation Clinic to serve as amicus curiae in support Raleigh, was gratified by the court’s decision and by of Atherton. Then enrolled in the clinic, Campbell the dedication of the students. “This was a compli- briefed the case and prepared for argument with cated and important case raising numerous issues A/@/61/;>03::E/A3:31B320G63@ 1:/AA;/B3AB=A3@D3/A '1:/AAA>3/93@ classmates James McDonald, Eugenie Montague, about absolute immunity, qualified immunity, a /BB637@6==27<513@3;= Ac[[S` '2cYS:Oe;OUOhW\S ! DUKE IN D.C. GROWS AFTER SUCCESSFUL INAUGURAL SEMESTER S A MEMBER of the inaugural “Professor Schroeder and Sen. /class of the Law School’s Duke in Kaufman did a good job of bringing in D.C. program, Troy Stock ’10 got more speakers each week who had real world than a semester-long externship: He got experience in what we were studying,” a summer job. said Stock. “I also felt very fortunate to Stock eagerly accepted the chance to have a sitting senator come to class. You stay on as a legislative aide with Rep. simply don’t get those types of experi- Jason Chaffetz, R-Utah, after the comple- ences in a normal law school setting.” tion of his externship. In the fall 2009 semester, students “I’m doing traditional legislative aide will work with congressional, regulatory, work. I’ve been assigned certain issues and private entities related to fi nancial and I keep track of legislation, meet with services, while taking a weekly class B@=GAB=19¸ :34B7AA>3<27<567A : AC;;3@/A/:357A:/B7D3/7234=@@3> 8/A=< interested groups in government as well from Brainerd Currie Professor of Law 16/443BH@CB/64=::=E7<567A2C937< 2 1 3FB3@ >`]U`O[W\>cPZWQ:OeZOc\QVSaPZ]U]\SfSQcbWdSP`O\QV^]eS` BLOG DEDICATED TO monitoring, analyzing, and providing He added that ques- /a forum for discussing questions of presidential power is the tions of executive power latest initiative of the Program in Public Law. have been present since Launched in February, “Executive Watch” features news stories the founding of the and commentary about executive-branch actions, including execu- Republic. “What makes tive orders, presidential memos, and signing statements. them comment-worthy “One of the three major functions of the Program in Public is that they’ve been WWW://EXECUTIVEWATCH.NET/ Law is to encourage and contribute to public understanding of controversial in the past important constitutional and public law issues,” said Christopher eight years,” he said. Schroeder, Charles S. Murphy Professor of Law and Public Policy “We hope Executive Studies and director of the Program in Public Law. “Executive Watch will become the go-to site for anyone interested in better power issues were raised on numerous occasions during the Bush understanding a current dispute on the subject of executive-branch administration. Many people are watching the extent to which the power,” said Schroeder. “We hope to comment on matters in the Obama administration’s approach to these questions will parallel or news and also to refl ect upon larger questions of executive authority diverge from the Bush administration’s approach.” in a comprehensive way, all in a highly accessible manner.” [ " 2cYS:Oe;OUOhW\SAc[[S` ' ;SOac`W\UXcRUSa O\RXcabWQS URISTS AND ACADEMICS convened at Duke Law on Feb. 6 for a confer- 8ence on the study of judicial decision-making. Presented by the staff of the Duke Law Journal, the conference examined controversial efforts by social scientists and others to develop a body of empirical evidence regarding the way judges make decisions. Panelists and speakers included legal and social science scholars and judg- es, including Chief Justice Ruth McGregor of the Arizona Supreme Court, Chief Justice Laurie Stith of the Missouri Supreme Court, and Chief Judge Anthony Scirica of the U.S. Court of Appeals for the Third Circuit. Dean David F. Levi, the former chief U.S. district judge for the Eastern District of California, outlined the differing goals of judges and academics. :³@(>@=43AA=@A0/@/9@716;/<6 83443@A=<>=E3::16@7AB=>63@ “For many years academics and judges have been thinking about the judi- A16@=323@/<23@<3ABG=C<5/B1=<43@3<13=<8C2717/:2317A7=<;/97<5 ciary from their individual scholarly or practical perspectives,” he said. “The A lunchtime discussion considered an article titled “Are Empiricists Asking scholars attempt to evaluate the structural, behavioral, and institutional fac- the Right Questions about Judicial Decision-Making?” by Duke Professor of Law tors that influence particularly individual judicial decisions … while the judg- and Political Science Jack Knight. “Social science explanations ought to be able es have been studying ways to become more efficient in the face of increasing to inform the normative assessments of the quality of judges” while admitting caseloads while improving consistency and overall fairness.” that “there is some skepticism about social science research on the courts, both Levi called for a lasting dialogue between the two groups. in terms of its persuasiveness and in terms of its relevance,” said Knight. “We hope that this is just the beginning of an ongoing discussion, debate, Knight’s paper and others presented at the conference were published in the and connection,” he said. April 2009 issue of the Duke Law Journal (Vol. 58, No. 7). [ — F.N. 1]ZZ]_cWOQVO`bb`S\RaW\TW\O\QWOZ`SUcZObW]\^cPZWQ^]ZWQg WO SPRING EVENTS focused on returning them to the public markets, and Financial Group, Jones Day partner Chip Bcharting the emerging framework of dismantling “in an orderly way” those that MacDonald, and Duke’s Brown took, as their public policy and regulation in the “post- are irredeemable, said Steel, but should not starting point, a Treasury Department pro- crisis” economy. extend to complete government ownership posal for the FDIC to become the conservator The implications of nationalizing finan- or nationalization. “The sole act of govern- or receiver of a variety of financial services cial institutions for the banking industry ment ownership in an unhealthy institution companies that could pose such a systemic and the roles of regulators and free enter- doesn’t make it strong,” he said. risk, and the creation of a “super-regulator” prise were the subject of a public discus- Who might best serve as a “super regula- to monitor companies that pose risks to the sion held at the Law School on March 25. tor” over financial services companies that financial system even if they are not banks. Panelists included Robert K. Steel T’73, the pose a systemic risk to the economy was Professor of the Practice Lawrence former president and CEO of Wachovia the focus of an event hosted by Jones Day Baxter, a regulatory expert and former bank- Corp. and a director of Wells Fargo; Edward in Washington, D.C., on May 20. Eugene ing executive, served as principal organizer Greene, a partner at Cleary Gottlieb Steen Ludwig, former comptroller of the currency and moderator of the two events. & Hamilton and former investments gen- and founder and CEO of the Promontory “The regulatory and public policy envi- eral counsel of Citigroup; Duke University ronment is changing rapidly to address economist Craig Burnside; and Duke Law the aftermath of the financial crisis and to faculty members James Cox, a specialist create a workable framework of regulation in corporate and securities law, Steven A. going forward,” said Baxter. “These two Schwarcz, an expert in capital markets and events were the first of many, I hope, that systemic risk, and Bill Brown ’80, who will both track and influence the shape of formerly held senior positions at AIG, these evolving regimes that will first change Goldman Sachs, and Morgan Stanley. the way large companies are regulated and There was general agreement among the then likely shift to other areas of federal panelists that the government’s involvement and international regulation such as energy, in financial institutions should be limited to health care, and environmental manage- revitalizing those that are unhealthy before ment, to name a few.” [ '/ Ac[[S` '2cYS:Oe;OUOhW\S # :@>3B3@2 43/D3@/:3F/<23@4 636;3G3@ >@=43AA=@=4>=:7B71/:A173<13/<2>C0:71>=:71G /B2C93);/@7303A/<1=<4=C<23@=4/;3@71/< AC2/<3A3>/@B<3@A67>A4=@>3/13/<223D3:=>;3 THE DUKE PROJECT: LAW STUDENTS PIECE TOGETHER SOLUTIONS TO THE GLOBAL FINANCIAL CRISIS “THE DUKE PROJECT” was a class project with ambitious real-world goals. Over a nine-week period in the spring semester, students in 1]\TS`S\QSSfO[W\Sa Professor Bill Brown’s class on Legal, Accounting, and Business Responses to the Subprime Crisis Q][^ZSfWbWSa]T2O`Tc`Q`WaWa presented a host of solutions to specific aspects CHOLARS AND POLICY EXPERTS with experience in the of the global financial meltdown. ADarfur crisis gathered at the Law School March 26–27 to dis- Each student team that presented was joined by cuss the troubled Sudanese region. The student-organized event experts from the field, such as Deborah Goldstein, highlighted such issues as the International Criminal Court’s war- executive vice president of the Center for rant for the arrest of Sudan’s president and the possible role of the Responsible Lending, who took part in the discus- U.S. in the region. sion relating to policy reform in consumer lending Speakers included Roger Winter, former special representa- and bankruptcy, and Bill McMahan, head of risk tive of the deputy secretary of state for Sudan; Rod Rastan, legal management for Goldman Sachs Group. adviser in the Offi ce of the Prosecutor for the International Criminal Throughout the fall semester of his yearlong Court (ICC); and Marie Besancon, founder of American Sudanese class, Brown ’80 and his students undertook a Partnerships for Peace and Development. forensic analysis of the origins and contagion of Winter, who has worked in Sudan for more than 25 years, recounted his role in helping the financial crisis. Working in teams, students broker a peace agreement in 2005 between the Sudanese government in Khartoum and reb- developed papers that propose approaches to spe- els in the South. The Comprehensive Peace Agreement (CPA) ended a 21-year civil war in cific domestic and international challenges raised Sudan, and was considered one of the Bush administration’s most prominent foreign policy by the crisis, such as economic stimulus, moral achievements. However, rebel groups in Darfur immediately sparked new violence and the hazard, consumer debt, accounting rules, and the Sudanese government responded with the extreme measures that led the ICC to charge role of rating agencies. Brown is including each Omar al-Bashir, the president of Sudan, with war crimes and crimes against humanity. paper as a chapter of a forthcoming book. The situation in Darfur poses unique diplomatic challenges, said Winter, because the vari- Brown joined the faculty in 2008 as a professor ous rebel groups in Darfur are poorly organized and have no real political platform. of the practice of law after serving in leadership “Whereas the [rebels in Southern Sudan] were capable of a viable movement, the rebel positions at Goldman Sachs, AIG, and Morgan leadership in Darfur doesn’t talk to each other,” Winter said. Stanley, where he specialized in currency and The conference was organized by the Student Organization for Legal Issues in the Middle fixed-income markets. He praised the creativity East and North Africa (SOLIMENA). James Pearce JD/LLM ’11, who served as a U.N. rule of and insight with which his students approached law offi cer in Darfur in 2007, said the event accomplished its goal of advancing dialogue and key economic challenges. “This could be the most understanding of the crisis there. important set of issues they encounter in their life- “The speakers and panelists did not always agree, but the picture that emerged from the times — it certainly is the most important issue discussions provided a nuanced starting point for those interested in Darfur in the context for the next decade,” he said. “They really have of international criminal law, U.S. policy responses to mass atrocity, and the future of the wrapped their arms around this and understand it Sudanese state,” Pearce said. in ways that many top policymakers don’t.” [ SOLIMENA hopes to hold another conference on Darfur next year, Pearce said. [ '/ $ 2cYS:Oe;OUOhW\SAc[[S` ' ESQ 2009 JAN. 30–31, 2009 OGAN & HARTSON PARTNER Douglas Wheeler ’66, a former 6secretary of resources for the State of California, and Kodwo Ghartey-Tagoe ’88, vice president and general counsel of commercial business for Duke Energy, discussed the practice of energy and environmental law at ESQ 2009. Wheeler and Ghartey-Tagoe were among 23 practitioners who shared their insights on business law practice and options with Duke Law students during the seventh annual Business Law Society’s career symposium. [ LOCAL PROPERTY, GLOBAL JUSTICE: NATIONAL SECURITY UNDER A LAW AND RESOURCES IN THE ERA NEW ADMINISTRATION APRIL 16-17, 2009 DOING BUSINESS IN LATIN OF CLIMATE CHANGE JAN. 30, 2009 THE 14TH ANNUAL National Security Conference AMERICA FEB. 11 & 13, 2009 THE ANNUAL SYMPOSIUM of the Duke Journal of featured experts from the military, policy, and VAN DUQUE, adviser to the Interamerica Comparative & International Law brought leading legal spheres addressing myriad issues facing the 7Development Bank executive board, discussed scholars of environmental law and policy together to Obama administration, such as the Middle East the financing of small and medium-sized explore the implications of property-based solutions peace process, the delicate balance between civil businesses during “Doing Business in Latin to environmental problems. rights and the need to gather intelligence to prevent America,” a Feb. 13 symposium organized Panelist Annie Petsonk, international counsel with possible terrorist attacks, immigration policy, and by the Latin American Student Association the Environmental Defense Fund, said the World public diplomacy. at Duke’s Fuqua School of Business and the Trade Organization (WTO) could provide a suitable “[P]ublic diplomacy … is all about understand- Law School’s Latin American Business Law structure for a binding international agreement on ing, informing, engaging, and influencing global Association. Carlos Menem, the former president greenhouse gas emissions. “Countries are pounding audiences beyond foreign governments to promote of Argentina, gave the keynote address. [ on the doors of the WTO to get in. Why? Because in greater appreciation and understanding of U.S. exchange for accepting a set of international respon- society, culture, institutions, values, and policies,” sibilities … they gain access to markets. That’s what said Ambassador David Litt, executive direc- countries want, that’s what their people want.” [ tor of the Center for Stabilization and Economic Reconstruction, Institute for Defense & Business, RACE & SOCIO-ECONOMIC CLASS: during one panel discussion. The United States UNRAVELING AN INCREASINGLY must make every effort to be truthful, credible, and persuasive, and must engage directly with COMPLEX TAPESTRY JAN. 23, 2009 global audiences, he added. “If we do not define EMINENT SCHOLARS FROM an array of disciplines ourselves, our adversaries will define us for the examined how racism has contributed to socio- rest of the world.” economic disadvantage and, conversely, how The conference was sponsored by the Center on socio-economic disadvantage has spurred racism. Law, Ethics and National Security, the Center for Conference participants considered the role of the law International and Comparative Law, the Program in reinforcing these dynamics and what creative legal in Public Law, Duke University’s Vice Provost for interventions could produce better future outcomes. International Affairs and Development, and the Terry “Our hope is that the conference will stimulate Sanford Institute of Public Policy. [ increased understanding of the law’s influence on racial and socio-economic inequality in the U.S. and a better sense of the likely consequences of various VIEW WEBCASTS OF ALL DUKE LAW policy choices,” said Professor Trina Jones, a prin- CONFERENCES AT cipal organizer of the conference. It was sponsored by Law & Contemporary Problems and the Mills WWW.LAW.DUKE.EDU/WEBCAST/ 7D/<2C?C3 Conversation Series on Race. [ Ac[[S` '2cYS:Oe;OUOhW\S % & 2cYS:Oe;OUOhW\SAc[[S` ' HE LAW SCHOOL’S INAUGURAL Law Firm @35573:=D3B¸ "/22@3AA322 1 /@3//:C;<7 Challenge matched D.C. alumni against one E6=>/@B717>/B327<B63:/E47@;16/::3<53 B ;/G ' another in an effort to reach 100 percent participa- tion in Annual Fund giving at their respective firms. Alumni at 10 participating firms together donated more than $180,000 during the month-long, volunteer- driven competition. Williams & Connolly topped all firms employing six or more alumni while McDermott Will & Emery finished first among firms with five or fewer. Jones Day and Dow Lohnes also reached the 100 percent participation level. At a May 19 wrap-up event hosted by Sidley Austin, Dean David F. Levi and Reggie Love T’04 spoke to more than 80 members of the Law School community includ- ing alumni, faculty, and current and incoming students. Love, President Obama’s personal aide and a member of Duke’s 2001 NCAA champion basketball team, reflected on the lessons in teamwork he has learned in sports and politics, and highlighted the collaborative spirit among Law School alumni as demonstrated by the success of the challenge. [— Matthew Taylor WOMBLE, CARLYLE, SANDRIDGE & RICE ESTABLISHES SCHOLARSHIP, LEADS LAW FIRM GIVING HE WOMBLE, CARLYLE, Sandridge & Rice Scholarship has Charles R. Holton ’73, a partner in Womble Carlyle’s Bbeen established at Duke Law School with a $100,000 gift from Research Triangle Park office and a senior lecturing fellow at the firm. Combined with a $30,000 financial commitment it made the Law School teaching Arbitration Law and Practice, led the to the Willem Vis International Moot Court Competition, Womble scholarship initiative. Carlyle holds the distinction of being the Law School’s most gener- “We feel like we have a significant relationship in a number ous law firm benefactor for 2008. of ways with the Law School,” Holton says. “We are one of the “We are grateful to the lawyers of Womble Carlyle for their gen- top employers of Duke Law grads, and many of our members erosity and foresight, and we are proud of the longstanding relation- are grads, so this is a way of expressing loyalty and gratitude ship that we share with their firm,” said Dean David F. Levi. “The for the training we received as Duke Law students and that interconnections between Duke Law and Womble Carlyle trace back continues to go on at the Law School. We want to participate in to the beginnings of both. We have helped one another to flourish. that and lend support to the ongoing effort.” We are proud of the accomplishments of our many graduates at the In addition to Holton, Womble Carlyle partners Sean firm. And we continue to benefit from the assistance of Womble Andrussier ’92 and Marilyn R. Forbes, serve as senior lecturing Carlyle lawyers, whether as adjunct faculty, members of our alumni fellows at Duke Law, as does Deborah J. Hylton ’83, who board, or, as in this wonderful instance, supporters of our students.” practiced there for 22 years, 15 as a partner. [ .5 Ac[[S` '2cYS:Oe;OUOhW\S ' ' MEMBERS OF classes ending in “4” and “9,” as well as members of the Half-Century Club, returned to the Law School April 17-19 to renew friendships, share memories, and take in a transformed facility. Charles Becton ’69, Candace M. Carroll ’74, Christopher Dean Dusseault ’94, and E. Carol Spruill, senior lecturing fellow and former associate dean for Public Interest and Pro Bono, were honored for their professional accomplishments and service to the Duke Law community. 2cYS:Oe;OUOhW\SAc[[S` ' 6]]RW\U ' UKE LAW CELEBRATED the members of the “The law creates for its practitioners an oligopoly 2Class of 2009 during their hooding ceremony protected against competition,” he said. “The legiti- at Cameron Indoor Stadium on May 9. macy of this protection depends not only upon our The event honored 215 JD graduates, including 25 expertise and understanding in applying the law, but who earned master’s degrees from other Duke schools also upon our willingness to devote that expertise not and departments and 22 who also received an LLM only to our clients, but to those who may not have in international and comparative law, as well as 76 the opportunity to pay the normal charges to become international lawyers who received LLM degrees. our clients. You have an obligation not only to your Chief Judge David B. Sentelle of the Court of clients, but to society at large.” Appeals for the District of Columbia Circuit, pictured Dean Levi, JD Class Speaker Sarah Campbell, and above with Dean David F. Levi, reminded the gradu- LLM Class Speaker Emmanuel Ceusters (below, right) ates that their degrees come with obligations. also paid tribute to the graduates. [ Ac[[S` '2cYS:Oe;OUOhW\S 7\bVS1ZOaa`]][(/`b:Oe /US\QgRcbg^`]^S`bgaQO\ROZ HEN BRANDEIS UNIVERSITY announced Eearly this year that it would close its art museum and sell off its collection to offset dramatic endowment losses, it caused a minor tempest in the art world — Deborah DeMott covers it all in a and provided Professor Deborah DeMott’s class of Art Law students a terrific case study. unique seminar on art and the law What are a museum’s ethical and legal obligations to its donors? What limits are or should be placed on a museum’s use of revenue generated from the sale of art- work? And who has standing to challenge such a sale? Such questions animated discussion among students in DeMott’s course this spring, offering new insight into the business of art as well as the interplay of bod- ies of law that many students previously encountered as discrete fi elds. The David F. Cavers Professor of Law, DeMott covers a broad range of topics in the course — understanding the aesthetic experience, characterizing artwork for legal purposes, art markets, moral rights and copyright, free expression, forgery, the structural organi- zation of museums, ownership, and looting and repatria- tion of stolen art. “What I loved about Art Law,” says Jillian Harrison ’10, whose undergraduate degree in archaeology and interest in ancient artifacts led her to take the course, “is that it pulled together so many areas of law that I didn’t expect — property, criminal law, constitutional law, contracts, international law.” “I learned that ‘art law’ is a catchall term for a wide variety of legal problems applied to a group of similar clients with specialized needs,” says Katherine de Vos ’10, who is simultaneously pursuing a JD and MA in Art History and hopes one day to teach art history and law. “These clients are not necessarily interested in lawyers who are art afi cionados. They are interested in lawyers who understand their situations and can resolve their legal problems.” For DeMott, the course is an opportunity to synthesize her passion for art with her scholarly interest in issues of agency, business organizations, and fi duciary duty. “I long have been interested in many aspects of visual art and market cultures,” she says. Her interest grew during her work as the reporter for the American Law Institute’s Restatement (Third) of Agency, the defi nitive summation of the law relating to legal relationships between agents and those they represent. The fi eld, she found, was rife with cases involving art. “When [ former Associate Dean for Academic Affairs] 9SZZg;c`R]QV9Wbb Theresa Newman affi rmatively suggested that I teach this course, I resisted because I’m not an intellectual property scholar,” she says. “But when I looked at the issues of 2cYS:Oe;OUOhW\SAc[[S` ' “It’s common for artists to have grievance after grievance with In the 1970s, artist John Bloomfi eld received the Archibald Prize for his photo- their agents or collectors, and because biographers are not lawyers realistic portrait of a man he had never met, they aren’t sensitive to the legal issues. Sometimes I read these painted large-scale from a magazine photo- graph. The trustees who administer the prize books and think, ‘That’s a breach of fiduciary duty!’” revoked it following criticism from other ´2SP]`OV2S;]bb artists who argued that Bloomfi eld had not painted his subject from life. Six years later, agency — the material on art dealers, auc- “There is a good set of safeguards another artist was widely thought to have tion houses, intermediary relationships — already in place,” says Chen, who will begin used a photograph in painting a portrait it piqued my scholarly interests.” a clerkship with Judge Harris Hartz of the of a friend. Bloomfi eld sued the Archibald In fact, DeMott was granted a research U.S. Court of Appeals for the 10th Circuit trustees for reinstatement of his prize — and leave for the coming year to work on a book in the fall. She notes that for most muse- lost. The distinction: the winning artist’s about relationships of agency and infl uence ums, the threat of professional ostracism photograph was used as an aid in painting in art markets. “I’m a fan of biographies of is enough to prevent violations. Sparked someone he knew in life, and Bloomfi eld artists, but I have always noticed how the by questions surrounding the Brandeis used a photograph as the sole basis for a por- legal perspective is missing,” DeMott says. University situation and aided by a student trait of someone he did not know. “It’s common for artists to have grievance scholarship grant from Duke Law, Chen is DeMott says questions surrounding the after grievance with their agents or collec- now working on a scholarly paper exploring determination of artistic value are challeng- tors, and because biographers are not law- governance in the university art museum, ing for students, but that “trying to under- yers they aren’t sensitive to the legal issues. a relationship complicated by the board’s stand why these questions matter so deeply Sometimes I read these books and think, fi duciary duty to the broader institution. is important to understanding what the law ‘That’s a breach of fi duciary duty!’” contributes,” she says. She likes to discuss Pictures of a case the Archibald Prize in particular because it Sparking student scholarship Assigning value to a piece of art is perhaps “helps us see how aesthetic tastes can shape DeMott has inspired a similar passion in Sue the course’s most diffi cult topic for law how the law might be applied.” Chen ’09, who took Art Law as a 2L. Chen students, most of whom are well-versed in developed her course paper into an article — the basics of law but can be intimidated, at Cultivating appreciation published in "SU "OUJRVJUZBOE-BX in June least initially, by DeMott’s inquiries into the While she knows that few of her students — arguing that museums should be held to defi nition of art, the aesthetic and stylistic will ever litigate an art law case, DeMott the more rigorous “trust” standard of fi du- properties of an art object, or the value of a hopes they develop a new appreciation ciary care, rather than the corporate standard disputed piece. for works of art and the variety of actors as some have suggested, in order to properly That’s where the slideshows come in. involved in sustaining the art world. fulfi ll their roles as institutions as well as Session after session, DeMott clicks “I hope this course helps these prospec- custodians of artistic treasures. through a series of slides, showing tive lawyers think about their social role,” she The trust standard assesses whether artworks, museums, and even images of says. “Many lawyers are collectors or consum- a board’s decision-making procedure is artists and art agents whose occasionally ers of art or fi duciaries or counselors of cul- suffi cient to satisfy its fi duciary duty. For sordid stories she tells with delight. tural institutions. I hope they can see art as a museums, that standard is usually met “One of my favorite parts of the class complement to what they do or a refuge.” through observance of the profession’s code was seeing the slides and hearing Professor At the least, DeMott’s students come of ethics, which requires certain steps to be DeMott talk about the unscrupulous behav- away with a deep appreciation for their pro- taken during deaccessioning processes and ior of agents,” says Chen. “She has a very fessor’s enthusiasm for and knowledge of a prohibits the use of deaccession proceeds wry way of describing the skullduggery of unique and complex topic. for non-acquisition purposes, such as pay- these people.” “I greatly enjoyed Professor DeMott’s ing for general operations. Violators face In one session, DeMott clicked through passion for the subject,” says de Vos, who is sanctions from peer museums, which may a series of paintings as she discussed con- spending her summer studying the history refuse to trade or loan artwork, as well as troversy surrounding the Archibald Prize and regulation of art markets in Italy. “She the potential loss of accreditation. for portraiture, one of Australia’s most is incredibly learned in multiple fi elds, and A corporate standard of care, Chen prestigious art awards. Since the gener- I fi nd her ability to merge law and art in explains, would be far less specifi c, and ous cash prize was fi rst awarded in 1921, it coherent, fl uid discourse very inspiring. I might simply require boards to act in the has sparked litigation over issues such as hope to teach similar material in the future, best interest of the institution with little whether caricature constitutes portraiture so I consider her a ‘teacher’ in more ways regard to the cultural value of the work they and how to properly interpret the require- than one, since I am not only learning the steward or the inherent responsibility of a ment that the winning portrait be “painted material, but also how to convey it.” [ museum to its public patrons. from life.” .FMJOEB.ZFST7BVHIO Ac[[S` '2cYS:Oe;OUOhW\S ! " 2cYS:Oe;OUOhW\SAc[[S` ' ,"-7*/.*$)"&-4.*5)*4*/$"3$&3"5&%BUUIF OPSNBMMZXPSLFEXJUIBTPVSDF FBDIPGVTVOEFSTUBOEJOHUIF "MCFNBSMF$PSSFDUJPOBM*OTUJUVUJPO BNFEJVNTFDVSJUZQSJTPOJO UFOVPVTUSVTUCFUXFFOBMBXZFSBOEBKPVSOBMJTU"GUFSUIFOFXT 4UBOMZ$PVOUZ /$ XIFSFIFXPSLTJOUIFCBSCFSTIPQ SFBET BOE QBQFSQVCMJTIFENZTFSJFTPGBSUJDMFTUIBUSBJTFEEPVCUTBCPVU XSJUFTMFUUFST/PX 4NJUIJTTFSWJOHBUPZFBSTFOUFODF 4NJUI±THVJMUJO/PWFNCFS *NPWFEPOUPPUIFSTUPSJFT CVU GPSUIFCSVUBMCFBUJOHPGBZPVOH QSFHOBOUTUPSFDMFSLJO $PMFNBO /FXNBO BOEBEFEJDBUFEHSPVQPG%VLF-BXTUVEFOUT 8JOTUPO4BMFN BDSJNFIFTBZTIFEJEO±UDPNNJU JOWPMWFEJO%VLF-BX4DIPPM±T*OOPDFODF1SPKFDU JODMVEJOH *O+BOVBSZ 4NJUIMPTUBNPUJPOGPSBOFXUSJBM)JT #FSOTUFJO QSFTTFEPO BEWPDBUFTBUUIFIFBSJOHBMMºSNMZCFMJFWFIFJTJOOPDFOUBOEJT 8IFO*ºSTUNFUIJN 4NJUIXBTDMFBSMZGSVTUSBUFECZUIFTMPX BMJLFMZWJDUJNPGQSPTFDVUPSJBMNJTDPOEVDU GBMTFUFTUJNPOZ BOE QSPHSFTTPGIJTJOOPDFODFDMBJN8IFO*WJTJUIJNGPMMPXJOHIJT JODPNQFUFOUUSJBMDPVOTFM"MMBSFNFNCFSTPGUIF%VLF-BX4DIPPM GBJMFEIFBSJOH IFJTEJTBQQPJOUFE CVUTFFNTNPSFQBUJFOU DMFBSMZ DPNNVOJUZ%BWJE1JTILP± $MJOJDBM1SPGFTTPS5IFSFTB/FXNBO USVTUJOHUIFNFNCFSTPGIJTMFHBMUFBNUPEPUIFJSKPCT®*±WFHPUUFO ± BOE%BWJE#FSOTUFJO±5IFZQMBOUPTUBZPOIJTDBTF UPUIFQPJOUXIFSF*MPWF.S$PMFNBO ¯4NJUIUFMMTNF BEEJOH UISPVHIUIFBQQFBMQSPDFTT TUJMMIPQFGVMUIBUKVTUJDFXJMM TPNFEBZ UIBUIFDBMMT$PMFNBOPGUFOBUXPSL BUIPNF POIJTDFMMQIPOF CFEPOF1SPGFTTPS+BNFT$PMFNBO+STVQFSWJTFEUIFTUVEFOUTXIP 4PNFUJNFTIFGFFMTBTUIPVHIIF±TBCVSEFOUPIJTBEWPDBUFT#VU JOWFTUJHBUFEUIFDBTFGPSUIF%VLF*OOPDFODF1SPKFDUBOEBTTJTUFE UIFZUFMMIJNOPUUPXPSSZ UIFMBXZFSTXIPSFQSFTFOUFE4NJUI "T4NJUIIFBETCBDLUPIJTDFMMCMPDLBUUIFFOEPGPVSIPVSMPOH *NFU4NJUIBOE$PMFNBOJOXIFO*XBTMPPLJOHJOUP WJTJU IFDBMMTCBDLXJUIBRVFTUJPO 4NJUI±TDBTFBTBOJOWFTUJHBUJWFSFQPSUFSGPSUIF8JOTUPO4BMFN ®"SFZPVHPJOHUPCFUBMLJOHUP$PMFNBOUPEBZ ¯4NJUIBTLT +PVSOBM#ZUIFO$PMFNBOIBECFFOSFWJFXJOHFWJEFODFJOUIF ®5FMMIJN*±MMDBMMIJNUPOJHIU"CPVU*OFFEUPUBMLUPIJN¯ DBTFGPSBZFBS)FBOE*XPSLFENPSFDMPTFMZUIBO*XPVMEIBWF 1IPFCF;FSXJDL His lawyers projected confi dence. But Smith felt he for his court couldn’t trust the justice system that had sent him away in the fi rst place. hearing last January in a new “I really, deep down inside didn’t look for them to do the right thing,” he says a few days after the suit and shoes his father bought January hearing. His lawyers had gathered over the weekend in him for the occasion. He hadn’t Winston-Salem to prepare for the hearing. James Coleman Jr., Duke’s John S. Bradway Professor of worn anything but prison-issued the Practice of Law and co-director of the Wrongful khakis and work shirts since a Convictions Clinic, knew Smith’s case inside out, although he was not representing Smith as his lawyer. jury in Forsyth County, N.C., had He had been investigating the case since 2003, and spent a good part of the weekend tracking down witnesses to convicted him in 1997 of the make sure they would show up for court. David Pishko ’77, a partner at Elliot Pishko Morgan near-fatal beating of Jill Marker. in Winston-Salem who had taken the case pro-bono, In those 12 years Smith hadn’t really felt human. The new clothes would question witnesses and make the oral arguments. helped. He was looking forward to testifying for the fi rst time, and Clinical Professor Theresa Newman ’88, who co-directs telling a judge that he was not the one who had beaten Marker and the Wrongful Convictions Clinic, would be co-counsel. left her for dead. David Bernstein ’06, who worked on Smith’s case as a =>>=A7B3>/53B=>(9/:D7<A;7B6)0=BB=;:³@(8/;3A1=:3;/<8@ 2/D72>7A69=¸%%B63@3A/<3E;/<¸&&2/D7203@ Ac[[S` '2cYS:Oe;OUOhW\S # student Innocence Project volunteer, fl ew in from New York where Smith wrote to the center in 2003, and his case was referred to he was an associate at Fried, Frank, Harris, Shriver & Jacobs. He Coleman for review. had conducted legal research for the motion with assistance from Today students can earn course credit for some of their work other associates through the fi rm’s pro-bono program. through the Wrongful Convictions Clinic, but not so in 2003. Coleman and a core group of students, Emily Coward ’06, Joe ■ ■ ■ Davis ’07, and Bernstein, read through hundreds of pages of trial record, police reports, and transcripts from interviews with SMITH’S THREE LAWYERS AND COLEMAN felt they had witnesses — enough to tell them that the case against Smith strong legal grounds for a new trial. First, there was evidence of didn’t hold up. incompetence by Smith’s trial lawyer, who had spent only 59 hours Smith says his fi rst meeting with Coleman, in the spring of on the case prior to trial and had allowed the brain-damaged victim 2004, changed his life. to identify Smith without a challenge. They also had evidence that “The fi rst thing Mr. Coleman said to me was, ‘We believe you’re prosecutors had failed to produce evidence, in violation of the innocent,’” Smith says. “To hear that coming from someone other Supreme Court’s 1963 ruling in #SBEZW.BSZMBOE. And the two than my family, that just took a load off my back. It was like I could witnesses who testifi ed against Smith at his trial had since recanted breathe again.” and would testify that police had pressured them for their testimony. By then, Smith had been in prison for seven years and had good “It was clearly the strongest post-conviction claim I ever had,” reason for despair. After conviction, the burden of proof shifts says Pishko. from the prosecution to the defense. No longer presumed inno- But there was more than the law driving them as they worked cent, it was now up to Smith to prove that he deserved a new trial. into the night preparing for court. They all had taken the leap of faith lawyers rarely make: they believed their client was innocent. ■ ■ ■ THE DEC. 9, 1995, attack against Jill Marker had been big news in PROVING INNOCENCE: AN UPHILL CLIMB Winston-Salem. INNOCENCE IS NOT PART of the normal legal lexicon. Juries fi nd She was beaten as she was getting ready to close up the Silk Plant defendants guilty or not guilty, never innocent. Lawyers defend their Forest, an artifi cial plant store in a busy shopping center that was clients regardless of their guilt or innocence. And while we are all stocked that week with Christmas trees and decorations. presumed innocent under the law, innocence is not a legal claim. The beating left her in a coma with a fractured skull. The local That’s changing with the growing number of convicted felons media closely followed the investigation and the progress of her lim- who have been exonerated in the last 17 years by DNA evidence. To ited recovery, reporting on the birth of her infant son while she was date, 232 defendants convicted of rape, murder, and other heinous in the coma and her transfer to a nursing home close to her parents’ crimes have been found not simply “not guilty,” but innocent, estab- Ohio home, but the crime remained unsolved. lishing innocence work as a new area of law. At fi rst police focused their investigation on a 46-year-old white Duke Law started its Innocence Project in 2000 as one of the man named Ken Lamoureux. He had a history of domestic violence founding projects of the N.C. Center on Actual Innocence, a loose and psychiatric problems and met Marker when she taught at his network of university-based organizations where faculty and stu- children’s day-care center. At least two witnesses saw Lamoureux in dents work together in a quest for justice. Coleman and Newman the store the night of the attack. But the investigation ran cold, and serve as faculty advisers. he was dropped as a suspect. $ 2cYS:Oe;OUOhW\SAc[[S` ' 9/:D7<A;7B6/<22/D72>7A69=/BA;7B6¸A8/ >V]b](2OdWR@]ZTSEW\ab]\AOZS[8]c`\OZ Ac[[S` '2cYS:Oe;OUOhW\S % Smith fi rst came to police attention in June 1996, after a jilted Two years after Coleman took on Smith’s case, Duke University girlfriend reported him. He also was dropped as a suspect after found itself at the center of a media storm with its own case of he passed a polygraph test. But in January 1997, another jilted wrongful arrest when three white lacrosse players were charged girlfriend reported him to police. After an interrogation, Smith with sexual assault. signed a statement, putting himself at the crime scene. He was The national press descended on the campus to tell the story arrested immediately. of students at the elite school who had gotten what was coming to The case against him fell into place quickly. One friend told them. That story quickly blew up, as evidence of a false accusation police he had been at the plant store with Smith. Another told emerged. Eventually the state attorney general intervened, charges police that she heard Smith brag about the beating. And three against the students were dropped, and the prosecutor who had months before the trial, Marker purportedly identifi ed him from treated them unfairly was forced to resign in disgrace. a photo lineup. After leading an internal review of the lacrosse team’s conduct on Still unable to speak or walk and nearly blind, she made a campus, Coleman was one of the fi rst to suggest there was miscon- dramatic witness at his trial. Prosecutors wheeled her in and she duct by the local police and prosecutor. pointed to Smith as her attacker. He can’t help but compare Smith’s case to that of the three After deliberating for two days, the jury convicted Smith of lacrosse players who had the best lawyers in the state defending assault with intent to kill and armed robbery. them. He notes the roles that race and resources play in the out- come of such cases and the importance of the attorney general and bar offi cials being concerned about the injustice. Coleman points BUILDING THE CASE to comments made by Reade Seligmann, one of the exonerated COLEMAN IS A DELIBERATE MAN. During his long career in lacrosse players, after charges against him were dropped. private practice, including 12 years as a partner at Wilmer Cutler “This entire experience has opened my eyes up to a tragic world Pickering Hale & Dorr in Washington, D.C., he routinely took on of injustice I never knew existed,” Seligmann said. “If it is possible capital collateral cases on a pro bono basis; he joined the Duke for law enforcement offi cials to systematically railroad us with no Law faculty after defending serial murderer Ted Bundy in his evidence whatsoever, it is frightening to think what they could do petitions for post-conviction relief from his Florida convictions to those who do not have the resources to defend themselves.” and death sentences. As Coleman and the students reviewed Smith’s case, several questions stood out. “ADVOCATES OF THE TRUTH, They couldn’t understand why the police had aborted their inves- FIRST AND FOREMOST” tigation of Lamoureux, the fi rst suspect in the case. It seemed clear INNOCENCE CASES BEGIN as fact-fi nding efforts. Finding a legal to them, too, that witness statements against Smith were coerced. defense is not the goal — getting to the truth is. The lawyers and stu- Smith’s conduct also made little sense. Why, for example, had he dents working the cases tell clients they must tell the entire truth. If gone to the police station and given a statement to implicate himself? they uncover convincing evidence of guilt during their investigation, In his initial meeting with Smith, Coleman watched him closely, they close the case. “We are their advocates,” Newman points out. listening for lies. “But they know we are advocates of the truth, fi rst and foremost.” “His story sounded credible. He was emotional, but that wasn’t The work gives students practical experience with court records, what convinced me,” Coleman says. “He told the story in a way that police reports, and witnesses, and also teaches them the limits of didn’t seem designed to convince me he was innocent.” the law they have been taught to uphold, she adds. & 2cYS:Oe;OUOhW\SAc[[S` ' As students, Davis and Coward visited Smith several times in read about the interview in the police reports, and he suspected that prison, always leaving with a sense of guilt that they could return Marker had been shown a photo lineup that included Smith’s pic- to school while Smith went back to a prison cell for a crime they ture, but he had never seen the video. believed he did not commit. It showed Marker reviewing three photo spreads, two of black “This was Kalvin’s life every day,” says Davis, who just fi nished men and one of white men. Because she could not speak, police clerking for Judge Henry Coke Morgan Jr. of the U.S. District Court asked her to nod her head ‘yes,’ or shake her head ‘no,’ in answer to for the Eastern District of Virginia. “That, at times, made me feel their questions. Marker was unable to identify any of the black men, really guilty — that we weren’t doing more or moving faster.” and appeared to identify a man in the lineup of white men. Bernstein, who started working on Smith’s case as a 2L, juggled The video forms the crux of Smith’s argument for a new his work on Smith’s case with a busy commercial litigation practice. trial. The police reports say nothing about the photo lineups or “[Litigation] takes on new meaning when it’s to help get someone whose pictures she saw, and the photos were never shared with out of jail who you know is innocent,” he says, adding that he can the defense before trial, as they should have been. Yet at the imagine himself in Smith’s place. He keeps a photograph on his January hearing, the lead detective in the case testifi ed that one desk of Smith’s supporters marching through Winston-Salem on of the lineups included Smith’s picture and another included a Martin Luther King Jr. Day last year. photo of Lamoureux. Newman and Coleman see innocence work as a way to break If Marker could not identify Smith as her attacker in October down the traditional adversarial relationship between prosecutors 1996, how was it that she identifi ed him a year later at his trial, and defense attorneys. Since the work is not about legal maneuver- asked Coleman? And if Smith’s trial lawyer had seen the video, why ings, why not fi nd a way for prosecutors and advocates to cooperate? had he not used it to challenge her testimony? If he had not seen it, Coleman took this approach with Tom Keith, the district attorney then the prosecutors were guilty of misconduct. in Forsyth County, having reason to believe that Keith would be Coleman says that once he brought his questions to Keith, the open to Smith’s claim of innocence because of an earlier wrongful district attorney stopped returning his phone calls and emails. Still, conviction in the county. Coleman pressed Keith to work with him on Smith’s release long after his students urged him to give up, hoping to change the way ■ ■ ■ prosecutors and defense advocates work on such cases. But by late 2007, with no movement from the prosecutor’s IN 2003, DNA EVIDENCE exonerated Darryl Hunt, who had served offi ce, Coleman and Newman decided it was time to go back to the almost 19 years in prison for the rape and murder of a young copy adversarial model and fi le a motion for a new trial. That meant they editor in Winston-Salem. Keith had opposed Hunt’s bid for new needed to fi nd a trial lawyer in Winston-Salem to argue the case. trial, but when DNA evidence identifi ed the real killer in the case, They were referred to Pishko through Hunt’s attorney. Keith joined defense attorneys in asking for the charges against Hunt to be dismissed. Coleman praises Keith’s initial cooperation. Keith signed a volun- A REWARDING CASE — “EVEN WHEN YOU LOSE” tary consent order giving the Duke Innocence Project access to the PISHKO STARTED OUT IN CORPORATE law after his graduation prosecutor’s fi les in Smith’s case and encouraged the police to make from Duke, but says he “missed working for the underdog.” He and their evidence available. his partners at the law fi rm they launched in 1988 specialize in pro- The police fi les contained a video of an interview with Marker in fessional malpractice, labor and employment, workers’ compensa- October 1996, three months before Smith’s arrest. Coleman had tion, and civil rights, among other areas. Ac[[S` '2cYS:Oe;OUOhW\S ' >V]b](2OdWR@]ZTS EW\ab]\AOZS[8]c`\OZ Pishko has done post-conviction work for death-row inmates. But In the days leading up to the hearing, his lawyers had done their he says this is the fi rst time he has ever represented someone he best to boost Smith’s confi dence and at the same time help him believes to be innocent. prepare for a loss. They knew the odds, but the loss was harder than “There’s nothing more rewarding than representing someone they expected. like Kalvin Smith, even when you lose,” he says. “I told him it was round one of a 15-rounder,” Pishko recalls of Smith changed into a new suit for his January hearing, but jailers trying to console Smith. “I told him we were going to keep fi ghting insisted he keep the shackles on his ankles as he sat at the defense and he needed to keep his hopes up and stick with us.” table beside Pishko. Newman sat behind them. Newman found herself holding back tears. Smith’s father, mother, brother, and sister were in the gallery, “I never thought it was hopeless, because the law was on our along with Coleman and Bernstein. His youngest son, who was an side,” she says. “We really did win on the law.” infant when he went to prison, came to see him for the fi rst time. All members of Smith’s legal team say they laid solid ground- And the benches were fi lled with community activists who have ral- work for an appeal, either in state or federal court. And Coleman is lied behind him, including Hunt, a sharp contrast to his 1997 trial confi dent that some day they’ll fi nd evidence that points to the real where his only supporters were members of his immediate family. attacker. He is already working to track down a woman he believes While Smith’s testimony was not needed for the legal claims, his was talking to Marker on the phone shortly before the attack. Maybe lawyers knew that he needed the chance to tell his story. she knows who was in the store that night. Smith looked directly at the judge as he spoke, but with con- “I think we’ll get him out of prison by getting his conviction over- stant objections from the state he didn’t feel he was being heard. turned,” Coleman says. When he wasn’t on the stand, Smith kept up a constant fl ow of But that won’t be enough. Coleman wants to prove his innocence. questions for Pishko. To do that, he believes he will need to solve the crime. [ “I know I got on Pishko’s nerves because I was writing so much down and sending him notes,” Smith says later. “Ask him that. Ask him that. I wanted every little detail to come out.” The lawyers believed they had the law on their side. But they also 0O.BSDI BDJUJ[FO±TDPNNJUUFFSFWJFXJOHUIFQPMJDFJOWFTUJHBUJPO knew the pressures on the judge. Marker is blind and the state’s PGUIFDBTFPOCFIBMGPGUIF8JOTUPO4BMFN$JUZ$PVODJMTFOUBSFTPMV witnesses have all recanted. Giving Smith a new trial would have UJPOUPUIF$PVODJMTBZJOHUIFZIBEGPVOEOPDSFEJCMFFWJEFODFUIBU amounted to setting him free. ,BMWJO.JDIBFM4NJUIXBTBUUIF4JML1MBOU'PSFTUPOUIFEBZPSBU For the last day of the hearing the bailiffs cleared the fi rst two UIFUJNFPGUIFBTTBVMUPO+JMM.BSLFS rows. Smith took that as a bad sign; court offi cials would want a buf- fer zone if he lost, to maintain order in the courtroom. That morning, after hearing argument from the lawyers for both sides, Judge Richard Doughton denied the motion without com- 1IPFCF;FSXJDLJTBGSFFMBODF ment and instructed the state to draft an order. XSJUFSJO8JOTUPO4BMFN /$ 2cYS:Oe;OUOhW\SAc[[S` ' 4OQcZbg4]Qca :Oc`S\QS@ 6SZTS` AQV]ZO`aVW^Sf^Z]`Sa`SQW^SaT]`W\bS`\ObW]\OZW\abWbcbW]\ab]acQQSSR courts, operate when transplanted created in the 1990s with the support of from one region to another and international fi nancial institutions such as how they can contribute to devel- the International Monetary Fund and the oping the rule of law in areas World Bank, are led and staffed by attor- where it is weak. neys and other professionals committed As with the more widely stud- to the fair and evenhanded application of ied European Court of Justice legal rules. Several of the agencies operate on which it was modeled, the outside of national civil service systems and ATJ has jurisdiction over a wide variety of issues, including trade, taxes, tariffs, and intel- Laurence R. Helfer lectual property (IP). But unlike Recent and forthcoming scholarship its European cousin, the ATJ’s docket is dominated by IP dis- putes. Within the IP area, Helfer 6C;/<@756BA/<27 Ac[[S` '2cYS:Oe;OUOhW\S 4OQcZbg4]Qca have independent revenue streams, resulting research agenda that includes international of Duke’s John Hope Franklin Institute for in considerable operational autonomy. intellectual property and human rights, two the Humanities, Helfer also looks forward to All of these factors have combined to cre- subjects he will teach at Duke Law. He has introducing social science and humanities ate an enclave of respect for the rule of law, explored the growing interface between the scholars at Duke to the Law School’s highly Helfer says. “The agencies have developed a two in numerous articles and a forthcom- interdisciplinary faculty. relationship with the ATJ whereby the court ing book. He also is a co-author of the fully “Professor Helfer is a tremendous addi- clarifies Andean IP standards for them, but updated casebook, )VNBO3JHIUT. tion to our faculty,” says Dean David F. Levi, also strengthens their fidelity to the rule Helfer will introduce the casebook adding that Helfer’s broad range of research of law by requiring them to follow fair and at Duke when he teaches International interests complements and strengthens the transparent procedures.” In this way, he Protection of Human Rights next spring. An Law School’s programs in international law, adds, the ATJ has bolstered the autonomy enthusiastic teacher of rapidly-evolving, topi- intellectual property, and human rights. “He and independence of the agencies relative to cal subjects, Helfer says he regularly identi- is a creative and forceful institution builder other government actors. fies current events and real-world problems who will help unify many parts of the uni- In an era in which the number of interna- for students to analyze in the classroom. versity that are interested in human rights tional institutions and tribunals is expanding, Students also assist him with his many and interdisciplinary research.” Helfer’s close examination of the ATJ and research projects. Levi also points to Helfer’s engagement the Andean Community legal system offers Duke’s Harry R. Chadwick Sr. Professor with international courts, international several broader insights for scholars and poli- of Law, Helfer also serves as co-director, organizations, and nongovernmental groups cymakers. One involves how successful insti- with Professor Curtis Bradley, the Horvitz around the world as qualities that could tutions from one region operate when trans- Professor of Law and Professor of facilitate experiential learning opportunities planted to another. “We show,” says Helfer, Public Policy Studies, of the Center for for Duke Law students. Helfer set up sev- “that for an international institution to func- International and Comparative Law (CICL). eral international externships for students tion effectively in countries where the rule of Helfer looks forward to continuing estab- when he led the International Legal Studies law is weak, it needs to build a relationship lished CICL programs such as the Global Program at Vanderbilt. “He is in a position with actors in the government who have a Law Workshop and to introducing a series to help students gain important practical professional stake in seeing that international of interdisciplinary roundtables that will experience in international law and policy. rules and decisions are followed.” bring together small groups of scholars in There are not many people who have the Helfer’s empirical study of the ATJ rep- related fields for intensive workshops on breadth of knowledge and contacts he has,” resents the latest evolution in an ambitious draft papers. As an incoming board member Levi observes. [ 'SBODFT1SFTNB 9W[PS`Zg2 9`OeWSQ AQV]ZO`]TQ]`^]`ObSO\RaSQc`WbWSaZOe O\Rµc\Q]\dS\bW]\OZ[O`YSba¶ ORE THAN EIGHT YEARS AGO, Kimberly Krawiec published a schol- ;arly article that raised eyebrows with her suggestion that banks bore some burden for the phenomenon of “rogue” trading. Risk, she observed, net- ted profit, and banks sometimes encouraged it, rewarding short-term profits with sizeable year-end bonuses. “Back then people thought it was a little crazy to suggest that financial institutions turned a blind eye to, or even encouraged, ‘unauthorized’ trading,” says Krawiec, who revisits the subject in “The Return of the Rogue,” recently published in the "SJ[POB-BX3FWJFX. “They asked, ‘Are you saying that banks actually have a financial incentive to encourage this type of risk-taking?’ That’s exactly what I was saying. Now, in the midst of the financial crisis, the reaction is much different.” Krawiec joined the Duke Law faculty July 1, after more than six years on the faculty of the University of North Carolina School of Law; she also has taught at Harvard, the University of Virginia, and Northwestern University law schools. Having started her career in the corporate and derivatives group at Sullivan & Cromwell in New York, she has long examined emerging issues in those areas in her scholarship and teaching, focusing in particular on legal compliance and unconventional markets. Derivatives, hedge funds, and mortgage-backed securi- ties all fell into that category in the relatively recent past, she notes with a laugh. 2cYS:Oe;OUOhW\SAc[[S` ' 4OQcZbg4]Qca Krawiec continues to keep a close eye on opment of sound legal rules. “Moreover,” regulatory proposals sparked by the current she adds, “it increases the dependence and Kimberly D. Krawiec financial crisis. “It will be interesting to see disadvantage of suppliers in these markets, Recent and forthcoming scholarship whether this becomes an opportunity for who are predominantly women, and often real, meaningful change in the regulatory burdens customers as well.” >`WQSO\R>`SbS\aSW\bVS0OPg;O`YSb system, or whether we implement regula- Collusive price-fixing in the egg mar- W\0/0G;/@93BA(;=<3G;=@/:A/<2 tions that look different but in many ways ket is one market perversion that thrives B63<3=>=:7B71A=416=7131O[P`WRUS maintain the status quo,” she says. “The in the “shadows,” she argues in “Sunny C\WdS`aWbg>`SaaT]`bVQ][W\U ' outlines of some of the proposals for regu- Samaritans and Egomaniacs: Price Fixing =^S`ObW]\OZ@WaY;O\OUS[S\b(/\ lation are rather vague — the key will turn in the Gamete Market.” 3[S`US\b7\Rcab`gW\=>3@/B7=@/1B713A/<2 Much of Krawiec’s recent work extends ly if we dropped the illusion that egg sellers 7AAC3A7<;=23:7<5;/`]Pa T]`bVQ][W\U ' ductive services, such as assisted reproduc- forthcoming symposium issue of -BX Ac\\gAO[O`WbO\aO\R3U][O\WOQa( tive technologies and in-vitro fertilization; $POUFNQPSBSZ1SPCMFNT on “forbidden mar- >`WQS4WfW\UW\bVS5O[SbS;O`YSb adoption; surrogacy; and egg and sperm kets” for which she served as special editor, % :Oe1]\bS[^ >`]Pa T]`bV markets. These represent a robust and Krawiec points to the use of professional Q][W\U ' growing industry with many market charac- guidelines from the American Society BVS@Sbc`\]TbVS@]UcS# /`Wh : teristics and regulatory issues that parallel for Reproductive Medicine that dictate @Sd % ' those in more traditional markets, she says. prices considered reasonable for eggs — /Zb`cWa[O\R7\bS`[SRWObW]\W\bVS In two recent papers Krawiec criticizes a $5,000 under normal conditions, and up ;O`YSbT]`0OPWSa$#EOaV:SS: legal regime that fails to fully acknowledge to $10,000 in special circumstances — as @Sd ' a “market in babies” and allows intermedi- one mechanism by which intermediaries AWU\OZW\UBV`]cUV0]O`R2WdS`aWbg(7a aries, from physicians to adoption agencies, have colluded to set prices. “In a long line /\g]\S:WabS\W\U-eWbV: 0`]][S%% C 1W\ : @Sd "! & to profit handsomely for their services, of cases, courts have refused to tolerate anti- while those supplying the raw materials of competitive conduct disguised as profes- baby-making, including egg donors, sur- sional ethical guidelines.” There are other perversity of its own — a very profitable rogates and birth parents, face legal and parallels to traditional financial markets legal compliance industry that includes other restrictions on their earning capacity. and the types of intermediary misconduct lawyers, accountants, and risk-management Asymmetric legal restrictions insist that often found there, she adds, pointing to and human resources experts,” she says. baby-market suppliers “derive a large por- recent incidents of surrogacy intermediaries “[These are] groups with independent self- tion of their compensation from the utility absconding with clients’ funds. interest and professional preservation goals associated with altruistic donation,” she Krawiec, who teaches Business that are not always compatible with the writes in “Altruism and Intermediation in Associations, Financial Derivatives, and a original regulatory goals. the Market for Babies.” seminar called “Taboo Trades” that exam- “The ways in which the legal system Some of the resistance comes from ines markets in everything from sperm, struggles to keep pace with quickly chang- women themselves, she observes. “There is eggs, and human organs to prostitution ing or growing markets, how the law and a traditional fear of market incursions into and vote buying and selling, says the bal- mechanisms of private ordering attempt certain aspects of ‘femaleness,’ including ance between market forces and govern- to resolve those tensions, which interest reproduction. This time-honored hostility ment control, industry self-regulation and groups have attempted to capture the politi- toward market advances into life’s most state intervention, and personal choice cal process in order to influence the regula- sacred and intimate areas is understand- and shared public-policy goals is a tension tion governing those markets, and what is able, but problematic,” she says. “The ten- common to all of the markets she stud- the public-interest rhetoric that they employ sion becomes increasingly acute as repro- ies. In that regard, all of her scholarship to effectuate those attempts are issues that duction, parenthood, and sexuality — areas seeks to answer the same question: When cut across all of my scholarship,” she says. of life that we prefer to consider governed can government regulation improve on “Professor Krawiec is an engaging by love, emotion, or commitment — appear unconstrained market forces, and when scholar and teacher whose work on deriva- more openly commercial.” will it do worse? tives, hedging, financial rogues, interme- Yet, Krawiec maintains, the insistence Krawiec further argues that “the particu- diaries, and unconventional markets is on treating exchanges in an impersonal, lar type of regulation predominant in the of the greatest interest, particularly in the profit-centered market as if they were United States, under which a substantial current economic turmoil,” says Dean motivated by something else — altruism or portion of the governance is left to the David F. Levi. “She is a most welcome emotion, for example — thwarts the devel- regulated industry itself, gives rise to a addition to our faculty.” [ '1 Ac[[S` '2cYS:Oe;OUOhW\S ! 4OQcZbg4]Qca 8]aS^V0Z]QVS` AQV]ZO`SfO[W\SaS[S`UW\UWaacSaW\4W`abASQ]\R/[S\R[S\bR]Qb`W\S S A LAW STUDENT, Joseph Blocher / wanted to be a clinical professor. He co-chaired the Legal Services Organization at Yale Law School, from which he gradu- ated in 2006, worked in several different clinics, and remains deeply committed to public interest and pro bono work. But during his first clerkship with Judge Rosemary Barkett of the U.S. Court of Appeals for the 11th Circuit, his love of scholarship won out. “I had all these ideas,” says Blocher, who had published scholarly articles at Yale and during his earlier graduate studies in land economy at Cambridge University. “So I started writing articles on weekends. And after I had done three of them, I thought, ‘Wouldn’t it be great if I could do this all the time?’” Having emerged as a productive scholar in the areas of constitutional and property law, Blocher has his chance — he joined the Duke Law faculty July 1 after completing a clerkship with Judge Guido Calabresi of the U.S. Court of Appeals for A HOMECOMING the Second Circuit. OR JOSEPH BLOCHER, launching his academic career at Duke isn’t just a matter of finding a Blocher’s research and scholarship, most 4welcoming scholarly community. It’s a homecoming. recently focused on the First and Second Blocher is currently the only Durham native on the governing faculty, a distinction previously held by Amendments and the federal courts, broadly the late Professor Robinson Everett. explores the role of institutions in the cre- “For me, accepting Duke’s offer was a no-brainer,” says Blocher. “Durham has a mix of nice folks, great ation, interpretation, and application of legal culture, and incredible research institutions, all within reach. It’s a wonderful place to be a professional. theory and doctrine. He is especially inter- There are a lot of people doing a lot of exciting things.” ested, he says, “in considering the extent Given that his father is on the faculty at the University of North Carolina-Chapel Hill, Blocher admits to to which informal institutions receive, or being a die-hard Tar Heel fan — an allegiance he shares with his fiancée Marin Levy, who will join the should receive, deference from the formal Duke Law faculty in the fall as a lecturing fellow. legal system, and the ways in which that def- “I was able to keep my allegiance quiet during my Duke interviews,” he says. erence manifests itself in doctrine.” In “School Naming Rights and the First Amendment’s Perfect Storm,” published ment Analysis,” Blocher parses the majority “The next big battle or series of battles in 2007 in the (FPSHFUPXO-BX+PVSOBM, and dissenting opinions in the Supreme will be about who gets to invoke the Second Blocher examined an emerging free speech Court’s 2008 ruling in %JTUSJDUPG$PMVNCJB Amendment and how much of a gun right issue — the expanding practice of local gov- W)FMMFS, the so-called D.C. gun-rights case, it protects,” he says. ernments selling to private parties the right for clues to the standard of review that will While Justice Antonin Scalia, in his to name public schools. An ambitious paper govern Second Amendment cases going majority opinion, took a categorical approach published in the %VLF-BX+PVSOBMin 2008, forward. Having worked extensively on the to the gun right, excluding certain people, “Institutions in the Marketplace of Ideas,” case during a year of appellate practice at places, and kinds of arms from Second brought together the leading metaphor for O’Melveny and Myers in Washington, D.C. Amendment protection, Blocher explains, the First Amendment — the marketplace of — under Walter Dellinger, Duke’s Douglas Justice Stephen Breyer, in dissent, used ideas — with one of the leading economic B. Maggs Jr. Emeritus Professor of Law, who more of a balancing test. “You would ask, theories, the “new institutional economics.” argued the case in the Supreme Court on ‘In any of these particular cases, or in the In an article recently published in the /FX behalf of the District of Columbia — Blocher case of any particular law, does the ben- :PSL6OJWFSTJUZ-BX3FWJFX, “Categoricalism sees )FMMFS as just the opening salvo in a body efit outweigh the burden, given whatever and Balancing in First and Second Amend- of modern jurisprudence on the subject. weight we want to attach to those?’ Those " 2cYS:Oe;OUOhW\SAc[[S` ' 4OQcZbg4]Qca are very different ways of creating a stan- dard for review.” The justices’ differing approaches in )FMMFS are reminiscent, Blocher argues, of an earlier debate undertaken by Justices Black and Frankfurter in the development of First Amendment doctrine. For the most part Black lost his campaign for an “abso- lute” First Amendment to Frankfurter’s more “balancing standards approach,” Blocher says. The )FMMFS court never fully articulated what it views as the actual purpose of :Oe`S\QS0OfbS`O\R9ObV`g\0`ORZSg the Second Amendment, he adds. “We PROFESSORS OF THE PRACTICE PROVIDE ESSENTIAL BRIDGE TO PRACTICE don’t know for sure if it’s an amendment intended to prevent tyranny by the govern- WO INDIVIDUALS lately appointed Baxter is a top scholar of administrative ment or one intended to protect people’s Bas professors of the practice of law are law, domestic and global banking regula- right to self-defense against criminals. And already well known to members of the Law tion, and comparative law who began his those lead to very different places in terms School community. academic career in at the University of of categories you create — in terms of what Kathryn Webb Bradley has been a senior Natal in his native South Africa. In 1995 kinds of guns are protected or what kinds lecturing fellow since 2005, teaching he joined Wachovia Bank in Charlotte, of people can wield them,” says Blocher. courses in family law and ethics. She is N.C., serving first as special counsel for “Joseph Blocher has the qualities we look currently director of Legal Ethics and the strategic development and later as corpo- for in an entry-level appointment — a taste administrator for the Capstone Project and rate executive vice president, founding and aptitude for scholarship, high energy, Domestic Externship Program. Wachovia’s Emerging Businesses and creativity, demonstrated productivity, and A former clerk to Justice Byron R. Insurance Group and eBusiness Group, enthusiasm for working with students,” White of the United States Supreme Court, then serving as Wachovia Corporation’s says Katharine T. Bartlett, A. Kenneth Pye Bradley is of counsel at Hogan & Hartson, chief eCommerce officer. Since leaving Professor of Law and chair of the entry-level where she was formerly a partner, prac- Wachovia in 2006, he has served as a appointments committee. “I am thrilled ticing trial and appellate litigation in the consultant and adviser to members of that he is joining this faculty.” [ '1 firm’s Washington, Baltimore, and Denver the online security industry and various offices. She has taught Legal Research and Internet startup businesses in the care- Writing at the University of Virginia, and giving, entertainment, social networking, Joseph Blocher has been an adjunct instructor of Legal and recruiting sectors. Recent and forthcoming scholarship Writing, Constitutional Law, and Federal Bradley and Baxter join a growing cadre Jurisdiction at the University of Maryland of professors of the practice of law that >`]^S`bgO\RA^SSQVW\Ac[[c[ School of Law. now includes James Coleman, the John S. ! Ac[[S` '2cYS:Oe;OUOhW\S # 4OQcZbg4]Qca 8SRSRWOV>c`Rg`STZSQba]\bVS Sd]ZcbW]\]TT`SSR][W\/[S`WQO 2C93:/E;/5/H7<3('SBNFUIJT It is, actually, a kind of wild-eyed politi- EFCBUFCFUXFFO+PIOTPOBOE#VSLF cal theory, and at the same time is grossly hypocritical. One of the abuses the colonists >C@2G( The crux of the debate was wheth- were complaining about was interference er it would be possible to develop a politi- with their liberty to control and keep their cal community on ideas as radical as the own slaves. So Johnson would have said Americans were pronouncing. Johnson said, that they were either crazy or criminally “No, these ideas are hopelessly abstract and hypocritical — either way there is nothing amount to a ‘charter of anarchy,’ because to admire. everyone will have his own idea of what it And a part of my argument is that exact- means to be free, and everyone will just ly because the Declaration of Independence withdraw his consent from government at was so riven with inconsistency and a kind the time when it offends his conscience, and of excess, brimming with ideas that no one you’ll have no more legitimate order.” was prepared to make good at the time, it Burke agreed that legitimate order was became available to later generations of 30'&4403+&%&%*")163%: the only meaningful form of freedom — Americans demanding a deepening and >CFHJOTIJTMBUFTUCPPL A Tolerable [he and Johnson agreed] that freedom expansion of the country’s social practice of Anarchy: Rebels, Reactionaries, and the was always a social achievement within a freedom to include more people and more Making of American Freedom XJUIB set of partly inherited institutions and dimensions of people, to include the dignity SFDSFBUJPOPGUIFEFCBUFJO-POEPO familiar practices. of previously excluded groups. CFUXFFO4BNVFM+PIOTPOBOE&ENVOE#VSLF But Burke thought it was not entirely out Frederick Douglass is my favorite exam- PWFSUIFEFNBOETGSPNUIFDPMPOJFTGPSMFTT of the question that the Americans could ple. The thing that many of the Founders SPZBMJOUFSGFSFODFBOENPSFTFMGHPWFSONFOU build a new kind of political tradition out would have been clearest on, as an example EFNBOETUIBUXFSFBMSFBEZDPVDIFEJOUIF of these extreme ideas and this ungovern- of what they didn’t mean by freedom, was MBOHVBHFUIBUXPVMECFDPNFUIF%FDMBSBUJPO able language. And he said that if they slave rebellion. Douglass, I argue, did PG*OEFQFOEFODF ®UIFMBOHVBHFPGDPOTFOU could, that would prove that anarchy might something like turn slave revolt into a mode BOESFCFMMJPO BOEVOBMJFOBCMFSJHIUT ¯TBZT prove to be tolerable after all. And he said of constitutional interpretation. He insisted 1VSEZ'SPN#VSLFBOE+PIOTPO±TDMBTIPWFS that if there was one set of terms on which that the Constitution could be read as an UIFDPMPOJTUT±QSPTQFDUTUPUIFQSFTFOUEBZ the Americans could succeed, it would be anti-slavery document, despite that fact that 1VSEZUSBDFTIPXTVDDFTTJWFHFOFSBUJPOT that they could produce a political tradition it was pulsating with compromises about PG"NFSJDBOTIBWFSFEFGJOFEUIFQSPNJTFT out of anti-traditional elements of repudia- slavery, because it should be approached as BSUJDVMBUFEJOUIF%FDMBSBUJPOUPDPOUJOVBMMZ tion and insurrection and build a political an attempt to make good on the unfulfilled DSFBUFOFXGPSNTPGQPMJUJDBMDPNNVOJUZ community out of anti-communitarian promise of the Declaration. Douglass once 1VSEZTQPLFXJUI Duke Law Magazine impulses, antinomian conscience, and radi- said that “there is no man who doubts that BCPVUIJTCPPL cal individuality. The book is the story of slavery is wrong for himself.” that tradition. To insist on that and to have faith that that demand will be not just the end of the social 2:;()PXEJEUIF%FDMBSBUJPOTFSWFBT order that you live in now, but the beginning BOBODIPSGPSUIBULJOEPGUSBEJUJPOPG of a new and more open and more generous SFQVEJBUJPOBOESFCFMMJPO and more inclusive and more decent social order — that’s the kind of innovation within >C@2G(The Declaration, in some ways, a tradition and rupture within the continuity must have seemed to Johnson like the per- of a tradition that people went on to use the fect proof for his case against the Americans. Declaration for, to say, in a sense, we are “re- On the one hand, it used the most nakedly founding” the project of defining a political abstract claims of natural liberty — life, community according to the liberty of each liberty and the pursuit of happiness, and of its members. unalienable rights — implying that if any And if the founders had succeeded in of them is interfered with, a right to rebel writing a more consistent piece of politi- against an established government ensues. cal philosophy, the product might have $ 2cYS:Oe;OUOhW\SAc[[S` ' 4OQcZbg4]Qca “[B]ecause the Declaration of Independence was so riven with inconsistency and a kind of excess, brimming with ideas dignity for white men and, after the Civil that no one was prepared to War, it’s equal democratic dignity for all make good at the time, it men — at least that’s the idea particularly became available to later among northern Republicans. But in the late 19th and early 20th centu- generations of Americans ries this idea was driven increasingly hard demanding a deepening and by the rise of industrial capitalism and a expansion of the country’s continental economy. You could work for generations in this new economy as hard social practice of freedom to and as honestly as you like, and you’re still include more people and more 8SRSRWOV>c`Rg not going to be the one who owns the fac- dimensions of people, to include /B]ZS`OPZS/\O`QVg( tory. It comes to seem, increasingly, that @SPSZa@SOQbW]\O`WSaO\RbVS it is the structure of the economy, rather the dignity of previously ;OYW\U]T/[S`WQO\4`SSR][ than people’s own character and efforts excluded groups.” GOZSC\WdS`aWbg>`Saa & that is determining the shape of their lives, ´8SRSRWOV>c`Rg and this is a whole new problem. And the answer to the problem that progressive lacked the emancipatory potential that later reformers give is that the state should pres- people found precisely in the Declaration’s ent a power concentrated and large enough In a sense, Reagan said the whole 20th overreach and its inconsistency, which gave to reshape the system in a way that will give century political project was a mistake. And them things to grab hold of and open up citizens more opportunity and protect them in the decades after that it was, in fact, very and rework. from the violent vicissitudes of modern life. difficult to talk about the role of the state in Woodrow Wilson opens his first inaugu- shaping the economy, and difficult to talk 2:;(-BSHFMZUISPVHIUIFJSJOBVHVSBM ral address, in 1913, with a totally different about citizenship as a matter of interdepen- BEESFTTFT ZPVUSBDFIPX"NFSJDBO picture of the country than anyone has ever dence and creating the institutions that we QSFTJEFOUTIBWFGSBNFEQVCMJDEJTDVTTJPOT given before. He talks about women and all have to live in together. BCPVUGSFFEPNBOE"NFSJDBOTPDJFUZ children for the first time. He talks about Which was why it was it was so surpris- workers with vulnerable bodies who can get ing to hear Barack Obama, in his 2004 >C@2G(There are two questions that get sick and be broken by factory labor. He says Democratic National Convention address, addressed by the way that we talk to one we have to remake our common institu- say simple things like, “If there’s a grand- another in public about the country and tions to make good on the old principles of mother who has to choose between a about citizenship. equal opportunity. And this sets in motion prescription and the rent, that diminishes The first question concerns the dignity the problem that presidents through my life, even if it’s not my grandmother.” of being a citizen and the responsibility of Lyndon Johnson wrestle with — they say, To hear him talking about solidarity and being a citizen. This is the question of civic explicitly, especially FDR, LBJ, and Wilson, fairness and have those things sound identity. The second question concerns the that the world has grown too vast and com- American, and genuine, and contemporary, role of government. plex for people individually to understand made me wonder why that was so hard to I argue that for much of the 19th cen- let alone control with their private choices. do. In some ways, actually, it was asking that tury, when presidents talked about what it So in 1981, when Ronald Reagan famous- question in 2005 that led me to go back and meant to be an American and how govern- ly said, “Government is not the solution, read the history of presidential language. ment figured in that picture, they talked it’s the problem,” he rejected, explicitly, the One of the purposes I’ve come to think about a world of open, really MBJTTF[GBJSF whole progressive picture of what the role of the book as having is giving a broader economic opportunity, which they identified of government was and of the social circum- sense of political tradition in which the with the principle of free labor. Every per- stances — complexity and scale — that gave events [surrounding Obama’s election] son can be a person of substance was the it that role. He said, “If you feel constraint make sense. I think it’s about a democratic idea, as long as [government] enforces an in your life, it’s either because you are not community that has a tradition of reinter- equal playing field of free contract among trusting yourself — and self-trust is both the preting its past in terms of a better possible people who own their own time and talent, American right and the American respon- future. That really is the tradition — the and who own their own bodies. Freedom in sibility — or because the government is change is the old thing that we’ve recur- the antebellum period is equal democratic intruding too much into your life.” rently done. ['1 Ac[[S` '2cYS:Oe;OUOhW\S % 4OQcZbg4]Qca 2/D72:/<53/<26 83443@A=<>=E3:: :O\USO\R>]eSZZ`SSfO[W\SbVS`SZObW]\aVW^ PSbeSS\Q]^g`WUVbO\RT`SSSf^`SaaW]\ AVID LANGE ADMITS that he rights in expression obviously abridges to the domain of the copyright and patent 2has always liked “coloring outside freedom of speech and press. “Courts clauses before judicial interpretation of the the lines” — writing what he thinks and generally use a hierarchy of balances in First Amendment was really up and run- believes, whether or not it is “practical.” assessing whether or not a given interest ning, and no one really questioned that Lange, the Melvin G. Shimm Professor in expression is abridged. In the case of intellectual division of labor for a long time of Law, and H. Jefferson Powell, Duke’s copyright, however, we do not even bother except the brilliant [Melvin] Nimmer.” Frederic Cleaveland Professor of Law and to balance the interests. The Supreme Nimmer, the late preeminent copyright Divinity, have done just that in their latest Court simply decrees that copyright in its scholar, proposed that as long as the under- book, /P-BX*OUFMMFDUVBM1SPQFSUZJOUIF traditional forms ordinarily does not vio- lying idea itself is free, the granting of *NBHFPGBO"CTPMVUF'JSTU"NFOENFOU. Not late the Amendment.” exclusive rights for expression, for limited only do they propose a novel reading of The Supreme Court, in fact, has never times, would not necessarily confl ict with the First Amendment, they also re-imagine directly addressed questions of confl ict the First Amendment, Lange explains. copyright and other expressive parts of between the First Amendment and copy- “What’s more, copyright’s fair use doctrine intellectual property as a result. right law. “I suspect that what this illus- offers at least a limited right to excerpt or Copyright is generally upheld against trates is the tendency of law to allow our otherwise deal in a supposedly fair way with First Amendment claims, Lange says, and category schemes to obscure substantive expression in works while they are under this is so despite the awkward fact that a issues,” says Powell. “The discussion of IP copyright,” he says. “On these grounds, state-sanctioned system awarding exclusive and the Constitution had been assigned both Nimmer and the Court have thought & 2cYS:Oe;OUOhW\SAc[[S` ' 4OQcZbg4]Qca 2OdWR:O\USO\R6 8STTS`a]\>]eSZZ <]:Oe(7\bSZZSQbcOZ>`]^S`bgW\bVS 7[OUS]TO\/Pa]ZcbS4W`ab/[S\R[S\b AbO\T]`RC\WdS`aWbg>`Saa & that surely copyright poses little threat to the conclusion that a good deal of what we IP. It is not true that freedom of expres- First Amendment interests.” recognize as protectable in copyright we sion and the provision of incentives for For their part, however, Lange and might be able to salvage,” says Lange. “We expression have to be reconciled by simply Powell view copyright as posing serious might, for example, still be able to grant subordinating freedom to incentives | obstacles to our individual and collective exclusive rights in streams of actual profi ts more or less the current position | or ability to engage in expression, whether from a work. But we would not be able that freedom is inherently incompatible creative or otherwise. “These obstacles to go on supporting the kind of exclusive with the creation of incentives.” represent not just an affront to the public rights in expression that we have accus- And who is to say that in the end their domain in a larger sense but … also a more tomed ourselves to recognizing in the case effort will not gain adherents? Lange recalls focused affront to the First Amendment,” of copyright. that he had expected his 1981 essay on the says Lange. Both situations could be recti- “Copyright proprietors could no longer then-obscure subject of the public domain fi ed, he suggests, if the First Amendment prevent others from expressing themselves to go unnoticed. Instead, his ideas seemed were read as an absolute. freely, whether or not that expression might to spark a lively and abiding interest in the “Justice [Hugo] Black, when he sat on the infringe under current law,” he adds. “That subject in discourses that have now moved bench from 1937 to 1971, was, among other would be so because the First Amendment well beyond his original aims, both within things, a proponent of what he called ‘the would now actually say, with respect to the academy and in the fi eld of intellectual absolute rule of the First Amendment.’ As exclusivity abridging expression, ‘No law property at large. most of us know, Black thought that ‘no law’ means OP law.’” “Meanwhile, if we in the academy do not meant no law. The rule is that Congress is How practical is that suggestion? exercise our freedom to offer the opinions simply not free to make a law that abridges Powell and Lange agree that their book we actually hold, never mind whether they freedom of expression,” says Lange. As is unlikely to spark a dramatic change may gain immediate favor, then I would Nimmer himself conceded, if Black’s view in copyright or intellectual property law. judge our profession a very dreary busi- were to prevail, then copyright would cer- But they share a hope that their ideas will ness,” Lange says. tainly confl ict with the First Amendment. inspire a more robust debate about the “I hope,” he adds, “that when we Taking “no law” to mean literally no law right to free expression and the limita- speak about re-imagining intellectual moves “from a balancing of competing tions that copyright law imposes. property in the image of an absolute First interests to a direct defi nition of what an “I do hope that our arguments will Amendment, as we do in our book, that abridgement of speech and press means,” show others in Congress, the judiciary, others will fi nd our arguments stimulat- Lange says. Since expression is at the heart the academy, the media, and elsewhere ing and persuasive. But if not, then it will of what copyright protects in some at the that a number of widely-held assumptions still have been well worthwhile for us expense of others, it would be diffi cult to say are simply wrong,” Powell says. “It is not simply to have done as Justice Brandeis that copyright does not abridge expression. true that there is no defensible version of suggested the First Amendment was What would happen to copyright if the Justice Black’s absolutism. It is not true intended to make it possible for all of us to First Amendment were read as an absolute? that allowing the First Amendment a seri- do: ‘to think as we please and speak as we “Somewhat to our surprise, we came to ous role in shaping IP will simply destroy think.’” [¬.FMJOEB.ZFST7BVHIO Ac[[S` '2cYS:Oe;OUOhW\S ' 4OQcZbg4]Qca Iraq and Afghanistan and other internation- al problems. It’s a lot of work to really try to get to the bottom of things. But there are also these very enjoyable experiences. And if you were ever going to be in the United States Senate, in my entire experience, this is the two years to be there. I always try to look at the bright side of even the darkest thing. I really think President Obama was right and I think everyone agrees, Republican and Democrat, that there have to be major changes in the way we’ve done business in Washington, not just in the last eight years, but the last 15 to 20 years. You’re never going to get change when things are going well. We have to make changes in the next two years. They really are going to affect this country for many years. 2:;(5FMMNFBCPVUZPVSDPTQPOTPSTIJQ PGUIF'SBVE&OGPSDFNFOUBOE3FDPWFSZ "DUBMPOHXJUI4FOT1BUSJDL-FBIZBOE $IBSMFT(SBTTMFZ 9/C4;/<: We got together, the three AS\ BSR9OcT[O\ of us, and put in a bill to try to go after financial fraud. After Sept. 11, we took large /T`SaV^S`a^SQbWdS numbers of our FBI agents and transferred them to counterterrorism activities. That ]\bVSc^^S`QVO[PS` was absolutely the right decision. But we’ve &.":#&BGSFTINBO6OJUFE4UBUFT 2C93:/E;/5/H7<3(8IBUIBT never filled those positions. In fact, there 6TFOBUPS CVU5FE,BVGNBOXBTBMSFBEZ TVSQSJTFEZPVNPTUBCPVUTUFQQJOHJOUPUIF were fewer financial fraud cases filed in BWFUFSBOPGUIFDIBNCFSXIFOIFXBTTXPSO MBXNBLFS±TSPMF 2008 than in 2001, even with all the prob- JOUPGJMMUIFTFBUWBDBUFECZ7JDF1SFTJEFOU lems we had in 2008. Right now there +PTFQI#JEFO,BVGNBOTQFOUZFBSTPO 9/C4;/<: I’m surprised at how enjoy- are only about 240 FBI agents working on #JEFO±TTUBGG BTDIJFGPGTUBGG able it is. I never realized the major enjoy- financial fraud. 'JSNJOIJTEFDJTJPOUPTFSWFPOMZUXP able parts about being a senator that you This bill [which passed in the Senate ZFBSTVOUJMBTVDDFTTPSJTDIPTFOJOBTQFDJBM just never get to do as a staff person, [such on April 28] does a number of things. It FMFDUJPO ,BVGNBOJTNBLJOHUIFNPTUPGIJT as] asking questions in committees and increases the number of FBI agents work- UJNFJOPGºDF)FTFSWFTPOUIF+VEJDJBSZBOE being able to talk to witnesses about issues ing on financial fraud to the number — 'PSFJHO3FMBUJPOTDPNNJUUFFT IBTJOUSPEVDFE I am concerned about. 1,000 or so — we had working on it before MFHJTMBUJPOBJNFEBUSFTUPSJOHDPOºEFODFJO When I left the Senate in 1994, after Sept. 11. It also [provides for] training and UIFNBSLFUT BOE BTUIF4FOBUF±TPOMZQSPGFT the Republicans took over the House and education — these financial fraud cases are TJPOBMFOHJOFFS JTFWFOºOEJOHQVCMJDTFSWJDF Senate, there was a lot of bad feeling. quite complex. And it provides funding for PQQPSUVOJUJFTGPSFOHJOFFSTUJFEUPUIFTUJNV Something has changed. I find that sena- prosecutors. It’s important to track down MVTQBDLBHF"TIFIBTGPSUIFQBTUZFBST tors get along with each other very well. the folks who committed these crimes. ,BVGNBODPOUJOVFTUPTIBSFIJTJOTJHIUTPO That doesn’t mean they don’t have disagree- The vast majority of people on Wall BOEFYQFSJFODFJO$POHSFTTXJUI%VLF-BX ments on the floor. But there isn’t nearly Street are honest, good people. It’s quite TUVEFOUT IBWJOHDPEJSFDUFEUIF%VLFJO%$ the animosity. clear, though, that there were a lot of things QSPHSBNXJUI1SPGFTTPS$ISJTUPQIFS4DISPFEFS Now, these are very, very difficult times. that went on, from the mortgage brokers EVSJOHJUTJOBVHVSBMTFNFTUFS)FBMTPTIBSFE It’s a lot of work to figure out what my to the security analysts, to the ratings agen- IJTOFXWJFXPGBGBNJMJBSJOTUJUVUJPOXJUI opinion is on what we should be doing, cies and the bankers — there were a lot Duke Law Magazine. on everything from the economic recovery of people who took advantage of this and package to the housing markets, to financial made a lot of money. It’s really important regulation, to what we should be doing in that we send a message to folks that there ! 2cYS:Oe;OUOhW\SAc[[S` ' 4OQcZbg4]Qca aren’t two levels of justice in this country: If you rob a bank, you go to jail, and if you’re a banker and you rob somebody, you should go to jail, too. 2:;(5FMMNFBCPVUUIFCJMMZPV±WF JOUSPEVDFEUPSFJOTUBUFUIF®VQUJDLSVMF¯UIBU UIF4FDVSJUJFTBOE&YDIBOHF$PNNJTTJPO SFTDJOEFEJO*LOPXJUIBTCSPBE CJQBSUJTBOTVQQPSU 9/C4;/<(In short selling, you liter- ally borrow the stock, sell it at $15 and buy it back at $10, so you’ve made $5. There’s nothing wrong with short selling — I’ve done it myself. But there are two require- ments that got changed by the Securities and Exchange Commission. A3< B329/C4;/</@@7D3A/B4=@E/@2=>3@/B7<5 The uptick rule, which was around for 0/A3@/;@=27<A=CB63@</456/<7AB/<7</>@7: about 70 years, said you had to buy stock at fair market rates. People couldn’t get 2:;(5FMMNFBCPVUZPVSDPNNJUUFFBOE 2:;(:PVSEBZTBSFOVNCFSFEJOUIF together to manipulate the market by driv- TVCDPNNJUUFFXPSL:PVTFSWFPOTFWFSBM 4FOBUFCZZPVSPXODIPJDF5PXIBUFYUFOU ing the price of the stock down. Before TVCDPNNJUUFFTPGUIF'PSFJHO3FMBUJPOT IBTUIBUCFFOGSFFJOHGPSZPV there could be a short sale there had to be $PNNJUUFFBOEUIF+VEJDJBSZ$PNNJUUFF an uptick. Let’s say a stock is selling for CPUIDPNNJUUFFTUIBU4FO#JEFOXBTPOGPS 9/C4;/<(I don’t have to worry about a $15. If it goes to 14 and a half, you can’t sell NBOZZFBST lot of things I’d have to do if I was running it short. If it goes to 14 and a quarter you for office, and I feel like I have two years to can’t sell it short. If it goes to 14 you can’t 9/C4;/<( I have 20-some years’ experi- spend 100 percent of my time really trying sell it short. But then it goes back to 14 and ence working with these committees, so I to solve the country’s problems. It’s a won- a quarter — once you have an uptick, then understand the issues. I’m only staying for derful thing. you can sell the stock. That stops these two years, so really I thought it would be I managed to convince the vast majority “bear market raids.” There’s a lot of anec- good to be up to speed. of Sen. Biden’s staff to stay — I had hired dotal data that [bear market raids] really And for the last 14 years I was on the some of them myself. So I really didn’t hurt Bear Stearns and Lehman Brothers, Broadcasting Board of Governors, which have to hire many people and could hit the and some say that’s why the banks went oversees all U.S. international broadcast- ground running. down so badly. ing. So I’ve pretty much had to follow There is an African saying, “When an The second thing the bill requires is that what’s going on in countries all over the old man dies it’s like a library burns.” And to be able to sell stock, you have to be able world. I’ve spoken with most of the lead- I feel like there’s a lot of books in there for to hold it. You can’t do what’s called a naked ers in government, both when I worked me and there are a lot of things I can do. short sell. Then short sells become specula- for Sen. Biden and on the Broadcasting What a great blessing to be able to use what tive — you don’t have to put anything up, Board of Governors. I’ve learned during this two-year period and therefore you can have really serious My first interest is to bring the troops that is like nothing I’ve ever experienced problems. These things are pretty well home from Iraq and leave a stable govern- in my lifetime in the Senate. I don’t know endorsed by the vast majority of people in ment behind. So I’m working on that. And when there’s been a time when we’ve had a the business. obviously, to get our efforts in Afghanistan combination of domestic and foreign policy We need to reestablish credibility in our straightened out. We really left Afghanistan challenges like we have right now. What we markets. And not reinstating the uptick rule prematurely. We have let the Taliban come do now, for good or bad, there’s going to be and banning naked short selling — failing back — we have some really serious prob- some big changes. to wipe out these abuses in the markets just lems in Afghanistan. [Editor’s note: Shortly I said for many years that one of the sends the message we’ve not learned, and after this interview, Kaufman traveled to great things about being chief of staff was we’re not willing to change. Iraq, Afghanistan, and Pakistan to meet that at the end of the day, the senator made My hope is that we won’t have to go with deployed soldiers, foreign leaders and the decision. I played a role. But now I’m through the whole process to pass the bill, American diplomats.] the one making the decision. You can look if the SEC will move to make these chang- at something and see how it works, but es. [Editor’s note: The SEC had the matter when you’re actually doing it, it really does under consideration at press time.] make it more three-dimensional. ['1 Ac[[S` '2cYS:Oe;OUOhW\S ! 4OQcZbg4]Qca AQV[OZPSQY0S\XO[W\G]c\UO\R6SZTS` V]\]`SReWbVRWabW\UcWaVSR^`]TSaa]`aVW^a ROFESSORS Richard L. Schmalbeck, >Stuart M. Benjamin, Ernest A. Young, and Laurence R. Helfer have been honored with distinguished professorships. Schmalbeck becomes the first Simpson Thacher & Bartlett Professor of Law. A spe- cialist in tax law who has been a Duke Law faculty member for 25 years, Schmalbeck has focused on issues involving nonprofit organizations and the federal estate and gift taxes. Active in federal tax reform efforts, he A16;/:0319 G=C<5 also has served as an adviser to the Russian Federation in connection with its tax reform efforts. He is a former dean at the University of Illinois College of Law. Schmalbeck is the co-author, with Lawrence Zelenak, Duke’s Pamela B. Gann Professor of Law, of a leading casebook, 'FEFSBM*ODPNF5BYBUJPO, now in its second edition. Duke Law students 03<8/;7< 63:43@ have twice honored Schmalbeck with the Duke Bar Association’s award for distin- Young was awarded the Alston & Bird tional law and institutions, human rights, guished teaching. Professorship. He has written extensively on international litigation and dispute settle- Benjamin, who also serves as the Law the Rehnquist Court’s “Federalist Revival” ment, international intellectual property law School’s associate dean for research, and the difficulties confronting courts as and policy, and lesbian and gay rights. (See received the Douglas B. Maggs chair. A they seek to draw lines between national profile, Page 21.) faculty member since 2003, Benjamin and state authority. Also a former clerk to “These members of our faculty are is an expert in telecommunications, Justice Souter, he writes on constitutional exceptionally gifted scholars and lawyers administrative, and First Amendment interpretation, constitutional theory, and who are leaders in their respective fields,” law, as well as other areas of constitu- comparative constitutional law. Young is said Dean David F. Levi. “All highly inter- tional law. His recent articles include an active commentator on foreign relations disciplinary and committed to the pursuit “Fixing Innovation Policy: A Structural law, where he focuses on the interaction of knowledge in the service of society, a Perspective,” 77 (FPSHF8BTIJOHUPO-BX between domestic and supranational courts hallmark of Duke Law School and Duke 3FWJFX 1-88 (2008), and “Who’s Afraid and the application of international law by University, they also are engaged teachers. of the APA? What the Patent System domestic courts. They are all deeply deserving of these dis- Can Learn from Administrative Law,” 95 A member of the American Law tinguished professorships.” (FPSHFUPXO-BX+PVSOBM 270-336 (2007), Institute, Young joined the Duke Law fac- Levi emphasized the significance of hav- both with Arti K. Rai, Duke’s Elvin R. Latty ulty in 2008, after serving as the Charles ing a professorship named for Simpson Professor of Law, and “Tennis with the Net Alan Wright Chair in Federal Courts at the Thacher & Bartlett. “More Duke Law gradu- Down: Administrative Federalism without University of Texas at Austin School of Law, ates practice at Simpson Thacher than at Congress,” 57 %VLF-BX+PVSOBM 2111-2155 where he had taught since 1999. any other single law firm. George Krouse (2008), with Professor Ernest A. Young. Helfer joined the faculty July 1 as the [’70] who spearheaded the endowment Benjamin is the co-author of 5FMFDPN Harry R. Chadwick Sr. Professor of Law. of this chair, is a former chair of the Law NVOJDBUJPOT-BX1PMJDZ, a leading case- He came to Duke from Vanderbilt Law School’s Board of Visitors, and his partner, book now in its second edition. He is a School where he was professor of law and David Ichel [’78] is the incoming BOV chair. former clerk for Supreme Court Associate director of the International Legal Studies As with already established chairs such as Justice David H. Souter and a veteran of Program. At Duke Law he also serves as the Alston & Bird, Maggs, and Chadwick the Office of Legal Counsel in the U.S. co-director of the Center for International professorships, we greatly appreciate Department of Justice. and Comparative Law. Helfer is a widely- the generous investment in our faculty One of the nation’s leading authorities respected scholar whose research interests excellence that the Simpson Thacher & on the constitutional law of federalism, include interdisciplinary analysis of interna- Bartlett chair represents.” ['1 ! 2cYS:Oe;OUOhW\SAc[[S` ' 4OQcZbg4]Qca 4/1C:BG<3EA0@734A B@/ @]PS`b> ;]abSZZS` a noted scholar and teacher of criminal procedure and evidence, has retired after 26 years on the Duke Law faculty. Now the Harry R. Chadwick Sr. Emeritus Professor of Law, Mosteller con- tinues to teach and pursue scholarship as a professor of law and the J. Dickson Phillips Distinguished Professor at the University of North Carolina-Chapel Hill, where he visited in the 2008-09 academic year. He received the Duke Bar Association’s Distinguished Teaching Award in 2005. [ AQV`]SRS`\][W\ObSRb]ZSOR2]8=TTWQS]T:SUOZ>]ZWQg 3 1O`]ZA^`cWZZ stepped HRISTOPHER SCHROEDER,Charles S. Murphy Professor of Law and Professor of Public Policy, down as associate dean of the 1has been nominated by President Barack Obama to the post of assistant attorney general for the Office of Public Interest and Office of Legal Policy, Department of Justice. Confirmation was pending at press time. The assistant Pro Bono. She continues to attorney general for the Office of Legal Policy serves as the primary policy adviser to the attorney teach her popular Poverty Law general and deputy attorney general and develops and implements significant policy initiatives of the class as a senior lecturing fel- Department of Justice. Director of the Law School’s Program in Public Law and co-director of the Duke low. Spruill has led public interest and pro bono in D.C. program, Schroeder served in the Clinton administration as acting assistant attorney general initiatives at Duke Law since 1991, when she in the Office of Legal Counsel at the Department of Justice. He also has served as chief counsel to the was hired to start the Law School’s Pro Bono Senate Judiciary Committee. [ Project. At various spring events, students, faculty, and alumni offered Spruill multiple tributes for her development of a vibrant public 0]gZS¸a>cPZWQ2][OW\`SQSWdSa &;Q5O\\]\^`WhS interest and pro bono community at Duke Law. HE PUBLIC DOMAIN: Enclosing the Commons of the Mind by William Neal Reynolds Professor of Law The Duke Bar Association presented her with a BJames Boyle was selected as the winner of the 2008 Donald McGannon Award for Social and Ethical special award for distinguished service to the Relevance in Communications Policy Research. Published by Yale University Press, The Public Domain Law School community. She also received the argues that our music, culture, science, and economic welfare all depend on a balance between ideas that Law Alumni Association’s A. Kenneth Pye Award are controlled and those that are free, between intellectual property and the public domain. Boyle claims at the Reunion 2009 kick-off celebration. [ this balance has been upset and argues that the erosion of the public domain is something every citizen should care about. :Oc`OC\RS`YcTTZS` “Professor Boyle’s book thoroughly and incisively tackles a topic that will no doubt be at the forefront of the the Arthur Larson communications policy agenda for years to come,” said Professor Philip Napoli, director of Fordham University’s Distinguished Professor, Donald McGannon Communication Research Center. [ retired from the faculty in January after 20 years at 1]faQ]`SaOµVObb`WQY¶ Duke. She is currently the OR THE THIRD CONSECUTIVE YEAR, an article J. DuPratt White Professor of Law at Cornell 4co-authored by Brainerd Currie Professor of Law James University. A scholar of property law, consti- Cox has been selected in a poll of teachers in corporate and tutional law, and the role of moral decision- securities law as one of the best in that field. “There are making in law, she also has been involved Plaintiffs and … There are Plaintiffs: An Empirical Analysis in international projects concerning property of Securities Class Action Settlements,” 61 Vanderbilt Law rights and regime change, and the problem Review 355-386 (2008), which Cox co-authored with Randall of corruption and democratic governance. The S. Thomas and Lynn Bai, was selected as one of the 10 author of The Idea of Property: Its Meaning best corporate and securities articles of 2008 in Corporate and Power (Oxford University Press, U.K.), Practice Commentator’s annual poll. The list, according Underkuffler won the Duke Bar Association’s to editor Robert B. Thompson, reflects the choices of law Distinguished Teaching Award in 2003. [ professors teaching in the area from 450 articles. [ Ac[[S` '2cYS:Oe;OUOhW\S !! >`]TWZSa where the work is fasci- lock-step approach to doing business, says nating and my colleagues Jordan. “Having these great associates are exceptional. I think it makes all the difference. We send memos is a matter of just trying to clients usually within 24 hours of an things and seeing what announcement, and our clients are very works and what you find appreciative of that. We very much have interesting.” a collaborative spirit at Davis Polk, and I Jordan was the 1981 work well in that environment, so it’s the Hardt Cup Champion perfect fit for me.” and served as note and Jordan’s portfolio also includes the comment editor for %VLF Morgan Stanley-Citigroup joint venture -BX+PVSOBM. Following that was announced in January. The joint her 2L year she planned venture will create the largest U.S. retail on being a labor lawyer. brokerage by combining Morgan Stanley’s Instead, she switched to global wealth management business with litigation and joined Davis Citigroup’s Smith Barney brokerage. The Polk, where she planned new brokerage, known as Morgan Stanley to stay for two years Smith Barney, will have more than 20,000 before returning home brokers and $1.7 trillion in client assets. to Cleveland to work at a Jordan is representing Citigroup in the small firm. “That didn’t transaction as well as offering advice to the happen,” she says. “I joint venture. changed my mind totally.” “That is one thing I love about my job,” Jordan initially handled Jordan says. “It is never boring, and it’s assorted assignments in something new all the time.” leasing, banking, public Davis Polk’s willingness to accommo- offerings, and litigation, date part-time working arrangements also all in an effort to absorb as has contributed to Jordan’s job satisfaction. much knowledge as pos- She worked three days a week for more <]`O8]`RO\¸&! sible. The learning process than four years after the second of her continues to this day, she three daughters was born. She returned /RWdS`aS^]`bT]ZW] says. Her current work to a full-time schedule when her young- load includes advising est child was in nursery school and made ORA JORDAN’S ADVICE for Duke clients who want to establish, invest in, or partner in 1995. !" 2cYS:Oe;OUOhW\SAc[[S` ' >`]TWZSa 1V`Wab]^VS`9O\U¸ 3OabEW\UO[POaaOR]` HARGED WITH PERSUADING policy even if it wasn’t 1lawmakers to support Obama admin- through legislation. So istration policies, Chris Kang says success when I worked on the in his job is heavily dependent on building Judiciary Committee, relationships on both sides of the aisle. sometimes it would be “A lot of the job is about building good- trying to address con- will,” says Kang, one of 10 special assistants cerns with amendments to the president for legislative affairs. “One in committee, and other way we do that these days is by notifying times it involved writing offices of grants that are being distributed letters to agencies and through the Economic Recovery Act so working with people in that their constituents have an opportunity our Chicago field office to take advantage of them. Sometimes to find ways to help peo- relationship-building might involve an invi- ple within the current tation to the White House for a member to structure.” attend an event or meet with the president.” Kang got his taste for With his assignment to the Senate, in- public service from his depth knowledge of senators’ priorities is also parents, South Korean key, he adds. “The fact is that we’re all push- immigrants who both ing for what we believe is best for the coun- worked in special educa- try, whether or not we agree on policy, so we tion in Gary, Ind., public try to find consensus as often as possible. schools. “My father lost “These strong relationships are the foun- his eyesight in a sports dation for substantive negotiations,” Kang accident when he was a continues. He and his counterparts start teenager and had to fight by working with various executive branch the discriminatory poli- agencies to refine the administration’s cies in Korea at the time, first to be given Law Foundation for two years and took all overall position on legislative proposals and the right to attend university, and then to of the substantive policy classes available then negotiate with Congress on language come to the United States to pursue gradu- to him. Among those were the classes on and policy. ate education,” says Kang. “From him I Congress taught by Christopher Schroeder, Kang was well prepared for his current learned a lot about the power of govern- the Charles S. Murphy Professor of Law and position through seven years on the staff of ment and the power of policy to both limit Public Policy Studies, and Senior Lecturing Sen. Richard Durbin, D-Ill. Having started and to help people.” His parents have been Fellow Ted Kaufman. After running into with Durbin as a legislative correspondent active in policy relating to disability; Kang’s now-Sen. Kaufman, D-Del. (see Page 30) at straight out of law school, father was appointed by President the Capitol earlier this year, Kang joined his Kang quickly moved to the /:C;<7>@=47:3 George W. Bush to serve on the former professors in the classroom, sharing senator’s Judiciary Committee National Council on Disability. his experience with law students enrolled in staff, eventually working on criminal justice Attending the University of Chicago, the new Duke in D.C. program. and constitutional issues as counsel. For where he majored in public policy and eco- Kang says he still gets a charge from the four years prior to his White House nomics, helped push him in a progressive public service and calls working in the East appointment, Kang ran Senate floor opera- direction, Kang says. “Being in an institu- Wing of the White House fun. “But the tions for Durbin, the Democratic whip. tion of privilege surrounded by the South part that’s the most meaningful is also the “I gained a lot of experience in how the Side neighborhoods of Chicago where part that’s the most daunting — tackling parliamentary process works, what some people are a lot less fortunate was forma- the challenges the country faces now,” he of the opportunities and pitfalls are, and tive for me in thinking about equal access says. “It’s an exciting time to be part of this a sense of the relationships the members to education and opportunity.” He focused — to play a role in shaping a budget and have with each other — their priorities and his thesis on the Illinois public school an agenda for the next five to 10 years. It’s their concerns,” he says. finance system. a great job, and it’s an honor to have the From Durbin Kang says he learned how Knowing that he wanted a career in pub- opportunity to play a small part in trying to to be effective in public service. “I learned lic service, Kang prepared during his years move this country in the right direction.” [ about different opportunities to impact at Duke Law. He headed the Public Interest 'SBODFT1SFTNB Ac[[S` '2cYS:Oe;OUOhW\S !# >`]TWZSa saw a very clear relation- proves unable to deliver, then our obliga- ship,” says Ernst. “Strong tion is to document that, to make sure housing prices led to mod- that policy makers understand where the est foreclosure rates — problems are and to recommend solutions.” 2 or 3 percent.” Ernst is buoyed by the fact that policymak- Using data that pre- ers seem to be realizing that investors’ dicted a national housing long-term interests are aligned with those downturn, the researchers of consumers. looked into the expecta- A Long Island native who arrived in tions for subprime mort- Durham for law school and never left, Ernst gage performance. “We says he always knew he wanted a public foresaw foreclosure rates interest career. “I always wanted to part of a skyrocketing, from relatively process that made the world a better place low rates up to one in five for all the families out there who are trying subprime mortgages being to just have a good life for themselves and foreclosed,” says Ernst. “And their kids,” he says. ultimately the foreclosure He never summered or interviewed rates will be much higher with a firm and actively pursued pro bono because we’re dealing with a projects throughout law school. He says down housing market and a he remains grateful for the mentorship of crippled financial sector.” former Associate Dean for Public Interest Ernst is proud of the and Pro Bono Carol Spruill, as well as empirical research that CRL such professors as the late Jerome Culp, undertakes on a wide range and is equally grateful for Duke’s loan for- of consumer issues, from giveness program that made public inter- predatory lending practices est work possible. to how banks service sub- A summer internship at what is now prime loans. He and his the North Carolina Justice Center led to colleagues are committed Ernst’s first policy job after graduation: to shaping a transparent, working on the state’s implementation of 9SWbV3`\ab¸'$ empirically-based, and bal- the welfare reform laws passed during the 1]\ac[S`ORd]QObS anced body of evidence Clinton administration. He then worked relating to consumer protec- with the Institute for Southern Studies, EFLECTING ON the economic crisis tion, which has made them highly credible helping community and labor organiza- @during an interview in his office at participants in the policymaking process, tions throughout the South use research to the Center for Responsible Lending in he explains. achieve their public policy objectives. Since downtown Durham, Keith Ernst suggests They also try to stay one step ahead. joining CRL in 2001, he’s done everything that the foreclosure rate is worse than even That’s why CRL, an affiliate of the Durham- from front-line research to lobbying for con- “routinely hyperbolic headlines” indicate. based nonprofit Self-Help Credit Union, sumer protections against predatory lend- “Right now, the best projections are released its foreclosure research in 2006 ing in more than half a dozen states. that over the next four years, one in 12 and is now investigating how banks and Now Ernst focuses primarily on manag- homes with a mortgage in North Carolina other financial institutions are helping ing research projects and formulating the will be lost to foreclosure, and nationally borrowers manage the financial crisis as “right questions” that will make a case for it’s almost 15 percent,” says Ernst, senior well as what policies are needed to prevent change to policymakers and private lenders. policy counsel for CRL, who a recurrence. In early June, he “The great thing about this job is the also earned an MA in public /:C;<7>@=47:3 expresses optimism with such ability to think big, to think creatively, to policy from Duke. As many as developments as the passage of work on a variety of projects, and to have one-third of the subprime mortgages that credit-card reform and the Obama admin- the resources to do it,” he says. “We’re fairly originated in 2005 or 2006 will ultimately istration’s highly structured mortgage unique in a lot of ways as an organization, end in foreclosure, he adds. modification program, despite the Senate’s so a lot of times what gets me excited and Ernst and his colleagues predicted a rejection of a proposal to allow bankruptcy bounding up the stairs in the morning is foreclosure crisis almost three years ago. At judges to modify mortgages as a last resort. the notion that we’re doing something that a time when national subprime foreclosure “It has been a very promising time,” he other people aren’t doing [or] hasn’t been rates were relatively modest, they studied says. “Now our challenge is to monitor that done in quite the way we’re doing it. A lot the performance of subprime mortgages program and to identify shortcomings to of the excitement for me in this job is creat- across a spectrum of housing markets. “We make sure it delivers on its promise. If it ing new paths.” ['1 !$ 2cYS:Oe;OUOhW\SAc[[S` ' >`]TWZSa AcaO\>]c`QWOc¸ ' 3[^]eS`SR\]\^`]TWbZSORS` University. At Duke she served on the edi- torial board of the %VLF-BX+PVSOBM, on the Moot Court board, as managing director of the Duke Law Innocence Project her 2L year, and as co-chair of the Public Interest Law Foundation her 3L year, among many other extracurricular activities. She par- ticipated in the Children’s Law Clinic and did an externship with the Orange County Public Defender’s Office, as well. Pourciau says that she was in awe of her classmates, whose ages were close to those of her own 26-year-old daughter and 23-year-old son. “They were all pretty remarkable,” she says. “I don’t think I was ready to go to law school when I was 24. It took me another couple of decades.” Having spent many years behind the lecturn, Pourciau says she was also very impressed with the Duke Law faculty. “One of the things I found so amazing about the professors is that they excel in their own individual fields in terms of competence, writing, publishing, and expertise, but they FTER YEARS of teaching After further thought, Pourciau called also were genuinely friendly, supportive, / accounting at Florida State back and eventually received an offer to and enthusiastic people,” she says. “It’s University and five years working with become the executive director of the Big easy for a professor to do either of those nonprofit agencies serving homeless Bend Homeless Coalition in Tallahassee, well, but it’s hard to find a professor that individuals, Susan Pourciau ’09 decided Fla. The agency serves homeless individu- can do both of those things well. That that she needed a change. als in an eight-county area in northern makes it a much better environment for “I felt like I had gone as far as I wanted Florida, providing direct services and the students.” to go or could go with either of those jobs,” coordinating the efforts of other organiza- For Pourciau, that environment fostered she says. “So I came to law school to exper- tions to ensure a continuum of care for a great deal of personal development. “I iment and see what I wanted the homeless population. “It was working in that same general area to do with the rest of my life.” /:C;<7>@=47:3 was really quite incredible,” she — with homeless populations — before And though she had always says. “I had not even looked out- I came to law school, but I felt like I was expected that law school would lead to a side of law for jobs. And, as life frequently not doing the best possible job,” she says. public interest career, Pourciau never imag- does, it just handed me the perfect thing “There seemed to be something lacking, ined that her journey might lead her right that I wasn’t expecting.” Pourciau began but I didn’t know what it was. And now, back to where she started. “Even in my her new job June 1. having had three years at Duke Law, I have third year, I really didn’t know where my “Sometimes the other students would many more skills than I had before.” path was going to take me,” she says. say, ‘Life is short, you should do what you Creativity in problem solving, persuasive “In a surprise twist of fate, folks I used want to do,’” she says. “But I would tell speaking, and a new level of analytical rea- to work with before I came to law school them, ‘Life is also long. So you can do one soning are all examples she cites. Perhaps called me to say that there was a job open thing for awhile and then there is plenty of most important, though, is newfound con- at the major nonprofit agency in that area time to do other things, too.’” fidence in herself and her abilities. “A few that provides services to people experienc- Coming back to law school “kept me years ago, others might have thought I could ing homelessness,” she continues. “And feeling young,” says Pourciau, who also take this job, but I felt like I could not,” she my initial response was, ‘Well, no. See, holds bachelor’s and master’s degrees says. “Now I know I can because of the I’m just graduating from law school and I from the University of South Florida and metamorphosis that occurred during these really need to be a MBXZFS.’” a PhD in accounting from Arizona State three years.” [ 5BOZB8IFFMFS#FSMJOFS Ac[[S` '2cYS:Oe;OUOhW\S !% >`]TWZSa 2S\\Wa=¸1]\\]`¸ 3\UW\SS`W\dS\b]` O\Ra]]\Obb]`\Sg EFLECTING ON HIS PURSUIT during the 1980s. “It @of a legal career after a long and was an exciting time. successful tenure as a microprocessor For an engineer, that engineer, Dennis O’Connor points out place was magic. You that both fields involve problem solving. could walk down “The practice of law is about solving the halls and look problems for people,” says O’Connor, a into the lab bays and gregarious 50-year-old. “Every aspect and see everything that element of law is attractive to me on that other people were basis. Engineering is also about problem doing.” It was at GE solving — it just doesn’t always have that that he found his personal element.” interest and ability The named inventor on more than 30 in the microproces- patents filed during the 15 years he worked sor architecture work for Intel Corp. in Chandler, Ariz., O’Connor that eventually took explains that many of them involve “highly him to Intel. technical things that are deep in the heart Encouraged by Intel to patent novel appreciate the experience and makes him of a microprocessor.” Occasionally, though, microprocessor features, O’Connor found determined to make the most of it. Law he sought inspiration in the view of sub- that he liked working with patent lawyers school highlights have included work- urban sprawl from the fourth floor of the and agents. As a member of the intellectual ing as a research assistant for Professor Chandler R & D campus. property committee for his business group, Jerome Reichman, the Bunyan S. Womble “I would ask myself, ‘Is there something he also helped determine which inventions Professor of Law and a leading expert in new we can do with a microprocessor that warranted patent applications, an exercise international intellectual property, and serv- these people would want that would make that he says helped him take a hard look at ing as president of the Intellectual Property their lives better or make my life better?’” the novelty of his own work. and Cyber Law Society; O’Connor was lead That line of inquiry, along with his love of As much as he enjoyed engineering, organizer of the group’s highly successful the syndicated sci-fi drama “Babylon 5,” led O’Connor says he periodically thought 2009 “Hot Topics” symposium. to his invention of the digital video record- about going into law. Undergraduate elec- His experience at Duke has changed ing technology now best known to consum- tive courses had impressed upon him him, says O’Connor: “How I think about ers as the “TiVo” box. the fundamental logic of law, he says. the world and how I view the world has “I would get home from “Looking at the underlying changed. I’ve become less politicized. I work when the show was half- ABC23@=47:3 issues and the unresolvable have a deeper appreciation that some prob- way through, and didn’t like problems to which society has lems can’t be solved.” to wait until it finished taping and have to to cobble together a makeshift solution got O’Connor is spending his 2L summer rewind the tape,” he recalls. “So I thought me first thinking that someday I might working for Judge Roslyn Silver of the about whether there was a way a PC could want to be a lawyer.” He finally decided to Arizona District Court in Phoenix, where he solve the problem.” Although Intel did not make the career shift thanks to financial and his wife intend to permanently return pursue manufacturing the system beyond security resulting from the Internet and after his graduation. While he’s certain he developing a few prototypes — the com- Phoenix real estate booms, coupled with can be happy in any area of legal practice, pany’s commercial success was based on the fact that Intel was selling his division. he admits a natural affinity for intellectual microprocessors — O’Connor says he takes Just as he found “magic” at GE’s property law. great satisfaction in being the named inven- Corporate R & D Center at the start of his “Being an engineer is who you are — it tor on the patented process. “TiVos are engineering career, O’Connor describes isn’t a job,” he says. “It’s the same with great. They changed my life.” Duke Law as “Disneyland for the mind,” law. If I can practice in patent and technol- Having graduated from SUNY Albany referring to the intellectual discourse avail- ogy law, I can keep both those parts of me with a degree in math in addition to two able in class and out. “Even in engineering engaged. And that would be enormously years at the Rensselaer Polytechnic Institute you will not find this level of intelligent, fun — to be able to apply both my legal in Troy, N.Y., O’Connor says he learned rational thinking among so many people and engineering skills to solve problems most of his engineering skills on the job at in one place,” he says, adding that being for people. That’s got to be the dream job General Electric’s Corporate R & D Center an older student both helps him to fully for me.”['1 !& 2cYS:Oe;OUOhW\SAc[[S` ' Tell us what you are doing: /Zc[\W<]bSa eee ZOe RcYS SRc OZc[\W '#& '$& O\R`SQSWdSRbVS4]c\RObW]\¸a;OabS`aW\ 8]V\:]e\RSaVOaPSS\\O[SRb]bVS @]PS`bE ;OfeSZZ77VOa B`WOZ/eO`RW\ ''" 'SRWbW]\]T0Sab:OegS`aW\/[S`WQOW\ PSS\\O[SRb]bVS ' 3`\SabB]``SaVOaO\\]c\QSRVWa `SOZSabObSZOe 8]V\VOaPSS\W\QZcRSRW\ SRWbW]\]T=VW]Ac^S` `SbW`S[S\bOTbS` gSO`a]\bVSTSRS`OZ bVSZWabT]`SOQV]TbVS^Oab #gSO`a 6SWa :OegS` 0]PVOa^`OQbWQSR PS\QV 6SeOa\][W\ObSRb]bVSC A OT]c\RW\U^O`b\S`Ob:]e\RSa2`]aRWQY T]`!'gSO`aO\RVOaPSS\O 2Wab`WQb1]c`b2Wab`WQb]T@V]RS7aZO\RPg 2]abS`9O\b]`@SSRW\=`ZO\R] ^O`b\S`Ob9SObW\U;cSbVW\U >`SaWRS\b@SOUO\W\ '&%O\RaS`dSROa 9ZSYO[^W\1W\QW\\ObWaW\QS '&& 6S QVWSTXcRUST`][ '''b] $ '$" `S^`SaS\ba[O\OUS[S\bW\OZZO`SOa @WQVO`R@]US`aVOaa]ZRVWaS\b`S^`S ]TZOP]`O\RS[^Z]g[S\bZOeO\RVOa '$' \Sc`WOZ W\bS`\ObW]\OZZOe^`OQbWQSO\R SfbS\aWdSSf^S`WS\QSW\ZOP]`\SU]bWObW]\a <]`[O\3 µ 2O\WSZB 0ZcS8` ¸%! ANIEL T. BLUE JR. has been elect- 2ed to chair the Duke University Board of Trustees. He was elected to the board in 1995 and most recently served as vice chairman. He becomes the first African-American to chair Duke’s board. Blue also has been selected to fi ll the North Carolina Senate seat left vacant by the death of Sen. Vernon Malone. A 1970 graduate of North Carolina Central University, Blue was fi rst elected to the North Carolina State House of Representatives in 1980, where he served as speaker. He left the legislature in 2002 to run for the U.S. Senate and returned to the House in 2006. Blue is a managing partner of the law fi rm Blue, Stephens & Fellers in Raleigh. [ Ac[[S` '2cYS:Oe;OUOhW\S !' /Zc[\W<]bSa