NOVEMBER/DECEMBER 2007 VOL. 79 | NO. 9 JournalNEW YORK STATE BAR ASSOCIATION ““AA JJustust CCauseause fforor WWar”ar” How slave transit in an abolitionist state Also in this Issue sparked New York’s Dred Scott decision. Tax Deduction of Settlements by William H. Manz Lessons from the Smithsonian As a Client Faces Loan Default Did the Appellate Odds Change in 2006? “My passions are contribution to the community and continued learning, and I believe that bar association participation is essential to both. NYSBA is where I can get together with lawyers from all over New York and make a difference.” Glenn Lau-Kee Member Since 1999 Renew today for 2008. www.nysba.org/renew2008 Thank you for your membership support. BESTSELLERS FROM THE NYSBA BOOKSTORE November/December 2007 Attorney Escrow Accounts, Insurance Law Practice, N.Y. 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Prices do not include applicable sales tax. Expand your professional knowledge NEW YORK STATE BAR ASSOCIATION 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB0144 JournalNEW YORK STATE BAR ASSOCIATION BOARD OF EDITORS EDITOR-IN-CHIEF David C. Wilkes Tarrytown e-mail: [email protected] Mary Grace Conneely Monticello Willard H. DaSilva Garden City Philip H. Dixon Albany Lesley Friedman Rosenthal New York City Judith S. Kaye New York City Eileen D. Millett New York City Thomas E. Myers Syracuse John B. Nesbitt Lyons Eugene E. Peckham Binghamton Gary D. Spivey Albany EDITOR EMERITUS Eugene C. Gerhart Binghamton MANAGING EDITOR Daniel J. McMahon Albany e-mail: [email protected] ASSOCIATE EDITOR Philip C. Weis Oceanside PUBLISHER Patricia K. Bucklin Executive Director NYSBA PRODUCTION STAFF ASSISTANT EDITOR Joan Fucillo DESIGN Lori Herzing Erin Corcoran EDITORIAL OFFICES One Elk Street Albany, NY 12207 (518) 463-3200 FAX (518) 463-8844 www.nysba.org ADVERTISING REPRESENTATIVE Network Publications Chris Martin Executive Plaza 1, Suite 900 11350 McCormick Road Hunt Valley, MD 21031 (410) 584-1960 e-mail: [email protected] CONTENTS NOVEMBER/DECEMBER 2007 “A JUST CAUSE FOR WAR”: NEW YORK’S DRED SCOTT DECISION BY WILLIAM H. MANZ 10 DEPARTMENTS 5 President’s Message 8 CLE Seminar Schedule 23 Burden of Proof BY DAVID PAUL HOROWITZ 48 Environmental Law 28 New Scrutiny on Tax Deduction of BY MONTGOMERY L. EFFINGER Settlements 51 Metes and Bounds BY ROBERT W. WOOD BY MARC W. BROWN 53 Family Law 35 How Not to Govern: Lessons From BY WILLARD H. DASILVA the Report to the Board of Regents 54 Index to Articles 2003–2007 of the Smithsonian Institution 61 Index to Authors 2003–2007 BY LESLEY FRIEDMAN ROSENTHAL 64 Attorney Professionalism Forum 67 Index to Advertisers 41 10 Practical Questions as a Client 68 Language Tips Faces Loan Default BY GERTRUDE BLOCK BY CHESTER B. SALOMON 69 New Members Welcomed 44 Update: Did the Appellate Odds Change 73 Classified Notices in 2006? 79 2007–2008 Officers Statistics in State and Federal Courts 80 The Legal Writer BY BENTLEY KASSAL BY GERALD LEBOVITS CARTOONS © CARTOONRESOURCE.COM The Journal welcomes articles from members of the legal profession on subjects of interest to New York State lawyers. Views expressed in articles or letters published are the authors’ only and are not to be attributed to the Journal, its editors or the Association unless expressly so stated. Authors are responsible for the correctness of all citations and quotations. Contact the editor-in-chief or managing editor for submission guidelines. Material accepted by the Association may be published or made available through print, film, electronically and/or other media. Copyright © 2007 by the New York State Bar Association. The Journal ((ISSN 1529-3769 (print), ISSN 1934-2020 (online)), official publica- tion of the New York State Bar Association, One Elk Street, Albany, NY 12207, is issued nine times each year, as follows: January, February, March/April, May, June, July/August, September, October, November/December. Single copies $18. Periodical postage paid at Albany, NY and additional mailing offices. POSTMASTER: Send address changes per USPS edict to: One Elk Street, Albany, NY 12207. NYSBA Journal | November/December 2007 | 3 PRESIDENT’S MESSAGE KATHRYN GRANT MADIGAN Lawyers and Aging: Reaching for the Top Rung he recent consent decree in the All of the world’s spiritual tradi- Sidley Austin retirement age tions provide models of realized or Tdiscrimination case, validating self-actualized elders. They are the a signature initiative of our Immediate roshi in Zen Buddhism, the lama in Past President, Mark Alcott, prompted Tibetan Buddhism, the sheikh in Islam, me to devote this President’s Message and the rebee in Hasidic Judaism. In to an exploration of other challenges western and native traditions, the sage, and opportunities we face with an the crone, the priest, and the wise man.