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Save the Date

reunion 2006 a p r i l 7- 8 were you in the class of 1956, 1961, 1966, 1971, 1976, 1981, 1986, 1991, 1996 or 2001? Whether you’re returning for your fifth, 10th, 15th or even 50th reunion this spring, the Law School community looks forward to welcoming you back to Washington Square. The celebration begins for international alumni on Friday, April 7, with the ABA International Section reception. On Saturday, April 8, all returning alumni are invited to attend academic panels, the Law Alumni Association awards luncheon and an elegant dinner dance. Look for your invitation in the mail. Please call (212) 998-6470 or send us an email at law.reunion@nyu.edu with any questions.

A Top Flight of Thoughtful Lawyers: The interdisciplinary study of law and philosophy flourishes in the Village. Going Head to Head: Professor Thomas Nagel’s latest paper undergoes tough group analysis. An Expansive Decade: Celebrate the Hauser Global Law School Program’s 10th anniversary.

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DWORKIN on DWORKIN A visit with the philosopher and law professor on Martha’s Vineyard, where he was working on a book that will synthesize years of his thinking on the law and its role in shaping society.

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NE W YORK UNIVERSITY SCHOOL OF LAW The Law School has just launched an ambitious capital campaign to raise $400 million. Our goal: To enhance student aid, support our faculty and significantly add to the Annual Fund.

Please join us.

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On Our Cover

Boston-based photographer John Earle took the portrait of Professor Ronald Dworkin on his deck in Martha’s Vineyard last August. Earle’s work has appeared in Time, Newsweek and the New York Times; he has snapped a range of celebrities including Tom Clancy, Frank McCourt, Michael Dell and Tiger Woods. When not taking pictures, he spends time with his wife and children, plays guitar, renovates his fixer-upper—and every once in a while, pulls on his waders to go looking for trout.

Message from Dean Revesz

elcome to the Autumn 2005 issue of The Law School magazine. I’m confident you will be impressed by all that has taken place on campus in the past year. I love coming to work each day, and feel grateful for the opportunity to help shape the present and future of this great institution.

The cover package on Law and Philosophy continues our tradition of taking an indepth tour along a particular corridor of our academic excellence. There is no question in my mind that we have the strongest legal philosophy program and faculty in the country—and after you read this fascinating suite of stories, I’m sure you’ll agree. Thanks in large part to the innovative Colloquium in Legal, Political and Social Philosophy conducted by professors Ronald Dworkin and Thomas Nagel since 1987, we have long been the standard-bearer in this area. The weekly fall colloquium draws leading philosophers of the day—eminent guests have included Justice Stephen Breyer, Jürgen Habermas, Amartya Sen and Seana Shiffrin. They present their latest scholarly works in progress, ready to be cheerfully skewered by Dworkin, Nagel and the other participants. We trace the development of this famous (and some might say fearsome) colloquium while also decoding the history of the formidable program and how it draws the most highly-regarded professors, in Group Think. (I owe special thanks to Professor Liam Murphy who helped the magazine’s staff navigate this rarified territory.) For a taste of the quality and rigor of the debates in these classrooms, be sure to read The Global Table; this roundtable discussion held last spring, and excerpted in these pages, found Thomas Nagel himself in the hot seat as a group of his colleagues scrutinized his latest paper. Finally, to get to know a man who perhaps is most closely identified with our legal philosophy program, don’t miss The Transcendent Lawyer, an engaging profile of Ronald Dworkin by Adam Liptak, the New York Times national legal correspondent. After hours of conversation with the erudite and articulate Dworkin, Liptak admits to feeling intimidated “by the force of a large, cogent and Richard complete mind.”

The rest of the magazine will fill you in on all that transpired last year. We’re especially proud to have hosted three Supreme Court justices—Kennedy, Scalia and Thomas. We also celebrated the Hauser Global Law School Program’s 10th anniversary during an incredible weekend with speakers including European Convention President (and former President of France) Valéry Giscard d’Estaing, U.N. Secretary-General Kofi Annan and the president of the Dominican Republic, Leonel Fernández. There’s still more good news. We welcome five new outstanding full-time faculty members: Oren Bar-Gill, Lily Batchelder, Stephen Choi, Daniel Hulsebosch and Samuel Issacharoff. Building a great fulltime faculty is the most important work that I do, and I am so pleased that 11 spectacular professors have joined the NYU School of Law since I became dean three years ago. The much-lauded publication of The Torture Papers meant that the Law School and its Center on Law and Security were major participants in the ongoing conversation about the appropriate treatment of detainees in the war on terror. The center also hosted another gathering of top-tier experts at Villa La Pietra in Italy, where ideas about effective counterterrorism strategies were exchanged. Faculty codirector and Professor Noah Feldman published What We Owe Iraq, and most recently, Divided by God: America’s Church-State Problem—and What We Should Do About It, which was excerpted in the New York Times Magazine. You can see why I feel privileged to be in a position to encourage the flow of good will, intellectual energy and vibrant spirit that personifies this place. Our larger community of alumni, parents and friends deserves to share much of the credit with our students, faculty and administrators, and fortunately, there is plenty for all of us to celREvesz ebrate. Enjoy the issue!

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t h e m ag a z i n e o f t h e n e w yo r k u n i v e r s i t y s c h o o l o f l aw

The Transcendent Lawyer

Group Think

Whether it’s the Colloquium . on Legal, Political and Social . Philosophy or a nuanced conversation in a classroom, members of NYU’s Legal Philosophy Program champion an interdisciplinary approach to the law. Jennifer S. Frey and Larry Reibstein unearth the program’s . beginnings and describe how contemporary . issues infuse the curriculum.

Professor Ronald Dworkin takes New York Times national legal correspondent, Adam Liptak, for a ride in Martha’s Vineyard, makes a transatlantic call for a quick salad dressing consultation and then settles in over lobsters for a long talk about his life, his ideas and his work.

Scholarship. . . . . . . . . . . . . . . . . . . . . . . . 71 Three Law School teachers and deep thinkers—. Jennifer Arlen, Stephen Choi and Samuel Issacharoff—share excerpts of their recently published articles.

Notes & Renderings

Three Supreme Court justices visit; the Center on Law and Security publishes an important reference book on U.S. torture policy; faculty win accolades; students argue appeals; a crossborder partnership is born; and law school deans jump into the political fray to . defend the judiciary. .

Feature Updates Criminal: Frank talk with Chinese academics; limiting the death penalty; how much will sentences change in the wake of the federal sentencing guidelines being struck down?

Environmental: The second annual Global Administrative Law conference draws more than 50 experts to discuss this emerging field; guests from all perspectives debate hot land use and zoning issues at Furman Center events; and at the Segal Roundtable, crucial career advice is shared. International: Top officials, including . Baltasar Garzón, Spain’s investigating . magistrate, gather at Villa La Pietra to . debate counterterrorism strategies. .

Faculty Focus

Faculty News.. . . . . . . . . . . . . . . . . . . . . . 51 Noah Feldman’s new book makes a splash: . the New Yorker gives Sylvia Law some welldeserved attention; Daniel Hulsebosch wins a Surrency Prize; Stephen Gillers heads the ABA Committee on Ethics; two new chairs are celebrated with inaugural lectures; and more. Faculty in the News.. . . . . . . . . . . . . . . . . 56 Burt Neuborne weighs in on the current state of democracy in the American Prospect; Daniel Shaviro asserts in a New York Times Op-Ed that Bush’s tax policy will lead to bigger government; the New York Law Journal highlights Margaret Satterthwaite’s latest accomplishments. Additions to the Roster.. . . . . . 60 The Law School welcomes five new full-time professors (including . Lily Batchelder, left), as well as visitors from around the globe.

Good Reads.. . . . . . . . . . . . . . . . . . . . . . . 82 A list of all the work published by full-time, . visiting, global and library faculty. Plus, reviews of books by Derrick Bell, Noah Feldman, Niva Elkin-Koren, Martin Guggenheim, Chester . Mirsky, Nicola Lacey, Ruth Mason, David . Richards and Geoffrey Stone.

Student Spotlight Student News. . . . . . . . . . . . . . . . . . . . . . 93 Alina Das wins a public interest award; . two ’05s named Adam earn some GRAMMY recognition; the first-year curriculum gets . an update; and more. Student Scholarship.. . . . . . . . . . . . . . . . . 98 Nicholas Bagley explains why the Office of the Comptroller of the Currency should not have preempted state laws regarding predatory lenders; Dallas DeLuca makes recommendations to improve individual fishing quotas. Student Events. . . . . . . . . . . . . . . . . . . . 102 A Slam! Bam! review of the Law Revue; . students inducted into the Order of the Coif; . the Public Service auction raises $90,000; . and more.

AUTUMN 2005 Volume XV Senior Director of Communications Elyse Mall Klayman Managing Editor Jeanhee Kim Creative Director David Niedenthal Assistant Managing Editors Jill Rachlin Marbaix Elizabeth Rohlfing

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A Worldly Affair

Thomas Nagel gamely submits his paper . for examination—and some slightly painful intervention—with stimulating results.

Wendy Davis reports on a celebration loaded . with esteemed international guests. Current and . former students gather to say thank you to our . generous alumni, Rita Hauser ’59 and Gustave Hauser (LL.M. ’57), who make it possible for the NYU School of Law to rightfully call itself the . first and only truly global law school.

The Global Table

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Making the Grade

108

Around the Law School The Law School community holds a multitude of events around pressing contemporary issues including post–9-11 security, the death penalty, the 2004 election and animal law. Plus: Gary Hart says the U.S. needs a “grand strategy”; two judges from South Africa’s constitutional court visit; Judge Diane Wood argues for dynamic interpretation; and more.

Commencement and Convocation: Who spoke, what they said and how the end-of-year ritual . was celebrated. Hooding Album: Law School alumni, faculty, donors and trustees proudly induct new graduates. .

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12 questions for trustee Anthony Welters ’77, . the chair of the Law School’s new $400 million capital campaign.

Alumni Almanac

Marc Marmaro ’72 wins the largest intellectual property settlement in history; Congresswoman Diana DeGette ’82 fights for stem cell research; celebrating reunion; the Graduate Tax Program turns 60; photos from U.S. and international regional alumni events; and the dedication of the Lester Pollack Colloquium Room.

Graphic Designer Nathan Coates Senior Writers Wendy Davis Jennifer S. Frey Adam Liptak Kathleen Maloney Graham M. Reed Larry Reibstein Vanessa Richardson Hagar Scher Tamar Schreibman Intern Writers Shakera Khandakar. Ranjani Ramaswamy Copy Editors Amy Allison Parlan McGaw Kelli Rae Patton Contributors Amy Aronson Jodi Balsam ’86 Daniel Bell David Chubak ’05 Marilyn Dickey Marie Ewald ’07 Jill Filipovic Angelina Fisher Wangui Kaniaru ’07 Elizabeth M. Kim ’05 Margaret Middleton ’07 Raphael Rajendra ’07 Robert Sarvis ’05 Joseph Tuzzo Delcianna Winders ’06 Assistant Editor Jeremy Coleman Design Assistant Sterling Talob Waters

The Back Page

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Senior Designer Michael Bierman

Assistants Jonathan Oak Kathryn Wood Photographers Steve Barrett Bart Bartholamew Bryan Burkey Bruce Cook Susan Cook John Earle Mark Finkenstaedt Annemarie Poyo Furlong Marcus Halevi Ken Levinson Elena Olivo Don Pollard Marissa Roth Debra Rothenberg Dario Ruberto Matthew Septimus Leo Sorel Keith Thrash Woodruff/Brown Send your comments to law.magazine@nyu.edu © 2005 New York University School of Law. . All rights reserved.

Notes & Renderings The Supremes at NYU

he NYU School of Law was privileged during this past academic year to host three sitting U.S. Supreme Court Justices—the Honorable Justices Antonin Scalia, Clarence Thomas and Anthony Kennedy (pictured here from left to right). Justice Thomas recalled his grandmother’s reaction when he was accepted by an Ivy League law school: “That’s nice,” she said. “But when are you going to stop going to school?” Justice Kennedy shared his strategy for reading dense legal briefs: opera music. Some cases require just one opera, while others are two-opera briefs, he said. Justice Scalia, for his part, believes rights specifically mentioned in the constitution must be protected—no matter his personal feelings about the issue. “I don’t like scruffy liberals burning the American flag. But the original constitution prevented incarceration for this act,” he explained. Thomas came to the Law School last September and introduced the inaugural lecture for the An-Bryce Scholarship Program— which provides full-tuition to law students who are among the first in their immediate family to pursue a graduate degree. In April, Kennedy introduced Samuel Estreicher, the inaugural lecturer for the Dwight D. Opperman chair and spent the afternoon with students teaching a class and holding a lively question-and-answer session. On the Court, Kennedy has confronted cultural issues ranging from the death penalty to gay rights—topics far removed from his course of study in law school, and he expressed some surprise at how things turned out. “I thought I’d be interpreting the tax code,” he said. “I didn’t think I’d be addressing when life begins or the nature of privacy.” In 2003 Kennedy delivered the Supreme Court’s opinion in Lawrence v. Texas, which held that laws banning consensual sodomy are unconstitutional. One student expressed gratitude for that ruling. “I never thought I’d be in a room with such a personal hero,” said the man. “So I just want to say thank you for what you wrote in Lawrence.” Scalia also visited this past April, accepting an invitation from students on the board of the 62nd Annual Survey of American Law, which dedicated this year’s volume to him. While

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on his 12-hour sweep through the campus, Scalia taught a constitutional law class, lunched with faculty, engaged students in an overflowing Q&A session and was the guest of honor at the Annual Survey dedication ceremony and dinner.

When Scalia fielded questions at the Q&A, he was, true to his reputation—funny, charming, critical and full of conviction for his self-described restrictive interpretation of the constitution. “People are always asking me, ‘When did you first become an originalist?’ As though it were a weird affliction like eating human flesh,” he said. He went on to explain that his view stems from the “originalist” concept that judges shouldn’t read protections into the constitution that aren’t explicitly included in the document. The

Torture Papers Makes a Mark

ruth, as Virgil wrote in The Aeneid, is enveloped in obscurity. But The Torture Papers: The Road to Abu Ghraib, a 1,300page compilation of declassified government memoranda edited by Karen Greenberg, executive director of the Center on Law and Security, and attorney Joshua L. Dratel, penetrates the fog. The book traces the development of the Bush administration’s policy on torture in stark, unflinching prose. Published by Cambridge

University Press in late January, it arrived within weeks of the blazing national controversy over the U.S. Department of Justice’s attempt to change its definition of torture. The massive tome has had far-reaching impact on politics and culture, and created a stir even before its official release. The Chronicle of Higher Education reported that

AUTUMN 2005

event was notable for the emotional quality of the questions. The students were passionate, especially in challenging Scalia on his dissent in Lawrence v. Texas. At the Annual Survey dedication, Scalia was toasted by speakers from across the ideological spectrum: Nadine Strossen, president of the American Civil Liberties Union; John C. Jeffries Jr., dean of the University of Virginia School of Law; Rachel Barkow, associate professor at NYU School of Law; Theodore Olson, former U.S. Solicitor General; John Manning,

professor at Harvard Law School; and J. Michael Luttig, a judge on the U.S. Court of Appeals for the Fourth Circuit. Many of the speakers poked fun at Scalia’s famously scathing criticism of liberals. Strossen said that she and “Nino”—as Scalia is known to his friends—go back 15 years, to when they appeared together on a PBS program. “I still prize the letter Nino sent me after that first meeting,” she said. “It said, ‘I admire you for consistently adhering to your (often incorrect) principles.’” —Wendy Davis

a prepublication copy of the book reached Senator Patrick J. Leahy, a ranking member of the Senate Judiciary Committee, in January, at which time it became a focal point of the questioning in Alberto R. Gonzales’ Senate confirmation hearing for the attorney general post. Later, Michiko Kakutani, the New York Times’ Pulitzer Prize–winning book critic, wrote that the book “possesses an awful and powerful cumulative weight” and “is necessary, if grueling, reading for anyone interested in understanding the back story to those terrible photos from Saddam Hussein’s former prison, and abuses at other American detention facilities.” The Torture Papers draws its power from the sheer volume of documents and the editors’ light touch with regard to editorial trimming and commentary. As NYU Professor of Law Noah Feldman wrote in The New Republic, “This book, less political than [others on the topic], generally—and wisely— lets the documents speak for themselves.” Organizations like Amnesty International and Human Rights Watch have relied on the book in researching their recent reports relating to torture. One thing is for certain: The Torture Papers will have a long reach. Cambridge University Press reports that the volume is already being used at major univer-

sities and military academies as a textbook. As impressive as the immediate response has been, however, Greenberg believes that the book’s real impact will not be known for several years. The whole picture will, she said, “truly be fathomed only three, maybe four years from now when the country has had time to think, feel and react rationally.” Greenberg has been editing a second volume, a collection of essays called The Torture Debate in America, due this fall. In it, renowned legal experts explore matters of torture and national security. The center also continues to sustain and expand the vibrant discussion over current White House and military policy. For example, the same month The Torture Papers was published, the center released an exhaustive table called the “Terrorist Trials Report Card” that, once again without doing much beyond presenting the evidence, reveals the administration’s record on prosecuting terror—the sort of compelling yet simple idea that’s become the center’s stock-in-trade. As Human Rights Watch’s Special Counsel for Prosecutions Reed Brody, says, “This is a period that we will always look back on in shame. And we will probably keep coming back to [The Torture Papers] as things continue to unravel. I keep a copy on my desk.” —Ranjani Ramaswamy

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The Academy Honors Three Harvey Dale, Sylvia Law and Frederick Schwarz Jr. are among this year’s 196 new fellows of the American Academy of Arts and Sciences, which was founded by John Adams, John Hancock and others to provide a forum for leading scholars and intellectuals to “advance the interest, honour, dignity, and happiness of a free, independent, and virtuous people.” The University Professor of Philanthropy and the Law, Harvey Dale is the director of the National Center on Philanthropy and the Law, which offers classes, organizes conferences, maintains a library and sponsors research on legal issues affecting the nonprofit sector. It is the first U.S. program of its kind to be based at a law school. Dale is also the president of both the Atlantic Philanthropies and the Southern Africa Legal Services and Legal Education Project. The Elizabeth K. Dollard Professor of Law, Medicine and Psychiatry, Sylvia Law is a noted scholar in health law, constitutional law, welfare and women’s rights. She has played a major role in civil rights cases before the U.S. Supreme Court, including the landmark 1970 case Goldberg v. Kelly, which established that the government cannot terminate welfare benefits without giving citizens procedural due process. Frederick Schwarz Jr. is senior counsel at the Brennan Center for Justice. He played a central role in the litigation defending the McCain-Feingold Act, a bipartisan campaign finance reform bill, and currently chairs the boards of the Natural Resources Defense Council as well as the Vera Institute of Justice. In 2004, The American Lawyer honored Schwarz with a Lifetime Achievement Award. Fellows are nominated and elected to the academy by current members. Over the years the academy has named as fellows many other Law School faculty, including William Allen, Anthony Amsterdam, Jerome Bruner, Jerome Cohen, Norman Dorsen, Ronald Dworkin, Thomas Franck, Stephen Holmes, Samuel Issacharoff, Thomas Nagel, Burt Neuborne, John Reid, John Sexton, Richard Stewart and Joseph Weiler. —Shakera Khandakar

THE LAW SCHOOL

NOTES & RENDERINGS

Students Argue Home Is Where the Heart Is

he Immigrant Rights Clinic has once again made an impression in some of the foremost courts of the country. In 2003, for example, Justice Souter’s dissent in the narrowly split Supreme Court decision in Demore v. Kim relied upon the clinic’s amicus brief to the court; Souter agreed that mandatory detention of lawful immigrants throughout their deportation hearings was a violation of due process. In 2004-05 four students from the clinic argued three cases before the court of appeals. The extraordinary number resulted from years of work done by students and clinic staff, says Professor of Clinical Law Nancy Morawetz ’81. The clinic broke new ground in these three challenging cases, each of which opposed the deportation of long-standing legal U.S. residents to their countries of origin. At issue are changes in immigration laws that are, Morawetz says, unnecessarily severe. The 1996 Antiterrorism and Effective Death Penalty Act (AEDPA) and Illegal Immigration and Immigrant Responsibility Act (IIRIRA) reinterpreted deportable offenses, and eliminated hearings designed to examine the particular equities of each case. Angelica Jongco ’05 argued Gutierrez v. Gonzalez, in which Luis Gutierrez-Castro, a 29-year permanent legal resident who attended high school, and married and had children in the United States, was deported to Colombia in 2000 because of an auto theft conviction in 1995. Under the 1996 legislation, even a person who served his sentence and had no other convictions could be deported without a hearing for crimes categorized as “aggravated felonies.” In 2001 the Supreme Court ruled that this law could not be applied retroactively, leaving people like Gutierrez fighting to regain their status.

On March 16, the U.S. Court of Appeals for the Third Circuit ruled two-to-one in favor of granting habeas corpus relief to Gutierrez. The case was groundbreaking because he had been deported before his habeas corpus petition was filed. The government has decided not to seek further review and Jongco is quietly hopeful the hearing will finally bring an end to half a decade of exile. In Lee v. Ashcroft, Yuensching Lee, 43, a legal permanent U.S. resident since the age of 11, was held in INS custody and threatened with deportation to China for a prior conviction for mail fraud. Last October, Alina Das ’05 argued on Lee’s behalf in the U.S. Court of Appeals, for the Second Circuit that he should be treated as a U.S. national. A month later, Naomi Sunshine ’05 and Navin Pant ’05 went before the same court in Boatswain v. Ashcroft. After serving a year for Medicaid fraud in 1998, Hollis Boatswain was taken into INS custody. Sunshine and Pant argued that as an honorably discharged Vietnam veteran, Boatswain should not be subject to the same rules as other noncitizens. Disappointingly, Lee and Boatswain were not decided in the clinic’s favor. “We knew when we started that these were tough cases, and we’re very pleased that we won any of them,” Morawetz said. Jongco, Das, Sunshine and Pant are grateful for the help that fellow students, professors, clinic alumni and attorneys with the ACLU and the NAACP Legal Defense Fund provided. “I had the benefit of all these great minds taking me through the arguments and hitting me with these questions in the weeks before the case,” said Jongco. “It really did feel like a group effort,” Sunshine added. “We had all of them behind us, literally and figuratively.” —Dan Bell

An appealing foursome: Navin Pant, Alina Das, Angelica Jongco and Naomi Sunshine

THE LAW SCHOOL

Professor Richard Stewart takes a Roman holiday.

Italians Exclaim “Bravo!” for Stewart

rofessor Richard Stewart, a leading scholar in environmental and administrative law, was awarded an honorary doctorate in jurisprudence on June 13 from one of Europe’s oldest universities, the University of Rome La Sapienza. The accolade is especially noteworthy since the 14thcentury institution has awarded the doctorate only five other times since 1945. Previous recipients include Pope John Paul II in 2003 and Sir Robert Jennings, former president of the World Court, in 1990. The award ceremony was presided over by the university’s president, Renato Guarini. La Sapienza professor Sabino Cassese, a frequent visiting professor in the Hauser Global Law School Program, introduced the honoree by declaring Stewart “the major American scholar of administrative law.” Stewart followed with his own address in which he described a rapidly changing world in need of cooperation among nations to achieve accountability and coordination. “These steps [by individual nations and the European Union] to secure regulatory due process have been a major achievement. But today this achievement faces grave challenges. Globalization is eroding its foundations,” Stewart said. He then discussed strategies and practical solutions for dealing with gaps in accountability, and transparency for important regulatory decisions. Stewart is currently leading a major project for the Center on Environmental and Land Use Law, funded by the Rockefeller Foundation, to examine international conflicts over regulation of genetically modified (GMO) crops and foods. —R.R. AUTUMN 2005

Calling Congress Out of Order

his past spring, in a decisive rebuke against leading members of Congress who seemed to threaten retaliation against the judiciary for good-faith decisions made on the bench, Dean Richard Revesz organized and issued a stern statement and letter to Congress exhorting them to stop. Seventy-five percent of the nation’s law school deans were signatories to the petition issued on May 4, 2005. Revesz was moved to act by the criticism of federal judges that began when Congress interceded in the Terri Schiavo dispute. After Schiavo’s death on March 31, Majority Leader Tom Delay and other conservative representatives, displeased that judges had allowed or failed to stop the removal of Schiavo’s feeding tube, promised to “examine” the judiciary’s conduct. “The time will come for the men responsible for this to answer for their behavior,” DeLay said in an interview on Fox News Radio. “It is an unfair fight,” Revesz said in his letter accompanying the statement, pointing out that the judiciary’s dispassionate reserve and strictly apolitical stance prevented the judges from fully defending themselves and their decisions on the bench. If it was the law that Congress wanted to change, the deans’ statement noted, there were constitutional means available to them. “But it is irresponsible and harmful to our constitutional system and to the value of a judiciary that is independent, in fact and appearance, when prominent individuals and members of Congress state or imply that judges may be impeached or otherwise punished because of their rulings.”

Noah Feldman Wins Carnegie Scholarship For an unprecedented third year in a row, the Carnegie Corporation of New York named an NYU School of Law professor a Carnegie Scholar. Professor of Law Noah Feldman was one of 16 selected from the nation’s academicians to pursue research advancing the strategic work of the corporation. He will receive up to $100,000 for two years of study, which will examine constitutional change in the Islamic world. The Carnegie Scholars Program supports innovative scholarship on issues related to education, international development, strengthening U.S. democracy and international peace and security. Each of the 2005 scholars will research Islam and the modern world, an emphasis designed to encourage the study of Islam within the United States. By enabling such work, the corporation hopes to build an original body of scholarship on Islam that might not otherwise exist. Given Feldman’s role as senior adviser on constitutional law to the Coalition Provisional Authority in Iraq, the Carnegie Corporation found him uniquely qualified to perform such research. “His background, his

“If the public comes to believe that judges will make their decisions with an eye towards being evaluated according to some political gauge, respect for our legal system will be seriously undermined. The expectation of fairness and rule of law will be eroded,” said Revesz.

language skills and his practical experience made for a marvelous interdisciplinary proposal,” said Patricia L. Rosenfield, chair of the Carnegie Scholars Program. Feldman’s experience in writing his related books, What We Owe Iraq: War and Ethics of Nation Building (2004) and After Jihad (2003), was also vital to his selection. “Feldman had the highest quality research, the ability to disseminate that research and the ability to write,” Rosenfield explained. “He really understood what the program was about.” This is the first time the Carnegie Award has been bestowed on faculty members from the same law school three years in a row. In 2004, the distinction was awarded to Sudler Family Professor of Constitutional Law Richard Pildes, who studied the influence of democratic politics and constitutional law on the design of democratic structures. Stephen Holmes, the Walter E. Meyer Professor of Law, was granted the scholarship in 2003 for his work on Russian legal reform. Feldman, Pildes and Holmes are each faculty codirectors of the forward-thinking Center on Law and Security at the NYU School of Law. —Jeremy Coleman

Commenting on the deans’ statement, Revesz said later that he hoped that with so many lawyers in both houses of Congress, “we deans—who are charged with educating the members of the legal profession—might have some influence on public opinion and on members of Congress.” —R.R.

The Brennan Center Scores (Again) for Justice

hree New York nonprofit groups represented by the Brennan Center for Justice won a victory last December in a longstanding dispute that began when a 1996 federal law limited the ability of legal services groups to bring certain types of cases, including class-actions suits. In the case, Dobbins v. Legal Services Corp., federal judge Frederic Block of the Eastern District of New York ruled that legal services groups that represent the indigent and wish to pursue class actions or other restricted work with private funds, need not set up new offices to do so. The Brennan Center represented the three groups—Legal Services for New York City, South Brooklyn Legal Services and

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Farmworker Legal Services of New York—in their suit against the federal Legal Services Corporation (LSC), a nonprofit created by Congress that administers federal funds for representing indigent people in civil cases. Dobbins challenged a law that dates back to the Clinton administration. In 1996, the Republican Congress pushed through a law requiring that legal groups receiving federal funds refrain from bringing class actions and representing prisoners and certain legal immigrants. The law was challenged immediately, and early court rulings established that groups still could do such work, provided they used private funds. In 1997, LSC issued a rule stating that groups using private funds for such work would

need to use totally separate offices, with separate personnel. In Dobbins, the Brennan Center successfully argued that the separate office requirement was unduly burdensome. Block issued an injunction barring LSC from withholding federal funds from the local nonprofits solely because they used a common office for both restricted and nonrestricted work. The ruling wasn’t the first time the Brennan Center took on the 1996 regulations. In 2001, it successfully challenged a portion of the law in Legal Services Corp. v. Velazquez. In that case, the U.S. Supreme Court invalidated a restriction that barred legal services lawyers from challenging welfare reform laws. —W.D. THE LAW SCHOOL

NOTES & RENDERINGS

ACP Grads Land Ten Tenure-Track Teaching Posts

ttending the annual Association of American Law Schools recruiting conference in Washington, D.C., can be a singularly nerve-racking experience for job seekers. Of the 1,000 or so prospective candidates, an average of only 11 percent will land tenure- or non-tenure-track positions. Just one year after the Law School began the Academic Careers Program (ACP) to assist alumni and students through the grueling process of finding teaching positions, the program has achieved notable success: Ten alumni landed tenure-track teaching positions and at least three more will begin non-tenure-track jobs in the fall. As a result the Law School ranked fourth nationally among 116 law schools in the 2005 Entry Level Hiring Report of the Legal Theory Blog, a popular chronicle of the academic legal world that is maintained by Professor Lawrence Solum at the University of Illinois College of Law. The ACP is a centralized hub designed to help aspirants get a head start on the practical aspects of landing a job. It is available to anyone affiliated with the Law School. Professor Barry Friedman, who also directs the Furman Scholars Program devoted to

nurturing the scholarly work of young lawyers interested in academic careers, is the faculty director of the program. Crystal Olsen Glynn is the newly appointed coordinator. Recruitment in academia is arduous and structured. Even the most outstanding can-

didates have to defend their papers and bodies of work in interview after interview with eminent faculty. Intellectual merit is the non-negotiable gold standard. To prepare candidates for the onslaught, the program will offer a job camp in September, before the November recruiting conference in Washington. The camp, intended to become an annual event, will include rigorous mock presentations before peers and professors. Even before the birth of the ACP, the Law School had launched many promising teaching careers. This fall, an astonishing total of 19 NYU School of Law acting assistant professors, fellows and doctoral students are facing students in their own classrooms for the first time. Kerry Abrams, who was a lawyering faculty member, is at the University of Virginia School of Law, Elizabeth Joh ’00 (Ph.D. ’04) is at the University of California at Davis School of Law and Golieb Fellow Jed Sugarman is at Harvard Law School. Glynn emphasizes that even with the program’s support, “the road to law teaching is a long, hard one and candidates have to do extensive legwork and build a great résumé.” But, she adds, “We are here to help and support them.” —R.R.

NYU and Canada’s Osgoode Hall Join Forces

urthering its reputation as a premier global law school, New York University School of Law has joined forces with Canada’s Osgoode Hall Law School to launch a joint J.D.-LL.B. Program. The historic collaboration, which will begin in the fall of 2006, allows students to spend two years at NYU and two years at Osgoode in Toronto, after which they will receive both a U.S. juris doctor and a Canadian bachelor of laws degree. “Osgoode Hall is a superb law school and one with which we are happy to offer this joint degree,” said Vice Dean Barry Adler. “The program should be of great interest to any student interested in practicing law in both countries.” In their first year, joint degree students will take basic courses, common to both jurisdictions, and then over the next three years, will take more advanced courses at each of the two schools. Graduates of the joint program will be able to sit for the bar exam and practice law in both countries.

Though the program will admit just 10 to 20 students annually, the benefit to the aspiring lawyers will be huge. “[Right now] foreign-trained students generally have to take exams or even complete one to three semesters in Canadian law schools just to be allowed to take Canadian provincial bar admissions exams,” said Toronto native Noah Waisberg ’06. Last January, at the signing of the Memorandum of Understanding to launch the

program, Patrick Monahan, dean of Osgoode Hall, said the agreement with NYU was made possible by Dean Richard Revesz’s “willingness and ability to think creatively about the potential synergies that can be produced by two of North America’s great legal institutions joining forces for the mutual benefit of students here and in New York.” —S.K.

If the shirt fits...Dean Richard Revesz, left, and Dean Patrick Monahan swap some school spirit.

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A Return to Our Roots

Finding the Smoking Gun— and a Book Deal

nstead of spending his summer relaxing in the sun after finishing his first year of law school, Craig Winters ’06 was holed up in an office scouring emails subpoenaed from insurance broker Marsh & McLennan. Eliot Spitzer, New York State’s crusading attorney general, was investigating potential abuses in the insurance industry, and Winters had snagged one of 30 coveted internships in the Investment Protection Bureau of the Manhattan Division of Public Advocacy. It may not have been glamorous most days, but Winters made a discovery that catapulted him to the front page of the Wall Street Journal. For 12 coffee-fueled weeks, Winters sat with rubber covers on all 10 fingers—looking like Edward Scissorhands, he jokes— turning 250,000 pages. “When you’re first doing it, you think this might be a smoking gun, this might be a smoking gun,” says Winters. “You read thousands of pages and find nothing at all. Zero.” Determined to persevere, Winters was the only intern to return to the monotonous task in the fall. On September 15, he found what he was looking for: an email sent by a Marsh broker to an insurance company employee requesting a fake quote, one that would be “close, but not a winner,” Winters recalls. “I couldn’t believe I was staring at this piece of paper,” he says. “The case was blown open in a second.” The document revealed Marsh’s practice of rigging bids in order to steer businesses to particular insurance companies so they could garner special commissions. Everyone associated with the email was fired, and the case has changed the way insurance companies do business. “Craig is very insightful,” says Matthew AUTUMN 2005

‘‘

A real page-turner: Craig Winters at the A.G.’s office.

This fall, 20 Root-Tilden-Kern (RTK) Scholaffordable housing. “The scholarship will ars will receive full tuition for the first time give me a lot of freedom in the rest of my in more than two decades. career to keep doing the work I’ve been inWhile the RTK Program has produced terested in so far,” says Johnson. leaders in public service ever since Arthur Returning to a class size of 20 allowed Vanderbilt launched it in 1951, financial program administrators to make the scholar constraints in 1984 forced it to reduce its group more diverse. “[RTK faculty director] scholarships from a full-tuition award for Vicki Been ’83 and I were thrilled to be able 20 students each year to offer full funding to to a two-thirds tuition 20 scholars—for many stipend for only 10 to 12 scholars, this is the students annually. best phone call of their But thanks in large lives!” says Deb Ellis In making this part to Jerome Kern ’60, ’82, assistant dean of who donated $5 milpublic interest law. The decision, I had to lion in 1998 and whose scholars hail from all think about the kind matching gift challenge over the world, includof an additional $2.5 ing Iran and Zimbabwe, of person I am and million motivated nearand their interests and want to be. I want to ly 470 other alumni to experiences range from contribute, the program working in legislative use my J.D. to effect has returned to its branches; to working on original level of support. children’s issues, houssome positive changes Gifts from the John Ben ing issues, AIDS policy, in the world. Snow Memorial Trust and immigration; to orand the Andrew W. Melganizing women worklon Foundation also reers in India. vitalized the program. Consider RTK recipDiana Reddy “One of the great ient Diana Reddy, who benefits I got from bewas an organizer with ing a Root-Tilden ScholStanford’s Student Laar was the community of scholars it creates. bor Action Coalition and worked on unionTo have just a few rather than a full compleization efforts in her hometown of Houston. ment of scholars, it seemed to me would She graduated with distinction in 2003 from diminish the effectiveness of the program,” Stanford, where she majored in anthropolosays Kern, president of Kern Consulting. gy and went on to earn an M.A. in sociology. “Full scholarship takes an enormous pressure “In making this decision, I had to think off of the students.” about the kind of person I am and want Incoming scholars agree. “I was really to be,” she says. “I want to use my law denervous, even with loan repayment progree to effect some positive changes in the grams,” says Carrie Johnson, a 2002 magna world, and I think the Root-Tilden-Kern procum laude graduate of Duke University. gram, above any other program at any other Johnson’s interests include tax policies law school, can give me the tools to do that.” that redistribute income and financing for —Tamar Schreibman

Gaul, the enforcement section chief of the Investment Protection Bureau and Winters’ then-boss. “In addition to his legal skills, which are very good, he has a keen sense of right and wrong.” The only child of a lawyer, Kathleen, and Ray, a University of Miami psychology professor, Winters grew up in the mixedincome Miami suburb of Kendall. A 1996 Clinton presidential campaign volunteer and ’99 political science graduate of Johns Hopkins University, he is committed to public service, a value instilled by his mentor, renowned Johns Hopkins political science professor Milton Cummings. As a college senior, Winters launched, directed and raised money for a middle-school mentoring program, which still continues today. “Craig has an incredible amount of energy,” says William Tiefenwerth, director of the Hopkins’ Center for Social Concern.

“Our students got interested [in mentoring] because of Craig’s personality and his ability to market the program.” After earning a masters in tax policy in 2001 from Oxford University—“impressive, but not to employers,” the former Marshall Scholar quips—Winters worked in politics on a Massachusetts gubernatorial primary and even for former Senator Gary Hart as he considered a 2004 presidential candidacy. With his prodigious energy, the hard-todistract Winters should easily make good on a two-book deal he signed last June with Knopf. The first book, which he is taking the fall semester off to write, will probe Spitzer’s effect on the stock, mutual fund and insurance industries and is expected to be published in mid-2006. His second, on how the super-rich influence politics, taxes and society, may even require an additional semester off. —Kathleen Maloney THE LAW SCHOOL

NOTES & RENDERINGS

Spain’s Garzón Finds Peace and Quiet at NYU

ne of the world’s leading advocates of counterterrorism has taken a temporary leave of absence from the court to research and teach at NYU. Madrid’s investigating magistrate Baltasar Garzón has been a Distinguished Fellow at the Center on Law and Security’s Global Counterterrorism Program since March and will remain until December. During this time, Judge Garzón will also hold the King Juan Carlos I of Spain Chair at the university. Garzón participated in the center’s second annual summer conference on “Prosecuting Terrorism: The Global Challenge,” at NYU’s La Pietra campus (see “A Trans-Atlantic Debate,” on page 49) and will take part in the Colloquium on Law and Security this fall. Garzón is best known for indicting several notorious criminals, most visibly Chilean dictator Augusto Pinochet whom Garzón unsuccessfully attempted to have extradited to Spain in 1998 to stand trial for crimes committed against Chilean Spaniards. Garzón participated in the prosecutions stemming from the March 2004 terrorist bombings in Madrid, and has also indicted Osama bin Laden in absentia along with 43 others allegedly involved in the September 11 attacks in New York and Washington, D.C. Despite his high profile, Garzón maintains a low-key presence on campus. He has granted no interviews and has turned down invitations to make appearances. “Our goal is to give him peace and quiet—not a publicity tour,” said Karen Greenberg, executive director for the Center on Law and Security, in an interview printed in the Washington Square News prior to Garzón’s arrival. “He wants to think,” Greenberg said of Garzón’s motivation to temporarily leave the bench. “He wants to be part of a larger conversation.” —J.C.

S. Andrew Schaffer joins the force at One Police Plaza.

From NYU Violet to NYPD Blue

Andrew Schaffer, who served as NYU’s general counsel for 28 years, says that his decision to become chief lawyer at the New York City Police Department last February boiled down to one thing. “The opportunity to work with Commissioner Ray Kelly (LL.M. ’74) in this moment in history was really very powerful,” says Schaffer, a native New Yorker. “In the post– 9-11 world, I can’t think of an agency of the government anywhere in our country that is more important to the well-being of New York than the Police Department.” As NYPD’s Deputy Commissioner for Legal Matters, Schaffer’s responsibilities include providing legal advice and thinking proactively about various enforcement scenarios. To this end, Schaffer and his staff pay close attention to legislation proposed by the city council or the state legislature that might affect the Police Department. Schaffer’s department also works closely with the Law Department, which defends the city and the Police Department in court.

Schaffer accepted the offer on one condition: that he continue teaching at the Law School, where he has taught criminal procedure for more than 25 years. “From the outset, I knew that I really wanted to continue teaching,” says Schaffer. “The student body at the NYU School of Law is an extraordinarily able group of men and women, and to teach really smart people is just great fun.” Schaffer’s commitment to the classroom also stems from his strong intellectual interest in constitutional law as it governs criminal justice. “It’s a continuation of my work when I was at the U.S. Attorney’s Office and in private practice.” A graduate of Harvard Law School, Schaffer has also served as associate director of the Vera Institute of Justice (he remains a trustee), and as chief counsel for the Moreland Act Commission on nursing homes. Reflecting on his former and current positions, Schaffer says, “Representing an institution of great societal importance is what I like the best.” —T.S.

Judging Judge Roberts Just one day after President George W. Bush named U.S. Circuit Judge John Roberts Jr. as his first Supreme Court nominee, Charlie Rose invited NYU School of Law professors Samuel Issacharoff and Burt Neuborne, both constitutional law experts, to discuss the nomination on his show. “If he was on the court when Roe [v. Wade] was decided, he almost certainly would not have joined that opinion,” said Neuborne. “But having said all that, this is a lawyer’s lawyer, who understands precedent and the importance of stability in the system.”

Issacharoff concurred with his on-air colleague: “Roberts is aware, in a way that perhaps nobody on the court right now is, of the role that law has in shaping how our major institutions have to behave.” Neuborne and Issacharoff agreed that the nomination of Roberts was a skillful decision on the part of the somewhat beleaguered Bush administration. “I think it’s a brilliant appointment,” said Neuborne, shrugging his shoulders a little. “I think it’s consistent with this administration’s political capacity to pull rabbits out of hats.” —S.K.

Below the radar: Judge Baltasar Garzón

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A Letter from Baghdad Editor’s note: When the Law School Magazine learned last spring that alumna Christina Sanford ’00 was working in Baghdad, we wondered what her daily life was like. We wrote and asked her to send us a letter describing her home, her work and her thoughts, which we’ve reprinted below. Sanford safely returned from Iraq to Washington, D.C., in June 2005. She was recently appointed special assistant to the senior advisor for Iraq to the secretary of state, a policy position.

April 15, 2005 Dear friends,

Iraq. ded in Baghdad, m NYU, I have lan fro ng and ati y, du rit gra tho of au Five years after er the transition 04, two weeks aft vember 20 No ly til Ju un in sy d bas ive I arr er to the U.S. Em puty Legal Advis served as the De ce. offi the of ad when I became he e r Republican Palac within the forme time in my office e (more comZon al on ati I spend most of my ern s in the Int in the in. The palace sit of the Tigris River of Saddam Husse e) on the banks Zon een Gr the sible from our pos as far monly known as as icle wall, behind a low cub city center. I sit s. dow win Kevlar-coated bassy comhin the secure em ing container wit pp shi ted I share a t. ver fee con 20 Home is a ximately 10 by My room is appro container. IZ. the of the lf in ha nd er oth pou the gue who occupies lea room to col a ole h wh a wit get bathroom lucky enough to of my tour, I am bathroom. The a to r fou d Due to the length an a room, ly 3,000 ple share, two to are approximate myself. Most peo ps; in total, there cam o int d ide trailers are div ing here. n and military, liv people, both civilia nearly impossible. eds make travel IZ, as security ne the ve Senators Hillary lea h ely wit rar I travel tunate enough to for s wa I , ing Fallujah. We travel This spr rine base outside McCain to the Ma with armed perVs SU d ore Clinton and John o arm r car escorts: tw fou of um nt and rear of nim fro mi at the with a armored Humvee ry lita mi a as sonnel as well each convoy. I hear explosions hing challenging. tion makes everyt ua sit b from a rocket ty uri bom sec car e a Th rned to distinguish lea ve ha d an ily again. almost da never have to use is a skill I hope I from a mortar. It ss preciate the progre is hard not to ap kept me here, it tu singing and mp pro im As for what has day election Iraqi people. On ong and debate sparked am being made by the stations; political g lin pol couragat en t d ou an polls dancing broke urning from the ent judid women were ret nd an s; epe ilie ind fam an h hin wit imenting wit d vote. Iraq is exper The newly electe ing neighbors to n three decades. tha re mo in e tim t and submit ion tut sti con w ciary for the firs l draft a ne of nal Assembly wil ple face a number Transitional Natio Iraq. The Iraqi peo of ple peo the . can I y wa that document to all atever sm stay to help in wh challenges and I ter home, potable wa and friends, my forms of I miss my family o d, tw sai d an ng et bei lm at Th flak vest, he direcveling without a one mile in any from a faucet, tra walk more than to e abl ng bei d an , on ati nic mu com rine checkpoint. tion without a Ma Cheers, Christina

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Professor Richard Pildes pushes for transparency.

Fighting Tax Court

ast March the Supreme Court ruled that the U.S. Tax Court could no longer keep certain secrets. Estate of Kanter v. Commissioner was a victory for Professor Richard Pildes, whose client was seeking to ensure that tax trials were fully transparent to both taxpayers and the federal courts of appeals by compelling the Tax Court to release the reports of its auxiliary judges. The case grew out of a 1970s dispute between the Internal Revenue Service and three taxpayers, including tax lawyer Burton Kanter. The IRS repeatedly audited Kanter and the others, and eventually accused them of using a complicated scheme to fraudulently avoid declaring income. At trial, D. Irvin Couvillion—an auxiliary judge who conducts trials and makes recommendations—heard testimony over the course of five weeks in 1994. Four years later he issued a written recommendation. Although Kanter and the others never saw this report, they apparently came to believe that Couvillion was leaning their way. In 1999, however, a regular tax court judge, Howard A. Dawson Jr., issued a 600page written opinion in favor of the IRS. Kanter died in 2001, but his estate, represented by Richard Pildes, appealed the decision, as did the other three taxpayers. One of their arguments was that they needed to see Couvillion’s original report. In its ruling, the Supreme Court reversed all three appellate courts that had been involved with the case—the 11th Circuit, 7th Circuit and 5th Circuit. Writing for a seven-member majority in the case, Ruth Bader Ginsburg found that the federal Tax Court’s long-standing practice of keeping auxiliary trial judges’ reports confidential “impedes fully informed appellate review” of the decisions. —W.D. THE LAW SCHOOL

the

transc

Ronald Dworkin, perhaps the most influential legal philosopher of the last century, spent last fall on Martha’s Vineyard. He was on sabbatical from the law school, and he was working and worrying. He spends half the year in England, and was eager to get back to London, but he could not leave, he said, until the presidential election was over. “It’s a tribal thing,” he explained. “I don’t want to be away in this terrible, critical moment.”

lawyer

endent b y a d a m l i p ta k

portraits by John Earle

I went to see NYU’s Frank Henry Sommer Professor of Law last October, and my flight from Boston, on a tiny propeller plane, provided some unwelcome excitement. I had tried to lose myself in an imposing book called Dworkin and His Critics. But the impenetrable essays, on topics like “Associative Obligations and the State,” only added a note of personal inadequacy to the stabs of terror.

Dworkin is the worldliest of philosophers, and it was odd but somehow reassuring to see him on an all but deserted island on a cold New England Sunday. He wore an old yellow sweater, green khakis and white tennis shoes, and, as he tucked me into his Jeep, I took further comfort from the fact that there was the detritus of ordinary life on its floor, a book-on-tape of a Patricia THE LAW SCHOOL

Cornwell mystery. I had convinced myself that he subsisted on Aristotle and Kant, leavened perhaps by a little Cardozo and Holmes. He would turn 73 in December, but he remains fit and sharp—a vivid personality of enormous intellectual ambition. Oddly, though his towering body of work is grist for symposia, dissertations and debate, Dworkin himself has never been the subject of a magazine profile. To break the ice, I told him I had just recently disabused myself of two assumptions. I had thought he was English, based on his dual appointments, first at NYU and Oxford and now at NYU and University College London, and on his elegant, limpid writing style. And I had surmised, thanks to a certain abstraction in his more conventional legal writings, that he had never actually practiced law. But, as his election agitation suggested, Dworkin is emphatically American. And though his career has taken many fascinating turns, it was for a few years quite conventional: he was an associate at Sullivan & Cromwell from 1958 to 1962. During our daylong conversation, he set me straight about a few other things. Dworkin is as engaging as his work can be daunting, and he has crammed a lot into the life of a scholar, straddling disciplines and continents. He has ventured beyond the academic, making his mark as an influential public intellectual through his writings in the New York Review of Books, for example, and even took steps during the early 1990s to help organize a secret discussion of a postapartheid constitution in an Oxfordshire country hotel between lawyers from the African National Congress (then in exile) and sitting South African judges. Simply put, “Ronnie is the primary legal philosopher of his generation,” said Guido Calabresi, a former dean of the Yale Law School and now a judge on the United States Court of Appeals for the Second Circuit. His career has intersected with some of the largest figures in Anglo-American law, notably H.L.A. Hart, the pivotal British legal philosopher of the 20th century, and Learned Hand, the greatest American judge never to serve on the Supreme Court. In both cases, Dworkin’s theories arose in opposition to theirs. Harold Bloom, the Yale literary critic, would say there was an element of agon in this, a struggle with precursors. But the struggle was in both cases marked by personal warmth, and the record suggests that Dworkin charmed both men even as he disagreed with them. He is that rare philosopher who brings real zest and élan to the enterprise, which must have helped. 14

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Pancake Planning: Thomas Nagel and Ronald Dworkin discuss the details of their super-caffeinated colloquium.

“Dworkin is probably the least ascetic person I know, and one of the most worldly,” said Thomas Nagel, the noted philosopher, NYU University professor and Dworkin’s partner in the dazzling Colloquium in Legal, Political and Social Philosophy they lead at the university each year. “This love of pleasure and of the social, political and material world of the present moment coexists with the most intense seriousness about abstract theoretical and moral questions, and a matchless capacity to engage in concentrated productive thought without showing any strain. He works ferociously hard, but he manages to give the impression that he’s just amusing himself. He is helped in this by a remarkable facility.” Dworkin humored my questions about his life and seemed pleased to have some company. He flashed an occasional crooked smile as he remembered an amusing moment or triumph. But he was most eager to talk about his big new book, one that will draw together the many strands of his extraordinarily varied legal and philosophical work. It is to be a summation and a consolidation. “I am trying,” he said, “to bring together my work in law and my work in political philosophy and moral philosophy and the theory

of interpretation and the kitchen sink and to get everything into a—I shouldn’t use the word system, because that has the wrong connotation—but in general a network of ideas so that each part is drawn from and reinforces the other.” There is much to synthesize. In a survey published in 2000 in the Journal of Legal Studies, three of Dworkin’s books were among the 11 most cited legal books published since 1978: Taking Rights Seriously (1978) and A Matter of Principle (1985), two collections of seminal essays, and, at number two, Law’s Empire (1986), his masterwork on the nature and role of adjudication. (John Hart Ely’s Democracy and Distrust was number one.) Dworkin’s other major works include Life’s Dominion (1993), on abortion, euthanasia and the questions they raise; Freedom’s Law (1996), a collection of essays on the Constitution; and Sovereign Virtue (2000), on equality. Before we did any intellectual heavy lifting, we took a little tour of the island, where Dworkin and his late wife, Betsy, bought a plot of land in 1969. In those days, he said, the island had a literary and artistic character. “Now it’s much more money,” he said. “Big money and media.” Dworkin drove fast AUTUMN 2005

down the narrow roads of Menemsha and pulled over at Larsen’s, where we had a latemorning snack of superb oysters and clams. Then we continued to Dworkin’s lovely, spare, light-filled house. It overlooks a little inlet, and its windows rattled in the strong autumn wind. One could sense that Betsy Dworkin, who died at 66 in 2000 and who is universally described as a vivacious woman of exceptional beauty, taste and discernment, had once filled the house with an energy that was missing when Dworkin was there alone. I asked Dworkin for its architectural pedigree. “I would describe the style,” he said haltingly, “as, I don’t know, beachy modern.” He added that his other homes are more substantial. “In London,” he said, “we have a larger house.” And in New York, the university provides him with a home in the singularly picturesque Washington Mews. “People often say, which is home?” he said. “I don’t have an answer. I would miss not being in New York for part of the year, and I would miss not being in London.” He made lunch for us. Dworkin is famously comfortable at the table, but perhaps not so much in the kitchen. That morning, he confessed, he had called his close companion, Irene Brendel, in London for advice on how to make salad dressing. I helped set the table in the main room, a loftlike space with high ceilings and a dining area near the open kitchen. Dworkin did not resist my questions about his biography so much as convey that he considered them odd and trivial. “I love these stories,” he exclaimed at one point, bustling around in the kitchen in search of something. “I love to think about those days. But now my mind is on salad bowls.”

defect, which is that I was very competitive,” he said. “You know, I was one of those obnoxious people who wants to win every prize. I was a Boy Scout, I was an Eagle Scout, I got every merit badge.” He went to Harvard on scholarship. To hear Dworkin tell it, the move was almost happenstance. “Somebody had endowed a full scholarship for a graduate of a Providence public school,” he recalled, “and there were rarely any takers.” The atmosphere in Cambridge was earnest and exciting, colored by postwar optimism and intellectual excitement. He first considered studying literature. “We were turned on by James Joyce, by T.S. Eliot,” he said. “It was the days of those very revolutionary kinds of work.” He belonged to the Signet Society, an artistic and literary club. “I was pretentious as hell,” he recalled. “I had a wonderful time.” But his interest soon turned to philosophy, and to philosophers. He started hanging around with graduate students and junior faculty in the philosophy department,

the London School of Economics, wrote in her recent groundbreaking and somewhat controversial biography of Hart, A Life of H.L.A. Hart: The Nightmare and the Noble Dream (Oxford University Press, 2004). Even from the beginning, Hart was, according to Lacey, both impressed and intimidated by Dworkin. “Herbert,” Lacey wrote, referring to Hart by his first name, “was excited by the performance of an American student who had scored an alpha (the highest mark) on every single one of his papers.” “Herbert went on to express considerable anxiety about the implications of this student’s views for the arguments of The Concept of Law,” Lacey continued, referring to Hart’s key work. “The student’s name was Ronald Dworkin.” The so-called Hart-Dworkin debate has been the axis around which modern legal philosophy has revolved for decades now. Those papers made Hart anxious because they foreshadowed Dworkin’s later criticism of his work, what Lacey would call, “a dev-

Dworkin is probably the least ascetic person I know, and one of the most worldly. He works ferociously hard, but he manages to give the impression that he’s just amusing himself.

a thinker and a lawyer Ronald Myles Dworkin was born in Providence, in 1931. His parents were divorced when he was young, a rare thing in those days. Dworkin’s sense of his father, David, is as a consequence hazy and distant. “My father was, I think, born in Lithuania and came to America as a young child,” Dworkin told me. His mother, Madeline, remarried soon after the divorce, and her second husband died not long after, of a heart infection. She had been a musical prodigy, and she raised three children on her own by teaching piano. Dworkin was the middle child. His sister, Fern Cohen, is five years older, and lives in New York. His brother, Alan, is a lawyer in Rhode Island. Dworkin attended what he called “a classical school” along the lines of the Boston Latin School, and he did well. “It may have to do with a personality AUTUMN 2005

drinking and playing poker. After college, at Oxford as a Rhodes Scholar, Dworkin met Calabresi, who was impressed by his fellow American. “Ronnie did spectacularly well with his left hand,” Calabresi recalled. Dworkin did not study with the famous H.L.A. Hart at Oxford, but it just so happened that Hart was one of the examiners the year Dworkin finished, and was assigned to read Dworkin’s exam. Hart held the Chair of Jurisprudence, was already well-known and was to become a towering figure in legal philosophy as the father of positivism, largely by dint of his 1961 masterwork, The Concept of Law. “The nub of Hart’s theory was the startlingly simple idea that law is a system of rules structurally similar to the rules of games such as chess or cricket,” Nicola Lacey, a law professor at

astating critical onslaught” on Hart’s “overschematic account of adjudication.” Hart, a good sport, had the presence of mind to save Dworkin’s jurisprudence exam, quoting from it at an after-dinner speech years later, after the younger man had succeeded him in the Oxford Chair of Jurisprudence. Dworkin’s signal contribution, and the theme that runs through much of his work and is most closely associated with him, is his critique of positivism, which was and is among the leading schools of legal philosophy since at least Hart. Positivism holds that valid legal rules can all be identified without taking morality into account: it holds, that is, that legal reasoning is all descriptive. Dworkin insists that moral principles must necessarily have a role to play in legal analysis and interpretation, at least in those THE LAW SCHOOL

cases where the existing rules do not supply judges with an answer. The interpretive enterprise that judges engage in is often a moral one. The great abstract phrases of the United States Constitution—“equal protection of the law,” “due process”—are moral principles, he says, that judges must fill with moral content. That critique, though foreshadowed in Dworkin’s student work, would not fully ripen for another decade. In the meantime, Dworkin decided to study conventional law. He was a little cryptic with me about this swerve in his studies. “I got the idea that my time at Oxford was a chance to learn something else beside philosophy,” he said. “And what a convenient way to learn law. It didn’t matter to me that it was English law I was going to

training was that of an English law training,” Calabresi said. “Studying law in England can give you a slightly odd feeling for the cases. It sounds the same, but it has a different meaning.” He means that the same ruling, based on similar facts, can have a wholly different impact in the contexts of the two legal systems and legal cultures. Dworkin’s facility with the law is a bit like someone speaking English fluently, but with a slight accent. Dworkin’s philosophy of American constitutional law in large part is rooted in what he claims is the proper reading of a relatively small number of phrases of the Constitution. “Many of these clauses,” he writes in Freedom’s Law, “are drafted in exceedingly abstract moral language. The First Amendment refers to the ‘right’ of free

I love these stories. I love to think about those days. But now my mind is on salad bowls. learn, because I was not going to be a lawyer. Somehow, and I don’t know how it happened, the whole idea of being a philosopher evaporated. And I suddenly thought, ‘I want to be a lawyer.’” He returned to Harvard in 1955 for an American law degree, entering in the second year. “They gave me credit for Oxford— which was silly. I shouldn’t have done that. I’ve never taken a course in criminal law, for example. Critics say I’ve never read a case. I’ve almost certainly read fewer than most of them have.” Here, too, Dworkin handled the academic requirements with ease. “Law school was not hard,” he said. “Law school is really different now. In those days it was just applied reasoning. I think now you really have to know economics or at least you’ve got to have some conceptual awareness of it, and of a number of different fields. You’ve got to be politically engaged. You’ve got to be aware of the main schools of sociology, I think, to do very well at law school.” At Harvard in 1957, when he graduated, he said, “all you had to be was reasonably adept at moving arguments around.” Calabresi said he suspects that there is something in Dworkin’s unusual legal training that explains aspects of his idiosyncratic approach to the law. “His basic law 16

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speech, for example, the Fifth Amendment to the process that is ‘due’ to citizens, and the Fourteenth to the protection that is ‘equal.’ According to the moral reading, these clauses must be understood in the way their language most naturally suggests: they refer to abstract moral principles and incorporate these by reference, as limits on the government’s power.”

A BRILLIANT CAREER— DISAGREEING WITH THE RIGHT PEOPLE After Hart, the other great figure in Dworkin’s early professional life was Judge Learned Hand. As Dworkin tells it, with becoming modesty or authentic befuddlement or a combination of the two, he simply stumbled into a clerkship in 1957 with the great man, which was a fabulous prize in itself and often a stepping stone toward a Supreme Court clerkship with Justice Felix Frankfurter. “I don’t know how it came about,” he said. “Nobody on the law faculty knew me very well, but somebody thought I’d be a good clerk for Learned Hand.” Hand, who was 87 by then, had taken senior status on the United States Court of

Appeals for the Second Circuit, in New York, meaning he was semiretired and could choose the cases he wanted to hear. He also was working on the Holmes Lectures, a series of three talks that he would deliver at Harvard the following year. They were, it turned out, a vigorous attack on judicial overreaching and caused a considerable stir in legal circles. Hand had seen a lot of clerks come and go. But he held Dworkin in especially high regard, calling him “that law clerk to beat all law clerks” in a letter to Justice Frankfurter. The honor of that compliment, related in Gerald Gunther’s biography, Learned Hand: The Man and the Judge (Knopf, 1994) was lessened only slightly by the fact that Hand referred to his clerk as “Roland Dworkin.” “I showed up the first day and we had a conversation,” Dworkin remembered. “Hand had facing desks for himself and his clerks, so I worked in the same room as him. And he said, ‘I don’t know what I’ll do with you. Some judges have their clerks write first drafts. I don’t know how you write. I write very well.’” Dworkin let out a big laugh as he told the story. He continued, quoting Hand: “‘Some judges ask their clerks to look up the law.’ He looked around. All four walls were covered with law books, except for some small windows. He said: ‘I wrote most of those. I know what they say. So what am I going to do with you?’ He said: ‘Well, I’ll tell you what I’m going to do. I write and you read. You tell me what you think. By the way, I’m giving these lectures at Harvard. Why don’t you tell me what you think?’” “And that was the dominant thing of the term. He was writing the Holmes lectures in which he ended by saying the Brown case”— Brown v. Board of Education, the school desegregation case of 1954—“was wrongly decided. And he announced his theory of judicial review.” Hand said that judges had no business making value judgments, which should be left to legislatures. “Hand’s startling thesis,” Gunther wrote, “clearly outside the mainstream of modern legal thought, was that ‘due process’ and similarly vague constitutional phrases were essentially unenforceable by the courts.” Dworkin had pushed Hand to follow the implications of his theory of judicial restraint to its conclusion—but in the hope that Hand would renounce it. If Brown was wrongly decided under Hand’s approach, Dworkin suggested, there must be something wrong with the approach. Hand had wanted to avoid discussing the case, though it was the elephant in the room. Later viewed by history as a triumph, at the AUTUMN 2005

Talking Points: The erudite Dworkin is never at a loss for words, whatever the setting.

time, Brown was subject to much criticism for what was said to be judicial activism ungrounded in the Constitution. “You simply cannot duck that one,” Dworkin told Hand. “We argued and argued,” Dworkin told me, “and finally I said, ‘Judge, you aren’t saying anything about the Brown decision. In your eyes it must have been wrong.’ “‘Fuck you,’ he said,” Dworkin continued. “Steam came out of his eyebrows and he grabbed his yellow pad, and he started to scribble, and he started throwing away and throwing away and throwing away.” Hand could not produce a draft which could justify the result in the Brown case using methods of constitutional interpretation which met his standards—that were what he considered principled. In the end, in his frustration, Hand turned to Justice Frankfurter for advice. The Justice was in a similar bind. He had signed the unanimous Brown decision but was wary about its implications. “Frankfurter wanted Hand to endorse the decision, which he, Frankfurter, had joined,” Dworkin explained, “but he wanted Hand to endorse it on a very narrow ground, so that it was permitted by Frankfurter’s anti-judicial review standards.” AUTUMN 2005

“So he and I argued about that and finally in a way he adopted my view,” Dworkin went on. “But it wasn’t the outcome I wanted, because I wanted him to give up his theory.” Dworkin’s view, of course, was that it was perfectly proper for constitutional courts to decide cases like Brown and to decide them based on broad moral principles. As with H.L.A. Hart, Dworkin worked out his views in opposition to the older man. “I disagreed with everything he said,” Dworkin said of Hand, “but he was a very good person to have to argue with.”

MEETING THE RIGHT PARTNER Dworkin met Betsy Ross, a New Yorker of great verve and sophistication, during his clerkship with Hand. On one of their first dates, Dworkin had to drop off a memorandum at the judge’s home and asked Ross to come along. It would, he promised, “only take a second.” “But when Hand answered the door,” Dworkin wrote in Freedom’s Law, “he invited us in, made dry martinis, and talked to my new friend for almost two hours about

On the lecture circuit in China; Dworkin’s wedding day, 1958.

art history, his old friend Bernard Berenson, the state of Harvard College, New York politics, the Supreme Court, and much more. When we left, walking down the brownstone steps, she asked, ‘If I see more of you, do I get to see more of him?’” They married in 1958, near the end of the clerkship. “Law clerks then normally received a month’s paid vacation at the end of their service,” Dworkin recalled in Freedom’s Law, and he asked Hand for that month off. “He told me that he couldn’t give me a vacation,” Dworkin said. “He knew that the other judges did it, but it’s taxpayers’ money and he didn’t think that the government should pay for a young man’s vacation. He’d never done it and he wasn’t going to start now. On the day of my wedding he gave me his own personal check for the amount of the vacation pay.” Dworkin’s greatest blunder, by his own admission, came after the clerkship with Hand, when Dworkin had a choice to make. He could clerk for Felix Frankfurter or go to work as an associate at Sullivan & Cromwell. He chose the firm. “When I was offered the chance to clerk for Hand I went to a senior partner of the THE LAW SCHOOL

firm and said that I’d like to postpone coming for a year,” Dworkin said. “He said clerking is an exaggerated option. But he said okay. and I went and clerked for Hand. And at the end Hand asked if I wanted to clerk for Felix Frankfurter. And I said I had to go back to Sullivan & Cromwell.” “To get the blessing of some law firm?” I asked, incredulously. “Not a nice story,” Dworkin said, laughing. “The senior partner said, ‘Look, a year, fine. But this is a very exciting period of legal practice and the sooner you get into it the better, the more fun you’ll have.’ “This was a very serious mistake and I can’t actually put together why I made it. I was just anxious to get started. I later learned that many lawyers thought it one of the great advantages of clerking for Learned Hand that they might get to work for Felix Frankfurter. That’s how it worked. Obviously it was a crucial missed opportunity. I missed a great opportunity.” On the other hand, things might have gone differently after a Supreme Court clerkship, and not necessarily better. “It’s not clear I would have gotten into the academic world as soon as I did because I think I would have made friends and connections in Washington that might have sent me into more of the governmental world,” he said. “It’s not at all clear that Stanford Law School would then have approached me when they did. These are the counterfactuals. How do you know what would have happened?” In any event, Ronald Dworkin was for the next three years a lawyer specializing in, of all things, international commercial transactions. It did not engage him fully. I sensed, I said, that the ordinary work of lawyers did not especially interest him. “I don’t think law is very difficult,” he said. “Compared to certain kinds of philosophy, compared to mathematical philosophy, for instance, law is very easy. I think being a lawyer takes considerable skill. But I don’t think it’s amazingly difficult.” Nor did his career suit Betsy, who missed him as he worked late nights and traveled the globe. Dworkin recalled getting a telegram from her in Stockholm, where he was working on a deal. He had failed to deliver on a promise to be home by his birthday. “By next year,” the telegram said, “you will have a new job or a new wife.” The former Betsy Ross studied history and literature at Radcliffe, was a Fulbright Scholar in Paris and had two master’s degrees, one in the history of fine arts from Harvard, the other in social policy from the London School of Economics. She wrote about art, helped run a poverty program in the New Haven public schools and taught 18

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Playing ball with his son, Anthony, outside Trumbull College at Yale in the late 1960s.

social policy and administration in London. The Dworkins had twins, born in 1961: Anthony, a writer and expert on war crimes, is based in London, and Jennifer, a philosopher and filmmaker, is based in New York. At a memorial service for their mother, Nagel recalled her as “a perfectionist with strong responses to how everything looked and felt and functioned.” “She knew,” Nagel continued, “how to create beauty and pleasure around her, whether she was cooking a delicious meal for a group of friends, or dressing for the evening, or designing and furnishing a house, or arranging a temporary home for a few

weeks in some gorgeous part of the world.” As the story of Dworkin’s life unfolded over a simple lunch during our day together— avocado, lobster, salad, a bottle of good Italian wine—he often returned to the role Betsy played in helping him decide where to live and what to do. A propitious teaching opportunity arrived not long after the Stockholm telegram. Dworkin said it literally arrived unbidden. “I got an offer from Stanford Law School, from someone who came into my office,” he said. “Stanford Law School had a dean at the time who only wanted people who had been practicing lawyers.” AUTUMN 2005

But the thought of living in Palo Alto did not please Betsy. “We flew out,” Dworkin recalled. “Betsy was fearful of so dramatic a change. She was a New Yorker in every degree. And she couldn’t imagine living on the West Coast.” The University of California at Berkeley offered Dworkin a position as well, but that did not solve the West Coast problem. Berkeley asked a Yale law professor, Harry H. Wellington, to plead its case. Wellington, who would go on to become dean of the Yale Law School, mentioned the assignment at a lunch with several colleagues, including Calabresi. “Guido remembered me from Oxford and suggested that Yale interview me,” Dworkin said. The idea of an academic life appealed to the Dworkins. Interviews were arranged, lunches had, and the young associate was soon offered a job at Yale. Like most junior faculty members, he taught basic law school courses like conflicts and tax. “I took a class from Dworkin on international trade transactions,” Monroe E. Price, a former dean of the Cardozo Law School and now a professor there recalled. It was, of all things, “on a Liberian mining deal.” Dworkin was a contemporary of Robert Bork at Yale Law School, and they taught a class together, on economic theory and the law. It was a curious combination even then, and Dworkin shook his head as he talked about a problem Bork presented to the class. “Too many people on the lifeboat. One of them has to go overboard. How do you decide? And then he unveiled his theory, which was, assuming you have ways of collecting on promises, you have an auction and the one who can pay the least goes over the side. Students were appalled. And it was in that class that I got the sense that this was a kind of Marine Corps bravado, that he was going to make his mark épater-ing le bourgeois.” Many years later, Dworkin opposed his former colleague when President Reagan nominated him to the Supreme Court in 1987. “He uses original intention as alchemists once used phlogiston,” Dworkin wrote in The New York Review of Books, “to hide the fact that he has no theory at all, no conservative jurisprudence, but only right-wing dogma to guide his decisions.” Bork returned fire in The Tempting of America, the book he wrote after his nomination was defeated. “Dworkin writes with great complexity but, in the end, always discovers that the moral philosophy appropriate to the Constitution produces the results that a liberal moral relativist prefers,” Bork wrote. “Nothing in the Constitution empowers a judge to force a better moral philosophy upon a people that votes to the contrary.” AUTUMN 2005

ARRIVING AT NYU, VIA LONDON It’s not usually the role of an Oxford professor to appoint his successor, but H.L.A. Hart took an active role in arranging for Dworkin to follow him as Professor of Jurisprudence at Oxford. He urged Dworkin, who had been at Yale for seven years, to apply for the position. It was an attractive idea. But Dworkin, and especially Betsy, had mixed feelings. On the one hand, Dworkin was nostalgic for his years there. “I adored Oxford,” he said. “My memories were very clear and I loved it. I loved the life of the philosophical community. Endless talk over wine, over dinner. Long walks in the meadows. It isn’t like that anymore, and I suppose it never really was

orientation and quality of his field, he was adding the prestige of the Oxford Chair to what he saw as the most vigorous critique of his personal contribution.” But, life at Oxford was not as sweet as Dworkin had remembered it. “Betsy never fully warmed to Oxford,” he said. “And with good reason: Everything revolved around the colleges, from which wives were then systematically excluded. “So we decided to move to London. That was the end of our coming back to America full time. Betsy fell in love with London, and London fell in love with her.” Dworkin’s students remembered him as an engaging and intimidating figure. “I remember writing my weekly or biweekly essay and trudging up to his rooms at University College in Oxford and being

I later learned that many thought it one of the great advantages of clerking for Learned Hand that they might get to work for Felix Frankfurter. That’s how it worked. I missed a great opportunity. like that. But I saw it that way. That was my Rhode Island Yankee view. “Betsy said if you want to teach out of the United States, teach in Paris, which she adored. She had developed no love for England: she liked to joke that King’s College Chapel, at Cambridge, was copied from the Yale Law School. Of course it was the other way around. So I said no, I wouldn’t apply.” A letter offering him the job nonetheless arrived. “And so,” Dworkin said, “I wrote to friends at Oxford and asked whom to write to say that I would come on condition that I could leave three years later. And they said, ‘You Americans! There is no one to write such a letter to. And what a silly letter! Come and leave when you’re tired of it.’” Lacey wrote that the offer was a sort of sacrifice for Hart. “Herbert was painfully aware that Dworkin was already promising—or threatening—to become his most influential critic,” she wrote. “In securing the part of his legacy which pertained to the

cheerfully destroyed by Ronnie as he smoked cigars,” said Stephen Perry, now a professor at the University of Pennsylvania Law School. “He smoked cigars in those days.” Dworkin was, Perry remembered, an imposing figure. “He always stood out at Oxford,” Perry said. “He was flamboyant, always extremely well dressed, very witty and very extroverted. He’s a public figure. He has a reputation beyond the academy. He’s a brilliant conversationalist.” To this day, Dworkin remains a largerthan-life personality, Nagel said. “He has a huge appetite for the real and material world and its aesthetic aspects. He dresses much more elegantly than anyone academic I know. He always was the person who had the latest computer, and people like me would turn to him for advice. He loves to travel.” Oxford alone did not satisfy Dworkin. “I can’t have my academic life just over here,” he recalled thinking at the time. “It’s just so much more exciting in America, particularly in law. So it worked out that I got joint offers. THE LAW SCHOOL

Who Should Shape Our Culture? b y ronald dworkin

The following excerpt is from the Scribner Lectures that Ronald Dworkin, the NYU School of Law’s Frank Henry Sommer Professor of Law, gave at Princeton University last spring. The lectures will be published this year by Princeton University Press. The book is to be called Is Democracy Possible Here?

y final example—gay marriage—is a very different matter. The institution of marriage is unique: it is a distinct mode of association and commitment that carries centuries and volumes of social and personal meaning. We cannot suddenly create an alternate institution that carries a parallel intensity of meaning, any more than we can create a substitute for poetry or for love. The status of marriage is therefore a social resource of irreplaceable value to those to whom it is offered: it enables people together to create value in their lives that they could not create if that institution had never existed. We know that two people of the same sex often love one another with the same passion as two people of different sexes do. If we allow a heterosexual couple access to that wonderful resource but deny it to a homosexual couple, we make it possible for one pair but not the other to realize what they both believe to be an important value in their lives. By what right may society discriminate in that way? It is sometimes said that there is no discrimination when a state forbids same-sex marriage but provides equivalent legal benefits and security for same-sex partners who enter into contracts of civil union. That argument refutes itself. If there is no difference between the material and legal consequences of marriage and of a contrived civil union, then why should marriage be reserved to heterosexuals? That can only be because marriage has a spiritual dimension that civil union does not. This may be a religious dimension, which some same-sex couples want as much as heterosexuals. Or it may be the resonance

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Johanna Schulman, 46, and her partner of 19 years, Moira Barrett, 52, right, take an oath while applying for a marriage license at the Cambridge, Massachusetts City Hall in May, 2004. Their daughter Annie, 6, playfully takes part.

of history and culture that I described and that both kinds of couples covet. But whatever it is, if there are reasons for withholding the status from gay couples then these must also be reasons why civil union is not an equivalent opportunity. The most powerful argument against gay marriage is very different. Put most sympathetically, it comes to this: the institution of marriage is, as I said, a unique and immensely valuable cultural resource. Its meaning and hence its value have accreted over many centuries and the assumption that marriage is the union of a man and a woman is so embedded in its connotation that it would become a different institution and lose a crucial part of its historical meaning were that assumption now challenged and lost. Just as we might struggle to maintain any other great natural or artistic resource, so we should struggle to retain this important cultural resource. That argument raises a general and crucial issue of political morality. It is certainly true that all our lives are dramatically affected by the meanings and opportunities provided by the complex culture in which

we live: the economic, moral, ethical, aesthetic and religious culture. It is also true that the social and personal meaning of institutions like marriage forms an important part of that culture.Who should control the character of our culture and in what ways? Culture is shaped by many forces but we may isolate two of these. First, it is shaped by millions of discrete decisions of millions of individual people—about what to produce and what to buy and at what price, about what to read and say, about what to wear, what music to listen to, whom to love and what God if any to pray to. Culture is in large part a vector of all the decisions that people make every day as individuals one by one. But culture is also shaped by law, that is, by collective decisions taken by political officials as to how we must all behave. Interest-rate policy fixed by the Federal Reserve Bank shapes our economic culture, zoning ordinances shape our aesthetic culture, civil rights laws shape our moral culture. How shall we decide which aspects of culture should be manipulated in that collective way, and which should be left to the organic creation and growth of individual decision? AUTUMN 2005

The argument against gay marriage I just described assumes that the cultural associations of marriage should be fixed in the second, collective way. It assumes that a majority of citizens has the right to insure by legal fiat that marriage continue to have its historical associations even though the organic process of individual choice and social response would now shape the institution somewhat differently. Some who make that assumption act out of religious conviction; others out of a more secular taste or preference. But they all assume that a majority can properly seize the culture that belongs to everyone and shape it the way it wants. That assumption contradicts a very basic principle of human dignity, which is that no person or group has the right deliberately to impose personal ethical values—the values that fix what counts as a successful and fulfilled life—on anyone else. That principle does not require that individuals not be influenced by the culture formed by others. That would be impossible. But it does forbid subordination: it forbids the deliberate coercive manipulation of culture designed to affect the opinions people have about what lives would be good for them. We must reject that manipulation even if the values it protects are our values: our dignity is as much outraged by coercion intended to freeze our values as to change them. Consider the parallels to economic culture. Socialist societies give people with political power authority to shape the economic environment for everyone by stipulating price and the allocation of resource and production. But in a community that maintains a genuinely fair market, decisions of price and production are made as a vector of individual decisions reflecting individual values and wishes and social justice is achieved not by direct or indirect coercion to manipulate taste but by redistribution through taxation. Conservatives insist that dignity is outraged when the central decisions that form the economic culture are made by majorities not organically. The outrage is much greater—it is irreparable— when the values the majority claims to own are as central to ethical personality as the values of love and commitment.

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I was offered various arrangements whereby I would spend half my time in America and half in England. Harvard made me a very attractive offer, and I taught there, I think, three visits to see how that would work out. But in the end I decided to go to NYU.” He arrived thirty years ago, in 1975. NYU was a good but not great law school in those days, and many people there could hardly believe they had succeeded in landing him. “It was a pretty heroic thing to do,” recalled Lawrence Sager, who helped recruit Dworkin and is now a law professor at the University of Texas. The very attempt to entice Dworkin, he said, “was treated as a dubious and quixotic enterprise.” And in the end, it was not the school alone that made the difference. “Some of it had to do with New York being a city that would be capable of handling him,” Sager said. Dworkin said Betsy was reluctant to return to Harvard, where she had been a student for many years. “‘New York has much more variety than Cambridge,’ he remembers her saying. ‘Let’s live in New York.’” “The day I was trying to decide this,” he went on, “we had dinner with Arthur Schlessinger, who had left Harvard and moved to New York. And I said to Arthur, ‘Do you regret not being at Harvard?’ He said, ‘Are you mad? There’s nothing to regret. New York is a place for grown-ups.’ That turned out to be right.” NYU was nonetheless an unknown quantity. “I had no idea that NYU would turn out to be what it has become,” Dworkin said. “It all happened in the administration of John Sexton. You got a sense of what imagination and, particularly, enthusiasm could do. And suddenly I found myself with this joy, with what I think of as the best law school. Certainly for me.” Dworkin himself had something to do with the Law School’s recent success. “To a degree that’s quite extraordinary, he had a great impact on NYU’s law school,” Sager said. “He modeled and gave people permission to pursue sustained, probing, rigorous analysis. To see someone do it so ruthlessly and well allowed the rest of us to think we should do it.” “He really had a major impact on the institution from top to bottom. He helped develop the NYU school of constitutional jurisprudence—philosophy, grounded in normative theory rather than text or history, subtle and complex. This was the place you got to the bottom of things, where reason was the coin of the realm.” Dworkin no longer teaches standardissue law school classes. Rather, he and Thomas Nagel conduct colloquia, 14 times in a semester, on Thursdays, and Dworkin

teaches a separate seminar, connected to the colloquia, for students alone. The format of the colloquia sounds at once flattering and terrifying. A guest is invited to submit a paper. Then Dworkin, Nagel and other faculty and visitors critique it for several hours. “The people who come to it are, I think, almost uniformly grateful,” Dworkin said. “They get an awful lot out of it. To get a group of people, a group of your peers, to spend that much time on a single essay. I offer a paper myself each year. It’s the best criticism I’ve ever had.” Nagel was more understated. “We treat them reasonably well,” he said of their guests. “It’s a higher level of attention to your work than you usually get.” Threads run through the colloquia, if only by coincidence, Nagel said. “There is a zeitgeist, you find,” he said. “One year, everybody’s talking about international law. The next, it’s all about affirmative action. So there tends to be a sort of clustering. But we don’t impose it.”

COMING UP WITH ORGANIZING PRINCIPLES After lunch, Dworkin turned the discussion, which had mostly centered on personal matters, toward his academic work. He is at work on a book tentatively called Justice for Hedgehogs. The title is a reference to Isaiah Berlin, the liberal political philosopher and historian, who famously divided people into hedgehogs and foxes, based on an ancient Greek parable. The fox knows many things, the parable goes, but the hedgehog knows one big thing. “The key idea begins in the theory of truth. I want to argue that there is an important distinction about truth between the domain of science and the domain of interpretation. “There are many forms of interpretation, many genres we might say—literary, artistic, historical, legal, conceptual. I want to argue that though in science the purpose of the inquiry has no bearing on the truth of the claims made, in interpretation, it does.” Interpretation’s purpose, he said, figures in the test of its success. “In literary interpretation, for example,” he said, “your understanding of what the point of the whole activity is—is it actually to heighten literary experience, is it to enhance literary value, is it biographical, that is, explanatory of what forces led Yeats to write as he did?—is going to give you your standards of success in deciding how to read a particular poem.” I nodded my head occasionally. “There are two possible mistakes,” he went on. “One is to think there is no truth THE LAW SCHOOL

in interpretation,” as in, he said, the work of Stanley Fish, the literary theorist and law professor—“that it’s just the power of the interpretive community you belong to. There are different interpretations but no right or wrong ones. We have to resist that. In fact, claims about truth are at the center of interpretation. You can’t imagine someone who spends his life writing about the meaning of the French Revolution and then on the last page of his 2,000-page tome says, ‘Well, that’s my opinion. Of course there are other opinions and they are equally good.’ Or a judge who says, ‘This is my interpretation of the criminal law—this man has to go

Does philosophy have the same tradition of argument that the law does? I asked. “That’s what philosophy is,” he said. “Philosophy is interpretation. Philosophy largely interprets itself. In my view that is what literary critics do. They interpret the course of literary criticism.” Okay, I continued, but how does one choose the proper mode of interpretation? “That itself is a controversial issue, of course.” he said. “But I think there’s a vivid example of the right mode in the commonlaw method in adjudication.” He gave an example: Judge Benjamin Cardozo’s 1916 New York Court of Appeals

I adored Oxford. Endless talk over wine, over dinner. Long walks in the meadows. It isn’t like that anymore, and I suppose it never really was like that. that was my Rhode Island Yankee view.

to jail for the rest of his life—but there are other judges who have other opinions and there’s no truth here.’ I try to explain in this book why that would be a mistake.” The second mistake, he said, is “to divide the different domains of value.” “You can’t divorce political morality from personal morality,” he said. “You can’t divorce morality from ethics, by which I mean people’s ideas of what it is to live well. All of these have to form an integrated network of ideas. And that’s not just for aesthetic reasons because we like to tie everything together. It’s because, when you think about the character of interpretive truth and the character of interpretive argument, you see that everything has got to hang together. That’s why I call this the hedgehog’s view. “Now this means that in this book I’ll have to recapitulate a good deal of what I’ve written about distinct topics: about equality, law, morality, personal values and the meaning of life. All of these will need chapters showing their interdependence. In past work I’ve tried to spread the net wider than, let’s say, most legal philosophers have, but now I need to gather it all together.” 22

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decision in MacPherson v. Buick Motor Co., the seminal product-liability case. “There’s a tradition of deciding torts cases in a certain way,” Dworkin said. “Cardozo comes along and says, ‘Look at that tradition in a different way.’ Actually, we’ve all been supposing that we owe a duty of care to our neighbor. That’s what’s actually been going on in tort law, though nobody ever realized it. Cardozo doesn’t say let’s begin a new tradition. He says, ‘This is how best to understand the tradition we have. This is what best ties it all together. This is what best shows its purpose and value.’ It’s a purposive reunderstanding of an activity. And philosophy does that all the time. That is, when a new school of philosophers come along, they don’t say, we’ve got a new subject now. They say, this is the right way to do philosophy. Well, the word ‘philosophy’ has got to have a reference, and it refers to a tradition. They say, in effect, let’s see that tradition a different way.” I asked whether the year with Hand, who had taken senior status and with it a reduced workload, had kindled any judicial ambitions in Dworkin. “He was retired, so he could choose,” Dworkin said. “I didn’t

like the idea of having to work on whatever comes through the door.” “Obviously,” he mused, “any lawyer would like to be a judge on a very high court, at least on the highest court.” In general, though, “there seem to be enormous disadvantages. One is that it’s not necessarily interesting. The other is that it’s crucially important, day by day. There’s no room for playing with ideas.” He remains tremendously engaged with the Supreme Court’s constitutional jurisprudence. And he said he has been pleased with some of the Court’s recent decisions. He mentioned Planned Parenthood v. Casey, the 1992 decision that reaffirmed the constitutional right to abortion; Lawrence v. Texas, the 2003 case striking down a Texas law making gay sex criminal; and last year’s cases on the rights of people designated as enemy combatants and the hundreds of prisoners held at the naval base in Guantánamo Bay, Cuba. “In all these cases,” he said, “the dominant voice you hear is about justice and injustice and what a decent society will tolerate and what it won’t.” There are echoes of Dworkin’s work in all of these decisions. One hears it most distinctly, perhaps, in Casey, in a passage Dworkin praised in the New York Review of Books soon after the decision came down. “Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education,” Justices Sandra Day O’Connor, David Souter and Anthony M. Kennedy wrote in a joint opinion. “These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Dworkin would have written it better, but the fundamental animating mode of analysis—that the great open-textured phrases in the constitution should be given meaning as moral principles—is his. It is an approach that drives critics nuts. In his dissent in the Lawrence case, Justice Antonin Scalia mocked his colleagues, calling the abovequoted words the “famed sweet-mystery-oflife passage” and “the passage that ate the rule of law.” Yet Dworkin told me that he feels some intellectual kinship for Scalia. “My own view,” he said, “is that the Constitution is the codification of some very abstract principles of political morality. I think he thinks so too. He and I couldn’t disagree more about what those principles require.” AUTUMN 2005

Smooth Sailing: Dworkin relaxes on Martha’s Vineyard last summer.

They also disagree about the increasingly contentious issue of whether American judges should pay attention to the work of foreign courts, as the Supreme Court did in Lawrence and in Simmons v. Roper, the recent case striking down the death penalty for juvenile offenders. Dworkin welcomed the developments. “These problems are all the same,” he said. “We have the same basic philosophical issues facing us. What is the role of the judge? What rights of moral independence do people have? When, if ever, is it permissible to kill people as punishment? What is free speech about? And then Scalia says it’s American law that counts and that’s all. That’s mysterious. We’re not talking about precedent. We’re taking about sensitive people of the same general intellectual background as ours facing the same issues we face and our listening to what they have to say.”

A PATRIOT AND A PHILOSOPHER John Kerry’s poll numbers were dropping when we talked, and Dworkin’s election anxiety was apparent. He said he was troubled by the role religion was playing in President Bush’s campaign and by what he called the rise of “messianic anti-intellectualism” in American public life. Yet it bothers Dworkin that his English friends are reflexively anti-American. “I have a maudlin sense that we’re the best,” AUTUMN 2005

he said of his home country. “And maybe also the worst, but don’t forget the best. In the last century, America was responsible for an awful lot of good ideas politically that have been copied around the world. Not least among them a Constitution with individual rights in it. And there’s a generation of postwar Americans who I think were very good international public servants.” “There was a period, and maybe there will be again in America,” he continued, “when you could actually talk about ideas of justice. You didn’t have to say only, ‘We’re helping the middle class where the votes are.’ The word justice is very rarely mentioned in our political diction now.” The wind had mostly died down, to my relief, and the afternoon grew dim. We drove to the little airport. On the way home, I had a beer and read magazines. All the talk had left me shell-shocked but now intimidated in a different way, not by erudition or theory but by the force of a large, cogent and complete mind. In a conversation a few weeks later, Sager told me that Dworkin can have this effect on people. “I went through a period when I found Ronnie so astonishingly facile and intimidating that I was probably repressed by that for a while,” Sager said. Dworkin was in the United States in the spring, giving a series of lectures at Princeton whose title, “Is Democracy Possible Here?” reflected his post-election pessimism. Back in London in the middle of May, he gave me

a quick summary over the phone. Worry had turned into something more vivid. He said he feared that the very rich and the religious right had established a pernicious alliance. “I don’t think it’s yet time to say we are in a new dark age,” he said. “But the ambitions of the religious right are very grand. They want to take control of the courts and of the schools. It’s very dangerous.” The United States was founded as “a tolerant religious state.” Over time, “we have moved toward a different idea—a tolerant secular state. Now, the plan is to bring us back to a tolerant religious state, which is dangerous, because it’s unstable. It can so easily become an intolerant one.” His effortless précis of aspects of his Princeton lectures reminded me of a story Nagel had told me about a lecture Dworkin gave at Stanford some years ago. “The president of the university [Donald Kennedy] introduced him and sat down in the front row,” Nagel recalled, “and Dworkin stood up and gave a beautifully constructed 50minute lecture. After it was over, the president got up again and explained that he had inadvertently picked up Dworkin’s detailed lecture notes from the lectern after introducing him, but discovered this only after Dworkin was launched, and hadn’t wanted to interrupt by returning them unless he faltered—which, of course, he didn’t.” ■ Adam Liptak is the national legal correspondent at the New York Times. THE LAW SCHOOL

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The Legal Philosophy Program boasts some of this worldâ&#x20AC;&#x2122;s biggest stars and influences the way law schools across the country teach this complex interdisciplinary FIELD OF study.

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Think By Jennifer S. Frey and Larry Reibstein AUTUMN 2005

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few years ago a distinguished scholar from an elite university was the featured speaker for the Law School’s Colloquium in Legal, Political and Social Philosophy. Widely viewed as the centerpiece of the school’s top-ranked legal philosophy program, the colloquium was not, and is not today, for the faint of heart. World famous scholars—from Jürgen Habermas to John Rawls to Richard Posner to T.M. Scanlon—present papers in front of colloquium organizers Ronald Dworkin and Thomas Nagel, other faculty and students, and then proceed to have their work “surgically dismantled by Tom, Ronnie and a brilliant supporting cast,” in the words of Christopher Eisgruber, who taught at the NYU School of Law from 1990 until 2001, when he left for Princeton University, where he is now provost. So it was on this particular afternoon when the distinguished scholar (who shall remain nameless) was presented with the first question after his work had been summarized for the assembled crowd. “This man leapt from his seat and delivered his answer while standing. Everyone else, of course, was seated,” Eisgruber recalls, “and so he towered over the crowd. When Ronnie asked a followup, the speaker immediately leaped to his feet again. At this point Ronnie addressed the speaker by name and said, gently, ‘I must insist that you stay seated for the rest of the seminar.’ The speaker then explained that he believed Ronnie and Tom had given him a shorter chair (they were all the same!) in order to disadvantage him. Ronnie asked the speaker whether he would agree to remain seated if they traded chairs. He agreed, and after much shuffling, chairs were exchanged and the colloquium went on.” Eisgruber tells this story not to embarrass anyone; rather he is illustrating how the colloquium—both a “great scholarly venue and great intellectual theater”—showcased the awesome (even intimidating) brain power and dynamism of the legal philosophy program. Says he: “There was a sense of electricity about it—an idea that the great arguments of legal and constitutional theory were being performed and advanced on a public stage—a sense that NYU was doing something distinctive.” Indeed it is. With the hiring of the two towering philosophers in the 1970s and ’80s—Dworkin and Nagel (each a controversial addition in his own way)—the Law School has built a widely renowned and distinguished program in teaching legal, moral and political philosophy. The NYU School of Law offers an array of legal philosophy courses, seminars and guest lectures—as well as the colloquium—that presents more choice and opportunity than other top law schools. But its philosophical leaning hardly stops at these specialized courses. Many core law school courses—from torts to contracts, constitutional theory to criminal law—are fair game for theoretical inquiry as well.

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Dworkin and Nagel are the public faces of this program, complemented by a faculty that is strong and deep. Among them: Mark Geistfeld, Lewis Kornhauser, Mattias Kumm, Liam Murphy and David Richards. Add to that professors with strong philosophical or theoretical leanings, including Benedict Kingsbury, Noah Feldman, Stephen Holmes, David Golove (all with global interests), Amy Adler (feminist jurisprudence), Cristina Rodriguez (language rights) and David Garland (sociology).

A BRIDGE BETWEEN LAW AND THE HUMANITIES

he emphasis on legal philosophy underscores the Law School’s longstanding commitment to an interdisciplinary approach to legal education. The faculty’s academic degrees reflect this: Nagel, Murphy, Richards and Holmes have Ph.D.s in philosophy. Kornhauser and Geistfeld have Ph.D.s in economics. Garland, Feldman and Rodriguez have graduate degrees in a variety of liberal arts areas. “Legal education has become less and less professional education and more and more includes an attempt to encourage understanding of the law as an intellectual discipline, as an appropriate subject for study and reflection,” says Nagel. For students, says Liam Murphy, that means studying legal issues with far more breadth than merely analyzing doctrine and text. In contract law, for instance, Murphy teaches not only the basics, but raises philosophical questions about whether the purpose of contracts is to reflect values or influence behavior. Similar philosophical questions are raised in the teaching of torts and criminal law. “Law school is not just about training to be able to

practice law,” says Murphy. “Students are studying law in the same way a sociologist might study a market or study the family.” The best law schools in America have adopted this interdisciplinary approach, which started to take hold some 30 years ago. But Murphy is the first to tell you that some people think it’s “a terrible idea” because they feel students aren’t learning how to be lawyers. Murphy notes that law schools in his native Australia and in England and Germany still primarily teach what is known as “the black letter law.” At the NYU School of Law, most faculty members agree that legal education should be about more than just practical training— but the question is, how much more? Lewis Kornhauser points out that the Law School is training most students to be litigators or transaction lawyers who will be full-time practicing attorneys, not academic lawyers. “That creates some tension between the students and us, and within the faculty, about what’s the appropriate way to do that,” he says. Alexander Guerrero ’06, currently pursuing a joint degree in philosophy and law at NYU, says: “I definitely have friends that don’t have a lot of patience for abstract theory. You definitely have to have a taste for intellectual debates.” Murphy figures that in his core contracts course he devotes from 10 to 15 percent of the time talking about “philosophical stuff” and the rest doctrine. He understands that in fundamental courses like contracts, criminal law, taxation and corporate law, “it would be terrible if people didn’t learn” how the law works. Kornhauser, ever the economist, has an economic answer to the debate—the law of comparative advantage. Law schools can provide a theoretical framework to legal issues that you won’t get on the job. The fact is, he says, once students begin practicing law, they are too busy to think about those things. What all this means, says David Richards, is “our students are ultimately valued more. They can deal with a range of arguments in a more convincing way.”

Talking the Talk Assistant Professor Cristina M. Rodríguez specializes in linguistic pluralism in the United States, constitutional law and immigrant law. She doesn’t dwell on abstract notions of jurisprudence, and even admits sheepishly (and courageously) that often she has no idea what Dworkin, Nagel and Murphy are talking about. But she too has a philosophical bent, and plans on attending the Colloquium on Legal, Political and Social Philosophy this fall. “There’s a linguistic dimension to cultural identity that needs to be theorized, that needs to be thought about.” In a paper she is currently working on, Rodríguez takes aim at the English-only rule in many workplaces in the United States, in which employees are required to speak only English even when they’re not engaged in the job, per se, but when they’re milling around the water cooler. Discrimination lawsuits are usually filed under Title 7 of the federal Civil Rights Act of 1964, but are often unsuccessful, Rodríguez says, because courts have concluded that there is no harm, as a matter of law, to employees who are bilingual. In getting her students to consider ways of improving the existing law she ponders theoretical questions. “What does it mean to be a member of the American society?” she asks. And, “How might immigration be a challenge to democratic institutions and liberal values?” Ultimately, Rodríguez concludes that courts’ assessments of English-only workplace rules ignore the social dimension of language. “These rules impose artificial social dynamics on the workplace and strip the workplace of salient characteristics of the community,” Rodríguez says. “There are consequences for individuals certainly, but more serious consequences for society. The workplace has a presence in the community. Trying to rid the workplace of languages other than English is an attempt to scrub out features of the community.”

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tudents interested in legal philosophy can choose from what Murphy describes as a three-tiered structure of courses, seminars and colloquia. The first tier consists of a series of introductory lecture courses: Introduction to Legal Philosophy, Introduction to Ethics and Introduction to Political Philosophy. They are taught typically by Nagel, Murphy and Mattias Kumm. Legal philosophy deals with the fundamental question of what is law—the classic debate between positivism, the idea that law is what social norms and sovereignty says it is, and natural law, which argues for a more moral content, that an unjust law is not law, and related questions about how judges should decide cases, and about the nature of legal obligation and legal authority. (This is the area in which Dworkin made his reputation. See “The Transcendent Lawyer” on page 12.) Ethics deals with questions of morality, while political philosophy asks basic questions such as: What is the justification of the state? What does a just society look like? What is democracy? “These basic questions are to my mind so obviously relevant to a lot of the things students will be thinking about in other classes,” says Murphy, who is working on a book exploring the nature of law. The Supreme Court’s decision outlawing the death penalty for juveniles could be analyzed through this lens, for instance. The

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court’s reasoning rested, in part, on the fact that other countries had long banned the practice. In doing so, the court was looking beyond a plain reading of the text and searching for all evidence available to reach and support a moral judgment. Opponents of this would argue that what happens abroad has no relevance here—stick to the legal materials, thank you. After all, explains Kornhauser, taking it to an extreme, would you look to London or Paris to decide if New York’s alternate-side-of-the-street parking rules are legal? The second tier involves seminars on such areas as criminal jurisprudence and the theory of punishment. Murphy has run seminars on contract theory from a philosophical perspective. He and Nagel ran a seminar on tax and distributive justice. Professors Steven Holmes and David Golove run a colloquium on law and security in which philosophical issues arise. The seminars, generally two hours a week with perhaps 25 students, tend to be more intimate than a lecture course and require a high level of participation and long essays. “More depth and less breadth,” says Murphy. The third tier, the Colloquium in Legal, Political and Social Philosophy, is held in the fall semester when Dworkin is in New York. This fall, outside speakers will include Stanford Law School Professor Kathleen Sullivan, UCLA Professor Seana Shiffrin and University of Toronto Faculty of Law professor David Dyzenhaus. THE LAW SCHOOL

SOWING THE SEEDS OF CHANGE

he NYU School of Law did not pioneer the teaching of legal philosophy, of course. Let’s not forget Plato, Kornhauser notes dryly, as well as Jeremy Bentham, John Austin or Oliver Wendell Holmes, among others. However, the Law School was part of a sea change in the teaching of philosophy that began in the early 1960s. Until then, when it came to legal philosophy, the scholarship tended to be weak on the philosophy side. As Murphy says, there were faculty who could “talk the talk” of philosophy but who brought little in the way of original thinking. Everything began to change in 1961 with the publication of H.L.A. Hart’s book The Concept of Law, according to Leiter, the founder and director of the Law and Philosophy Program at the University of Texas School of Law. “Hart was really the person who brought technical philosophical skills into the analysis of law and legal problems,” says Leiter, who, in addition to surveying law school faculty quality, runs a widely read legal education blog called Leiter Reports. Philosophy started taking a higher profile in law schools, no doubt helped along by more mundane, economic reasons as well. A fair number of people who had Ph.D.s in philosophy discovered how “dreadful the academic market was for philosophy” and so decided to obtain J.D.s, says Leiter. They then moved into the legal academy for understandably practical reasons: Philosophy teachers earn on average far less than law school instructors, and they also get tenure far less frequently. Law schools, for their part, found these liberal arts folks attractive for more than their interdisciplinary knowledge. “People you hire with Ph.D.s become easier to tenure” because they know how to research and write scholarly papers, says William Nelson, the Judge Edward Weinfeld Professor of Law. Beginning in the 1960s, the Law School began to build an impressive base of legal philosophy faculty—sometimes in unusual and creative ways. Graham Hughes, who taught from 1965 to 1999, was a serious figure in legal philosophy and criminal law who wrote The Conscience of the Courts: Law and Morals in American Life. Around 1970 Larry Sager (who would later play a pivotal role in the school’s leap forward) arrived from UCLA. Dworkin began teaching an intensive six-week seminar in 1975, and Frances Kamm, a moral philosopher who focuses on both normative theory and on bioethics, joined the philosophy department of the University in 1979 and within a few years begin teaching at the Law School as an adjunct on her way to becoming an affiliate professor in 1998. In 1977 both David Richards and Lewis Kornhauser became full professors at the NYU School of Law. Richards had not only undergraduate and law degrees from Harvard, but a Ph.D. in moral and political philosophy from Oxford University. Kornhauser’s appoint‑

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ment was groundbreaking, in a way. He believes that he was one of the first people in the “modern age” who had a Ph.D. in economics and a law degree (both from the University of California at Berkeley; he has undergraduate and master’s degrees from Brown University). “Law and economics started in the ’60s but there weren’t that many people doing it,” says Kornhauser, whose attire leans to black jeans and sneakers. His best friend on the faculty was Larry Sager, so it wasn’t long before the economics wonk found himself hanging with the philosophy crowd, including Richards. “They posed questions that were very interesting and they were very smart,” Kornhauser recalls. “And there are questions in economics that are connected. I was interested in welfare economics, problems of collective decision-making, which raise and intersect with problems of political and moral philosophy. So I’ve been tied to these guys for a long time.” Three years later, in 1980, the NYU philosophy department hired Thomas Nagel. Wooed from Princeton, where he was already a major figure in philosophy, Nagel was finally working in the same city in which he lived. “I love New York. I was very happy academically at Princeton but finally I was prepared to make the move to NYU,” Nagel says. While he did not have a law degree, Nagel says he was attracted to the idea of being in closer proximity to Dworkin, Sager, Richards, Kornhauser and others with philosophical interests.

His formal affiliation to the Law School was still years away, but it was around this time that Nagel became part of what was dubbed the Tuesday Evening Club (though Kornhauser seems to recall it quirkily met on Thursday evenings). It consisted of a small group of law professors with a philosophical bent and philosophers from around the city, who would meet to discuss working papers at restaurants like Minetta Tavern. The NYU professors dominated in numbers and eventually the group started meeting at the University. The Tuesday Evening Club would turn out to be “sociologically important,” Kornhauser believes, as it brought together a community of people with like interests—and served as a kind of precursor to the colloquium. And as Sager relates in a bit of foreshadowing, it was the place where the law professors “got to know Nagel better and better.” All of that was prelude to the period around 1986-87, when a remarkable set of circumstances, followed by ingenious, problemsolving maneuvers, led to the school’s flourishing. Word came that Dworkin, who was splitting his residence between London, where he taught at Oxford University, and New York City, might be interested in immersing himself more in the American legal scene. “We jumped at the idea we might get Dworkin onboard,” Sager recalls. “We saw him as an extraordinary resource for us in our development as young scholars,” adds Richards. “Philosophical argument is extremely important in legal argument, particularly in constitutional interpretation—that was Larry Sager’s and my view.” The professors pushed to get Dworkin a more regular appointment (he would continue to teach at Oxford in the spring). The faculty wasn’t receptive, mainly because of the part-time deal. “There was a terrible problem getting it through the faculty at the time,” Richards recalls. “The arrangement was very anomalous because he wasn’t going to come full-time.” Kornhauser recalls how Dworkin then was a controversial figure. “I think people were envious actually, of his fame, the deal he seemed to be getting, the fact that he so obviously enjoys intellectual activity,” he says. While negotiations were underway with Dworkin and the faculty, Nagel got an offer from UCLA’s philosophy department. “Those of us who had been enjoying the virtues of having him around got very upset,” Sager recalls, recounting what happened next: “I turned to David Richards and Lewis Kornhauser and I said, ‘We’ve got to see if there’s anything we can do to stop this.’ There followed a blunt set of conversations with Tom, telling him how we valued him enormously.” The conversations led to the idea of getting Nagel an appointment to the Law School in addition to the philosophy department. Nagel notes that the potential link to the Law School and Dworkin “certainly consolidated my commitment to NYU.” Sager continues the story: “The three of us marched into the dean of the faculty of arts and sciences. We said, ‘We don’t want to lose Tom, and you don’t either. We’re willing to fight at the Law School, and you have to stand behind it. You’ve got to line up 100 percent behind us.’” The University and the Law School did of course eventually agree to the appointments. Nearly two decades later, Sager still marvels at the academic unorthodoxy of it all—“namely, the halftime appointment of a person more legal philosopher than lawyer [Dworkin], plus someone who was a moral philosopher and not a Continued on page 32 lawyer at all [Nagel]!” AUTUMN 2005

who’s been in the hotseat? Since its inception in 1987, the Colloquium in Legal, Political and Social Philosophy has invited great thinkers from all over the world to expose their papers-in-progress to critique and debate. Half of the guests have been faculty from NYU, the others include: Elizabeth Anderson, University of Michigan

The late Carlos Nino, University of Buenos Aires, Argentina

Kwame Anthony Appiah, Princeton University

The late Susan Moller Okin, Stanford University

Edwin Baker, University of Pennsylvania

Phillipe Van Parijs, Université Catholique de Louvain

Brian Barry, London School of Economics Seyla Benhabib, Yale University Akeel Bilgrami, Columbia University Michael Blake, Harvard University Stephen Breyer, United States Supreme Court John Broome, University of Oxford G.A. Cohen, University of Oxford Joshua Cohen, Massachusetts Institute of Technology Jules Coleman, Yale University The late Donald Davidson, University of California at Berkeley Cora Diamond, University of Virginia Robert C. Ellickson, Yale University John Elster, Columbia University The late John Hart Ely, University of Miami Richard Fallon, Harvard University

Philip Pettit, Princeton University Richard Posner, University of Chicago Robert Post, Yale University Jane Radin, Stanford University Peter Railton, University of Michigan Eric Rakowski, University of California at Berkeley The late John Rawls, Harvard University Joseph Raz, Columbia University John Roemer, Yale University Richard Rorty, Stanford University Gideon A. Rosen, Princeton University Lawrence Sager, University of Texas at Austin Michael Sandel, Harvard University T. M. Scanlon, Harvard University Frederick Schauer, Harvard University

John Finnis, University of Oxford

Samuel Scheffler, University of California at Berkeley

Owen Fiss, Yale University

Amartya Sen, Harvard University

Harry Frankfurt, Princeton University

Seana Shiffrin, University of California, Los Angeles

Barbara Fried, Stanford University Thomas Grey, Stanford University Klaus Guenther, Frankfurt University Amy Guttman, University of Pennsylvania Susan Haack, University of Miami Jürgen Habermas, Frankfurt University Thomas M. Hurka, University of Toronto, Canada Susan Hurley, University of Warwick, England Shelly Kagan, Yale University Frances Kamm, Harvard University Janos Kis, Central European University, Budapest Will Kymlicka, Queen’s University, Canada Lawrence Lessig, Stanford University Frank Michelman, Harvard University Martha Minow, Harvard University

John A. Simmons, University of Virginia Peter Singer, Princeton University Gopal Sreenivasan, University of Toronto Barry Stroud, University of California at Berkeley Charles Taylor, McGill University Judith Jarvis Thomson, Massachusetts Institute of Technology Edna Ullmann-Margalit, Hebrew University of Jerusalem Roberto Unger, Harvard University Jeremy Waldron, Columbia University Michael Walzer, Institute for Advanced Study Robin West, Georgetown University David Wiggins, University of Oxford The late Bernard Williams, University of Oxford Susan Wolf, University of North Carolina

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Legal Philosophy, the Global Dimension

In the early 1990s, John Sexton, then dean of the Law School and now president of the University, considered it a mistake to think about U.S. law in isolation from the rest of the world. So he began a

variety of programs to expose students to legal issues beyond our borders. The most prominent outcome of his efforts was the Hauser Global Law School Program, now run by Professor Joseph Weiler, which brings an array of leading foreign professors to the Greenwich Village campus every semester. That program, combined with others such as the Institute for International Law and Justice, for which Benedict Kingsbury is faculty director, bring hot-button global topics—which are also central philosophical questions—under consideration. The programs’ members gather to look at constitutions for emerging democracies or the legitimacy of international law and world bodies, and are yet another example of the Law School’s interdisciplinary nature, and how philosophy suffuses itself throughout the curriculum of the New York University School of Law.

Noah Feldman Though he is one of the youngest members of the faculty at age 35, Feldman has established himself as a prolific author with an influential voice on issues of national and international concern. He was part of a team that advised the U.S. Coalition Provisional Authority in Iraq on drafting an interim constitution, and he is the author of What We Owe Iraq: War and the Ethics of Nation Building (Princeton University Press, 2004). “When one sits down to do a constitutional design, it’s not enough to have a practical idea. You need to be attuned to the political and philosophical values that inform the structure,” he says. In the case of Iraq, one needs to take into account the autonomy of the very Iraqis who are drafting their constitution. “You need to think about competing values”—e.g., liberty and morality versus autonomy—“questions that are profoundly philosophical while at the same time practical,” says Feldman. “Serious work in designing a constitution requires serious engagement with legal and moral philosophy.” In another book just out this past summer, Divided by God (Farrar Straus and Giroux, 2005), Feldman explores the relationship between law and religion in the United States. “What values should determine our public choices?” he asks. “My view ultimately is that when it comes to setting public policy, we should accept arguments derived from religion if we’re serious about the value of including everyone.” This fall Feldman and Professor Stephen Holmes are running a colloquium on law and security that will include speakers from government, defense lawyers and scholars. Feldman also teaches Administrative Law and Public Governance. 30

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David Golove The director of the J.D./LL.M. Program in International Law, Golove also focuses on issues of international justice and the extent to which they should be incorporated into domestic law and policy. The most dramatic current example, of course, is the torture issue: Do the Geneva Convention and other international treaties apply to Al Qaeda members and suspected terrorists? “This raises huge philosophical questions about what kinds of authority should be recognized as binding,” Golove says. The Hobbesian view, in effect adopted by President Bush, insists that a sovereign state isn’t bound by international treaties or customs. Golove says he personally finds this wrongheaded. “A nation ought not to claim authority to decide upon all legal and moral norms to which it will be responsible.” Argued simply, he says: “You wouldn’t want a party to a dispute to be a judge to that dispute.”

Moshe Halbertal A Hauser Global visiting professor, Halbertal comes to philosophy from its close cousin—religion. Halbertal, professor of philosophy and Jewish thought at Hebrew University in Jerusalem, teaches Jewish law from the perspective of legal philosophy. “What attracted me to NYU is a very strong presence of philosophical questions within the faculty,” he says. Professors Murphy, Dworkin and Nagel, he says, “don’t try to explicate this or that particular legal doctrine, but try to engage in reflection of the phenomenon of law itself: how to distinguish legal norms from ethical norms; asking what is the authority of the law.” AUTUMN 2005

A prominent Jewish studies scholar with a focus on hermeneutics (the science of interpretation), Halbertal participated in Dworkin and Nagel’s colloquium, presenting a paper on esotericism (the idea that texts have a concealed meaning in them). His courses hinge on moral and ethical underpinnings. In his class Punishment and Repentance in Jewish Law, he asks students to think about the philosophical assumption of punishment. Is it retribution or deterrence? Halbertal, who holds a Ph.D. in philosophy from Hebrew University but has no law degree, says that studying Jewish law and hermeneutics can certainly be applied to real-life application for law students. For instance, in the case of Terri Schiavo, the Florida woman at the center of a legal and political dispute last spring over the removal of her feeding tube, students would need to first consider Jewish law’s definition of death—which traditionally was connected to breathing. The problem, however, is that technical advances might instead make brain death a better definition. Some rabbis have adopted that view but it remains contested. If Schiavo’s vegetative state is defined by Jewish law as life, Halbertal asks, “to what degree are you allowed to be active in shortening life if it’s painful or tragic?”

Stephen Holmes A political philosopher who joined the NYU School of Law in 1997, Holmes notes that the main solution to today’s transnational terror groups is not military but heavily legal—multinational treaties and international police cooperation, for example. And this raises the philosophical issues of adherence to domestic vs. international law. Beyond that, Holmes (who has a philosophy degree from Yale) is studying the central issue of whether it is possible to fight terrorism within the boundaries of the constitution and the rule of law. He says the question for liberalism is broader than the well-debated and thorny issue of restrictions on civil liberties. The bigger conflict is between terrorism and our freedom of markets and scientific research. Holmes explains: “The 9-11 terrorists bought most of their things on the market—tickets, air training, cardboard cutouts of cockpits. They take advantage of unregulated markets in ground-to-air missiles and research in nuclear materials. Markets and research is us. It’s people working at Harvard, NYU, Wall Street. It doesn’t mean we give up these freedoms but it’s a challenge for theorists of liberalism.” Before studying terrorism, Holmes, a Russian speaker, spent more than a decade exploring postcommunist society and the attempt to move from anarchy to markets, the rule of law and democratic institutions. “My research was based on a kind of Hobbesian question: How can the state impose order on a disorderly society if the state is full of the same disorder that society has?” Holmes said. The answer so far is elusive, he admits: “I have been impressed at the extreme difficulty of doing these things.”

Benedict Kingsbury The Murry and Ida Becker Professor of Law and director of the Institute for International Law and Justice, Kingsbury also heads, with Martti Koskenniemi, the Program in the History and Theory of International Law which “serves as a focal point for scholars interested in the history of thought about international law,” he says. Past visiting fellows include Professors Andrew Hurrell of Oxford AUTUMN 2005

and Charles Beitz of Princeton. Typical of the program, says Kingsbury, was a workshop convened in April, in which three doctoral students presented their work before Kingsbury and Koskenniemi. One theme that emerged dealt with the relationship between trade, violence and the history of international law, particularly in chaotic countries in Africa and Latin America. “Usually legal philosophy presupposes that there’s a state and analyzes law on the pretext that a state exists,” explains Kingsbury. But what happens when the state doesn’t exist as such, but has disintegrated into civil war? “The questions we ask are: to what extent can you have law other than in the context of the state, and what that tells us about the concept of law itself.”

Martti Koskenniemi A Hauser Global visiting professor from Finland and author of the acclaimed The Gentle Civilizer of Nations (Cambridge University Press, 2002), believes that there must be global justice, but he doesn’t propose that there be a uniform system of world governance. “That might be a homogenizing, objectionable system of domination, both dangerous and counterproductive,” in that it would likely reflect only the existing distribution of power in the world, he says. “The world isn’t like a nation and can’t be treated as such by political theorists.” He should know. He represented Finland at the General Assembly and the U.N. Security Council, and has litigated at the International Court of Justice. Koskenniemi parts company from his more philosophically oriented colleagues in debating which philosophical approach is best for solving issues of global justice, however. “I am known as a theorist,” he says, “but when speaking about poverty and malnutrition, I try to avoid getting very deep into philosophical issues because they muddy the waters.” When dealing with mass injustices, like 30,000 children dying yearly from starvation, he says, “philosophical conversations about justice sometimes have to be set aside.”

Carlos Rosenkrantz A frequent visiting professor at the Hauser Global Law School Program, Rosenkrantz is professor of law at the University of Buenos Aires, and earned his LL.M. and J.S.D. from Yale University. He believes that global law and international bodies have limited use. When he helped advise Argentinian President Raúl Alfonsín on how to deal with human rights violations perpetrated by the ruling military junta between 1976 and 1983, one central issue was to determine the venue for prosecuting these criminals: an international body or a domestic court? His view, both then and now, is that whenever possible, prosecutions should take place at home: “National courts are better equipped to deal with human rights violations because their decisions can be read as expressing the conviction of the community of the victim and the perpetrator,” Rosenkrantz says. With the upcoming trial of Saddam Hussein taking place in Iraq, his stance will no doubt be debated by politicians, pundits, lawyers and yes, even philosophers, for many years to come. THE LAW SCHOOL

The import of the two hires was huge, if perhaps not fully realized at the time. “In effect,” says Sager, “the NYU School of Law was saying, ‘We’re not just going to reach out and have wonderful relations with the philosophy department or the economics department—we’re going to install philosophers of the first rank in the Law School.’ We were reproducing the resources of an elite university inside a law school—that’s a pretty remarkable idea.” “The Law School would become a mini-university and this seemed a very good way of making NYU, in a very short time, a major law school—perhaps the major American law school,” says Richards.

THE BEST SHOW IN TOWN

o be asked to present a paper at the colloquium, suggests Frances Kamm, reaching for a metaphor, “is to be asked by the Metropolitan Opera to come and sing in its venue.” Except it’s probably fair to say that the audience at the colloquium is even more merciless and demanding than the folks who go to Lincoln Center. The colloquium started soon after Dworkin and Nagel got their appointments, and almost as quickly was dubbed “The Tom and Ronnie Show.” The idea was to bring in distinguished speakers (half from the NYU School of Law) who would present papers weekly over 14 weeks in moral, political and legal theory, and then be sub-

Feminism as Philosophy Holding a B.A. and law degree from Yale, Professor Amy Adler isn’t a philosopher but says, “Philosophy figures into my work,” which focuses on sexuality and free speech in art and culture. “Feminist jurisprudence has a lot to say about sexual expression and how the law grapples with those particularly anxiety-ridden cultural conflicts. It’s densely philosophical.” In her upcoming NYU Law Review article “Girls! Girls! Girls! The Supreme Court Confronts the G-String,” for example, she asks whether the Court, in its decision to require nude dancers to wear a G-string, can consider a woman’s nude body speech for First Amendment purposes. In “The Female Body Speaks,” another Law Review article that is still in draft form, Adler suggests that the very notion of free speech in the Constitution is gender biased. “How do we determine what’s speech and what isn’t?” Adler asks. The First Amendment, she argues, views the masculine ideas as speech but discounts more feminine emotions and things related to the body. “Our preferences for speech over action, mind over body, ideas over emotion, text over image, which are embedded in our interpretation of the Constitution, all have a hidden gender component.” A true interdisciplinarian, Adler draws from literature, Freudian analysis, cultural theory and art. In her Art Law course, she explores a variety of First Amendment issues as they relate to art—hate speech, government funded art and pornography. To a lesser extent, the class also covers intellectual property in art and problems of the art market such as looted art and authenticity disputes, as well as theoretical questions regarding public art. For example, in the court’s 1985 decision to remove artist Richard Serra’s sculpture Tilted Arc from Federal Plaza in lower Manhattan, sparked by protests that it was blocking pedestrian traffic, where does the court draw the line between the rights of the public and those of the artist?

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jected to challenge and questioning from perhaps 40 or 50 faculty and students. In addition, the colloquium was a for-credit class for about 20 upper-year students who met with Dworkin separately for two hours a week to discuss and write about the same papers that were presented at the colloquium. But that brochure-like description hardly does it justice. Dworkin’s and Nagel’s reputations are such that they are able to persuade the biggest names in that field to come. A few: John Rawls, Judith Jarvis Thomson, Michael Walzer, Amartya Sen, Jeremy Waldron, Stephen Breyer, Lawrence Lessig, Jürgen Habermas. As a result of those stars—and the awe-provoking ability of Dworkin and Nagel to elicit the highest level of discussion—the colloquium, and the Law School itself, became the hottest ticket in legal and moral philosophy. Faculty and students from a number of universities in the greater New York area cram into standing-room-only classrooms. As Richards puts it, it is “the best show in town.” Liam Murphy remembers being wide-eyed attending colloquia as a visitor while he was in a doctoral program at Columbia in the mid-1980s. “The first time I went, there were three of the most famous philosophers in the world—Dworkin, Bernard Williams and Tom Nagel. They were like celebrities for somebody like me who was a beginning graduate student in philosophy.” For the speaker invited to present, it was, as Kamm noted, a rarified honor—that is, if you didn’t mind being exposed intellectually in a grueling daylong event. Kamm, who taught at New York University from 1979 until 2003, when she moved to the John F. Kennedy School of Government and the department of philosophy at Harvard, remembers the details with irrepressible enthusiasm. “It would start at 11:30 in Ronnie’s office for a half hour; we’d chat a bit and then go to lunch, usually at a French restaurant in SoHo,” relates Kamm, who presented papers four times in the 1990s. For some three hours Dworkin and Nagel would discuss her paper to make sure they understood its ramifications and prep her on possible questions. “This method of advanced preparation guaranteed the discussion did not go off the rails,” says Nagel. And unlike at most lectures, Dworkin or Nagel, rather than the author, presents a summary of the paper, to keep the presentation and subsequent discussion focused, briefer—and to ensure that any weak points are exposed for the audience. (“The tradition of philosophy is the philosopher reads his paper, which is deadly and I think foolish,” notes Kornhauser. “On average, someone else is a better presenter of another’s paper.”) The lunch would be grueling—and the colloquium would not have even started yet. “I always thought, as I would leave that restaurant walking between them, if only there was a place of prayer I could go before I went in, because it was going to be a disaster!” Kamm said, laughing a little. The colloquium itself lasts from 4:00 to 7:00 p.m., followed by dinner. Now would she be able to relax? Nope, she would be grilled yet again—until around 9:00 p.m. “The intensity of it!” Kamm exclaims. “You’re not allowed to slack around dinner and just chitchat. This is a serious matter and you’re not let off the hook.” Kamm isn’t complaining: “The level of discussion is incomparable. You’re getting two of the best philosophers in the world running this operation.” And two different ways of thinking, notes Mattias Kumm, who presented papers twice (in 2001, on the Jurisprudence of Constitutional Conflict, and in 2003, on Constitutional Democracy and the Enforcement of Supranational Law by National Courts). AUTUMN 2005

“Dworkin has a mind that seeks to establish coherence and integrate everything within one comprehensive framework,” Kumm says. “Whereas Tom Nagel is someone who enjoys finding the tensions, the deeper problems and the unsolvable riddles.” (And he might have mentioned that in personality, Dworkin is the dominating, forceful type while Nagel is soft-spoken and more quick to admit he lacks an answer—think Watson and Crick, the Nobel Prize-winning duo who determined the structure of DNA.) The pair instituted another much-talked-about departure: Speakers are asked to present work still in progress rather than finished papers. “This brings current scholarship before the students,” notes Thomas Scanlon, the notable philosopher who was the chair of Harvard’s philosophy department and has presented papers several times. And it sometimes prompts the presenter to make midcourse changes in his or her work, as Scanlon says he once did after an interesting question from a student. “By the end you feel truly worked over,” Scanlon says. “It isn’t hostile criticism but it’s challenging and that’s what one wants.” Challenging is one way of describing the questioning. Kamm remembers when she was on the other side of the fence, in the audience asking questions. “I was blunt,” she says. “You’re Richard Posner, you’re Jack Rawls—it doesn’t matter. If your arguments are bad you’re going to be told it’s bad. There’s no fluff here.” She deliciously remembers taking on Posner, who had written a book on sex. She read aloud a section that talked about how natural man has a “strong desire to rape women” but smart men control AUTUMN 2005

themselves and thus avoid punishment. She then asked Posner if that was inconsistent with another part of the book where he suggested the law shouldn’t contain so many limits on sexual behavior. “He came back to me and said I had misunderstood what he said. I said, ‘I just read it out loud!’ He said, ‘Well, there was a typographical error. They put a comma in the wrong place.’ I got a round of applause.” John Goldberg took the colloquium as a student for course credit in 1989. He was no dabbler in philosophy. He held a masters in philosophy from Oxford (1985) and a second masters in political philosophy from Princeton (1989). He chose to study law at NYU (graduating in 1991) largely because of Dworkin and Nagel. Still, the first time Goldberg attended a session, “I was dumbstruck,” he recalls. “Dworkin, Nagel and Sager were like razor-sharp attorneys conducting a methodical great cross-examination of the presenters. By the time one of them had outlined the speaker’s thesis to the colloquium they had also laid bare all of its weak spots. Invariably, the speaker would need some time to regain balance before pushing on with his arguments.” As abstract as many of those philosophical debates were, says Goldberg, now associate dean for research and professor of law at Vanderbilt University, “it was also in many ways all about lawyering. Seeing how to think meticulously—that’s as grounded as you can be. That’s what lawyers are paid to do. In that sense, the course belongs in a law school.” As a student about to take the colloquium class for credit, Goldberg worried whether Dworkin would have time to devote to students individually. But Dworkin dashed those concerns soundly. While law professors typically “give you a grade and that’s the end of it,” says Goldberg, Dworkin went above and beyond. “He’d review our seminar papers once before the final submission, providing us with extensive comments and criticisms. Then we’d have to respond to his criticisms before submitting the final draft. His method of teaching was both dedicated and incredibly effective,” says Goldberg. It’s hard to exaggerate the colloquium’s influence on the Law School’s reputation, if not that of the entire university. The Law School was showcased and talked about by the brightest intellectual stars from the New York area and globally. The colloquium became “the visible symbol” of the school’s transformation—and a leading force for it, says Kornhauser. “It showcased Ronnie as an active member of the Law School community at NYU—not just someone dropping by. It showed Tom as an integral part of the faculty. And it also showed how these more general philosophical questions bore on legal questions.” “I have no doubt that in this rather dramatic remaking of the institution’s image,” says Larry Sager, “this dramatic, successful assertion of NYU as one of the very few best law schools in America, that this was a very important part of what launched all that.” THE LAW SCHOOL

THE SHOW GOES ON THE ROAD

he colloquium as Dworkin and Nagel present it is widely copied within the Law School and at universities throughout the United States in some form or fashion (though as several professors concede, without Dworkin and Nagel it’s usually not quite the same). Christopher Eisgruber and Larry Sager ran a constitutional law colloquium at NYU which borrowed the format entirely, including controlling the discussion “though not quite so aggressively as Tom and Ronnie did,” says Eisgruber in an e-mail exchange. The University of California at Berkeley’s Workshop in Law, Philosophy and Political Theory “follows very much the same format that most people call the Tom and Ronnie Show,” says workshop director Eric Rakowski, who earned his J.D. from Harvard and did his Ph.D. in philosophy at Oxford with Dworkin. “(Fellow philosopher Sam) Scheffler and I have a reputation for being extremely tough, but I don’t know if it carries the same trepidation,” says Rakowski. Kamm recalls that when she moved to Harvard she asked the dean for money to run a colloquium class. “He said, ‘Oh, we have colloquia all the time.’ I said, ‘No, this is a class.’ And he said, ‘I don’t understand what you’re talking about. It’s either a colloquium or a class.’ The idea of having people come to give a paper, combined with a class that students get credited for, was completely novel I think.” With the colloquium continuing well into its second decade of existence, it has built up a mystique and power that resonates with a whole new generation of scholars. As John Goldberg prepared to deliver a paper this past spring at a Law, Philosophy and Social Theory colloquium set up by Sager at the University of Texas, he felt a “pit in my stomach when I walked into the room.” Having witnessed the carnage at NYU as a student, Goldberg says, he knew there would come “some devastating observations, seemingly unanswerable questions, at which point I would be invited to try and save what was left of my argument.” How did he do? “Pretty much as expected,” he says. “I got skewered.”

WHERE LEGAL PHILOSOPHY COLLIDES WITH THE REAL WORLD

o where do the twin swords of law and philosophy cross? And who guides future lawyers and academicians? The individual interests of the faculty and their applications of theory to realworld situations shape the legal philosophy discourse. At 45, Liam Murphy is often referred to as representing the “new generation” of brilliant legal philosophers, after Dworkin and Nagel. “Well, I’m younger than those guys,” he demurs modestly. He received a joint philosophy and legal degree at the University of Melbourne in Australia in 1984 and then a Ph.D. in philosophy from Columbia in 1991. After a two-year fellowship at Harvard, and having decided against practicing law, he assumed he’d teach in a philosophy department. Yet he wasn’t enthusiastic about entering the constrained world of moral philosophy. “I felt you had to think about ethical questions in the context of institutions, in the context of political structures and in the context of law,” he says. Murphy got an appointment in 1995 at the NYU School of Law, anticipating, from his attendance at colloquia, an interdisciplinary environment that would enable him to study the role of moral and political theory in resolving “practical, political questions.” 34

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One could hardly get more practical and political than to explore the issue of tax policy. That was the focus of a 2002 book that he and Nagel wrote together. “We believed that tax policy should be informed by understanding the theory of economic justice,” Murphy says. The book, The Myth of Ownership, argued that the debate over the fairness or unfairness of taxes was misunderstood by those on all points of the political spectrum. Most experts and policy-makers assume that pretax income is somehow the starting point, and that it’s simply a matter of figuring out what level of taxation is fair. Yet Murphy and Nagel contend that pretax income is itself a product of the entire legal and economic system. Says Murphy, “We argue that the fact that two people have the same pretax income has no moral significance whatsoever.” Debate over taxation, he says, should be guided instead by economic justice and the mandate to promote the general welfare. For that reason Nagel wouldn’t be against a flat tax if the proceeds were used to give tax credits to low earners. He suggests that flat-taxers may be right in opposing the current system of progressive taxes, which levies a higher percentage of taxes as income rises. Another example Murphy cites of employing philosophy in law is in the study of contracts. What is the rationale for contracts—to create economically efficient behavior or to address values such as fidelity and trust? “That is essentially a philosophical question,” says Murphy, who is working on another book that explores this issue. He frames the debate: If you breach a contract, a judge orders you to pay damages. Economists like that because it gives someone an efficient incentive to breach because you pay off the other guy—and he’s no worse off—and you’re better off because you got what you wanted. Except, say others, isn’t it a bad feature of law to give people, in effect, an incentive to breach? Similarly, within tort law there’s been a long-running debate about whether the law should strive for efficiency—that is, minimizing the cost of accidents—or fairness. Economists generally go with the efficiency theory, while philosophers lean toward fairness—the belief that an individual’s right to physical safety and security should not be compromised by cost. Mark Geistfeld, the Crystal Eastman Professor of Law who teaches Torts, Insurance Law, Products Liability and Law and Economics, regularly injects this debate in his courses. While he holds a Ph.D. in economics, Geistfeld feels pulled toward the philosophers’ camp. “Being exposed to Dworkin and company on a daily basis, I’m much more open to philosophical arguments than I might have been,” he says. “I’ve gotten a better understanding of what the normative dimension of all of this is, and have come to see that the straight economic interpretation of tort law is not persuasive for me.” Geistfeld tells his students that there are instances when efficiency theory and fairness aren’t in conflict. In product safety, for example, it turns out that the amount one should spend on air bags is both the efficient and the fair amount, he says. But if you’re talking about whether an SUV should be designed to consider the impact it might have on smaller cars, then the fairness camp would propose spending more than would be justified by the economists. Geistfeld, who earned his law degree at Columbia, says that his approach—mixing economics with fairness—has enabled him to come up with powerful legal arguments. Geistfeld keeps a toehold in practice, and was part of a team of lawyers who successfully represented the victims of the September 11 World Trade Center attack in one aspect of their lawsuit against Boeing. AUTUMN 2005

Behavioral Thought David W. Garland, the Arthur T. Vanderbilt Professor of Law, takes philosophical questions and gives them a sociologist’s spin. “The question I bring to issues is not the normative inquiry—have we got it right?—but rather the explanatory inquiry—what are the ways of life, institutional arrangements and balances of power that prompt us to think that way?” In his landmark book, The Culture of Control: Crime and Social Order in Contemporary Society (Clarendon Press, 2001), Garland looks at why the American penal system in the last 30 years has moved from a rehabilitative approach to a punitive one, in which masses of offenders are imprisoned for long periods of time. He argues that the routines of life in the “late modern” society have allowed Americans more freedom, mobility and affluence but have also produced new kinds of risks and insecurities, not the least of which is the threat of criminal victimization. “The sentencing revolution that occurred in the last 30 years is part of a broader set of cultural and political adaptations that have emerged as America has disavowed the ideas of the welfare state and moved toward a greater focus on security and social control,” he says. Garland is currently working on a still-untitled book about the death penalty in America. “I’m not arguing for it or against it. I’m trying to explain the institutional forms, political uses and social meanings that constitute the system of capital punishment in America today.” He’s particularly interested, he says, “in the cultural appeal of the death penalty for America and some Americans,” during a period when the rest of the western world views it as a violation of human rights. “It seems to me that exploration of this peculiar institution can reveal a great deal about the structure of American government, law, and culture.”

“The normative understanding of tort law is crucial,” he says. “(Tort law) is particularly contentious because human life is at stake. How to trade that off with money is a particularly difficult question.” Lewis Kornhauser, a fellow economist, nevertheless parts company with Geistfeld (and Murphy, too) on this notion that contracts and torts should be viewed philosophically. “People have this idea that contracts is an institutionalization of a moral idea of promise,” Kornhauser says. “I think that’s a crazy idea.” Others, he continues, think that tort law is “an institutionalization of ideas of corrective justice, which I also think is a crazy idea.” Kornhauser, the Alfred B. Engelberg Professor of Law, runs a program called the Institute for Law and Society, a joint venture between the Law School and the Faculty of Arts and Sciences. It consists of a Ph.D. program in law and society, as well as offering an undergraduate minor in the same area. (Law and society generally applies social science methods to the study of legal rules and institutions.) He also teaches law and economics and runs the Colloquium on Law, Economics and Politics. These days, Kornhauser is inclined to push students to dissect questions using more than normative thinking. “I want them to ask explanatory questions,” he says. “How does this work? What consequences does this legal rule have? I think not enough attention is paid to questions of how things happen, what the consequences are. Not saying they are good or bad.” Take, for example, the Clean Air Act. He wants his students to think about the consequences of the law. Did air quality change? What effects were there? Similarly, in the debate over affirmative AUTUMN 2005

action, his concern isn’t whether the aim is good or bad, but what consequences does affirmative action have. Does it make protected classes better off? Kornhauser is currently writing a book that explores the foundations of applying economic analysis to law. It probes such questions as what criteria should be used—is efficiency an appropriate criterion for evaluating legal rules, for instance? What about using welfare, which is another way of asking about the consequences of a law? These are hardly theoretical questions. You can apply this to the debate on whether smoking should be banned, Kornhauser posits. If you tend to worry about the well-being of an individual (the consequences), you can justify a smoking ban on the fact that the number of deaths from cancer will decline (though in this analysis that needs to be weighed against the loss of smokers’ enjoyment in smoking). And if you are concerned only about these consequences, then the argument by libertarians that a ban would restrict your autonomy becomes irrelevant. Kornhauser tends toward the welfare side, that is, he looks at how human well-being is affected by a law. Lawmakers may or may not agree, but Kornhauser believes they should be asking similar questions. Associate Professor of Law Mattias Kumm came to the Law School in 2000, after a long period of being steeped in work that explored the intersection of national and international law. He had spent three years at Harvard writing his dissertation on the issue, studying when and how international law should trump national law. He was looking to move beyond the traditional way of thinking about this question—monism vs. dualism. Monism basically argues that international law should take precedence, while dualism says they are two separate bodies of law and that national courts should simply do what the national constitution requires without any considerations of international law. The problem with these positions, says Kumm, is that they disregard questions of political morality. Instead, he says, “we need to think about what the purpose of international law and domestic law is, and what the conditions are under which domestic law is appropriately set aside to enable the enforcement of international law.” The answer may differ depending on context. For instance, an International Court of Justice decision involving consular relations should be accorded significant authority, Kumm argues. A World Trade Organization decision on steel tariffs should be implemented by political authorities and not by domestic courts unless key political figures agree, he says. On the Supreme Court’s juvenile death penalty decision, Kumm believes the court was correct to look at how foreign countries viewed the practice. But he was disappointed that the majority ruling did not address whether the high court is required to take account of international law in interpreting the Bill of Rights—as is true in Germany and South Africa. “It fudged the issue for political reasons and failed to bring about legal clarity,” he says. Lawyers, judges and academicians may well continue to argue that point. But what is clear is that there is value in the questions and debates themselves. Ultimately, what the great minds in the legal philosophy program are sharing with the students who pass through these lecture halls is a belief that law is not simply a practical tool (and a profession), but a means of achieving a more just world. ■ Freelance writer Jennifer S. Frey and her husband, Larry Reibstein, assistant managing editor at Forbes magazine, now use the word normative constantly. THE LAW SCHOOL

Thomas Nagel serves up a feast for the mind.

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The Global Table What role should international law play in addressing the vast gulf between the rich and the poor in

the world? What are the global obligations of a wealthy country like the United States and how do they compare to reasonable expectations of say, Chad? These are the kinds of difficult questions that regularly engage those on our NYU faculty with a philosophical bent. The Law School Magazine invited nine such professors to argue and debate with acclaimed University Professor Thomas Nagel on the subject of his latest paper, “The Problem of Global Justice,” which was recently published in the journal Philosophy & Public Affairs. Here, an excerpt of their lively—and surprising—two-hour discussion. photographs b y leo sorel

This paper is about the relation between domestic and global socioeconomic justice. In general, socioeconomic justice concerns the distinctions between legitimate and illegitimate inequalities or sources of inequality, and between legitimate and illegitimate means of reducing inequality. In the domestic context, the issues by now are fairly clear, and the competing positions are quite well developed, ranging from libertarian conservatives through welfare-state liberals, to egalitarian socialists and social democrats. Globally, the question is much less clear. Everybody would concede that we don’t have global justice, but it’s very unclear what it would be to have it or even whether it means anything to talk about global socioeconomic justice. The huge inequalities in the world—often expressed as a contrast between the large percentage of people who live on less than a dollar a day and those in the rich countries whose average per capita income is about $75 a day—seem to present a moral issue of justice. The problem is, should we apply the same moral idea of justice to the world that we apply within societies? Does moral consistency demand that we find a principle underlying our domestic conception of socioeconomic justice which we can then apply to our relations to everyone in the world? T H O M A S N AG E L »

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One response is that this situation is merely a practical problem, that the absence of world sovereignty and the division of the world into separate states prevents us from applying globally valid moral standards of justice. This is traditionally called the cosmopolitan view. A very different response, which I’ll call the political view, is that there are no valid worldwide moral standards of justice because standards of socioeconomic justice apply only within states and, therefore, they won’t apply to the world as a whole until there is a world state. The question is, Is my basic moral relation to the New Yorker who irons my shirts the same as or different from that which I have to the Malaysian who makes them? Cosmopolitanism says, “Of course it’s the same. Inequalities that result from being born in different countries are just as morally arbitrary as those that result from being born in different classes in the same country.” The political view says that the strong concern we have about combating arbitrariness of this kind depends on our institutional comembership in a single state. Only if we live under the laws of a common state, enforced in our name and claiming authority over us, are we called upon to see that those laws accord a strong kind of equal treatment to all of us. There are uni-

versal requirements on our treatment of all other people, but they are defined in terms of absolute levels—basic human rights and basic humanitarian aid. The more local associative requirements are concerned with relative levels and with inequality. So that’s the face-off. Cosmopolitanism has undeniable appeal. It probably points to the eventual transcendence of separate nation states by a world state, if that can be safely achieved. But I myself find the political view more plausible, and on that view, a just world would be identified as a world of internally just states coexisting peaceably and in a position to cooperate to pursue their mutual interest, which will include for each of them the achievement of domestic socioeconomic justice, but not its global analogue. This would, of course, still require global institutions for global humanitarian purposes and protection of universal human rights, but it would require something less than global sovereignty. L I A M M U R P H Y » I’ll start with some questions about the central moral justification for the political conception. The key idea is that within a political society, the state makes a claim on the will of all of us. And it does this not just by coercing us—it demands a certain kind of normative engagement. Each of us is responsible for THE LAW SCHOOL

the acts of the state, which N AG E L » They ask for ously the laws of the country in which they are taken in our name, and your willing acceptance of reside. They may even have adopted many we’re also responsible for their authority, willing obeof the aspirations and ideals that that counobeying the state’s laws. dience to the laws and try stands for. What is the plausibility upholding the authority of G R A I N N E d e B U R C A » My question is of this idea of demanded the government. also on this central justification that you normative engagement for PA R F I T » Who are the offer, but it’s less on who’s included than on nondemocracies? Does the people who have done that? the content of the justification. You emphaabsolute monarch really N AG E L » The political colsized the combination of coercive authorclaim to rule in the name lectivity. The state, which ity and some sense of authorship as most of the people? Is there any is the representative of that relevant. And while it seems to me that this sense in which the people population. Don’t you feel combination of coercive exercise of authorin such a state are responsiany call to uphold the law ity on the one hand and authorship on the b enedict kings b ury ble for the acts of the state? and the political order in other hand gives rise to an argument that Murry and Ida Becker Professor of Law Second, what determines Britain? the laws should be, in some sense, fair, I membership? I assume that PA R F I T » I suppose it’s don’t see why it necessarily points in the citizenship isn’t the criterion for memberbecause I’m not sufficiently tempted to do direction of socioeconomic justice. ship on your account because, presumably, the things the state doesn’t want me to do. I N AG E L » Whatever principles you think requirements of justice should apply as well took it that you were saying this is some kind should govern social and economic equalto long-term residents who are noncitizens. of onerous demand. It’s not like I’m being ity, whether they’re libertarian or redisIf President Bush’s idea for a guest-worker conscripted. The U.K. government withtributive, come into force in virtue of this program were put into force, then we’d have holds my taxes and tells me to drive on the relation. Somebody who doesn’t believe huge numbers of long-term legal residents left-hand side of the road, things like that. in redistribution would not draw a rediswho are not citizens. Can we say that the U.S. N AG E L » Well I wasn’t tributive conclusion from claims to speak in their name? Can we say thinking of it as an onerous this. It is just a theory about that noncitizen residents have a responsibildemand. You’re supposed what triggers the principles ity for the acts of the state? to be an active participant that govern socioeconomic in and supporter of the legal equality, whatever they may and social system. be. To get something more The English philosopher Thomas Hobbes MURPHY» If we had specific, like redistribution, (1588-1679) published Leviathan, his most a view that, yes, the state you have to add substantive important work, in 1651. The conditions of always does make this claim claims. peace, he argued, could be secured only by an for normative engagement, M U R P H Y » But isn’t there absolute sovereign. It is in each person’s interbut it never is compelling a sense in the paper that once est to submit to such a sovereign as the altermorally speaking, would that you have this kind of normanative is the state of nature, which is a state of affect the argument? Does tive engagement, it’s more war of all against all, in which the life of man is your argument assume some plausible to be committed to “nasty, poor, solitary, brutish, and short.” Justice, L ewis Kornhauser kind of prima facie duty to somewhat demanding theoin Hobbes’s account, can exist only when Alfred B. Engelberg Professor of Law obey the law? ries of economic justice? So there is a sovereign power. Since nations are N AG E L » This is a large there’s a link between the in a state of nature with respect to each other, other topic. I guess I don’t believe in the way in which the state relates to its citizens there is no such thing as international justice. general obligation to obey the law. Perhaps and the plausibility of arguments for equality the obligation attaches rather to parts of the of concern, equality of status? N AG E L » Rulers have traditionally claimed law which you regard as legitimate. N AG E L » Well, that’s true. not only the power to force their subjects L E W I S KO R N H A U S E R » I’m also curious T H O M A S F R A N C K » Well, Tom, you’ve to obey, but some kind of authority, someabout the boundary problems and I want to written the perfect paper. I disagree with times supported by a claim of divine right. It add illegal aliens to resident almost every word in it. And was a great advance when H O BB E S argued aliens. There are lots of longthat is because we start that you didn’t need to do that. I am sort of term illegal aliens in this from totally different pera Hobbesian about nondemocratic regimes: society. Does justice extend ceptions of what’s going on They can have the authority that comes from to them? Assuming it does, at the national and internaproviding the conditions of peace, which why are we discriminating tional levels. The state opereverybody has a reason to want. So the claim against those of their family ates more or less successto authority and to act in the name of subjects who failed to make it across fully because people on the goes way beyond democracy. Resident aliens the border? whole think they can more are comembers of the society subject to its N AG E L » It’s not obvious easily attain the objectives authority and with the associated claims on that the standards of sociothey want in life by agreethem that bring this sort of special obligation. economic justice apply to ing to and carrying out the D E R E K PA R F I T » You say that the state illegal aliens. That’s a discrenorms that are formed in G r á inne d e B ú rca makes demands on the will of its citizens. tionary decision. the society. People in dictaGlobal Visiting Professor of Law; » I’m not aware of the U.K. government makKORNHAUSER But many torships and people in Professor of E.U. Law, ing any demands on my will. I don’t know certainly have normative endemocracies would rather European University Institute what you mean. gagements. They take seriobey the traffic light than 38

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have a traffic jam. The interwith by an increase in international system works exactly national governance. I’m the same. But while it’s true making the rather restricted that traffic and other local claim that there is a differissues are best resolved on ence between the standards the local level, most of the of fairness about socioecoreally horrendous problems nomic inequality that apply that individuals throughout domestically and those that the world face today are apply internationally, not global problems and can only that there are no internabe resolved globally. So untional standards, certainly L iam M urphy less there is some form of not that there shouldn’t be Professor of Law global governance and adherinternational institutions. ence to those global norms, So I plead not guilty. nothing will work. You will not be able to E li z a b eth H A R M A N » I’m wondering deal with diseases; you will not be able to why the fact that my government is acting deal with trade; you will not be able to deal in my name at the international level isn’t with climate change; and you will not be enough to give me obligations to the disable to deal with terrorism, just to name the advantaged people internationally. There most obvious problems. are lots of people in other countries whose Yours is a very American view, that we lives are completely shaped by the actions don’t need this system because we have of my government. Why isn’t it just enough overwhelming power. But try to exercise that the government acts in the name of the that overwhelming power in the World wealthy person and shapes the life of the Trade Organization and you’ll soon find poor person to create the obligation? that the WTO makes your trade very, very N AG E L » Well you might say, “The govdifficult, if not impossible. So we adhere to ernment ought to give more humanitarian decisions from the WTO because we have a aid if it’s acting in my name.” That would sense of our self-interest. be a legitimate complaint. But that’s not But beyond that institutional base, there an appeal to socioeconomic justice; it’s an also is operating a working set of theories appeal to humanitarianism. The claim of about fairness, about concepts of legitimacy, authorization by everyone in the society that about concepts of justice. There are efforts is important is that the policies and the laws that make fairness operational in the interof the society have to be justifiable to all the national system, and those people in whose name they efforts are conducted in are carried out and over accordance with norms, that whom they claim authority is, treaties, which are generand, therefore, each of them ally regarded as legitimate. has a claim to be treated as So we also have in an interan equal by this system. That national system a notion of isn’t true of the other people equality. Does the person in the world. who irons your shirt have the DAV I D R I C H A R D S » My same claim to legal counsel main question is about your as the president of Enron? views about the difference Of course not. We have principle and your characdeveloped notions of equalterization of its motives. I’ve ity that allow for a great deal always thought it’s a deep, T homas F ranck Murry and Ida Becker of difference, and the intersocial-democratic impulse Professor of Law Emeritus national system has as well. that one’s talents are, to But it is absolutely beyond some extent, morally arbiargument that if the claim advanced by a trary, and also where you’re born, the social country is based on a right to do something capital supporting you, the kind of education which will significantly increase the deficit you have, the kind of parents you have. And of the deficit nations and increase the surit seems that the intuition about the arbiplusage of the surplus nations, that a claim trariness of natural endowments actually of injustice carries weight. does lead to a more cosmopolitan approach, N AG E L » Well you’ve tried to disagree because it has to do with when inequalities with me, but you haven’t succeeded of reward are justified when they work out because I haven’t been attacking the sysin a relevant way. Why are you limiting the tem of international governance. I agree difference principle to the nation-state? The with you that the most serious problems we moral intuition from which it arises is not face in the world probably have to be dealt really being attended to in the right way. AUTUMN 2005

American philosopher John Rawls (19212002) was the most important political philosopher writing in the English language since John Stuart Mill. His book A Theory of Justice (1971) sets out a liberal egalitarian theory of justice in which liberty rights are primary but which demands extensive correction of market outcomes for the sake of the value of equality (see DIFFERENCE PRINCIPLE below). In The Law of Peoples (1999), Rawls offered a theory of international justice in which the requirement of economic equality was different in kind and much weaker than that which he had advocated for the internal arrangements of individual states. N AG E L » I’m not a defender of the difference principle, actually. But I came to this discussion by trying to understand why rawls didn’t extend the difference principle to the whole world. Surprisingly, he thinks that a concern with the avoidance of these arbitrary sources of inequality is specific to your relation to the fellow members of your society. And I’ve concluded that this is not an inconsistent position. M AT T I A S K U M M » In addition to cosmopolitanism and the political conception, in your paper you also discussed briefly a third idea, the sliding scale or gradualist model of socioeconomic justice. Under this model, duties of socioeconomic justice depend on the degree of transnational integration. They don’t arise in the manner of an on-off switch, either fully applying or not applying at all. I wonder whether our common intuitions don’t suggest that this is an avenue that’s worth exploring in more depth. Let’s imagine somehow states got together to establish exactly the minimal conditions for a Hobbesian kind of statehood that you claim is necessary for all the principles of socioeconomic justice to click in. We can imagine, say, a reformed United Nations that had its own army; the secretary general as the commander in chief, and

Rawls’s Difference Principle holds that social and economic arrangements within a state— which includes the entire legal apparatus of contract, property, taxation and welfare provision, as well as the system of health and education—should be designed so as to make the position of the worst-off group in society as good as it can be. Though the motivation behind the difference principle is a commitment to the value of equality, it is assumed to be compatible with perhaps extensive social and economic inequality. The idea is that departures from strict equality that benefit the worst-off group are justified.

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so on. He speaks in the name of humanity when he acts and when he authorizes intervention, and let’s say the whole system is set up in a way that there is no question that if there’s serious disobedience, the law will be enforced. In all other respects everything remains as it is now. We still have a great deal of differences among nations. There’s still an agreement that the best level to deal with most questions that arise remains the domestic level, and coordination and cooperation only takes the form it currently does. The only thing that’s changed is that the security issues are off the table. They’re being resolved through a kind of global nightwatchman state . In such a world, why should it follow from the fact that functioning global security institutions have been established that all the socioeconomic obligations kick in? There’s a deep disconnect there.

we associate with socioyou drew on in response to economic justice. I actually Mattias, and another idea wonder whether it would that seemed to have to do be possible to insulate such with whom the engagement an authority for very long was with—was it running from the power to interfere through the states rather economically in the states than directly to the people. that were under it. I would have thought the K U M M » The inverse chalE.U. would present a good lenge to the on-off model is case for saying there is an the European Union. The obligation among memM attias K umm E.U. is a transnational politibers of the E.U., not just the Associate Professor of Law cal community, but it is not states, but the citizens to, a state that establishes a say, redistribute income to sovereign authority. At the same time, the the poor states. And that’s one of the reasecurity issues and the Hobbesian fears sons the entrance of these central and easthave no role to play whatsoever in political ern European states to the union has been relations between member states. So here so controversial, or why the accessions of you have a thick set of highly integrated Portugal and Greece were so controversial institutional practices, but you don’t have a at the time. So the question is, What’s the state. And your claim would have to be that source of these special obligations of jusbecause it’s not a state, the duties of sociotice? Are they coming from these bare ideas economic justice that an Italian has with that you had of normative engagement, or The idea of a Nightwatchman State regard to a Polish citizen are the same as to a do you have some other set of conditions? comes from libertarian political theory. It Mongolian, because neither the Pole nor the N AG E L » My description of the E.U. is presents an ideal of a purely protective govMongolian is a fellow citizen of a sovereign based on the assumption that it remains ernment: one that protects people against state. And that is somewhat implausible. a treaty among the nation-states, each violations of their persons, liberty and propN AG E L » The question is, Is the further of which retains responsibility for securerty but provides no public services and development of E.U. law subject to the ing some kind of justice among its own does not transfer resources from better-off moral pressure of an idea of socioeconomic citizenry. But it may be an example where to worse-off groups. justice of the kind that is the subject of the gradually growing regulatory authordebate within each member state? The E.U. ity of the union itself is creating the kind of d e B U R C A » I think Tom’s point is that is, in fact, the clearest test case for this idea, links that produce pressure of the sort that coercive political authority of the right kind and it’s the kind of case for which a sliding Lewis describes. So maybe it’s an example exists only in the context of nation-states. It scale seems most plausible. Perhaps I am of an intermediate case where there is an couldn’t exist in a world context because mistaken to oppose that alternative. But if entity that joins these diverse populations there isn’t the kind of collective sense of you think of the difference between, on the in the kind of relation of claiming authoridentity, etc. that would support that kind one hand, the joining of various nations of ity over them and acting in their name that of night-watchman government. Europe into this community and its gradual makes them vulnerable to requirements of K U M M » I agree with Grainne that there’s expansion, and, on the other hand, the unieliminating inequalities. Mattias, what do something empirically unlikely about this fication of Germany, which was a radical you think? Do you think it is a move in the story. But if that’s the problem with the sceshift to comembership in a single political direction of socioeconomic justice? nario, then your theory depends on certain entity with all of the obligations, whatever K U M M » I’m deeply skeptical of a dualist empirical assumptions. they are, to all the people in what was forframework—as opposed to a sliding-scale N AG E L » Yeah. It can’t avoid depending merly another state, that brings into relief framework—which suggests that you can on some empirical assumptions because the starkness of the contrast. have all kinds of different sets of socioecoit’s one of those pluralistic KO R N H A U S E R » I’m wonnomic obligations depending on the nature moral outlooks that says, dering what’s lacking in the of the community that you’ve established. I “Well, you’ve got to look at nature of international instibelieve the E.U. is a relatively clear example the actual institution or set tutions that prevents the of an intermediate case. of relations that are being socioeconomic obligations N AG E L » If the demands for equality governed in order to identify to arise. You’ve offered two within the E.U. were taken to be the same the appropriate principles.” factors in the paper: this as within France, say, it would be quite I don’t know that I actuidea of normative engagepunishing for the wealthier members. Do ally have an answer to your ment and the presence of you think a case could be made that the E.U. question, but probably the coercive authority over peois subject to a lower standard of socioecoappropriate response from ple. But in your replies, you nomic inequality; therefore, the rich nations the point of view I’m putting seem to be relying on two don’t have to worry so much? forward would be that this other things that were difK U M M » I don’t know about the worries is too thin an authority to ferent or additional to that. of rich nations. But this seems to be the D erek Parfit carry with it the obligation Those two things seem to right way for thinking about socioeconomic Global Distinguished of equal treatment in all of be the substance of the norjustice in a transnational setting. Professor of Philosophy, NYU these multiple respects that mative engagement, which F R A N C K » Tom, I think you’ve got your40

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self in the position of a person who insists that a bumblebee can’t fly because its aerodynamics are unacceptable. There are very active negotiations, discourses, in all kinds of perfectly reasonable forums in which states participate and try to work out and balance the requisites of justice with other considerations, including, of course, national self-interest. Take the question of pollution. The former colonial nations obviously have come to industrialization very late, and they advance the claim that now that we are capping emissions, they ought to be able to pollute more than countries that have already created the problem. And eventually that position sort of gets recognized by developed countries. Well, that’s a straight fairness discourse. N AG E L » That’s a completely different kind of example, and I agree with you, there are considerations of fairness that apply in international negotiations. But they are not the same. We don’t open the American labor market to anybody in the world. We regard it as imperative that the labor market in the U.S. should be open to all Americans; they should be free to go from state to state to find a job. But you can’t simply apply for a job in this country from anywhere in the world. It’s a radical difference in how we treat people elsewhere. And it’s those kinds of inequalities that I’m concerned with. Hugo Grotius (1583-1645), the Dutch lawyer and theologian, wrote one of the founding texts of what became international law: The Rights of War and Peace (1625). Later scholars, particularly in the “English School” of International Relations, have used the term “Grotian” to characterize arguments that steer between political realism and cosmopolitanism. Grotians argue (against Hobbesians) that there is an international society of rights and duties, but (against cosmopolitanists) that these cannot be analogous to those existing within democratic states. B E N E D I C T K I N G S BU RY » Professional international lawyers tend to structure their views of international justice by sketching three positions. Two of these positions structure the analysis in your paper: a Hobbesian position, in which the community of justice is created by and bounded by the state, and a cosmopolitanist position which sees duties of justice owed between all individuals everywhere. A third, grotian , position occupies a middle ground between the other two. Your analysis might seem to close out the middle ground that most of us occupy! But am I right instead to read your project as

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a ground-clearing exercise? You are really ically, it has seemed important because saying, “There is a particular cosmopolitan cosmopolitanism applies ideals of social approach to justice, associated for example justice to the world as a whole, which has with Rawls, which is very important within been presented as a big challenge to the states but is simply not Rawlsian approach to theoadaptable to global quesries of justice. tions.” Rejecting that cosI’m not a Hobbesian mopolitan position brings across the board; I’m just you back to a Hobbesian invoking Hobbes to support one. But you canvass in the view that there is possibly your paper several elements a moral difference between of justice which could operthe international case and ate in Grotian international the domestic case, not that relations. Could you say a there’s nothing to be said little bit about this issue, about the morality of interwhich is addressed only national relations. indirectly in your paper: K I N G S B U RY » Your analWhat are the principles of ysis presumes a world of David R ichards justice that pertain to interseparate and independent Edwin D. Webb Professor of Law national relations? political communities, sovGrotius sought to build ereign states. But historia theory of international law with elements cally, empire has been a dominant mode of of corrective justice and of attributive juspolitical organization. Many modern states, tice. These are not distributive justice; they in their formation and in their relations do not involve the kinds of redistribution with specific other states, reflect a legacy states achieve, but they encompass basic not only of empire and postcolonialism, but qualities of reciprocity that have significant of interempire relations. This is our inherisocioeconomic implications. They begin to tance. Even now, some specific “internaset up some of the structure of a socioecotional” relations involve such interconnectnomic world, a world of property and basic edness, or such dependence or domination, rights and duties. Nowadays the practice of that the kind of duties of justice that you talk global governance inches further along the about within a state might also be thought tracks toward distributive justice, especially to arise there. Your image of empire seems in developing a body of procedural justice implicitly to have separated duties of justice requirements which can have some bearwithin the metropolis from duties between ing to socioeconomic concerns. Then you metropolis and the rest of the empire. In 1925, yourself in the paper introduce what you Britain was basically democratic, but does call duties of humanity, which may be quite your approach suggest that duties of justice far reaching. So I want to suggest that there within this democracy were different from already are elements of a limited but sigduties owed between Britons and Indians, nificant substantive theory of international even though they were in the same empire? justice that is socioeconomic, but is not How do you understand that kind of politiHobbesian or cosmopolitan. cal relation, which has an associative quality, N AG E L » There are moral standards that but also a very unequal structure? apply to international relations and to our N AG E L » Leaving bracketed the quesrelations to one another as persons, and tion whether the exercise of colonial power certainly, some of them is itself morally acceptable, should be called standards what would follow from of justice, although I would what I said is that the coloresist using the term “socionial power owes a just goveconomic justice” for whaternment to the nations ever the standards are that over which it exercises that should govern negotiations power. I would have to say in the WTO, or the condithat in 1925, the British tions of humanitarian aid owed it to India to try to to impoverished countries. produce some kind of jusBut maybe this, as you say, tice within India. There are ground-clearing exercise such obligations, which isn’t a particularly impordon’t collapse into the oblitant one in the context of gation to turn the colonial the things that international empire into a single nation E li z a b eth H arman lawyers are really concerned governed by a single stanAssistant Professor of Philosophy, NYU with. Somehow, philosophdard of justice. ■ THE LAW SCHOOL

Elegant partygoers and revered speakers mingled with golf swingers and ten pin bowlers to fête the Hauser Program’s 10th. Clockwise from top left: Valéry Giscard d’Estaing and Professor Joseph Weiler; Darryl Robinson (LL.M. ’02, Canada) drives off Chelsea Piers; pianist David Greilsammer; Professor Georges Abi-Saab; Natasha Bakht (LL.M. ’05, Canada) presents Rita Hauser ‘59 and Gustave Hauser (LL.M. ‘57) with a gift from the Hauser scholars. 42

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a worldly affair

Rita and Gustave Hauser joined hundreds of international guests to celebrate the 10th anniversary of the Hauser Global Law School Program

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By Wendy Davis

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he Hauser Global Law School Program celebrated in grand style during its three-day 10th anniversary celebration and reunion last March. U.N. Secretary-General Kofi Annan, Dominican Republic President Leonel Fernández, European Convention President Valéry Giscard d’Estaing, President of the International Criminal Tribunal for the Former Yugoslavia Theodor Meron, member of the Appellate Body of the World Trade Organization Georges Abi-Saab and two judges of the International Court of Justice, Thomas Buergenthal ’60 and Nabil El-Arabi (LL.M. ’69, J.S.D. ’71) were among the boldface names joining 79 far-flung alumni, plus family and friends, for a long weekend in New York City.

A Little Golf, a Little Sunshine and a Little Music Guests hailing from at least 33 countries on five continents were encouraged to arrive on Friday night or early Saturday so that they’d be able to enjoy a traditional American clam bake on the Sunset Terrace of Chelsea Piers, overlooking the Hudson River. Celebrants were invited to stay afterward to use the recreational facilities of the Chelsea Piers sports complex, including basketball, bowling and an unusual golf driving range on a pier that juts out over the Hudson River. The reunion officially began with a gala dinner on Saturday night in the chandeliered dining room of the Metropolitan Club. Kofi Annan, the guest speaker, delivered remarks concerning the importance of legal structure to the international world. “The rule of law permeates our lives. It provides the basic platform for peace,” he told 200 black-tie clad Hauser students, alumni and faculty. Annan vowed to the audience that the U.N. itself will “practice what it preaches” by investigating allegations of abuse carried out by its personnel, referring to the highly-publicized allegations of sexual abuse by U.N. employees in the Congo. “We will uphold the law and will hold wrongdoers accountable,” he said. After dinner, as the waiters cleared away what was left of the chocolate mousse and cake, New York University President and former Law School Dean John Sexton reminisced about how the Hauser program grew out of a 1993 breakfast meeting with Rita Hauser ’59. “That morning we came up with the acorn, which was a simple idea based on a simple observation,” Sexton said. The observation— that legal education was U.S.-centric— spurred Rita and husband Gustave Hauser (LL.M. ’57) to fund the program with an initial $5 million donation that has broadened the legal education of U.S. students while giving students and scholars from other countries the chance to study in New York City. Rita Hauser also addressed the crowd, telling the audience of her conviction that no country has a monop44

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The world descended upon Manhattan to toast a decade of scholarship. Clockwise from top left: Dr. Leonel Fernández; Rita Hauser ‘59 in conversation with Kofi Annan; Alexander Fellow Youngjae Lee, right, with wife Julie Suk; Professor Theodor Meron; Dean Richard Revesz, right, shares a joke with Professor Norman Dorsen, center, and President John Sexton; from left: Puja Sondhi (LL.M. ’03, India), Roy Schöndorf (J.S.D. ’05, Israel) and Silvia Ostrower (LL.M. ’03, Argentina); guest Humphrey Kiara; Vanessa Lesnie (LL.M. ’98, Australia), left, with Chaman Sidhu (LL.M. ’97, Australia).

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oly on legal skills. “Talent and ability come in every form, every shape, every background,” Hauser said. Earlier that evening, Dean Richard Revesz announced that the Hausers had added $4 million to the Hauser endowment, bringing the total of their contributions to an incredible $15 million. At the conclusion of the speeches, rising young Israeli pianist David Greilsammer—invited to the event by Joseph Weiler, chair and faculty director of the Hauser program— played a piece by the French Baroque composer Jean-Philippe Rameau. Greilsammer also made a CD of compositions by Bach and Schumann in honor of the Hauser anniversary as a gift to the assembled guests.

“The rule of law permeates our lives. It provides the basic platform for peace.” —Kofi Annan

Corporate Scandals, Civil Liberties and International Tribunals

Sunday marked the beginning of the academic program, with a plenary session on “International Adjudication and Judicial Impartiality” and panel discussions on “Enron, Parmalat and All the Rest: The Role of the Lawyer in Corporate Scandal” and “Security v. Civil Liberties in the Age of Terrorism.” Leonel Fernández, the president of the Dominican Republic, gave a keynote speech that morning addressing democracy in the Americas. He told the audience that the Organization of American States has been able to successfully preserve democratic regimes in a number of countries in the last 15 years, thanks to a shift from the view that a country’s governance was a purely internal matter: “The old principle of government has gradually given way to a collective right to democracy,” Fernández said. “This entitlement to democracy is thought of as a collective rather than an individual human right.” But, he cautioned, social and economic issues can still threaten elected governments. “Until democracy can deliver on improving people’s quality of life, there are going to be protests,” Fernández said. A few hours later, Valéry Giscard d’Estaing delivered a keynote address in support of the European Constitution—which would be voted down in his home country of France just three months later. At the time, however, d’Estaing held out hope that the constitution would be approved. He told an audience of some 250 people that a constitution for Europe would be “a great opportunity to set in place an equal, responsible, reliable partnership between the two sides of the Atlantic.” “The word ‘constitution’ implies not only a legal system, but more than that,” he said, adding it also demonstrated values and objectives. “One single text would create the legal existence of Europe,” he said. Alas, that dream would not be realized. But among this multicultural crowd that had come together in celebration, success had seemed so possible. After all, as Joseph Weiler said, “The Hauser Global Law School Program became the Global Village for one weekend.” ■ AUTUMN 2005

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COVER CHARGE In every issue we highlight a particular area within the Law School to reveal the depth of excellence that characterizes each part of the NYU School of Law. The core of this year’s magazine is a look at the legal philosophy faculty and curriculum, while last year it was the equally impressive CRIMINAL law area. In 2003, we trained our spotlight on the field of ENVIRONMENTAL law and the year before we focused on the INTERNATIONAL arena— two other standouts. We are confident that in each of these disciplines, a peer review would conclude that we have the strongest program among the leading law schools. Here we showcase some recent developments:

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Frank Talk About Chinese Reform

rofessor Jerome Cohen and the criminal law faculty played host to six eminent professors from Beijing’s Renmin University of China last March, reciprocating for a groundbreaking visit they made to China last year. The guests lectured, attended classes and debated with faculty and students. The Chinese delegation included professors Gao Mingxuan, honorary president, and Zhao Bingzhi, current president, of the Chinese Criminal Law Society, as well as their Renmin colleagues, Wang Zuofu, Lu Jianping, Huang Jingping and Wang Xiumei. Explaining their enormous sway, Cohen said that aside from government officials, “these high-prestige academics have had perhaps the biggest influence on Chinese policy and reform in the past 50 years of Chinese legal reform.” For the NYU School of Law professors, fellows and students, as well as the Asian experts who attended, this was an invaluable opportunity to speak openly about a broad range of subjects, including the death penalty and terrorism. The group discussed recent efforts to set tougher procedural standards for trials involving the death penalty— China has 68 offenses which are punishable by death—and debated over who should have the power to review such cases. Terrorism was the subject of a roundtable hosted by the Council of Foreign Relations in honor of the Chinese delegation’s visit. “China has always been comfortable discussing terrorism since it enhances cooperation with the U.S.,” said Cohen, “and it’s a welcome diversion from the subject of human rights violations.” He added that other topics that the professors preferred to skirt included organized crime and corruption in China. Nonetheless, Professor James Jacobs, an expert on these topics, as they pertain to the U.S., said that he was impressed with “how open and frank all the discussions were.” One of the scholars, Professor Huang, even gave a talk in Jacobs’s Juvenile Justice class. “China still has a long way to go,” said NYU School of Law Research Scholar Ping Yu, “but the country is witnessing an important transition over the past decade or so where lawyers and the state are actively debating major changes in the legal system.” —Ranjani Ramaswamy

The Aftereffects of Death Penalty Rulings

n a five-to-four split decision last March, the Supreme Court abolished capital punishment for juvenile offenders, ruling it unconstitutional to sentence anyone to death for a crime he or she committed before turning 18. The Court concluded that the death penalty for minors is cruel and unusual punishment, echoing a June 2002 decision by the Court that the execution of mentally retarded criminals violates Eighth Amendment rights. In January of this year, James Borden, whose case was investigated by NYU’s Capital Defender Clinic—Alabama, became the first Alabama death row prisoner to have his death sentence overturned because of mental retardation. Though clinic students had discovered and developed evidence of Borden’s mental retardation as far back as 2001, it took until this year for the state’s Court of Criminal Appeals to pave the way for his resentencing to life in prison. Two other juvenile clients of the Capital Defender clinics had death sentences vacated in light of the Supreme Court decision. “I am relieved for the kids. This is an important categorical exception to the death penalty, as important as the banning of capital punishment for the mentally retarded in 2002,” said Professor Bryan Stevenson, who supervises the Alabama clinic. AUTUMN 2005

But Stevenson warned that the bigger fight to ban the death penalty is still looming. “This decision was too narrow to represent a major victory,” he cautioned. Unlike countries where executions are allowed only under exceptional circumstances, he said, “in the U.S. we embrace the death penalty. It is an expression of who we are and is actively promoted as therapy.” Stevenson hopes that, “our courts will temper justice with mercy and see the relationship between mental illness, social illness and culpability, eliminating the need for executions and excessive punishments entirely. —R.R.

Professor Barkow Goes to Washington–Twice

n January 12, the U.S. Supreme Court ruled that the 1980s federal sentencing guidelines were unconstitutional because they violated a defendant’s Sixth Amendment right to be tried by a jury. The decisions were handed down in a pair of 5-to-4 rulings that gave broader discretion to federal judges. Previously, judges were forced to boost sentences based on factors that juries hadn’t ruled on. Now judges are free to consider the guidelines, as, well, guidelines. Professor Rachel Barkow, who testified before the Senate Judiciary Committee on the future of the Federal Sentencing Guidelines in 2004, pointed out that change would come slowly if at all. “Judges are so accustomed to relying on the guidelines, that more often than not, they follow them as a matter of protocol,” she said. “I would expect sentences to stay the same. There might be some movement in drug-related cases, as judges often view those penalties as too severe.” In July, Barkow was the only law professor invited to the National Sentencing Policy Institute for a forum organized by the Federal Judicial Center. At that meeting, Barkow warned that there was reason to fear a political backlash. “There will definitely be resistance from Congress if judges give out softer sentences—even though an appellate process exists to check the ‘reasonableness’ of the trial judge’s decision,” she said. “Congress has always wanted to appear tougher on crime while judges are often shocked by the severity of sentences they have to mete out.”—R.R.

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ore than 50 international law experts came from as far away as Kolkata, India and Nairobi, Kenya and from as nearby as Morningside Heights for a weekend conference in global administrative law, an emerging field of enormous importance with significant implications for environmental law. Global administrative law (GAL) studies international regulatory administrative bodies (such as the World Trade Organization, the World Bank and the Security Council), informal intergovernmental networks (such as the Basel Committee of national bank regulators), domestic authorities implementing global regulatory law and hybrid publicprivate as well as purely private international regulatory regimes. The brainchild of Professor Richard Stewart, director of the NYU Center on Environmental and Land Use Law, and Professor Benedict Kingsbury, director of the Institute for International Law and Justice, the gathering allowed a mix of scholars and practitioners to discuss matters ranging from enforcing labor standards to dealing with environmental threats such as deforestation. The roster of speakers included Richard Goldstone, former Justice of the South African Constitutional Court, Vijay Tata ’81, the World Bank’s chief counsel of the finance, private sector and infrastructure practice group in the legal vice presidency and Chiara Zilioli, deputy general counsel of the European and Central Bank. Another speaker, Bhupinder S. Chimni, vice-chancellor of the West Bengal National University of Juridical Sciences, Kolkata, warned that GAL has the potential to advance the interests of the corporate sector, at the expense of people living in developing countries. “[F]rom a third world perspective, GAL has a limited role in injecting the elements of equity and justice in international law and institutions. While this is no reason for neglecting the development of GAL, it is important to understand its limits,” said Chimni. “Equally, one needs to appreciate the opportunity GAL offers powerful states in legitimizing unjust legal regimes.” The nearly constant subtext was the question of whether countries should

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individually sort out issues of global reach—such as compliance with international environmental standards and treaties—or whether governments should work together and form some sort of “supranational” global tribunal. Daniel Esty of Yale Law School addressed the feasibility of a supranational power, saying that such a court remains far in the future, but that it was not too soon to start discussing and actually taking steps in that direction. —Wendy Davis

Urban Land Use and Housing

uring the last year, the Furman Center for Real Estate and Urban Policy hosted five Land Use and Housing Policy breakfast discussions on the most pressing contemporary land use and housing issues affecting New York. “We take a more rigorous and comprehensive look at complex land use and housing issues than is often afforded in public debates,” said Professor of Law Vicki Been ’83, director of the center. In light of the heated debate surrounding the planned development of the waterfront in the Greenpoint/Williamsburg area of Brooklyn, the fall Breakfast Series focused on the issue of inclusionary zoning: City Councilmember David Yassky, who spearheaded an effort to use such zoning in planning the rebuilding of the area, spoke in October about his Affordable Housing Zoning District proposal; Amanda Burden, chair of the City Planning Commission, presented Mayor Bloomberg’s position in December and Ronald Moelis ’82, a principal of L&M Equity Participants, gave his take the following month, from the perspective of a financer and developer. In the spring, the series examined predatory lending—a practice that has increased significantly in recent years, where unethical lenders extend mortgages or other credit to financially unsophisticated borrowers at exorbitant rates, with consequences for individuals and neighborhoods that are often “horrendous,” said Been. (See Nicholas Bagley’s paper, “When the Feds Overstepped,” on page 98.) The line-up featured, among others, Sarah Ludwig ’92, founder and executive director of the Neighborhood Economic Development Advocacy Project and Adjunct Professor Sarah Gerecke, the CEO of Neighborhood Housing Services. —Shakera Khandakar

Real Estate Roundtables

he Furman Center and the student Real Estate and Urban Policy Forum (REUPF) organized the annual Segal Real Estate Roundtable Series (named for Segal brothers Andrew ’92 and Justin ’96) where leaders in the field give students advice on advancing their careers. Prominent guests included: Henry Lanier, executive vice president of the Low Income Investment Fund; Ronald Moelis ’82, a principal of L&M Equity Participants; and Jay Neveloff ’74, a real estate partner at Kramer, Levin, Naftalis & Frankel. While Stephen Ross (LL.M. ’66), chairman and CEO of the Related Companies and Leonard Boxer ’63, chairman of the real estate department of Stroock & Stroock & Lavan, were guests at yet another roundtable cosponsored by the REUPF with the dean’s office. As part of an ongoing tradition, the REUPF also held a panel last September, featuring five leading New York lawyers who shared their views on law and real estate. Panelists included: Meredith Kane, a partner at Paul, Weiss, Rifkind, Wharton & Garrison; Jonathan L. Mechanic ’77, a partner at Fried, Frank, Harris, Shriver & Jacobson; Ross F. Moskowitz, a partner at Stroock & Stroock & Lavan; Sarah Ludwig, executive director of the Neighborhood Economic Development Advocacy Project and Elise Wagner ’81, counsel at Kramer, Levin, Naftalis & Frankel. —S.K. AUTUMN 2005

Shaping a New Field of Law

A Transatlantic Debate

he summer bombings on London’s mass transit system, and the immediate response they provoked in New York and other U.S. cities, served to highlight the shared vulnerabilities of the United States and Europe to terrorism. But months before the attacks, that sense of “we are all in this together” was clear to anyone who attended the second annual conference on “Prosecuting Terrorism: The Global Challenge,” organized by the Center on Law and Security and held at NYU’s La Pietra campus in Florence, Italy, last May. The gathering aimed to “continue the transatlantic conversation,” begun the previous year, among counterterrorism professionals from the worlds of law, law enforcement and intelligence, said the center’s Executive Director Karen Greenberg. “I think we got everyone on the same page as to what the problems are,” said Greenberg. The three dozen or so participants included journalists, authors, academics and attorneys—both those who had defended accused terrorists and those who represented terror victims—as well as the most senior counterterrorist prosecutors from four countries. And the illustrious speakers list—including E.U. counterterrorism coordinator Gijs de Vries, the Metropolitan Police’s now-famous counterterror chief Peter Clarke, from London, and Spain’s investigating magistrate Baltasar Garzón—meant that there was, as they say in diplomatic circles, a frank exchange of views. Much of the discourse concerned a central conflict whose dividing line falls neatly midway in the Atlantic: The United States has rejected the idea that the criminal justice system is the primary tool to be used against terrorists and their networks (the government prefers a military approach). To a greater or lesser extent, the European nations remain wedded to that concept. “There’s a palpable sense of frustration among the participants about what seems to be the dominance of a military model in U.S. [counterterrorism] policy,” said Greenberg of the many European officials who attended. Among those taking part was Armando Spataro, the Italian prosecutor whose investigation revealed so many embarrassing details about a CIA snatch operation in Milan that led to arrest warrants being issued for 13 U.S. intelligence personnel in June. Spataro and his European colleagues made clear in a series of off-the-record sessions that they believed the United States’ use of wartime presidential powers to designate terror suspects as enemy combatants like those held at Guantánamo Bay was counterproductive. “There’s a perception of injustice among Muslims,” fretted one official, that is damaging the cooperation his country’s police needs from them. Others complained that the interrogations at Guantánamo Bay were of no help—“worse than useless,” one said—in building a prosecution against the detainees themselves, or indeed anyone else. AUTUMN 2005

But perhaps the most impassioned, certainly the most wide-ranging, denunciation of the detention center came from an American— Joshua Dratel, an attorney who is now among those representing detainees in Guantánamo. Speaking of the military tribunals so far slated for just a handful of the prisoners, Dratel said that the circumstances of their apprehension varied wildly, but that no case resembled the kind of battlefield capture that the U.S. military cites when defending the enemy combatant policy. “There will not be a single instance of testimony from a U.S. service member that, ‘I came across a foxhole and this guy was there and he put down his Kalashnikov and put up his hands.’ There’s not a single case like that,” he said. Kristine Huskey, another U.S. lawyer working with Guantánamo detainees, said, “Many of my clients were turned over by Pakistani villagers in return for bounties offered by the American military. Others were taken from their homes in Bosnia, Gambia or elsewhere.” Another topic of cross-Atlantic contention was the disappointment—and in some cases anger—about the results of the U.S.-led war in Iraq. The European officials explained that they fear a new, more dangerous generation of Islamic extremists, trained and battle-hardened by their participation in the insurgency against the U.S. occupation of Iraq. Garzón, who heads Spain’s effort to prosecute Islamic terrorists, told the conference that this “second generation” of extremists, some of them as young as 16, has in many cases no history of affiliation with Al Qaeda or other established terror groups. For these new, looser networks, said Garzón, who is currently a senior fellow in residence at the Center on Law and Security, “Al Qaeda is an ideological reference point, not a real articulated structure with a command chain.” Garzón compared the graduates of the Islamic insurgency in Iraq to the Arab mujahedin who successfully fought the Soviets in Afghanistan with help from the U.S. and Islamic governments like Saudi Arabia and Pakistan. Those so-called Afghan Arabs were the cadres that went on to form Al Qaeda, but Garzón said the Iraq war was creating “an even more serious problem.” Because these youngsters often have no history of connection to extremist groups, European intelligence and law enforcement agencies are concerned about being able to identify them before they put their deadly new skills to use. “They are unknown people,” said one law enforcement official. U.S. counterterrorism specialists, like recently retired CIA Counterterrorist Center Director J. Cofer Black, stressed that the threat to the U.S. was just as real. “What really concerns me is, not many have to get past you when they are trained so well in explosives,” he said. Indeed, he suggested that the threat might prove severe enough to affect Americans’ quality of life: “I predict that the quality of all our lives will change to a certain extent, as measures previously considered needed [only] in forward areas will increasingly be adopted in our home countries.” —Shaun Waterman THE LAW SCHOOL

Faculty Focus

Revesz’s Recruits: Since becoming dean in 2002, Richard Revesz (front) has made building a preeminent full-time faculty one of his top priorities. Here, he showcases the impressive results of his efforts: eleven top legal minds, now part of the faculty at the NYU School of Law. Front, from left: Lily Batchelder, Rachel Barkow, Kevin Davis, Katrina Wyman. Back row, from left: Stephen Choi, Daniel Hulsebosch, Deborah Malamud, Jennifer Arlen ’86 (Ph.D. ’92), Oren Bar-Gill, Cristina Rodríguez, Samuel Issacharoff.

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AUTUMN 2005

Fac u lt y

n ew s

A Long, Sizzling-Hot Summer

o say that it’s been a breakout season for Law School Professor Noah Feldman would be an understatement. The former senior advisor on constitutional law in Iraq continued to be every news program’s dream pick, popping up everywhere from CNN to the Charlie Rose Show. His new book, Divided by God: America’s ChurchState Problem, received strong reviews in major publications, including the Economist and the Washington Post. An excerpt of it even ran as the July 3 cover story of the New York Times Magazine, inspiring readers to write more than a few letters to the editor. And it’s not just Feldman’s mind that’s been sparking interest. In August, New York magazine included him in its roundup of the city’s most attractive people, as “Most Beautiful Brainiac.” (“That’s like being the tallest mountain in Missouri,” quips Feldman.) Feldman has been pleasantly surprised by it all, particularly the fervent interest in Divided by God, a historical overview of the growing chasm between two dominant cultural groups in the U.S., what he calls “values evangelicals” and “legal secularists.” The former consists of deeply religious individuals who believe government policies must be based upon a shared set of moral and ethical beliefs; the latter maintain that federal laws must be guided by secular principles, protecting minorities and nonreligious people against exclusion from full citizenship. Harking back to the ideas that motivated the framers of our Constitution, Feldman suggests a solution to the increasingly bitter conflict between these two camps: Foster greater freedom for believers to use religious speech and symbols in public, while simultaneously refusing to use taxpayer money to fund religious institutions. This approach, he argues, will assuage the deepest fears of both sides and maintain the healthy vibrancy of American democracy. “Being in Iraq and hearing Americans say the Iraqis should adopt our church-state solution struck me as reason to write a book pointing out how uncertain our solution really is, and how we need to focus on bridging the divides that threaten our national unity,” says Feldman, the author of two AUTUMN 2005

previous books, What We Owe Iraq: War and the Ethics of Nation Building and After Jihad: America and the Struggle for Islamic Democracy. “The new book fits with the consistent theme of my work thus far: the relation between religion and political authority.” Feldman recently received a $100,000 grant from the Carnegie Foundation to continue his work on Islam and is already busy writing a book exploring “the interplay of ideas of government and actual government institutions” throughout Islamic history. He attributes his prolific output to his ability to “work in concentrated bursts and work anywhere: planes, trains and automobiles.” Feldman says he also hopes to write books about the transformation of the U.S. Constitution and the life of Justice Felix Frankfurter, a Franklin Delano Roosevelt ally and founding member of the American Civil Liberties Union. All the excitement surrounding Feldman’s professional accomplishments has been dwarfed, however, by a personal event. In July, his wife, Jeannie Suk, an assistant D.A. and visiting scholar at the Law School, gave birth to Jaemin David. Becoming a father has only strengthened his commitment to improving the world. Says Feldman: “Having a son makes me see clearly that the short-term stuff doesn’t matter very much compared to what will remain for future generations.” ■

The Torchbearer In his August 1, 2005 New Yorker article, “Sex and the Supremes,” Jeffrey Toobin dubbed Sylvia Law ’68 “the unofficial godmother to progressive students and their causes.” He couldn’t be more right. The Elizabeth K. Dollard Professor of Law, Medicine and Psychiatry and codirector of the Arthur Garfield Hays Civil Liberties Program has spent her career as a civil rights activist, confronting such broad and complex problems as poverty, women’s health and sexual discrimination. But, she herself has never been the subject of headlines before. How does it feel to be celebrated in this way? “My first reaction was that he paid too much attention to me,” Law says. “This has been a huge collective effort to promote a vision of justice. On reflection, I figured that the attention to me was OK. If I got more credit than I deserved here, I have often gotten less.” Toobin describes Law’s pivotal role in the gay rights struggle. In 1977, Law, along with Professor Burt Neuborne, demanded that law firms unwilling to hire gays and lesbians should not be allowed to recruit on campus. The faculty overwhelmingly supported the ban and NYU became the first law school in the U.S. to set an equality standard based on sexual orientation. Decades later, applying the same argument to the U.S. military, Law became a leading opponent of the Solomon Amendment, which withholds federal funding from law schools and their entire universities if they bar military recruiters. In 2004, the U.S. Court of Appeals ruled that the Solomon Amendment violated the First Amendment. The mandate of the Court of Appeals has been stayed, however, until the Supreme Court hears the case this fall. What kind of reaction has Law received from her friends and colleagues? “Tons of email about the article,” she says, adding that not all of it has been rigorous intellectual commentary. “Most of it has been comments on my hair. My favorite was an old friend who described it as ‘liberated.’” —Graham M. Reed

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FACULTY FOCUS

Inaugurating the An-Bryce and Opperman Professorships

Professor Deborah Malamud

he Law School proudly inaugurated two new chairs this year: the An-Bryce and the Dwight D. Opperman professorships. An-Bryce Professor of Law Deborah Malamud, who teaches labor and employment law, gave the An-Bryce talk, introduced by U.S. Supreme Court Justice Clarence Thomas. The first Dwight D. Opperman Professor of Law, Samuel Estreicher, director of the Center for Labor and Employment Law and codirector of the Institute of Judicial Administration, delivered the Opperman speech, with an introduction by U.S. Supreme Court Justice Anthony Kennedy. “Professor Malamud brings honesty, depth of scholarship, a passion for helping others and an interest in people trying to do their best,” said Justice Thomas at the An-Bryce lecture in September 2004. The AnBryce program, founded by self-made millionaire philanthropist Anthony Welters ’77 and his wife Beatrice, offers fellowships and mentoring to underprivileged scholars with leadership potential who are among the first in their families to attend graduate school. Professor Malamud’s speech covered her own story of upward mobility as well as her evolving research agenda. She grew up in a lower-middle-class neighborhood, and eventually clerked for Judge Louis Pollak, U.S. District Court for the Eastern District of Pennsylvania and Supreme Court Justice Harry Blackmun. She was quick to note, however, that her life’s journey “was a very, very small one…hardly a trip at all compared to the trips the An-Bryce Scholars, the Welterses and Justice Thomas have taken.” Her professional interests have been influ-

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Professor Samuel Estreicher

enced by her personal experience, she said. While her early work focused on the potential for class-based affirmative action to succeed, her recent research is about the ways government shapes our understanding of what it means to be middle class. On April 4, Justice Kennedy introduced the Dwight D. Opperman lecture. He praised Opperman, a nationally recognized philanthropist and chairman of Key Investments, a privately held high-tech venture capital firm, for his commitment to the judiciary and to legal education. “The federal judges,” Kennedy told the audience, “have no truer friend than Dwight Opperman.” Estreicher’s lecture explored the unmet legal needs of modestly paid workers. In “Beyond Cadillacs and Rickshaws: Towards a Culture of Citizen Service,” he said that the U.S. civil court system is like a Cadillac: It provides superior service, including extensive discovery and generous damage awards, but only to those who can afford to bring lawsuits. Those who can’t would be lucky to have a rickshaw. People of modest means with grievances have become “orphans of the law.” According to Estreicher, “No one will come to their aid.” He added that the high costs of litigation make it impossible for workers in the lower–middle class to even contemplate bringing a lawsuit. Estreicher proposed that law schools institute more clinical programs to handle claims of working-class people. He also urged law firms to take on more consumer-oriented matters as pro bono cases, arguing that providing legal services to the working class is “more likely to result in substantial improvements,” than pro bono class-action lawsuits. ■

Daniel Hulsebosch Wins Surrency Prize

he American Society for Legal History awarded a 2004 Surrency Prize to Professor of Law Daniel Hulsebosch for his Law and History Review article, “The Ancient Constitution and the Expanding Empire: Sir Edward Coke’s British Jurisprudence.” A prolific legal historian, Hulsebosch explores ways in which legal culture integrates societies across space and time. In his prizewinning piece, Hulsebosch waded through reams of Coke’s arcane early modern English prose and Medieval Latin to analyze his constitutional jurisprudence. He clarifies Coke’s views of the rights and liberties of the King’s subjects in Britain and in the overseas empire, and contrasts Coke’s actual views with those cleverly appropriated years later by rebellious American colonists. “Coke often appears as either a crabbed, distant figure in English legal history or a heroic prophet of judicial review. I don’t think either picture is accurate,” says Hulsebosch, who considers Coke the dominant legal thinker of the age of imperial expansion. Hulsebosch, who is publishing his first book this fall, Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664–1830 (University of North Carolina Press) sees his work as a painstaking attempt to “understand the legal history of the British Empire as a whole.” And how does he feel about winning the coveted Surrency Prize? “It’s nice to get some positive reinforcement for one’s obsessions,” he says modestly. —Ranjani Ramaswamy

Illustration by Ismael Rolden

Gillers Chairs Bar Association Committee on Ethics

n December 2004, Stephen Gillers ’68, the Emily Kempin Professor of Law, was appointed chairman of the American Bar Association’s Joint Committee on Lawyer Regulation. Gillers is an expert on the law governing lawyers and the regulation of the legal profession. He has been a member of the Joint Committee since 2002.

The Joint Committee, which is part of the ABA’s Center on Professional Responsibility, is divided into three subcommittees that each focus on implementing a particular set of the ABA’s Model Rules of Professional Conduct. The Committee assists states as they consider adopting ABA rules by providing them with research and consultation on how to create the most effective lawyer regulatory programs that assist lawyers as well as serve the public. The Joint Committee membership is composed of lawyers and judges who are active in the area of the regulation of the bar. Gillers currently teaches classes on legal ethics and has written widely on legal and judicial ethics for the legal and popular press. “Professor Gillers’ broad background and experience in the fields of lawyer ethics, regulation and professional responsibility qualify him ideally to chair the Joint Committee,” says Seth Rosner (LL.M. ’60), chair of the ABA’s Coordinating Council of the Center for Professional Responsibility. “As a teacher and as a practitioner, he brings to this assignment a rare combination of intellectual acuity and practical experience.” ■

Professor Stephen Gillers

The 2005 Annual Report of Donors AUTUMN 2005

t h a n k yo u !

The Law School is proud to recognize the support of our alumni and friends by including the name of every contributor who has made a gift between September 1, 2004, and August 29, 2005, in this fall’s Annual Report of Donors. Your support is vital. It lets us respond rapidly to new opportunities and fund essential programs. Due to the generosity of our alumni and friends we are able to create a vibrant, intellectually-engaging center for current students and graduates. For more information, contact: Gale Kindberg NYU School of Law 161 Avenue of the Americas, 5th Floor New York, NY 10013 (212) 998-6061 (v) (212) 995-4035 (f) gale.kindberg@nyu.edu www.law.nyu.edu/wherewestand

Remembering David Bradford

avid Bradford was a professor of economics and public affairs and associate dean at the Woodrow Wilson School of Public and International Affairs at Princeton University and an adjunct professor at the Law School. He cotaught the Colloquium on Tax Policy and Public Finance with Wayne Perry Professor of Taxation Daniel Shaviro. Bradford, 66, died in February of injuries sustained in a fire. Here, an excerpt from Shaviro’s tribute to his friend and colleague: The first time I ever talked with David will always be a bright spot in my memory. We discussed the possibility of running a tax policy colloquium together. I remember this trim, vigorous man with a shock of white hair and an amazingly warm smile with the enthusiasm to match. It was the beginning of a 10-year run that ought to have continued for another 10 years at least. David was great to go to battle with, although by “battle” I just mean trying to have a good and enlightening session that everyone would learn from and enjoy. He enjoyed the dialogue, the jokes when they came and the attempt to understand things better. And he definitely enjoyed the food. I have never known anyone as willing as he to disagree in an amiable and openminded spirit. Not to make him too much of a teddy bear—David was tough on sloppy thinking and willing to argue as vigorously as he was willing to be argued with. But his true enjoyment of it all meant that nearly everyone took it well. I am fortunate to have known David for as long as I did. And a feeling of celebration and joy, not sorrow—however strong the grounds for it—is what I know he would have wanted people to express and to feel today. ■ THE LAW SCHOOL

FACULTY FOCUS

Furman Fellow Kim Barry was a cherished member of the New York University School of Law family. Born in the Bahamas and raised partly in Australia, Barry had a truly international perspective and a deep commitment to human rights.

im Barry first arrived on the Law School campus in 1995, as a student. She was named a Dean’s Scholar and awarded a full-tuition scholarship in recognition of her tremendous potential as a lawyer and scholar. She was an articles editor on the Law Review. She also was awarded the Arthur Hays Fellowship in Civil Liberties and served as a teaching assistant to then-Dean John Sexton and a research assistant to Professor Ron Noble. Barry graduated magna cum laude in 1998, earned the Benjamin F. Butler Graduation Prize for unusual distinction in scholarship, character and professional activities and was elected to the Order of the Coif. After graduation, Barry clerked for Judge Betty B. Fletcher of the U.S. Court of Appeals for the Ninth Circuit, and was an associate at Perkins Coie in Seattle. In 2001, she returned to NYU as the Katz Fellow and associate counsel at the Brennan Center for Justice. Barry served as special assistant in the office of University President John Sexton, with whom she cotaught an honors seminar for NYU undergraduates. In 2003, Barry was named the first Furman Fellow at the Law School. The Furman Academic Program provides the most promising young Law School graduates an opportunity to do research as a pathway to an academic career. A symposium of her work will be published in the NYU Law Review this year. Her paper “Home and Away” explored the relationship between émigrés and their home countries; it was one of six pieces selected for publication in 2004 in the Law Commission of Canada’s Legal Dimensions

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Competition. At the time of her death, many of the nation’s top law schools were considering her for faculty positions. At her memorial service in November 2004, Professor Bryan Stevenson spoke movingly about his former student. Here is an excerpt from his tribute: It’s been very difficult to not be overwhelmed by the tremendous loss that Kim’s death brings about. But I think it’s important to not just mourn her loss, but to celebrate her life. Kim was like a 1000-watt bulb—brighter than most—and she had this capacity to light up a room. You hear people talk about that sometimes, but there is nobody for whom that expression is more true than Kim. She just had this glow, and at an elite university like this, it’s not uncommon to encounter bright people. But sometimes their light gets hard, sometimes you have to shield yourself from it. The thing that was extraordinary about Kim is that even though she provided as much illumination as anybody, her light was warm; it was kind; it was soft; it had this glow to it that brought you in. And that’s so rare that I think it’s important to celebrate it. I met Kim in 1997 before I was committed to teaching. I was very undecided about leaving my law practice representing people who were on death row. Kim was in the first group of students that I taught, and

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Kim brought sparkle to my life, enticing me from my computer to see Chekhov at the Brooklyn Academy of Music and to dance in Tribeca and to eat at wonderful, cheap exotic restaurants. We talked a lot about her work and path toward finding a teaching job—she was less concerned about status than anyone I have ever known. Location mattered to her. She wanted a life that included her far-flung family and friends. Colleagues mattered. She wanted her work life to be grounded in a loving community.”

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Kim Barry (1969-2004)

Professor Sylvia Law, Kim Barry’s roommate

I can say with all honesty that it’s because of Kim that I began to think there was something valuable here. That year, I took Kim and several other students to represent death row prisoners in Alabama. She got perhaps the hardest assignment in the group—the case of a 17year-old who had been sentenced to death. This young man was very despondent and had been on death row for several years. But Kim approached this case with enthusiasm. She and her partner drove all over the state and uncovered all kinds of evidence about the crime and about his background. They put together a brilliant pleading that we are still using and I am confident that it’s going to ultimately result in this man being released from death row.

Kim, far right, with mother Brenda followed by Alessandra, Ade, sisters Tina and Tracy, and Isabella

But the other thing she did, which no one could teach her how to do, is give this young man hope. He wrote me a letter saying “Thank you for sending Kim. Because she cares about me I’ve got to care about myself.” The transformation in this young man was remarkable. He had struggled in prison and received disciplinary infractions. That improved dramatically after meeting Kim. Kim was the only student we’ve had who actually came back to Alabama after graduation to work on the hearing for her client. Something really remarkable happened when she presented the evidence. This young man had a horrific background; he was terribly abused as a child. She described a brutal episode when, as a child, he went into a store with his stepfather and took a Popsicle. His stepfather beat him, tied him up and put him in a closet for several days. After the hearing, the guard who transported this young man from the prison to the courthouse said to Kim, “That’s all sad evidence that you presented, but I don’t see why it makes a difference.” And Kim started explaining to him why it makes a difference when people get beat down. She was saying that when you don’t get love you get angry and when you get angry you stop feeling; you start seeing only the bad things. She went on and on. I could see this man just transformed by the way she put this together. And at the end of it, she had this big smile on her face and she said, “So don’t you be mean to him—you be nice to him.” And the guard smiled and said, “I’m not gonna be mean to him.” And then she said, “I didn’t say just don’t be mean; I said be nice.” Later, the client wrote a letter to Kim telling her how on the trip home, the guard stopped. He left the van, then came back and gave the client a Popsicle. The guard said, “I’m giving you this Popsicle and you can tell that black British Australian woman that she’s to thank for it.” Doing this work you learn really simple things and you learn very quickly that you can’t give what you don’t have. And Kim had so much love, so much hope and so much compassion that she could give it to people and it would change their lives. It is not an exaggeration to tell you that she saved that young man’s life.

Kim Barry’s family has set up a scholarship fund in her memory at the Dunmore School, a nonprofit community school in Harbour Island, Bahamas. Donations may be sent to the Dunmore Foundation c/o Melissa Sellars, 6870 Sunrise Place, Coral Gables, Florida 33133. AUTUMN 2005

From left: American University’s law school dean Claudio Grossman, Justice Stephen G. Breyer, Justice Antonin Scalia, Professor Norman Dorsen and Cardozo law professor Michel Rosenfeld

How to Get a Supreme Court Justice to Debate? Just Ask.

hen notoriously camera-shy U.S. Supreme Court Justice Antonin Scalia faced off with fellow Justice Stephen G. Breyer on live TV in January, it was the first time in recent history that two sitting Supreme Court justices have publicly debated each other. How did this landmark event come about? Look no further than the Vanderbilt Hall offices of Professor Norman Dorsen. According to Dorsen, getting Scalia to agree to the televised debate was simply a matter of asking. “I explained what I had in mind and he said yes.” Of course, it helped that Dorsen has been friends with both Scalia and Breyer since their pre-judge days, when all three were law professors. Scalia’s extremely rare on-camera appearance has contributed to growing speculation that he is raising his profile in hopes of becoming the next chief justice should the ailing William Rehnquist step down. Dorsen, however, won’t speculate on why Scalia agreed to the debate, adding that once he got the affirmative, “I didn’t prolong it. I said, ‘Great, Nino, I’ll be back to you with a letter and we’ll follow up.’” During the debate, which took place at American University’s Washington College of Law, the judges discussed whether U.S. Supreme Court decisions should refer to opinions by courts in other countries. Scalia argued against the practice, saying, “What you’re looking for as a judge…is what? The

standards of decency of American society— not the standards of decency of the world, not the standards of decency of other countries.” Breyer, however, took the opposing view, saying, “The truth about the world…is that, of course business is international; of course law is more and more international; and of course human rights, too, are more and more international.” Dorsen moderated the dialogue, which was jointly sponsored by American University and the U.S. Association of Constitutional Law, of which Dorsen is founding president. Dorsen, also former president of the American Civil Liberties Union, has often found himself on the opposite side of the issues from his old friend Scalia. But clearly their differences of opinions were not a factor in Scalia’s accepting Dorsen’s offer. “He knew me,” Dorsen says. “I think he assumed I’d be fair.” —Wendy Davis

The debate in action.

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A New Generation Fights the Battle for Global Justice BY Thomas Adcock

This article about Margaret Satterthwaite ’99 appeared on December 3, 2004 in the

oung attorneys eager to work on matters today that make headlines tomorrow now have an option beyond police courts or crime in corporate suites. In fact, according to Margaret Satterthwaite, the whole world is their docket. “This is a new moment for us,” said Ms. Satterthwaite, 35, research director and clinical professor at the Center for Human Rights

dent organization partnered with the center to provide a place for students like him— busy with basic courses but yearning to do human rights work—to get practical experience through groups such as the Center for Constitutional Rights, Human Rights Watch, the Center for Reproductive Rights, Human Rights in China, and Human Rights First. “The center gives us leads on organizations that need research assistance,” said Mr. Blazejewski. “And we book speakers to raise awareness. This year, we’ve had six panels.” In addition, the student component of the center selects an annual symposium theme, this year’s being the rights of non-

“We need to make sure that the war on terror doesn’t become a war on law,” said Ms. Satterthwaite. and Global Justice at New York University School of Law. “I absolutely believe we’re seeing a human rights movement.” She likens an emerging contemporary zeitgeist with that of the 1960s, when social activists in America looked beyond their own shores for inspiration—for example, Martin Luther King Jr. to India and the teachings of Mohandas Gandhi, and the call by Malcolm X to “internationalize the struggle.” Two years ago, the Center for Human Rights was created at NYU Law as a place where students, practicing attorneys and advocacy groups could combine forces to remake the world—creating a formal venue for what took place a generation ago. It’s a similar time,” said Ms. Satterthwaite. “And we’re involved in war again.” The center operates on an annual budget of approximately $450,000, projected to be $850,000 in about a year. Support comes from a combination of university and foundation funds, as well as individual donations. Besides Ms. Satterthwaite, the center has one full-time and one part-time staffer. Faculty director is Professor Philip Alston, currently vice president of the European Society of International Law. Kenneth Blazejewski, 27, is one of the center’s stalwarts as chair of the affiliated Law Students for Human Rights. His stu56

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citizens in the United States in areas such as health benefits, employment assistance and immigration policy. As vice chair of the law students group, Ari Bassin, 28, coordinates research work with the various advocacy organizations associated with the center. “The idea is keep the network going,” he said.

Through his work at the center, and an internship last summer with the International Criminal Tribunal for Rwanda, Mr. Bassin developed a career goal: international dispute resolution. With that focus in mind, he accepted a summer associate offer this year at Debevoise & Plimpton, which has a strong practice area in private and public dispute resolution work abroad.

Center’s Main Business Bringing standards of international law to bear on domestic legal policy is the main business of the center, especially as it applies to controversial post-9/11 national security initiatives. “We need to make sure that the war on terror doesn’t become a war on law,” said Ms. Satterthwaite. “We need to ask what is it we’re trying to do with these various initiatives. Human rights law emphasizes due process and all the things at the heart of the U.S. legal system.” Ms. Satterthwaite notes two of this week’s headlines: • Alleging torture at Baghdad’s notorious Abu Ghraib prison, the Center for Constitutional Rights filed a war crimes complaint against Secretary of Defense Donald H. Rumsfeld in a Berlin court, in accordance with Germany’s new Code of Crimes Against International Law, granting universal jurisdiction in cases of crimes against humanity. • In a confidential report to White House lawyers, the International Red Cross alleged that U.S. military personnel employ psychological and physical coercion “tantamount to torture” on prisoners at Guantánamo Bay, Cuba.

From left: Kenneth S. Blazejewski, Hetal Dhagat, Chris Delphin, Margaret Satterthwaite, Natasha Bakht and Jim Wormington

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Months before this news, the center worked with the Association of the Bar of the City of New York to produce a white paper titled “Torture by Proxy: International and Domestic Law Applicable to ‘Extraordinary Renditions.’” In it, student and attorney researchers gathered hundreds of disparate reports of U.S. authorities involved in “the transfer of an individual…to a foreign state in circumstances that make it more likely than not that the individual will be subjected to torture or cruel, inhuman, or degrading treatment.” Ms. Satterthwaite suggests that the white paper is as ironic as it is damning. In the years following the conclusion of World War II in 1945, she said, “The United States was at the forefront of creating all these international standards. Eleanor Roosevelt was at the center of it. What you see now is the [Bush] administration and its supporters trying to find ways to get around those standards.” From this, Mr. Blazejewski draws a lesson. “Anyone who feels we can conduct [national policy] without abiding by international standards misunderstands what global leadership is about in the first place,” he said. “We have to be willing to build credibility, not only among [foreign] policymakers, but among populations. We have to show that we’re people who live by the rule of law, and that we respect the law.” Mr. Blazejewski’s brand of generational idealism is not likely to dissipate, certainly not according to NYU Law alumnus Randi N. Harari, a second-year corporate associate at Weil, Gotshal and Manges. “Learning what I learned through the center about human rights had an impact on the practice area I chose—transactional law rather than litigation, where I might be involved in work that could be contrary to my personal beliefs,” said Ms. Harari, 28, who does pro bono work through Weil Gotshal, such as projects for Habitat for Humanity. The center, she said, “affected not only my career but my life, the way I think about things.” The NYU Law center, she said, made her see injustice on individual rather than abstract terms. “It’s people who are suffering. If you’re silent, if you don’t do something, then you’re giving tacit approval to it,” she said. Echoing a slogan from the 1960s, Ms. Harari added, “If you’re not fighting the problem, then you’re part of the problem.” Reprinted with permission from the December 3rd, 2004 edition of the New York Law Journal 2005 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited. AUTUMN 2005

How Tax Cuts Feed the Beast By Daniel Shaviro

is almost unimaginable: the total difference between the cost of all promised benefits and the revenues to pay for them is about $70 trillion. The root causes of this gap are that Americans are living longer and that health n the campaign trail, President Bush care costs are growing far faster than inflais busy telling voters that he wants to tion, making Social Security and Medicare keep making government ‘’smaller more expensive. But the Bush administraand more efficient’’ and that his opponent, tion has added immensely to the gap: the John Kerry, wants a return to the days of big Medicare prescription drug benefit enacted government. Forget the profligate spending last year amounts to a $16.6 trillion increase of the past four years, he seems to suggest; over the very long term, according to the instead, think of the many tax cuts that have Medicare trustees. That is a straight tax been pushed through and how in time, as increase on future generations. the saying goes, they will ‘’starve the beast.’’ Against this background, how should we But in fact the Bush tax cuts will do noththink about the huge Bush tax cuts? They ing of the kind. Counterintuitive though greatly increase the already huge redisit may seem, they will inevitably end up tribution of wealth from younger to older increasing the size of government. generations, because the younger generaWhen we talk about ‘’big government,’’ tions will have to pay off the bonds that are we shouldn’t be talking simply about how being floated to finance the current fedmany agencies are in Washington eral spending, as well as the or how many employees they Social Security and Medicare have. Rather, we should consider expenses of older generations. government’s effects on society On top of this, the Bush tax cuts as a whole. If the government are likely over time to increase, were to hire a lot of employees not reduce, government’s effect to redistribute wealth, everyone on the economy. would agree that government The growing federal debt had grown. But if the governis virtually certain to lead to ment instead used regulation for offsetting tax increases down the same purpose, it might have the road. Does anyone really Professor Daniel Shaviro fewer bureaucrats but it would believe that in 10 years, when not be smaller—it would simply have outSocial Security and Medicare benefits are sourced its ‘’big government’’ activity by imminently threatened, Congress will not making private workers subject to new govtry to increase revenues to keep the benefits ernment authority. flowing a bit longer? In the same way, tax cuts can be used in The increased fiscal gap also makes lieu of spending to redistribute wealth and future government policy far less predictshape the economy. And, intentionally or able. Having a looming debt of that size will not, that is exactly what Mr. Bush is doing. stir every interest group in Washington to Two important points about the country to influence future policy. It won’t be try’s fiscal system help to make this clear. possible to take any government commitThe first is that Washington has historically ment for granted for more than a few years. engaged in immense wealth redistribution With even Social Security and Medicare from younger to older generations, mainly likely to be on the chopping block eventuthrough Social Security and Medicare. ally, no group or lobby will be able to rely Those programs’ benefits were essentially on political inertia to protect what it now provided free to the first groups of eligible has. That is an enviable state for members retirees (in the 1930’s for Social Security and of Congress set on gaining campaign funds, the 1960’s for Medicare), and then expanded but a worrisome situation for the rest of us. over the years without the government’s The Bush tax cuts add up to greater demanding matching contributions from wealth redistribution, a greater likelihood recipients. The younger generations keep of future tax increases, and greater uncerhaving to pick up the tab for the older gentainty about what Washington will do to erations’ expanding benefits. keep its programs going. Sounds like big The second major point is that, as even government to me. the president’s 2005 budget admits, our current tax and spending policies are unsus© 2004, The New York Times. Reprinted by tainable. We face a long-term fiscal gap that permission

What follows is an Op-Ed piece that appeared on September 21, 2004 in

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Courting Trouble Liberal overdependence on the courts, combined with an obsessive preoccupation with church-state symbolism, has reached its limit. By Burt Neuborne

This essay was published on January 4, 2005 in

udging from the views of my respected co-authors in this report, American democracy stands indicted for its performance in November’s election. Yet in several important respects, the system performed better in 2004 than it has in years. That’s not easy for me to say after such a disheartening election day. But you cannot measure the health of a democracy simply by who wins. Voter turnout increased by an astonishing 12 percent, adding 15 million new voters, many from the inner cities. Racial minorities and younger voters turned out in larger numbers than ever before. The two major presidential candidates enjoyed ample, legitimately raised funding, including millions of small contributions raised on the Internet. The candidates posed stark, well-defined choices. A third-party protest candidate was available. The election delivered a clear winner. If John Kerry had won, liberals would be touting 2004 as the mother of all elections. Don’t get me wrong: American democracy is far from robust. President Bush’s narrow lead in Ohio obscured the fact that the same problems with vote tabulation that plagued the 2000 election in Florida were present this time around. If the election had been a little closer, we would have had five Floridas, with lawyers and courts deciding what ballots got counted in Ohio, New Mexico, Nevada, New Hampshire, and Iowa. Instead of butterfly ballots and hanging chads, we had misfiring electronic machines with no paper records, hundreds of thousands of disputed provisional paper ballots with no national standard for counting them, appallingly long lines to vote (especially in inner-city precincts), missing registration cards, and a nationwide inability to handle the surge of new voters smoothly. If the system nearly breaks down when 59 percent of the electorate votes, what would happen if we achieved 70-percent turnout similar to that in many European elections? We desperately need a congressional overhaul of the presidential voting process, from modern voting machines we can trust to

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uniform, same-day registration procedures, from a standardized provisional ballot that ensures that all qualified votes are counted under the same ground rules to a shift of election day to a weekend or a holiday so working people can vote conveniently. That 18th-century relic—the Electoral College—is also waiting to cause mischief. A shift of about 40,000 total votes in New Mexico, Nevada, Iowa, and New Hampshire would have resulted in an electoral tie of 269 to 269. Even more dramatically, a shift of fewer than 60,000 votes in Ohio would have elected Kerry, despite Bush’s 3.5 million nationwide majority. I would have chuckled at the irony of deposing Bush—a man whose claim to the presidency was based on subverting democracy—without winning the popular vote, but it would have been terrible for democracy, and it could happen in 2008 to either candidate. Given the appalling collapse of the Supreme Court in 2000, and the less than edifying performance of courts this time around in dealing with standards for counting provisional ballots, felon disenfranchisement, and reliable voting machines, it is madness to leave close elections to judicial determination. We should be concentrating on the enactment of nationwide, reasonable

presidential voting rules that should make it unnecessary in the future to turn to courts to decide close elections. Equally important, we should be rethinking our overdependence on courts as frontline implementers of liberal values.

e are at the close of a 50-year cycle during which Democrats and Republicans have pursued dramatically different domestic agendas. Democrats have championed the social values of the Enlightenment— toleration, secularism, equality, and free expression. Republicans, meanwhile, have embraced Adam Smith, resisting the government wealth transfers and market regulation often sought by Democrats in the name of equality. In the end, both political parties won their core struggle. Democrats succeeded in dismantling barriers to equality based on stereotype, building a powerful system of free expression and respect for cultural diversity while walling religion off from the exercise of public power. At the same time, Republicans succeeded in enshrining the free market as the engine of economic organization. But the two parties used very different strategies to achieve their victories. Republicans concentrated on politics, largely because by the end of Franklin Delano Roosevelt’s fourth term they realized there was no chance of undoing the New Deal in the courts. After absorbing a terrible initial defeat in 1964, Republicans began the long job of rebuilding their political base. Democrats, almost always acting on behalf of minorities doomed to short-run defeat in the political arena, turned to the courts. Year

after year, the judiciary delivered a steady stream of decisions finding liberal, countermajoritarian values in that quintessential Enlightenment document, the Bill of Rights. The 2004 election saw the Democrats’ 50-year practice of successfully advancing Enlightenment values through the courts instead of through the political process come home to roost. Infuriated by court decisions limiting their power to use law to advance their religious beliefs, a relatively thin slice of the population—probably just 10 percent to 15 percent, but large enough to wield the balance of electoral power this time around—rose up and voted against their economic interests, throwing Ohio and the election to George W. Bush. Whether the issue was abortion, gay rights, the wall between church and state, or pornography, the common denominator of the dramatically increased rural/evangelical vote was rage at judicially imposed limits on the political expression of religious values. How Democrats deal with that rage, and break through it to talk to the red states about economic justice, toleration, and basic fairness is one of the great political challenges of our time. Of course, Democrats could simply ignore the evangelicals and their rural allies, as these blocs may well lose their balanceof-power status once September 11 security concerns ebb. But that’s a huge gamble, one that writes off the South and much of the rural heartland. Defeat in 2004 poses an overdue challenge to Democrats. Their long reliance on the courts as the principal forum to advance Enlightenment values may well have succeeded itself out of usefulness. Much of the liberal agenda initially advanced in the courts has become part of the national consensus. Free speech, freedom from stereotypical discrimination, religious toleration, deep commitment to individualism—issues that once were intensely contested are now the common currency of national discourse. In retrospect, the enduring success of liberal thought in reshaping America has almost always involved initial countermajoritarian court victories, followed by effective political organization designed to convince the majority that the court victories were morally correct. Brown v. Board of Education was followed by Martin Luther King Jr.’s remarkable grass-roots mobilization on behalf of the moral imperative of ending American apartheid. Ruth Bader Ginsburg’s pathbreaking Supreme Court victories on behalf of women were followed by a brilliantly orchestrated popular movement explaining why it was unfair to lock women into stereotypical roles. Pioneering legal vicAUTUMN 2005

tories protecting the right to vote were followed by nationwide political campaigns to explain why it was morally wrong to exclude people of color and the poor from the democratic process. A similar pattern prevailed with the debate over protecting free speech. Two important segments of the liberal social agenda—abortion and gay rights— remain trapped in a political limbo between the initial judicial articulation of a counter-majoritarian norm by courts and moral

as a threat to our way of life? When I was national legal director of the American Civil Liberties Union during the Reagan years and the board had sent me out to argue my umpteenth crèche case, I wrote a memo saying that I didn’t take the job to stamp out the Virgin Mary. Is it worth alienating people in the red states who might vote for a minimumwage bill or back economic policies that do not savage the poor just to make a lawyer’s point about separating church and state?

We should be concentrating on the enactment of nationwide, reasonable presidential voting rules that should make it unnecessary in the future to turn to courts to decide close elections. acceptance by the larger community. Frankly, liberals have gotten out of the habit of translating judicial victories into moral consensus through political discussion. That task can no longer be ignored if we hope to reach out to natural economic allies in the red states. But the boundaries of such discussion must be shaped, not by judicial fiat but by an ability to make a persuasive moral case to the majority. Power to shape the discussion must be transferred from ideologues to pragmatists. In short, begin working at the grass roots to build a moral consensus around civil unions and a woman’s basic right to choose. But stop sounding like abortion is a sacrament, and stop insisting on judicially imposed gay marriage as a symbolic victory. Finally, some elements of the judicially imposed liberal social agenda may not be worth defending. While abortion and gay marriage undoubtedly played a role in mobilizing the rural/evangelical outpouring that cost the Democrats Ohio and the 2004 election, a driving force was rage at judicial decisions preventing governmentsponsored religious expression. Nondenominational prayer services at graduation or before football games, displays of the Ten Commandments in courthouse lobbies or crèches and Christmas trees on public lands, the phrase “under God” in the pledge of allegiance—all fell under the secular knife. I have no quarrel with the analytic correctness of the decisions. Maintaining a strict wall between church and state has served the nation well. But, seriously, as long as all religions are treated equally, do you really view such exercises in religious symbolism

And I’ll go further and really get myself into trouble with my friends. Are we so sure it is a good idea to freeze religious institutions out of the delivery of social services to the poor? For what it’s worth, my experience is that it takes an intense commitment verging on love to crack the terrible shell that the nation’s moral failure has built around the inner cities. The best I’ve seen from most secular bureaucrats is competence—and too often, their competence is overwhelmed by the enormity of the task. Religious institutions have the capacity for the intense commitment that is needed to change a life. Of course, there are risks—proselytization, intimidation, abuse—but why not take a chance? The result could be the mending of the breach between Democrats and millions of natural economic allies in the red states, and more effective social services for the poor in the blue ones. In short, what we need is old-fashioned political shoe leather designed to convince the majority of the moral correctness of a women’s right to choose and the moral correctness of toleration of gay lifestyle—without the freight of an obsessive preoccupation with church-state symbolism. But that argument is merely the appetizer for the main course, a serious economic agenda that recognizes the primacy of markets, tempered for the better by regulation and social investment, but also includes a practical means of breaking through to the hardcore poor. This article may not be resold, reprinted, or redistributed for compensation of any kind without prior written permission from the author. THE LAW SCHOOL

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Additions to the Roster The New York University School of Law is pleased to welcome six eminent new professors to its full-time and affiliate faculty and to introduce a distinguished group of 36 visiting faculty and fellows to our community. These impressive scholars come from as near as uptown Manhattan and as far away as South Africa. Their work is as diverse as their geography; they specialize in everything from international relations to taxes.

Oren Bar-Gill Assistant Professor of Law

n the four years that Oren Bar-Gill has been in the U.S., he has published 11 papers, has five more on the way and has presented at the prestigious American Law and Economics Association conference. The Israeli, who joined the New York University School of Law last January, is the envy of

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his colleagues. “He’s uniquely brilliant. His I.Q. is in the sky,” says Omri Ben-Shahar, Bar-Gill’s former professor who will visit the Law School from the University of Michigan in the fall. Bar-Gill, however, keeps such effusive praise in perspective. “I do believe that my work is important,” says Bar-Gill, 30. “Still, when I look at friends who are neuroscientists, or people who study epidemics, this is a humbling experience for me.” A self-professed nerd who placed third in a regional geometry competition in ninth grade, Bar-Gill combines his love for numbers with his interest in justice to carve out his specialty, law and economics. “He comes up with ideas that nobody has thought of before,” Ben-Shahar says. “Every paper he writes has a surprising, counterintuitive idea.” For example, in “The Value of Giving Away Secrets” (written with Gideon Parchomovsky), Bar-Gill argues that, contrary to accepted wisdom, inventors prefer narrow protection and disclosure over broad intellectual-property protection. In other papers he argues against nullifying contracts that impose seemingly heinous credit terms on the low-income consumer. “If I’m selling furniture in an inner-city community and I’m not allowed to insert these credit terms into the contract, I might simply decide not to sell there at all.” In his 2004 paper “Seduction by Plastic,” Bar-Gill explored the policy debate over legal intervention in the credit card market. He’s currently expanding that research into a book, Market Failure and Behavioral Economics, to be published by Harvard University Press in 2007, about the interplay between consumer psychology and market forces in consumer markets, such as those

for cell phones, magazines and health clubs. “He does in several hours things it takes many professors half a year to finish. He’s the most efficient person on earth,” says Michal Barzuza of the University of Virginia School of Law. Bar-Gill has always been a quick study. Raised with his equally brilliant siblings (his brother is a physicist, his sister a mathematician and dancer) in the suburbs of Haifa by his father, Aharon, 59, a professor of aerospace engineering, and mother, Nechama, 56, a schoolteacher, Bar-Gill skipped a grade in grammar school. “I have no idea why. I guess I was bored.” Playing basketball and tennis spared him from being branded a complete geek, however. After Bar-Gill graduated high school in Haifa in 1992, with a major in computers and electronics, he was accepted into the Academic Reserves Program, which allows students to defer their mandatory army service until after they’ve finished their studies. He was set to enter the Technion in Haifa, where he would be groomed for an engineering post in the Israel Defense Force (IDF), but switched gears: “I had this great aspiration to become a judge, a naive desire to make a difference.” Early in law school at Tel Aviv University, however, he reassessed. “I realized that most of what judges do is fact-finding rather than analytical legal reasoning. While this is very important, it was not the intellectual exercise I wanted,” he says. He pursued a joint degree in law and economics, earning a J.D. equivalent, magna cum laude, from Tel Aviv University in 1996 and a Ph.D. in economics in 2002. In the meantime, he enlisted in the legal department of the IDF in 1997, where he worked under the chief military prosecutor doing appellate litigation. “I saw a lot of action on paper,” he jokes. Thinking outside the box once again, he says: “A lot of criminal litigators see prosecutorial power as a bad thing. The lesson I learned is that if you really want to help defendants, you should become a prosecutor, because you have the power to make sure defendants get a fair trial. You can decide how to frame the charges and which sentences to request.” Bar-Gill met his wife, Sigal, 29, a shiatsu therapist, during the summer just after he finished high school. They married in 1997 and in 2000, moved to Boston, where BarGill obtained an S.J.D. at Harvard in 2005. He and Sigal currently live in New York with their two-year-old daughter, Noam. “Often someone who is busy promoting his career has to forge ahead at the expense of other people,” Ben-Shahar says. “But Oren is very much a family person and a great friend. He’s truly a mensch.” —Jennifer S. Frey AUTUMN 2005

Lily Batchelder Assistant Professor of Law and Public Policy

ax law gets a bad rap. “You go to a dinner party and say you’re a tax lawyer and instantly people say, ‘Oh that’s nice,’ and turn to someone else,” says Lily Batchelder. She, too, once held the notion that studying tax law was about filling out forms and memorizing rules. “It wasn’t until I opened my first tax book and saw exactly what it was as an area of study—thinking about how tax burdens and benefits should be distributed across different taxpayers and how people might game the system—that I was totally in love.” Few people are as passionate about tax law as Batchelder, 33, who traded in a tax practice at Skadden, Arps, Slate, Meagher & Flom in September 2004 to join the faculty at the Law School. “She’s this breathtakingly enthusiastic person,” says Fred Goldberg, a former IRS commissioner and her mentor at Skadden. Students will get their first taste of Batchelder’s energy this fall when she’ll teach Federal Income Tax and Tax and Social Policy. “If you’re interested in eradicating poverty and inequality,” explains Batchelder, who is a lifelong advocate for the economically disadvantaged, “then you need to know how to deal with the tax system. Social policy is increasingly done through the tax code.”

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Batchelder’s concern for social justice started early. Raised with her three brothers in Brookline, Massachusetts, she followed her parents’ lead. Batchelder’s father, Sandy, 73, was a lawyer with a strong pro bono practice. Her mother, Molly, 68, a folk art painter, taught her that “For those to whom much is given, much will be expected,” Batchelder says. So as an undergraduate at Stanford University, Batchelder joined a number of activist groups, including a pro-choice alliance, a solidarity network for Central America and an anti-apartheid group. As the director of the Stanford Homelessness Action Coalition, she moved the group’s meetings off campus so that neighborhood residents and homeless people alike could participate. “Some people were on sports teams; I was in activist groups. It was what I loved and what I thought was important,” she says. Batchelder graduated in 1994 with an A.B. in political science, a 4.0 GPA and the Firestone Medal for Excellence in Under graduate Research for her thesis analyzing the implications of East Palo Alto’s incorporation. After college she worked as a client advocate at a small social service agency in Brownsville, Brooklyn, where she occasionally broke up violent fights in the soup kitchen. She went on to become the director of community affairs for state senator Marty Markowitz, now the Brooklyn borough president. She enjoyed community work, but “I wanted to address some of the problems I saw and to deal with the policy issues that were creating them,” she says. A master’s in public policy at Harvard University’s John F. Kennedy School of Government did the trick. After graduating in June 1999, she entered Yale Law School, where she founded the Pro Bono Network, was editor of the Law Journal and was the director of a human rights project. Lured by Goldberg to Skadden, Arps in 2002, Batchelder proved adept at practicing law. “I’ve seen how she manages a conversation with a bunch of grumpy lawyers. And I’ve seen how she has insight on issues where conversation stops,” Goldberg says. Professor Daniel Shaviro says, “She’s the first entry-level tax person the school has hired in 20 years. Even though she wasn’t fully on the job market, we heard about her and went after her.” Her work currently focuses on tax and transfer policies affecting low- and middle-income families. In particular, she is researching arguments that behavioral tax incentives are often best structured as refundable tax credits. She is also exploring the continuing relevance of traditional arguments for tax incentives to encourage individual savings.

Batchelder spends her free time watching bad action movies and having dinner with friends. Teaching will be a new experience, but one she’s looking forward to: “I love trying to convince people to love tax. Tax usually is not seen as an exciting subject, but it’s one of my goals to convince people it is.” —J.S.F.

Stephen Choi William T. Comfort, III Professor of Law

is sister may have soloed with the Boston Pops Orchestra, but Stephen Choi, who joins the faculty this fall from the University of California at Berkeley Law School, hopes to achieve fame through a different route: securities regulations. Growing up in the Boston suburbs, Choi, 38, would never have guessed that law would be in the cards for him. His grandfather and two uncles were doctors, and his dad, Noah, was a professor at Harvard Medical School. An older brother would become a hospital administrator. His mother, Jae Eun, was a music teacher and his two sisters were musical prodigies. “I have a dead ear,” says Choi, whose mother’s attempts to get him to play the violin and clarinet failed. “I was the black sheep of the family.”

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He had shown some promise in science, though, and entered Harvard as a biochemistry major. Then one Friday night after 36 hours in the lab, he recalls, he was performing a laborious experiment in which he had to carefully transfer DNA into a thin vial. “I’m not very coordinated, so instead of it going into the vial it went onto the floor. I decided, ‘I’m not doing this anymore.’” Luckily, at about that time a non-science course captured his imagination—Justice. “That got me thinking about fairness, consequences and administrative” issues of lawthemes he still deals with today. Choi went on to Harvard Law School, graduating first in his class in 1994. He spent the next year as an associate at McKinsey & Company before becoming a visiting professor and then an assistant professor at the University of Chicago Law School, where he carved out his specialty in securities regulation. While teaching, he completed a Ph.D. in economics at Harvard in 1997. He moved with tenure to Berkeley in 1998 where he was appointed the Roger J. Traynor Professor of Law, before being lured to the New York University School of Law. Choi is a prolific writer with at least 32 published works under his belt, including theory papers on securities regulations; securities class action empirical studies; and a series of papers on the judiciary. His research focuses on how to protect investors in an increasingly complex securities market. “A delicate balance exists here. There’s no doubt that a strong system of securities regulations gives investors confidence. But regulators can often make mistakes and face large pressures to be seen as ‘doing something,’ particularly in the wake of a large scandal such as Enron. Too much regulation can be just as much a problem as too little.” Recently Choi cowrote “Behavioral Economics and the SEC” in the Stanford Law Review, which examines how behavioral quirks may lead the SEC to overregulate. Another cowritten article, “How to Fix Wall Street: A Voucher Financing Proposal for Securities Intermediaries,” published in the Yale Law Journal, explores conflict of interest problems among Wall Street analysts and the possibility of market-based solutions to these problems. And his recent 700-page casebook, Securities Regulation: Cases and Analysis (Foundation Press), the first to include a hypothetical case study that examines a Martha Stewart–like, insider trading–related scenario, is his biggest undertaking to date. “Steve has a knack for picking important issues in investor protection and performing a very detailed, empirical analysis that is helpful in setting regulatory policy,” says Robert Daines, Pritzker Professor of Law and 62

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Business at Stanford Law School (and former Law School professor). “His pieces on the effect of recent securities regulation reform, such as in corporate elections, the issuance of securities and regulating investor lawsuits against corporations, are unmatched.” Choi and his wife, Un Kyung, and their three children have already settled into New York City. The kids adore the dinosaurs at the Museum of Natural History, and Choi loves his newfound proximity to Wall Street, the hub of the securities industry. “I couldn’t imagine being at a better place,” he says of the Law School and the city. “But at baseball games,” he admits, “I still root for the Red Sox.” —J.S.F.

Daniel Hulsebosch Professor of Law

ike any historian worth his salt, Daniel Hulsebosch is adept at uncovering the past—even his own. Hulsebosch, a legal historian specializing in both early American legal and constitutional history and the legal history of the British Empire, traces his love for the field back to fifth grade. With notebook and Polaroid in hand, he reported on the history of the colonialera houses in his Westchester neighborhood. “The physicality of history struck me,” he says. “I was fascinated by its layered quality, the way an old house was actually made up of a series of additions, each built by a different generation,” Hulsebosch says with characteristic eloquence. “Later I came to see intellectual history in much the same way: ideas are structures built over time, each part added by a new generation.” Hulsebosch, 39, who joins the faculty in September, has a reputation among his colleagues as a kind of Rumpelstiltskin who can turn the driest material into gold. “Legal history doesn’t produce good stories naturally,” says Eben Moglen, Hulsebosch’s professor at Columbia Law School. “He has the ability to find stories that reflect larger social truths and to tell them in a way that makes for good reading. He’s an inventive writer of history with an eye for the vignette.” Brought up with four siblings, Hulsebosch had “to develop verbal skills pretty early on, or else get lost in the shuffle,” he says. He became a serious student at Colgate University in sleepy Hamilton, New York. “The best attraction in town was the library. There wasn’t much else to do but read, so I started spending much of my time buried in books.” He majored in history, minored in literature, and, as the editorial editor of the school newspaper, developed his writing style. During his junior year, he studied

abroad in London, which cemented his love for history. He spent a good deal of his time at the Public Record Office researching the relationships between American and British officials, including President Franklin D. Roosevelt and Prime Minister Winston Churchill, on the eve of the Second World War. “It was thrilling to reach through the archives and read letters written by Churchill, and more importantly, by the civil servants who worked with him,” he says. “I became fascinated in the second tier of leadership, the names we don’t remember but who informed and advised key leaders.” He carried that fascination into his first book: Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664-1830 (University of North Carolina Press, 2005). In it, he reinterprets the role that familiar characters like Alexander Hamilton played in shaping the Constitution, while also restoring forgotten characters, like loyalists Sir William Johnson and William Smith Jr., to their deserved places of prominence. In his current project, tentatively titled Writs to Rights: The Transformation of Professional and Popular Conceptions of the Common Law, 1790-1850, Hulsebosch asks why the early U.S. didn’t develop a civil service in the way that European nations did. “My short answer is the legal profession became the unofficial civil service and helped generate the administrative glue made elsewhere by government officials.” He’ll look at the lawyers who transformed British common law into the American system of laws we know today. “Dan’s important, in part, because he represents a new wave of scholarship in early American history that we call Atlantic History,” says Stanley Katz, professor of public and international affairs at Princeton. AUTUMN 2005

“Dan has done a brilliant job of putting a legal perspective on this movement,” he says. After earning his J.D. in 1991, Hulsebosch went on to Harvard University, getting his Ph.D. in History of American Civilization in 1999. He was a 1998-1999 Samuel I. Golieb fellow at the NYU School of Law and also received a 1996-1997 Whiting Fellowship in the Humanities at Harvard. In 1999 he started teaching at Saint Louis University School of Law, where he became a tenured associate professor in 2004. He won an American Society for Legal History’s Surrency Prize for the best article published in the Law and History Review in 2003. Hulsebosch is ambivalent about the relevance of historical work to modern lawmaking. On the one hand, “I usually find that the past I’m uncovering is more different from the present than it is the same, though that itself is an important lesson,” he says. But legal historians can offer decision makers guidance. For example, he helped draft an amicus brief (led by Law School colleague Professor Michael Wishnie) to the Supreme Court that looked at whether the founding fathers would have interpreted the writ of habeas corpus to have extended to the military base at Guantánamo Bay. Hulsebosch spends his free time exploring New York in much the same way he did in fifth grade, strolling down the city’s streets and noticing how houses from one period sit side by side with those from others. Always the historian, he likes to tease his colleagues who live in the West Village by telling them: “In the colonial period, their apartment building would have been under the Hudson River.” —J.S.F.

Samuel Issacharoff Bonnie and Richard Reiss Professor of Constitutional Law

rofessor Samuel Issacharoff is not one to rest on his laurels. Just when he’s made a name for himself in a particular field, he moves on. Two years ago he was inducted into the prestigious American Academy of Arts and Sciences for his expertise in employment law and his empirical work in behavioral law and economics. But “neither of those would come to the top of any list right now,” says the Renaissance man, whose interests currently lean toward complex litigation and procedure and constitutional law. “I tend to move across a lot of different fields. There’s tremendous excitement while you’re on the upward slope of the learning curve. Then you make the decision whether

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to stay with what you’ve become good at, or do something different.” Apparently Issacharoff, who was lured from Columbia Law School to join the faculty this summer as the Bonnie and Richard Reiss Professor of Constitutional Law, has made that decision, going for the latter option several times over. “He’s a lawyer hyphen scholar. He’s able to bridge the gap between high theory and a lawyer’s sense of how judges are thinking about issues. His practice informs his scholarship, and his scholarship informs his practice,” says coauthor Stanford Law professor Pamela S. Karlan. On the lawyer side of the hyphen, Issacharoff started in the mid-1980s as acting director of the Voting Rights Project for the D.C.-based Lawyers’ Committee for Civil Rights Under Law, litigating politically charged matters like racist gerrymandering. “These were great professional moments that gave me tremendous satisfaction. You felt you were on the right side of history,” he says. In 1992, as a junior faculty member at the University of Texas School of Law, he did a turn as an affirmative action lawyer, helping represent the school in the high-profile Hopwood reverse-discrimination case. (The University won at trial but lost on appeal.) His earliest scholarly writings were on procedural law and employment law. In the late 1990s he started writing about the political issues he’d dealt with as a young lawyer, culminating in the seminal book The Law of Democracy: Legal Structure of the Political Process (with Law School Professor Richard Pildes and Pamela S. Karlan, 1998). He and his coauthors made the TV talk show circuit during the controversial 2000 presidential election, and by 2001 published When Elections Go Bad: The Law of Democracy and The Presidential Election of 2000. “Sam is one of the refreshingly large personalities in the legal academic world—and not just because he is 6'5," says Pildes. “While most academics aspire to shape a field, Sam’s scholarship has re-defined several fields: voting rights, complex litigation, civil procedure and employment law. He is not afraid to take strong, controversial positions, but his work is as respected among courts—which cite it regularly—as it is among academics.” Issacharoff, 50, was born in Buenos Aires, to dad, Amnon, 77, a psychoanalyst, and mom, Dorah, 72, who taught college comparative literature. When he was five years old and spoke only Spanish, the family, which includes two younger siblings, moved to the U.S., eventually settling in Manhattan. In 1968, at the height of the student protests, he entered the competitive Bronx Science

High School. “It was a time when schoolwork seemed very difficult to justify as a consuming event,” he recalls. “There were times when attention was focused on the wonderful chemistry courses, and times when we focused on the police arresting students in the building.” A lingering effect of that period was to redirect his interests from math and science toward history and social sciences. “I was very much taken by the ideas of the day,” he explains. He graduated from SUNY Binghamton in 1975, having majored in history, spent a year studying at the Université Paris, then entered CUNY’s Graduate Center to study labor history. When he started at Yale Law School, from which he graduated in 1983, he became immediately enthralled not only with the aspect of legal argumentation, but with the intellectual discipline of law itself. “I was tremendously taken by the craft side of law, fascinated by legal procedure, drawn to ways of conceptualizing a problem and strategizing a solution,” says Issacharoff. After stints at the Lawyers’ Committee for International Human Rights, the Lawyers’ Committee for Civil Rights Under Law and

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a D.C. labor law firm, he joined the University of Texas School of Law, where he became the Joseph D. Jamail Centennial Chair in Law. He left in 1999 to become a visiting professor at Columbia Law School, where he was eventually named the Harold R. Medina Professor in Procedural Jurisprudence. “I’ve had three chairs. That shows some instability,” he jokes. Not so, however, when it comes to personal relationships. He met Cynthia Estlund, his wife of nearly 20 years, in his first semester Consti– tutional Law class, taught by Robert Bork. She sat in front of him, and after a few months of fits and starts and a few hardfought squash games, they became a steady pair. “He’d been out of school for several years and was beyond a lot of the law school neuroses,” recalls Estlund, a professor at Columbia University School of Law, who will be visiting NYU in the spring. “He was world-wise, iconoclastic and confident.” They married in 1986 and have two children, Jessica, 18, and Lucas, 16. Issacharoff has published nearly 100 articles, essays and reports. And in addition to his two earlier books, he has just published Civil Procedure (Foundation Press) and Party Funding and Campaign Financing: An International Perspective (Hart Press). What’s the secret to his productivity? “He is someone who can do three things at one time. He’ll get on the exercise machine with a manuscript in front of him and a basketball game on the television. And then while he’s cooling down, he’ll sit down at the computer for 10 minutes and write a paragraph,” says Estlund. Most recently, Issacharoff has become interested in mass tort litigation where “everybody knows there has to be a resolution, but nobody knows quite how,” he says (e.g., cases involving faulty breast implants or DES exposure). He’s recently been appointed to produce a report and commentary for The American Law Institute for the Project on Aggregate Litigation. His current interests also include the law of democratic participation—i.e., creating democracies in Bosnia and Iraq. This past summer he gave a talk on national security at Oxford University. He’s toying with the idea of writing a book on constitutionalism and fractured societies. “This work is newer,” says Stanford Law School professor and vice dean, Mark Kelman, “but it’s incredibly interesting and likely to be important over the next decade as we think about democracy-building as a foreign policy issue. He’s one of the outstanding scholars of his generation.” —J.S.F.

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Dale Jamieson Professor of Environmental Studies As someone who has taught or studied philosophy for more than 25 years, Dale Jamieson, the NYU School of Law’s new affiliated faculty member, presents a curriculum vitae that yields a surprisingly wide range of scholarly interests, including animal rights, aesthetics in film, dance, visual arts and literature and especially environmental studies. But Jamieson doesn’t see anything extraordinary in this; for him, philosophy is a generous mistress that allows him freedom to stretch and explore. In the ’70s, Jamieson studied the philosophy of language at both San Francisco State University, where he earned his B.A., and the University of North Carolina, where he completed both a master’s and a Ph.D. But then he had an epiphany: “I was struck by something that traditional moral philosophy wasn’t addressing,” he explained. “I looked around the world and saw the human transformation of nature.” The questions that tugged at him then and continue to now tend to revolve around one issue: how we should live in the natural world. Jamieson sees this as a cultural and environmental issue that strikes deeply at core human values. For instance, climate change: “Someone does something that affects someone else,” he offers. “But in this case the someone else is continents away, or perhaps even in the future. This presents fundamental moral questions.” As a professor of environmental studies at the University, Jamieson is enthusiastic about teaching the Environmental Values and the Law seminar in Spring 2006 at the Law School, which he expects to be “different and complementary” to his undergraduate courses— more problem solving, less theory. His goal is to “dig deeper and to understand the worldviews behind conflicts about the environment.” He credits the Law School and the University for being an exciting place to explore these topics now, “precisely because of the sense of possibility and flexibility.” —Jeanhee Kim

Visiting Faculty Jack Balkin Jack Balkin is the Knight Professor of Constitutional Law and the First Amend ment at Yale Law School. He is also the founder and director of Yale’s Information Society Project, an interdisciplinary center devoted to the study of law and new information technologies. Balkin is a prominent legal theorist and constitutional scholar; his work reaches across many fields, from philosophy to politics, from theories of cultural evolution to legal and musical interpretation. He has pubJack Balkin lished several books on these topics, including Cultural Software: A Theory of Ideology (Yale University Press, 1998), The Laws of Change: I Ching and the Philosophy of Life (Schocken Books, 2002). He also edited What Brown v. Board of Education Should Have Said: The Nation’s Top Legal Experts Rewrite America’s Landmark Civil Rights Decision (NYU Press, 2001). Balkin will teach a course on the Information Society in the fall of 2005, and will also be working on three books: one on freedom of speech in the digital era, a second on constitutional theory and a third on the global flow of information. Balkin earned his A.B. and J.D. degrees from Harvard University and a Ph.D. in philosophy from Cambridge University. He clerked for Judge Carolyn D. King of the United States Court of Appeals for the Fifth Circuit and practiced at Cravath, Swaine & Moore in New York. Before joining Yale, he was a law professor at the University of Texas and the University of MissouriKansas City. John Coates Harvard Law School Professor John Coates will be visiting in the fall of 2005. A 1989 graduate of the Law School, Coates taught Mergers and Acquisitions as an adjunct professor at John Coates Washington Square from 1993 to 1997. Before joining the faculty at Harvard, Coates was a partner at Wachtell, Lipton, Rosen & Katz, where he was a specialist in corporate securities, mergers and acquisitions, and the law and regulation of financial institutions. “I offer insights about what lawAUTUMN 2005

yers actually do in the merger process,” says Coates, who has handled more than 150 deals. In his classes he stresses considerations not included in typical corporate casebook analysis, such as how the personalities of decision makers can affect a deal. “Whether or not the two CEOs get along makes a huge difference in whether the merger will work.” Coates has written numerous articles on corporate securities and financial institutions’ regulatory law. His recent research projects have scrutinized the corporate document packages that companies adopt when they go public, and explored the ways large financial institutions enforce internal compliance to state regulations. Coates also cowrote “Mergers and Acquisitions of Financial Institutions” in Securities Activities of Banks (Prentice Hall, 1995). Cynthia Estlund “I’m looking forward to getting to know some new colleagues without having to leave home,” jokes Columbia Law School’s Cynthia Estlund about her Spring 2006 visit to the Law School. Estlund, the vice dean for research as well as the Isidore and Seville Sulzbacher Professor of Law, teaches employment law, labor law and property at Columbia. She joined the faculty there in 1999 after nine years at the University of Texas School of Law, the last three of which were also spent as the associate dean for academic affairs. Before becoming an Cynthia Estlund academic, Estlund, a former clerk for Judge Patricia M. Wald on the U.S. Court of Appeals for the D.C. Circuit, practiced law for several years, primarily with the labor law firm Bredhoff & Kaiser in Washington, D.C. Her scholarly articles include “Rebuilding the Law of the Workplace in an Era of Self-Regulation,” published in 2005 in the Columbia Law Review and “A Freedom of Expression in the Workplace and the Problem of Discriminatory Harassment,” published in 1997 in the Texas Law Review. Her first book, Working Together: How Workplace Bonds Strengthen a Diverse Democracy, dealt with the inherent constraints that exist in relationships formed in the workplace. It was published by Oxford University Press in 2003. Lee Fennell Lee Fennell is the associate director of the Illinois Program in Law and Economics at the University of Illinois College of Law. Drawing on her expertise in property, social AUTUMN 2005

welfare law and state and local government law, Fennell will teach a course on fair housing during her visit to the Law School in the spring of 2006. She will also teach a Colloquium on the Law, Economics and Politics of Urban Affairs with the codirectors of the Furman Center, Vicki Been and Ingrid Ellen. “NYU’s faculty includes many of the best scholars working in property, land use, local government and public finance,” Fennell says, “and NYU’s location is particularly wellsuited for my scholarship in urban land use policy. I look forLee Fennell ward to gaining new perspectives on that set of issues.” Before joining the faculty at Illinois, Fennell was on the faculty of the University of Texas School of Law. She also spent two years as a Bigelow Teaching Fellow and Lecturer in Law at the University of Chicago Law School. Her scholarship has appeared in the North Carolina Law Review, Northwestern University Law Review, Texas Law Review, the William & Mary Law Review and the Yale Law Journal. The multitalented Fennell has been both a scholar-in-residence at the University of Virginia School of Law and a Henry Hoyns Fellow in fiction writing at the University of Virginia. Michael Herz “I know NYU well,” says Michael Herz, who was a visiting professor at the Law School from 2000 to 2001, “but in this instance familiarity has not bred its proverbial offspring—just the opposite. I am delighted to be returning to an institution so full of interesting people and activity. I hope to work with and learn from the many faculty members at NYU who work in and around the intersection of administrative law, environmental law and constitutional law,” says Herz. He will be visiting for both semesters of 2005-06. A codirector of the Floersheimer Center for Constitutional Democracy at Cardozo Law School, Herz is an expert in environmental law, administrative law and constitutional law. Before joining Cardozo, he worked for three years as a staff attorney for the Environmental Defense Fund. He was also a clerk for Michael Herz Associate Justice

Byron R. White of the U.S. Supreme Court and for Judge Levin H. Campbell of the U.S. Court of Appeals for the First Circuit. In the fall of 2005, he’ll teach the Admin istrative and Regulatory State, a practice seminar in Public Interest Environmental Law and Advanced Administrative Law. He will also teach the Administrative and Regulatory State and Administrative Law in Spring 2006. Arthur Miller Arthur Miller is nationally recognized for his work on court procedure; he has written or cowritten more than 40 books on the subject. As the Bruce Bromley Professor of Law at Harvard Law School, where he has taught since 1971, he has also gained acclaim for his work on the right of privacy. His book The Assault on Privacy: Computers, Data Banks and Dossiers, published in 1971 by the University of Michigan Press, is widely considered a landmark work in the field. Miller, who will be teaching a course in Procedure this fall, has also made a name for himself as a television host. He had his own show, Miller’s Court, for Arthur Miller eight years and has moderated numerous PBS series, including The Constitution: That Delicate Balance, The Presidency and The Sovereign Self, for which he won an Emmy award. For many years Miller was also the legal editor of ABC’s Good Morning America. Miller has an active law practice; he has argued cases in all of the 11 U.S. Circuit Courts of Appeals. He has also served as commissioner on the United States Commission on New Technological Uses of Copyrighted Works, as reporter for, and member of, the Advisory Committee on Civil Rules of the Judicial Conference of the United States, and reporter for the American Law Institute’s Project on Complex Litigation. Eric Orts Eric Orts will be teaching law students for the first time in several years this fall; he is the Guardsmark Professor, professor of legal studies and business ethics and professor of management at the Wharton School of Business. “I don’t expect that teaching these students will be too much different from teaching Wharton undergraduate and MBA students,” he says. While at the Law School, Orts will teach two courses: a general introduction to U.S. commercial law with a focus on corporate law, and Comparative THE LAW SCHOOL

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Corporate Law. “I am, after all, trained as a lawyer,” says Orts, who will also be teaching a seminar in the spring called Social Theory and the Business Enterprise. In 2002–2003, Orts was the Eugene P. Beard Faculty Fellow in Ethics at the Center for Ethics and the Professions, Harvard University. In 1998, he was a Fulbright Scholar in Beligium at the University of Leuven. He has been a professor at Wharton since 1991, and in Eric Orts that time has visited Harvard University; the University of California, Santa Barbara; Tsinghua University and the University of Michigan Law School. Orts received his J.S.D. from Columbia University in 1994; his J.D. from the University of Michigan in 1988; his M.A. from the New School for Social Research in 1985 and his B.A. from Oberlin College in 1982. Richard Primus “For some time now, the Law School at NYU has been a generative place for exciting ideas in American constitutional law,” says the University of Michigan Law School’s Richard Primus. “I’m very much looking forward to being a part of that atmosphere.” Primus, the 2004 winner of Michigan’s L. Hart Wright Outstanding Teaching Award, will be at the Law School for two semesters this year. His specialties are constitutional law, the law of employment discrimination and the history of legal thought. Primus will teach the History of Constitutional Interpretation in the fall and Constitutional Law in Spring 2006. Primus’ scholarly works include essays on democratic theory, jury decision making, equal protection and the role of dissent within the American legal system. His recent book, The American Language of Rights (Cambridge University Press, 1999), uses the philosophy of language to examine how the concept of rights has changed throughout different political conditions in American history. Primus graduated Richard Primus from Harvard College with an A.B., summa cum laude, in social studies, then earned a D.Phil. in politics at Oxford, where he was a Rhodes Scholar and the Jowett Senior Scholar at Balliol College. He then attended Yale Law School, where 66

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his distinctions included the prize for the best oral argument in the Morris Tyler Moot Court of Appeals. Primus has also been a visiting professor at Columbia Law School and has taught constitutional law at the University of Tokyo. Margaret Jane Radin A noted property theorist and pioneer in Internet property law, Margaret Jane Radin is the William Benjamin Scott and Luna M. Scott Professor of Law at Stanford University. She has pioneered courses in legal issues in cyberspace, electronic commerce and intellectual property in cyberspace. Most recently, Radin has investigated the role of the contract in the online world. In 2002, she cowrote the first traditionalformat casebook on e-commerce, Internet Commerce: the Emerging Legal Framework (Foundation Press). Her other publications include: Reinterpreting Property (University of Chicago Press, 1993) and Contested Commodities (Harvard University Press, 1996). Radin’s current research, which she’ll continue during her Spring 2006 visit at the NYU School of Law, involves intellectual property, information technology, electronic commerce and the role of jurisprudence of cyberspace. She also plans to work on her project, The Linguistic Turn in Patent Law, which combines language philosophy and patent law. When she’s not pursuing academics, Radin looks Margaret Jane Radin forward to pursuing her hobbies. “I play the flute quite well for an amateur,” she says. “I am also an opera buff. While I’m in New York, I plan to spend a lot of my spare time with musical activities.” Daniel Rubinfeld In the fall of 2005, Daniel Rubinfeld, the Robert L. Bridges Professor of Law and professor of economics at the University of California, Berkeley, will visit the NYU School of Law for the fourth time. “If three times is a charm, I am expecting my fourth visit to be exquisite,” he says. “Besides, with the high price of gasoline, I can no longer afford to drive in California.” A leading economist whose interests range from antitrust policy to the economics of the legal process, Rubinfeld has written articles relating to antitrust and competition policy, law and economics, voting rights, federalism and public economics. He has also cowritten two widely used economics textbooks with M.I.T. Professor Robert Pindyck,

Microeconomics (MacMillan, 1989) and Econometric Models and Economic Forecasts (McGraw-Hill, 1976). Rubinfeld is a former deputy assistant attorney general for the Antitrust Division of the U.S. Department of Justice; he was at the center of several high-profile antitrust cases, including one against Microsoft. He has also served as a staff economist for the President’s Council of Economic advisers and as a consultant for the Harvard-M.I.T. Joint Center for Urban Studies, the Urban Institute, the National Academy of Sciences Committee on the Costs of Automobile Daniel Rubinfeld Emission Control and the World Bank. In addition, Rubinfeld has consulted for private parties for a range of public agencies including the Federal Trade Commission and the State of California Attorney Generals Office. He has been a fellow at the National Bureau of Economic Research (NBER), the Center for Advanced Studies in the Behavioral Sciences and the John Simon Guggenheim Foundation. He is currently a member of the American Academy of Arts and Sciences, a research fellow at NBER and president of the American Law and Economics Association. Chris Sanchirico Chris Sanchirico is a professor of law at the University of Pennsylvania Law School and a professor of business and public policy at Wharton. He will make his first visit to NYU School of Law in the fall of 2005. “I’m very excited to be a visiting member of one of the world’s premier law faculties,” Chris Sanchirico he says. “It’s almost too good to be true that this means residing in one of the world’s premier cities. What more could a professor ask for?” Sanchirico’s research focuses on game theory and its application to law. “Norms, Repeated Games, and the Role for Law,” which he cowrote with University of Virginia Professor Paul Mahoney, was published in 2003 in the California Law Review and “Games, Information and Evidence Production: With Application to English Legal History” was published in the American Law and Economics Review in 2000. The information problems of legal enforcement also intrigue Sanchirico, who AUTUMN 2005

has been a law professor at the University of Virginia and an economics professor at Columbia University. He concentrates on the rules governing trial evidence and pretrial discovery. “Evidence Tampering” and “Evidence, Procedure and the Upside of Cognitive Error” were both published in 2004 in the Duke Law Journal and the Stanford Law Review, respectively. His other interests include tax policy and the evolution and stability of social norms. Alan Schwartz Alan Schwartz, Sterling Professor of Law at Yale Law School and professor at the Yale School of Management, will be making his third visit to the Law School in the fall of 2005. “The principal attraction for me is the excellence and collegiality of the Law School faculty,” he says. “I have also enjoyed teaching NYU Law students.” Recently named one of the 250 Alan Schwartz most-cited social scientists in the world by the Institute for Scientific Information, Schwartz has published extensively in law reviews and economics journals. His academic interests include contracts, commercial law, corporate finance and bankruptcy. Schwartz is a former president of the American Law and Economics Association and a past editor of the Journal of Law, Economics and Organization. He has also been a member of the American Academy of Arts and Sciences since 1993 and has chaired the Association of American Law Schools Committees on contracts and commercial law. Outside academia, Schwartz serves as a director and chair of the Finance Committee of Cleveland Cliffs, Inc., and has practiced law with Rosenman, Colin, Kay, Petschek, Freund & Emil in New York. Robert Sitkoff Robert Sitkoff, an associate professor of law at Northwestern University School of Law, will make his first visit to NYU School of Law in the fall of 2005. “I’ll be teaching Trusts and Estates, which is my favorite class,” says Sitkoff, whose research and teaching interests focus on the law and economics of trusts and estates, business organizations, and on the intersection between them. The casebook for the class will be the seventh edition of Wills, Trusts, and Estates, which Sitkoff cowrote with the late UCLA professor Jesse Dukeminier.

Sitkoff also recently cowrote “Jurisdic tional Competition for Trust Funds: An Empirical Analysis of Perpetuities and Taxes,” which will appear in the Yale Law Journal. He has a forthcoming article in the Northwestern University Law Review, and has also been published in the Cornell Law Review and Robert Sitkoff the Chicago Law Review. Currently Sitkoff is cowriting a book, to be published by Yale University Press, on federalism and the interstate competition for trust funds. Sitkoff began his career as a law clerk to Chief Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit. As a student at the University of Chicago Law School, he was the managing editor of the Law Review, was selected for the Order of the Coif and was chosen by the faculty for the Olin Prize as the outstanding graduate of 1999 in law and economics. After joining the Northwestern faculty in the fall of 2000, Sitkoff was awarded the Outstanding First-Year Course Professor Award, an honor bestowed upon him by the Northwestern student body. The following year he was awarded the Dean’s Teaching Award.

Returning Visiting Faculty Three professors are reprising their roles as visiting faculty: Moshe Halbertal, Ehud Kamar and Geoffrey Stone. The Gruss Visiting Professor of Law, Moshe Halbertal is professor at Hebrew University of Jerusalem, where he teaches the Talmud at the Hartmann Institute of Advanced Jewish Studies. He is an ordained rabbi and his scholarship focuses on hermeneutics and the interpretation of Jewish law. Halbertal, who has also served as the Gruss Professor at Harvard and the University of Pennsylvania law schools, received the

Moshe Halbertal

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Michael Bruno Award in Israel in 1999. His books have been published to critical acclaim both in Israel and the United States. Ehud Kamar has been an associate professor at the University of Southern California Law School since 2000. A widely published scholar who will teach Mergers and Acquisitions and Corporations this year, Kamar has an LL.B. and an LL.M. from Hebrew University of Jerusalem. In 1996 he served as a Fulbright Scholar at the Columbia University School of Law and then as a Lawrence A. Wien Fellow and a John M. Olin Fellow. He earned an LL.M. in corporate law in 1998 and a J.S.D. in 1999 from Columbia Law School. Geoffrey Stone is the Harry Kalven, Jr. Distinguished Service Professor of Law at the University of Chicago Law School. A graduate of Wharton School of Business, Stone obtained his law degree from the University of Chicago. After clerking for Judge J. Skelly Wright of the U.S. Court of Appeals for the District of Columbia, and Justice William J. Brennan Jr. of the U.S. Supreme Geoffrey Stone Court, he returned to the University of Chicago Law School as a professor in 1973. He served as dean from 1987 to 1993 and as provost of the University of Chicago from 1993-2002. A preeminent First Amendment scholar, Stone wrote Perilous Times (see Good Reads, page 91).

Faculty in Residence Omri Ben-Shahar Omri Ben-Shahar, whose research focuses on the intersection of law and economics, joined the University of Michigan Law School faculty full-time in September 1999. Since then, he has founded and been named the director of the Olin Center for Law and Economics. In Fall 2005, Ben-Shahar will teach contract law while pursuing his research interests. “Although my visit will be short, I Omri Ben-Shahar hope to learn how a different academic community conducts itself and maybe even enjoy a breakthrough in some research project I am currently

Ehud Kamar

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exploring,” he says, adding, “I come to NYU to engage with its intellectual community.” Ben-Shahar’s work in contract law has been published in the Yale Law Journal, the University of Chicago Law Review, the Journal of Law, Economics and Organization, the Journal of Legal Studies and the American Law and Economics Review, among others. He is currently working on a book, Contracts without Consent, and his article of the same name was the subject of a recent symposium published by the University of Pennsylvania Law Review. Before joining the faculty at Michigan, Ben-Shahar taught law and economics at Tel Aviv University, was a research fellow at the Israel Democracy Institute, served as a panel member of Israel’s Antitrust Court and clerked for the Supreme Court of Israel. Richard Epstein Richard Epstein is well known for his research and writings on a broad range of constitutional, economic, historical and philosophical subjects. At the University of Chicago Law School, where he is the James Parker Hall Distinguished Service Professor of Law, he has taught communications law, constitutional law, contracts, criminal law, health law, jurisprudence, labor law, patents, property and torts, to name a few. “I hope that my eclectic interests will bring me close to others on the NYU faculty,” says Epstein, who will be on campus in the fall of 2005. Richard Epstein Epstein has been the Peter and Kirstin Bedford Senior Fellow at Stanford University’s Hoover Institution on War, Revolution and Peace since 2000. A former editor of the Journal of Legal Studies, and the Journal of Law and Economics, he is now a director of Chicago’s Olin Program in Law and Economics, which applies economic research findings to the analysis of legal problems. Heather Gerken Heather Gerken has received national recognition for her expertise in election law; the Harvard Law School professor has been a commentator on election controversies for the New York Times, the New Yorker, CNN and NBC News. Gerken also hopes to further her scholarship, which focuses on questions of applied democratic theory, while on campus this fall. “I’m working on several projects related to the renewal of the Voting Rights Act in 2007,” she says, “Just the chance to 68

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spend some time with Rick Pildes and Sam Issacharoff is worth the price of admission. They are tops in the field. I’d love to have a chance to kick around my ideas with them during my visit.” Gerken earned an A.B., summa cum laude, from Princeton University and graduated summa cum laude from the University of Michigan Law School. After practicing for several years at a firm specializing in constitutional litigation and election law, she joined the Harvard faculty in September 2000. In 2003, Gerken won the Sachs-Freund Award for outstandHeather Gerken ing teaching. Robert Keohane International relations scholar Robert Keohane visits the NYU School of Law this fall. The former James B. Duke Professor of Political Science at Duke University, Keohane will take an interdisciplinary approach to his scholarship at the Law School, focusing on the overlap between the political science analysis of multilateral institutions and an analytic approach toward international law. “Political scientists such as myself have used political theory to reflect on the concept of accountability with respect to global governance,” says Keohane, a winner of the prestigious Grawemeyer Award for Ideas Improving World Order. “Scholars of administrative law have also analyzed Robert Keohane accountability on the basis of an entirely different literature and set of experiences, and [this is] the sort of cross-disciplinary engagement in which I would like to participate.” Keohane has taught at Swarthmore College, Stanford University, Brandeis University and Harvard University, where he was Stanfield Professor of International Peace. He is the author of After Hegemony: Cooperation and Discord in the World Political Economy (Princeton University Press, 1984) and several other books, including Power and Governance in a Partially Globalized World (Routledge, 2002) and International Institutions and State Power: Essays in International Relations Theory (Westview, 1989). Keohane is a past president of the International Studies Associ-

ation and of the American Political Science Association. He is a fellow of the American Academy of Arts and Sciences, and has held a Guggenheim Fellowship and fellowships at the Center for Advanced Study in the Behavioral Sciences and the National Humanities Center. While in residence at the Law School, Keohane will continue to teach at Princeton University where he is a professor at the Woodrow Wilson School of Public and International Affairs.

Furman Academic Fellows 2005-06 Margaret Lemos Margaret Lemos ’01 will return for a second year as Furman Fellow and coordinator of the Furman Program. Her scholarship focuses on how constitutional questions are asked Margaret Lemos and answered by judges, juries, legislators and executive actors, and how those procedural practices shape the substance of constitutional law. Lemos graduated summa cum laude with a J.D. from the Law School. She was a member of the Order of the Coif, the senior notes editor at the NYU Law Review and a Dean’s Scholar. She clerked for Judge Kermit V. Lipez on the U.S. Court of Appeals for the First Circuit. She served as a Bristow Fellow in the Office of the Solicitor General and as a law clerk to Justice John Paul Stevens of the U.S. Supreme Court. In her first year as a Furman Fellow, Lemos wrote an article about the interaction between the constitutional law of criminal procedure and the rules governing the scope of Congress’ power under the Commerce Clause. In “The Commerce Power and Criminal Punishment: Presumption of Constitutionality or Presumption of Innocence?” she argues that current Commerce Clause jurisprudence is flawed because it ignores the procedural rights of criminal defendants. Lemos hopes to continue her work on the relationship between procedural and substantive constitutional law this year, when she will examine the role juries can play in finding the sorts of “legislative” facts that inform constitutional judgments.

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Harlan Grant Cohen Harlan Grant Cohen received his J.D. magna cum laude from New York University School of Law in 2003. A member of the Order of the Coif, Cohen was awarded the Maurice Goodman Memorial Prize for outstanding scholarship and character. Cohen received his B.A. in history and international studies from Yale University, where he was awarded the Sturley Prize in English History and the International Security Studies Senior Essay Prize in 1998. Cohen has published pieces in the New York University Law Review and the Yale Journal of International Law. His essay in the Yale Journal of International Law, “The American Challenge to International Law: A Tentative Framework for Debate,” was awarded the Washington Foreign Law Society’s Justice Robert H. Jackson Prize for best published student writing on a topic of international or foreign law. Cohen’s article “Supremacy and Diplomacy: The International Law Harlan Grant Cohen of the U.S. Supreme Court” will be published in the fall issue of the Berkeley Journal of International Law. During his fellowship, Cohen, who most recently worked as a litigation associate at Cleary, Gottlieb, Steen & Hamilton, will explore the relationship between the realities of American power and ideology and the aspirations of international law. Troy McKenzie In 2000, Troy McKenzie graduated from the NYU School of Law magna cum laude as a member of the Order of the Coif. He was also the recipient of the Frank H. Sommer Memorial award for outstanding scholarship, character and professional activities and of the Paul D. Kaufman Memorial Troy McKenzie award for the most outstanding note for the Law Review. McKenzie, who clerked for Justice John Paul Stevens of the Supreme Court of the United States and Judge Pierre N. Leval of the U.S. Court of Appeals for the Second Circuit, most recently worked as an associate at Debevoise & Plimpton. His research and teaching interests include the study of bankruptcy law, torts and the federal courts.

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Eyal Benvenisti

Alexander Boraine

Hauser Global Visiting Professors of Law Eyal Benvenisti Eyal Benvenisti is a professor of law and director of the Cegla Center for Interdisciplinary Research at Tel Aviv University in Israel. Previously, he served as Hersch Lauterpacht Professor of International Law and as director of the Minerva Center for Human Rights at the Hebrew University of Jerusalem. A former law clerk to Justice M. Ben-Porat of the Supreme Court of Israel, Benvenisti received his legal training at the Hebrew University of Jerusalem and Yale Law School. He has been a visiting professor at leading law schools in the United States and a visiting fellow at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, Germany. He has written or edited four books and published several articles in prominent journals, and is the editor-inchief and founding coeditor of Theoretical Inquiries in Law, a forum for interdisciplinary legal study. Alexander Boraine Alexander Boraine was born and educated in Cape Town, South Africa. He was awarded an M.A. at Oxford University and his Ph.D. at Drew University Graduate School in Madison, New Jersey. He was a member of the opposition Progressive Party in South Africa’s Parliament for 12 years before resigning to establish a nongovernmental organization focused on promoting negotiation politics. In 1995, he was appointed by President Nelson Mandela as vice chairperson of South Africa’s Truth and Reconciliation Commission. In 2001, he was appointed president of the International Center for Transitional Justice in New York and is now the center’s chairperson. From 1999 to 2002, he was director of the Project on Transitional Justice and adjunct professor at the New York University School of Law, and in 2004–2005 he was a senior global research fellow at the Law School.

Eva Cantarella

Werner F. Ebke

Eva Cantarella Eva Cantarella is a professor of Roman law and ancient Greek law at the University of Milan, Italy. Previously, she was dean of the law school at the University of Camerino. She has taught and lectured at many universities in Europe and the United States. A leading classicist, she examines ancient law from a law and society perspective and relates it to modern legal issues. She has written extensively on criminal law, women’s conditions and the legal and social history of sexuality. Many of her books have been translated into several languages, including English. She is a regular contributor to Corriere della Sera, a leading Italian newspaper. Werner F. Ebke Werner F. Ebke holds the chair of German, European and International Corporate Law at the University of Heidelberg, Germany, and serves as director of the University’s Institute of German and European Corporate and Business Law. Previously, he was dean and held the chair of Business and Tax Law at the University of Konstanz School of Law. He was an assistant professor of law at Southern Methodist University as well. Ebke was educated in the United States and in Germany and has written extensively in both English and German. His article “Controlling the Modern Corporation” (written with Bernhard Grossfeld) is generally acknowledged to be a groundbreaking piece on comparative company law. Guido Ferrarini Guido Ferrarini graduated from the Genoa Law School in 1972 and obtained an LL.M. from Yale Law School in 1978. He is a professor of law at the University of Genoa, Italy, and director of the Centre for Law and Finance there. He is the lead independent director of Telecom Italia S.p.A.; independent director of Autostrade S.p.A. and chairman of TLX (a new Italian investment exchange). He is vice chairman of the European Corporate Governance Institute (ECGI) in Brussels; a member of the board of trustees of the International Accounting

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Guido Ferrarini

Michal Gal

Standards Committee (IASC) in London and Independent Director of Assogestioni (the Italian Asset Managers Association). He is the author of various books and articles in the fields of financial law, corporate law and business law. He is a visiting professor at the University College London and was a visiting professor at Columbia Law School in 2003 and Hamburg University in 2002. He is coeditor of the Rivista delle Società and editor of ECGI Law Working Papers. Michal Gal Michal Gal is a senior lecturer and director of the Law and MBA Program at the University of Haifa, Israel. Her research focuses on competition law and policy. She is the editor of Competition Policy for Small Market Economies (Harvard University Press, 2003), and has also written and spoken extensively about competition law in developing economies, the intersection between antitrust and intellectual property and the political economy of antitrust. Gal served as an adviser to the OECD and the U.N. on competition-related issues and is a nongovernmental adviser to the International Competition Network (ICN). She won the Zeltner Prize for Young Researcher in 2004. Klaus Hopt Klaus Hopt (M.C.J. ’65) is one of Europe’s top commercial law scholars. He is a professor of business and banking law and director at the Max Planck Institute for Foreign Private and Private International Law in Hamburg, Germany. He has been a professor at the University of Munich, a professor and dean of law faculty at the University of Tubingen, Germany, and a professor and head of department at the European University Institute in Florence, Italy. He has also been a visiting professor at law schools in Belgium, France, The Netherlands, Japan, Switzerland and the U.S. He is vice president of the German Research Foundation and independent director of the German Stock Exchange Corporation. Hopt has authored or edited numerous books on corporate and commercial law topics and is a member of the International Academy 70

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Klaus Hopt

Daphna LewinsohnZamir

of Comparative Law and the International Faculty of Corporate and Capital Market Law, Philadelphia. Daphna Lewinsohn-Zamir Daphna Lewinsohn-Zamir is Louis Marshall Associate Professor of Environmental Law at the Hebrew University of Jerusalem, Israel. Her research interests are property law and land use and planning law. LewinsohnZamir has received numerous awards and prizes, including the Hebrew University President’s Prize for the Excellent Young Scholar, the Fulbright Scholarship and the Rothschild Fellowship. She also has been a visiting researcher at Harvard Law School and a visiting scholar at Yale Law School. Ruth Rubio-Marin Ruth Rubio-Marin is an associate professor of constitutional law at the University of Seville, Spain. She has held several visiting positions in North America, having been a visiting scholar at the University of California at Berkeley Law School, a fellow at Princeton University, a visiting scholar at Queen’s University, Canada, and an adjunct professor at Columbia Law School. She has published three books and several articles and chapters, and has presented papers at conferences in Europe, North America and Latin America. She has also done work as a consultant in the areas of gender, human rights and anti-discrimination. Her primary research interests are immigration law and policy, gender studies, citizenship theory, nationalism, language rights and minority rights.

Ruth Rubio-Marin

Kees van Raad

Kees van Raad Kees van Raad is a professor of law at Leiden University in The Netherlands. He also serves as director of the International Tax Center Leiden (LL.M. Program in International Taxation). Currently, he is a member of the Permanent Scientific Committee of the International Fiscal Association and chairman of the Academic Committee, and also a board member of the European Association of Tax Law Professors. He further serves as an adjunct judge in two tax courts in The Netherlands and is of counsel to Loyens and Loeff, a law firm. One of the leading academics in the international tax arena, van Raad has published widely in multiple languages. Armin von Bogdandy Armin von Bogdandy is the director of the Max Planck Institute for Comparative Public Law and International Law and a professor of law at the University of Heidelberg, Germany. He also teaches at the University of Frankfurt. Previously, he taught at the Humboldt University in Berlin. After completing his studies in law at the University of Freiburg and philosophy at the Free University of Berlin, he earned a doctorate in law from the University of Freiburg. In 2001, he was appointed to the bench of the OECD Nuclear Energy Tribunal, Paris, and recently has become a member of the German Science Council. Sami Zubaida Sami Zubaida is emeritus professor of politics and sociology at Birkbeck College, University of London, and research associate of the London Middle East Institute. He has held visiting positions in Cairo, Istanbul, Aix-en-Provence, Paris and Berkeley, California. His published works include Law and Power in the Islamic World (2003); Islam, the People and the State (1993); and A Taste of Thyme: Culinary Cultures of the Middle East (coedited with Richard Tapper, 2000). His current interests include the drawing of social boundaries in the modern Middle East, law and ideology in the politics of the region, and cultural themes in modern Iraqi history.

Armin von Bogdandy

Sami Zubaida

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S c h o l a r s h i p

Each year, we highlight notable academic papers that appeared in top journals. This year, we feature three that examine topics such as malpractice liability, corporate contracts and constitutionalism abroad.

Malpractice Liability: The Key to a Healthy Medical Care System explains why malpractice liability for doctors and managed care organizations means better care for patients.

Jennifer Arlen

Corporations and Business Crime, continues to write about medical malpractice liability. Her most recent published piece in this area is “Private Contractual Alternatives to Malpractice Liability,” in Medical Malpractice and the U.S. Health Care System: New Century, Different Issues (William M. Sage & Rogan Kersh, editors; Cambridge University Press, 2005).

M The move to curb malpractice liability for both doctors and health insurers has stirred controversy in the medical profession and the public. In the following essay, Jennifer Arlen, the Norma Z. Paige Professor of Law, argues that malpractice liability for both physicians and health insurers is crucial to the health of the medical care system and that restricting malpractice liability will leave patients worse off. The article is based on two papers by Arlen ’86 (Ph.D. ’92), “Torts, Expertise, and Authority: Liability of Physicians and Managed Care Organizations,” to be published this year in RAND Journal of Economics and “Malpractice Liability for Physicians and Managed Care Organizations,” from the NYU Law Review (2003), both cowritten with W. Bentley MacLeod. Arlen, who teaches Torts, AUTUMN 2005

any lawmakers claim that malpractice liability is responsible for many of the problems plaguing the American health care system. Economic analysis of the market for medical care reveals, however, that malpractice liability is, in fact, essential to the proper functioning of the medical care system (provided liability is well designed). Moreover, this liability must be expanded from physicians to include those health insurers who intervene (i.e., Managed Care Organizations (MCOs)) to alter the cost and quality of care delivered. Absent MCO liability for both their own negligent treatment coverage decisions and physician negligence, neither MCOs nor physicians face adequate incentives to invest in patient safety. Congress could thus potentially improve the health care system by revising the federal law that currently exempts MCOs from liability for their own negligence.

I. The Problem of Medical Error

very year, millions of Americans become seriously ill and turn to physicians for care. When they do so, they largely relinquish control over their lives both to their physicians and to the organizations

(e.g., hospitals and MCOs) that influence the quality of care doctors provide. In many cases, medical providers serve patients well. Yet in other cases, they do not. Each year, approximately 98,000 patients die, and thousands of others are seriously injured, as a result of medical error. Indeed, studies of hospital error suggest that between four and 18 percent of surgical patients are harmed by at least one serious error. These errors not only injure patients; they can also increase medical costs by requiring additional medical procedures. Medical error cannot be blamed on only a few bad doctors. Studies of error find that good physicians also provide negligent treatment. Most of this error, while accidental, nevertheless is avoidable. Studies of medical error indicate that most medical errors are caused by medical providers who either have inadequate knowledge, training or skills to provide the services required or by those who employ inadequate systems for detecting and responding to mistakes. Health insurers’ interventions to reduce medical costs also affect medical quality. Patients’ welfare could be greatly enhanced, and the efficiency of the health care system improved, if physicians (and the organizations that influence them) could be induced to implement all cost-effective measures to reduce error. An investment in quality is cost-effective if the cost of the measure is less than (or equal to) the benefit of the resulting improvement in patient outcomes (based on the value to the patient of his own health). Our economic analysis shows that malpractice liability is needed because without it medical providers do not have adequate incentives to invest in measures to reduce error. Physicians, hospitals and insurers (which satisfy state licensing and other requirements) are subject to little direct oversight as to whether they are investing adequately in patient protection. Once they have satisfied minimum quality requirements, they are free to determine for themselves whether to undertake the additional investments needed to ensure optimal care. Medical providers cannot be relied upon to adequately invest in reducing error unless doing so is in their best interests (taking into account both profit and the satisfaction they obtain from curing patients). Thus, medical providers will only invest in the amount of safety their patients prefer (and would be willing to pay for if they were informed) if they obtain the same benefit from reducing error as patients do. Providers therefore must benefit as much as their patients do from each life saved or serious injury averted (as measured by patient willingness to pay). THE LAW SCHOOL

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Malpractice liability is needed because, absent sanctions, medical providers do not benefit as much as their patients do from reducing medical error. Malpractice liability (when well designed) can enhance patient welfare by ensuring that physicians, hospitals and MCOs profit from investing in cost-effective measures that reduce the risk of medical negligence.

II. Physician Liability

hysicians do not need the threat of liability to get them to try to provide good care. The vast majority of physicians want to deliver the best care they can. Malpractice liability nevertheless is needed to ensure that physicians who want to provide good care adequately invest in their ability to do so. Physicians need more than a strong desire to provide good care to enable them to serve their patients. They also must be able to provide good care. In order to do so, physicians must invest in the “expertise” needed to enable them to correctly diagnose their patients’ conditions, to accurately assess available treatments; they also need to invest in cost-effective systems for reducing error in the provision of treatment. Medical quality is optimal, accordingly, only when physicians (and hospitals) undertake all cost-effective investments in expertise, in light of the full cost of medical error to patients.

cian feels when his negligence kills a patient is nothing compared to the loss the patient and his or her loved ones suffer. Whenever the loss a negligent physician suffers is less than his patients’, the amount that he would deem appropriate to spend to reduce his risk of error can be expected to be less than the amount his patients would like (and be willing to pay for) him to spend. Nor can patients rely on market forces to provide adequate additional incentives to induce physicians to invest optimally in patient safety because market forces do not adequately reward those physicians who invest optimally in expertise, or punish those who do not. Physicians who underinvest in expertise (and provide substandard care) may fare as well as those who invest properly in expertise because patients are not well informed enough about provider quality to avoid care-givers who underinvest in expertise. At best, patients have only anecdotal information on quality; they do not have good information on expected patient outcomes for any given physician or hospital. Moreover, lower-quality (and lower-cost) providers also may continue to get an adequate supply of patients as a result of being placed on health insurers’ preferred provider lists. Malpractice liability can improve medical quality by ensuring that medical providers who deliver negligent care face higher costs than those who do not. Malpractice lia-

“Malpractice liability can be used to enhance patient welfare by ensuring that physicians, hospitals and Managed Care Organizations profit from measures that reduce the risk of medical negligence.” Physician malpractice liability is needed even when physicians want to provide good care to ensure that physicians have adequate incentives to invest in their capacity to provide good care. Physicians unregulated by liability cannot be relied upon to invest in the level of expertise that best serves their patients (given the cost of error). This is because physicians bear the full cost of measures to reduce error but, absent liability, do not obtain the full benefit of these measures (as measured by the benefit to patients of reduced error). Physicians suffer considerable grief when they accidentally injure or kill a patient. But the grief a physi72

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bility that forces negligent providers to suffer losses akin to those of their patients can benefit patients by providing physicians with adequate incentives to invest in expertise.

III. The Role of MCOs

alpractice liability can provide optimal incentives for medical caregivers to invest in error reduction only if it applies to all who determine the quality of patient care. This includes not only the physicians who treat patients, but also the organizations with substantial authority to influence the quality of care, such as MCOs.

Today, patients’ welfare is determined not only by the quality of their medical providers; it also depends on the nature of patients’ health insurers. Most health insurers now influence the medical treatment their subscribers receive, directly or indirectly. Insurers who influence the quality of care patients receive are referred to here as Managed Care Organizations (MCOs). MCOs intervene in many ways to affect the quality of care. Many MCOs structure compensation arrangements with physicians and hospitals to encourage providers to lower treatment costs. Some also affect quality through the use of preferred provider lists that channel patients to particular providers. Finally, many MCOs influence patient care through the use of utilization review. Utilization review provisions give MCOs substantial authority to deny coverage for requested treatments that they deem to be either “experimental” or “not medically necessary and appropriate.” These provisions, in effect, enable MCOs to determine what treatments they will cover (and thus what treatments the patient can receive) after the patient has paid for health coverage. MCOs often do not grant patients the right to obtain external review of MCOs’ treatment denial decisions. Moreover, external review (when available) cannot always undo the harm caused by an MCO’s initial denial of coverage. For example, external review may not be able to remedy the harm caused by an MCO’s denial of necessary emergency care. Patients subscribing with MCOs generally cannot obtain good information on MCOs’ utilization review practices. MCOs do not give patients information on either their utilization review protocols or on their practices regarding treatment denials. Patients benefit from MCOs’ use of utilization review and other cost control mechanisms to the extent that MCOs use these measures to deter physicians from recommending ineffective or excessively expensive treatments. Yet patients are hurt when MCOs use their power to deny coverage for expensive treatments that nevertheless are cost-justified. Patients can be harmed by utilization review even when MCOs eventually agree to pay for recommended treatment when the review process delays time-sensitive treatments. Utilization review also can harm patients by adversely affecting the quality of care physicians provide. As previously explained, the quality of care depends on physicians’ investment in expertise. Expertise is costly for physicians to develop. Physicians, accordingly, can be expected to invest in expertise only to the extent that they can AUTUMN 2005

use it to benefit their patients—for example, by recommending treatment. When MCOs routinely intervene in order to deny coverage for certain treatments, they undermine physicians’ incentives to develop expertise in those treatments by reducing the likelihood that patients receive the recommended treatment. This intervention can affect not only patients covered by MCOs, but also other patients, since physicians may be less likely to develop expertise in those treatments that many of their patients are unable to obtain. Indeed, consistent with this, there is evidence to suggest that medical quality depends on what portion of a physician’s patients are affiliated with MCOs, and not just on the nature of any given patient’s insurer. Patients cannot be confident about receiving optimal quality care unless MCOs have the right incentives to use their influence to benefit their patients. Excessive focus by MCOs on cost-reduction can hurt patients both directly, as a result of MCOs’ treatment denials, and indirectly, through the effect of MCOs on the quality of care physicians provide.

IV. MCO Liability

he current legal system does not ensure that MCOs properly attend to their patients’ interests, but instead allows them to intervene in medical treatment without risk of direct financial consequences for actions that result in patients receiving negligent medical care. Federal law, in the form of the Employee Retirement Income Security Act of 1974 (ERISA), insulates MCOs from tort liability for patients’ injuries resulting from an MCO’s improper use of utilization review to deny coverage for medically necessary treatment. ERISA precludes patients from filing state tort actions even for injuries caused by an MCO’s negligent denial of coverage for medical treatment that it should have covered (for treatment that was nonexperimental and medically necessary and appropriate treatment). MCOs also generally avoid liability for negligence by their affiliated physicians or hospitals, even when the negligent provider was on an MCO’s preferred provider list. State law governing corporate liability generally limits corporate liability to torts committed by employees; corporations usually are not liable for torts of independent contractors. MCOs generally avoid vicarious liability by contracting with physicians and hospitals as independent contractors. MCOs’ exemption from tort liability encourages them to use their influence

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“He’s in an H.M.O. Get some of the King’s horses and a few of the King’s men.” over medical care to reduce treatment costs even when doing so harms patients. MCOs that do not face liability can increase profits by reducing treatment costs, even when the resulting cost savings are dwarfed by the cost to patients of the decline in medical quality. MCOs also can increase profits by selecting physicians and hospitals for preferred provider lists based primarily on cost concerns, even when these providers are lower quality. MCOs can increase profits by reducing costs, even when doing so harms their subscribers, because patients often have little choice as to which MCO to select. Most patients need to choose the health insurer selected by their employer. Most employers offer only one choice. Large employers often self-insure (using MCOs to administer the plan) and thus have strong incentives to reduce costs. Moreover, even those patients who are offered a choice of MCOs rarely have enough information to enable them to determine which MCO offers the best care for the money. Many MCOs use similar language to describe their utilization review policies. Patients cannot easily obtain good information about the substantial differences that exist in MCOs’ utilization review practices. Patients also cannot easily evaluate MCOs based on the financial incentives they provide medical caregivers because MCOs usually refuse to release this information (unless compelled by state law). Thus existing law allows MCOs to intervene in medical markets in ways that increase their profits but reduce patients’ welfare, free from the threat of liability that other medical professionals properly face when they attempt to save money by providing substandard care. There is evidence to suggest that, as expected, MCOs have used this power to reduce the use of expen-

sive but cost-effective treatments. There also is evidence to suggest that they tend to use their influence to steer patients to lowercost physicians and hospitals, even when these are lower quality. Neither patients nor the medical system benefit from measures to cut costs when cost savings are dwarfed by the resulting harm to patients. Yet in a system such as ours, which relies on financial incentives to regulate care, MCOs will continue to act against patients’ interests in certain situations, so long as the tort system allows them to profit from doing so.

Conclusion

alpractice liability for medical care providers is essential to the proper functioning of the health care system. This liability must be imposed on both those who provide care directly and those organizations that influence the care patients receive. Current law shields MCOs from liability for medical negligence. The rules that exempt MCOs from malpractice liability encourage MCOs to profit at patients’ expense. Without liability for medical negligence, MCOs face strong incentives to intervene and cut treatment costs, even when the resulting harm to patients far exceeds any cost savings. They also can profit by favoring physicians and hospitals that deliver lowcost care even when they are not the best providers. A well-designed malpractice rule imposed on both MCOs and physicians is needed to improve patients’ welfare and to enhance the efficiency of medical care markets. For this to happen, federal law must be reformed so that it no longer interferes with the ability of states to protect their citizens by imposing tort liability on MCOs. ■

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The Pros and Cons of Standardizing Contracts uses the sovereign debt market as a case study to examine the impact of boilerplate contracts Stephen Choi

What drives the process of change in boilerplate contract terms in the sovereign debt market, a market crucial for worldwide welfare? And is this process of change efficient? These are the questions that Stephen Choi, William T. Comfort III Professor of Law, tackles in this paper, a summary of the research he has conducted with Mitu Gulati of Georgetown University. Portions of this ongoing project have been published as part of a symposium of sovereign bonds in the Emory Law Journal and in a United Nations book on sovereign bond restructuring. Choi, formerly of the University of California at Berkeley School of Law, now teaches Securities Regulation and topics in corporate and securities law. His research focuses on theoretical and empirical analysis of corporations and capital markets.

cholarship on the subject of innovation in financial products is sparse. And research on innovation by lawyers writing financial contracts, particularly the boilerplate contracts that dominate many markets, is sparser still. The central theoretical debate in the literature on boilerplate contracts is over whether contract language responds immediately and effectively to external changes or whether network effects and other “sticky” factors prevent these efficient transitions. Just as a telephone increases in value as more people have telephones, a contract term may have value as an increasing function of the fraction of the market that employs it. As more people use the contract, there arises a greater level of familiarity and comfort and, as a result, greater ease of pricing and trading. Parties may not like a particular contract term, but may keep it because of market familiarity. The debate over the responsiveness of contract language has taken center stage in recent discussions in the sovereign debt area. Several countries in the recent past have gone through costly defaults on their sovereign debt. A hundred years ago, developing countries that defaulted on their debts could expect to see gunboats in their ports sent by nations representing the interests of unhappy lenders. Today things are a bit different. Countries repay in large part to preserve their continued access to the financial mar-

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kets for new funding. Countries that choose to dishonor their debt obligations, such as Argentina in 2002, quickly face a shortfall in new outside financing. Other negative consequences can follow. Domestic creditors may lose confidence in the government’s ability to honor all of its obligations and support domestic banks, leading to a bank run and a currency run. Argentina, despite two International Monetary Fund (IMF) bailouts, experienced a number of years of negative GDP growth. Such negative con-

ful spending in the expectation of a restructuring (what some refer to as “moral hazard”) and reassure investors that they will be repaid. Sovereigns may obtain a lower interest rate as a result. On the other hand, the consequences of default are so great for a country that, many argue, the likelihood that a country would voluntarily seek to default is low. Why then do defaults happen? Investments are risky and sometimes events beyond a country’s control can occur reducing the cash reserves of the country and its ability to service its sovereign debt obligations. In such times of financial distress, having a mechanism to restructure payment obligations to creditors, giving a country breathing room to get itself back on track with minimal disruption, is to the benefit of both the sovereign and its creditors. For New York-law-governed sovereign bonds, given the large number of dispersed bondholders and the likelihood of holdouts,

“Standardization plays an important role in determining the contract terms that even sophisticated parties select, as in the sovereign bond market.” sequences are not necessarily permanent. Argentina eventually succeeded in obtaining a debt restructuring, under which hundreds of different classes of debt agreed to take “haircut,” writing off over 70% of the value of the defaulted bonds. Argentina’s GDP growth rate is again positive. But while not permanent, the inability of a sovereign to negotiate through a sovereign debt crisis in a timely manner can have, as evidenced by Argentina’s years of negative GDP growth, large negative consequences. Why do sovereigns face such great difficulties in restructuring their sovereign debt? Bonds issued under New York law typically contain unanimous action clauses (UACs) requiring all the affected bondholders to agree to a restructuring of payment-related terms. Such clauses make it difficult for countries that run into financial distress to negotiate for lower interest payments and a longer maturity date. A bondholder may choose instead to “holdout” in the hopes of extracting a higher payment from the sovereign even if a restructuring is in the best interests of the group of all bondholders. One could argue that UACs are in fact desirable for contracting parties. They help bond the sovereign from engaging in waste-

the result of the unanimity requirement was that instead of a financial restructuring, countries either delayed their attempts to restructure, ultimately leading to even worse financial crises, or instead turned to costly bailouts by the official sector. Subsequent to the Mexican Peso crisis in the mid 1990s, followed by the Asian Financial Crisis and the financial crisis in Russia, there began to be numerous calls for reform in what was referred to as the need for an “international financial architecture.” A central element of these calls for reform involved the problematic nature of New York-law-governed sovereign bonds. Some, including the IMF, went so far to propose a bankruptcy-like sovereign debt restructuring mechanism (SDRM) for sovereign borrowers in default. Determining whether the market can reform itself or the public sector must intervene in the sovereign bond context is crucial for global welfare. Where the market can reform itself, the expertise advantage contained by participants in the markets should lead regulators to leave well enough alone. On the other hand, where pervasive market failures prevent reform, a role exists for official sector intervention.

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Testing Standardization

ecent developments in the sovereign debt market present a perfect case study to examine the impact of standardization (if any) in keeping the market in a “suboptimal” set of modification-related contract terms. In 2000, Ecuador found itself in default and under instructions from the official sector to ask its creditors, including the bondholders, to take a haircut before the official sector would consider providing additional assistance. Ecuador, however, had New York-law-governed unanimity contracts and their attendant holdout problems. Nevertheless, its lawyers devised a solution to the holdout problem (the “exit consent” solution). They realized that they did not need unanimity to change the non-payment terms of the contracts (things such as the governing law or the listing provisions). So long as they could get a simple majority of the bondholders to agree to take new restructured bonds and also, while taking those new bonds, agree to alter some of the key non-payment provisions of the old bonds, they could, in effect, make the old bonds unattractive for those who remained. The exit consent provided a method of deterring holdouts. After all, the power of being a holdout lay in the right to sue and annoy the sovereign subsequent to it having conducted an exchange. This right to sue would be significantly hurt if the governing law were changed from that of New York, for example, to that of Mongolia. For purposes of our study, this Ecuador “shock” or “innovation,” is important because, all of a sudden (and to the surprise of the sovereign bond market), contracts that everyone assumed were essentially restruc-

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“There. Now it’s all on paper. Feel better?” turing-proof could in fact be restructured with the effective consent of less than a unanimity of bondholders. The abrupt shift in interpretation of the modification provisions post-Ecuador toward exit consents allows us to test the importance of these network externalities. If parties selected UACs because they were simply the best for their situation and network effects do not matter, then we would expect that parties would react to the Ecuador interpretive shock with an immediate shift back to the old, pre-Ecuador interpretation in new offerings after the Ecuador shock (for example, through the provision of unanimity voting for even nonpayment-related terms). Using a dataset of 155 sovereign bond offerings from 1995 to early 2004, we provided evidence on the importance of standardization. There were 34 countries represented in the sample (we collected multiple contracts for many of the sovereigns involved). The

countries with the largest numbers of sovereign debt issuances in our dataset included: Mexico, Colombia, Philippines and Uruguay. We reviewed the modification terms in these contracts in minute details to determine whether the Ecuador shock to the interpretation of the terms resulted in any contractual change. We examined several different categories of contract terms that deal with the modification of payment terms (whether directly or indirectly through their allowance of exit consents). We controlled for other factors that may lead a country to select terms more or less favorable to modification by less than a unanimity of bondholders, including the size of the offering, the Moody’s and Fitch risk rating of the country, among others. Immediately after the Ecuador shock, we found no significant shift in the contract terms, consistent with the hypothesis that standardization was responsible for the prior dominance of UAC terms. Looking at aggregate data in fact understated the degree of standardization. To examine what happened in the contract terms for a specific country, we focused on Mexico. When we looked at the bond covenants of Mexico both pre- and post-Ecuador, across a large number of deals we discovered identical modification terms, down to the same font, word choice and word spacing. One of the more surprising results of this project was the perfect correlation in the case of Mexico between the identity of issuer and the identity of the underwriter’s counsel across a number of deals. Obviously, we expect the identity of the issuer and the identity of the issuer’s counsel to be correlated. After all, the issuer’s counsel works for the issuer. But, while we saw that the lead underwriter changed from deal to deal (for example, from J.P. Morgan to Credit Suisse to Banker’s Trust), we observed that THE LAW SCHOOL

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the underwriter’s counsel remained identical across all of Mexico’s deals. When we asked industry participants about these unusual results, they responded that this was simply the practice of having a “designated underwriter’s counsel.” That is, where there was a routine deal that had to be done repeatedly—such as a sovereign doing shelf registration takedowns—it was far more efficient to have a designated underwriter’s counsel for the deal, who was already familiar with the documents and would not feel the need to renegotiate every provision of the deal. Because of the need for speed in what everyone viewed as a routine transaction, there was a need to have counsel on both sides who were familiar and comfortable with the deal documents. To hire a new set of lawyers on either side would mean that these lawyers would necessarily have to take time to get comfortable with the documentation. The choice of lead underwriter faces no such constraint, and typically different underwriters bid to take the lead position for any particular offering. To us, the designated underwriter’s counsel phenomenon raises potential agency problems. What if some junior lawyer at the underwriter’s counsel discovers some problem in the deal documentation in the

its reservoir of knowledge on the issuer to perform an effective due diligence even under the time constraints of a shelf offering. Reputational constraints may also lead counsel to perform a thorough examination of the issuer and documents for every deal. So which story is correct? Objective, empirical research, which we hope to pursue as one of our next projects, can help determine the extent of agency problems, if any.

The Process of Finding a New Standard

hile no immediate change occurred in the sovereign bond covenants after the Ecuador shock, change eventually did come after some delay. In early 2003, almost three years after Ecuador, Mexico publicly announced that it was both reforming its unanimity provisions into super majority provisions (that is, payment terms could be modified with a 75% vote)—termed collective action clauses or “CACs”—and also moving to make Ecuadortype exit consents much harder to use. A cascade of other countries issuing bonds under New York law subsequently followed the Mexican lead in reforming their contract language. Importantly, the shift in Mexico

“Determining whether the market can reform itself or whether the public sector must intervene in the sovereign bond context is crucial for global welfare.” nth iteration of the deal that was previously overlooked? If the underwriter’s counsel is being chosen because of her comfort and familiarity with the deal documents (in other words, a willingness to review the documents quickly), she has a disincentive to draw attention to the flawed language and ask for a change. Plus, pointing out the error would in effect be conceding that one had committed an error on a prior deal; something that might lead directly to the hiring of a replacement law firm. The end result then might be that although the deal gets done quickly, the bondholder clients are not being provided full due diligence about the contract terms to which they are agreeing. Despite our suspicions, due diligence may not suffer from the designated underwriter’s counsel practice. A designated underwriter’s counsel may draw upon 76

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was not back toward the UAC standard but toward a direct implementation of a collective action clause for payment terms. What caused the delay in the response to the Ecuador shock? Here we don’t have any definitive empirical tests. We can speculate though why there was a delay. Over time after the Ecuador shock, countries may have developed greater experience with the benefits and costs of the exit consent procedure in the post-Ecuador period. Investors, similarly, could use the post-Ecuador experience to assess better the value of having collective action procedures in the sovereign bond context, reducing their resistance to terms closer to the CAC-end of the contract term possibility spectrum, leading to a reduced interest rate penalty from using such terms. The lack of any observable interest rate penalty for Mexico’s use

of CACs in 2003 likely led other countries to follow Mexico’s lead. Information also likely developed on how courts would view the use of exit consents (and more generally collective action-friendly provisions) applied under New York law. Other reasons exist for an initial delay in response after an interpretive shock. Issuers and their attorneys may hesitate to modify boilerplate contract terms after an interpretive shock to the extent the meaning of the shock is somewhat uncertain (at least initially). Issuers and attorneys, we have been told repeatedly by industry participants, fear that changing the language of their new contracts to adjust for the shock will be interpreted by courts as a sign that the older contract terms (contained in the large stock of existing bond covenants) in fact do represent the meaning given them by the interpretive shock—otherwise why change the terms? Of course, courts may view a single, coordinated response by the market as evidence of the market’s rejection of the interpretive shock. However, particularly in the initial time period after a shock, no single market actor may have the time or influence to engineer such a coordinated response. Standardization provides another explanation. Any shift in the language from one deal to another for any particular issuer, other than changing dates, price information and amounts, raises red flags for the investor side. Red flags, in turn, call for investigations by lawyers and delays. Delays are extremely costly in this market. The observation of the market participants is one that we investigate further in the portion of the paper where we focus on specific country contracts. It may have taken high-volume market participants some time to gain support among countries for a move to a new standard—the CACs—in a way that would not encounter a negative market response.

High Volume Attorneys

ho drove the eventual big shift toward CACs after Mexico in 2003? We found that those law firms that handle a large volume of sovereign bonds are most likely to lead the move toward newer bond terms representing a dramatic shift from those in use in the past (the CACs in the postMexico era after February 2003). Clearly Gottlieb, the attorney firm that acted as lead issuer’s counsel in the largest number of deals in our dataset, was significantly correlated with the shift toward CACs in the post-Mexico period. Market forces were not alone in driving the move from UACs to CACs in the sovereign bond market. The official sector AUTUMN 2005

Professors Take Part in First Faculty Scholarship Forum

The Law School held its first-ever Faculty Scholarship Forum on April 28, offering fulltime academic and clinical faculty an opportunity to review each other’s scholarship and provide feedback. The forum, which was held in Lipton Hall, featured an intimate session where each faculty member presented a work-in-progress and a professor from a different field critiqued it, offering a fresh perspective on the research. “It was a great day of academic exchange across subject matter, across methodological approaches and across disciplines,” says Vice Dean Clayton Gillette, who organized the forum. “I think everyone in the room was proud to be a part of such a vibrant faculty.” He added that the overall success of the forum ensured that it will be continued as an annual event in the spring.

undoubtedly also played some role in the move to CACs. The G-10 working group that drafted model CAC clauses prior to the Mexico offering likely played a nontrivial role in coordinating the important private sector actors. Nonetheless, the role of the G-10 group should not be overstated because the clauses that Mexico, Uruguay and Brazil eventually adopted were all significantly different from the G-10 group’s proposed clauses. Further, immediately before the 2003 Mexico offering, the U.S. Treasury did indicate that it was not as hostile to the IMF’s SDRM position as had previously been thought, suggesting that it may even support some version of SDRM if the private sector did not fall into line by adopting CACs. Ultimately, however, while we believe that official-sector efforts likely AUTUMN 2005

The professors who participated in the first faculty forum included: David Garland, “Symbolic and Instrumental Aspects of American Capital Punishment” Commentator: Stephen Holmes David Golove, “The Constitutional Law of Foreign Affairs” Commentator: Liam Murphy Katrina Wyman, “Contextualizing Restitution” Commentator: Samuel Issacharoff Oren Bar-Gill, “Behavioral Market Failures” Commentator: Jennifer Arlen

played a role, there is not enough evidence to suggest that it was the causal factor in inducing the eventual shift. Moreover, the shift to collective action-friendly terms after the Mexico 2003 offering took a decidedly market approach. The shifts only occurred for certain risk-rating countries (primarily medium- and low-rating countries_e.g., below investment grade) and, at least initially, only when the attorneys associated with the bond covenants had sufficient economies of scale to make drafting new contractual language worthwhile. Our study only begins to scratch the surface of the question of why certain countries moved earlier towards CACs and others later. We are in the process of collecting both qualitative and quantitative data on the different issuances in the post-February

2003 period. Among the interesting questions that this study could potentially answer are why it is that Mexico moved first, Brazil second and Uruguay third (and so on) to adopt CACs? Or, alternatively, if one focuses on the pre-Mexico New York law uses of CACs by countries like Lebanon, Egypt and Qatar, why did the rest of the market not follow them, but instead waited for Mexico to issue its bonds with CACs? Then there is the question of why Mexico chose to move to CACs when it did. One anecdote we heard about the Mexican issuance in February 2003—only one month after a high ranking Ministry of Finance official for the Mexican government had announced in Washington, D.C. that Mexico was not planning to shift to CACs anytime soon—was that Mexico was afraid that some smaller sovereign might give into the pressure to use CACs and might use the “wrong” types of CACs, such as some of the highly restrictive kinds that were being proposed by various creditor groups. This anecdote, if believed, suggests that Mexico and its advisers perceived that the market had reached some kind of tipping or boiling point and that it was imperative for them to be the first mover so as to dictate the terms of the cascade of change that was likely to follow. Hindsight suggests that Mexico was correct in its perceptions. But how did the Mexicans and their advisers make the calculation that February 2003 was the right time to make the move? What lessons do we draw from our study? Standardization plays an important role in determining the contract terms that even sophisticated parties select, as in the sovereign bond market. While standardization is important, it is not impervious to change. Market actors with the volume to justify the cost of taking a risk with new terms and the ability to ensure that many different participants will use the new terms are crucial to a shift in standardized terms. While the official sector certainly had a background role in the shift to CACs in the sovereign bond context, the shift, when it occurred, took a decidedly market-driven path. Even where regulators believe that market failures exist, our study suggests that the market often has the ability to provide its own solutions. Rather than engaging in heavyhanded regulatory intervention, regulators may attempt instead to assist high-volume market participants in coordinating among themselves to develop new standardized terms. Doing so may help lessen the resistance of the market to pricing new terms, leading to reduced “stickiness” in terms due to standardization. ■

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How to Make a Fractured Society Whole argues that constitutionalizing democracy is the only real road to peace. samuel Issacharoff

Recently named the Bonnie and Richard Reiss Professor of Constitutional Law, Samuel Issacharoff teaches Civil Procedure and the Law of Democracy at the New York University School of Law. His field of scholarship includes the interplay between the political process and both U.S. and foreign constitutional law, class actions and complex litigation and law and economics. He has written extensively on employment law and discrimination issues. This essay, “Constitutionalizing Democracy in Fractured Societies,” examines the challenges of nation building in fractured societies such as Bosnia and South Africa. It was published in the Texas Law Review (2004) and also in the Journal of International Affairs (2004).

uch as the terms constitutional and democracy are linked in the definitions of a just liberal society, the two embody antagonistic impulses in organizing the body politic. Democracy vests decisionmaking in majorities; constitutionalism removes certain matters from immediate popular control of significant realms of politics. Nonetheless, no democratic selection process exists without groundrules of governance and constitutionalism may be thought of as a particularly strong form of regulation of democracy. Viewing constitutionalism as the enabling groundrules for democratic governance provides an insight into the emer-

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gence of a strong form of constitutional constraint in stabilizing democratic governance in what I term fractured societies. The argument is that constitutionalism emerges as a central defining power in these societies precisely because of the limitations it imposes on democratic choice. For purposes of this discussion, I do not wish to explore the full dimensions of what is meant by either democracy or constitutionalism. Instead, I accept a rather spare definition of democracy as a system through which the majority, either directly or through representative bodies, exercises decisionmaking political power, and I use the term constitutionalism only to refer to the creation of a basic law that restricts the capacity of the majority to

exercise its political will. For these purposes, it does not matter whether the restraint is an absolute, as with the non-amendable provisions of the German constitution, or simply the “obduracy” of Article V of the American Constitution, or the temporal constraints requiring successive parliamentary action for constitutional reform, as in some European countries. Under any such system, the constitution serves as a limitation on what democratic majorities may do. I want to focus on a function that constitutionalism serves that is not widely noted: the role of securing legitimacy for the exercise of political power in fractured societies. I have in mind societies that are characterized by deep racial, ethnic or religious ani-

mosities in which cross-racial, ethnic and religious political institutions do not exist. Under such conditions, the emergence of stable democratic rule requires dampening such animosities so that the population as a whole views the exercise of state authority as being politically legitimate, or perhaps more modestly, does not rise in armed rebellion against the state. This ability of legal restriction to provide the basis for reconstituting society has begun to attract attention as a distinct form of ordering the transition to democratic rule. There is a rich political science literature addressing the problem of nation-building in complex, divided societies. For John Stuart Mill, democratic governance in fractured societies was a non-starter: Free institutions are next to impossible in a country made up of different nationalities. Among a people without fellow-feeling, especially if they read and speak different languages, the united public opinion, necessary to the working of representative government, cannot exist.

Subsequent work, however, looked to the national experiences in European countries such as Austria, Belgium, The Netherlands and Switzerland to claim that “consociational structures” could forge a national integration of rival elites and yield a politically stable democracy. The key to the consociational model is that power will be allocated across competing interests in the society independent of the political process, by creating a “grand coalition” that formally divides power between the rival social forces. Thus, elections in consociational democracies can decide which among the candidates of a particular ethnic or racial group will hold an office that was predetermined to be assigned to that particular group; whether a particular group or interest should hold office is decided outside the electoral process. Whether such consociational governmental structures can be transported out of the Western European context and whether they can deliver the promised political stability have been subjects of intense debate. However, the role of judicially enforced constitutionalism offers a different avenue of nation-building. Rather than securing national unity through formal power sharing along the major axes of social division, constitutionalism tends to impose limits on the range of decisions that democratically elected governments may take. In many cases, as will be seen in the central discussions in this paper, constitutionalism emerges as a rejection of the formal politiAUTUMN 2005

cal arrangements that characterized consociational experiments in nation-building. Rather than forecast the division of power that must hold in a fractured society, as does consociationalism, robust constitutionalism substitutes the “struggle to regulate political competition” so that the victors do not devour the process. What follows is an excerpt from a preliminary examination of the different forms of constitutional restraint on democracy that have been employed in fractured societies from the vantage point of constitutional review of the resulting institutional structures. Examined from this perspective, it is possible to ask, “What features of constitutionalism serve best to address the problems of fractured societies?” Or, put another way, “What constitutional restrictions on majoritarian power appear conducive to the emergence of stable democratic governance?” In part, this inquiry is a recognition of how much more sophisticated the world has become since the simple consociational models that were supposed to yield stability through formal power-sharing, as in Lebanon or Sri Lanka or Cyprus or the Ivory Coast—before those countries descended into fratricidal war. In part as well, this is a recognition of the stakes in truly fractured societies. The unfortunate lesson of history is that stable civilian governance is most likely to emerge from post-conflict societies when one ethnic group has accomplished clear dominance or destruction of the other. Even with the introduction of more aggressive international peacekeeping, the key issue in nation-building remains the creation of an integrated political authority claiming legitimacy beyond an ethnic or racial base. There is an emerging literature on the strong role that constitutional courts are assuming in attempting to diffuse ethnic or racial antagonisms. In each case, national or international courts have been forced to rule on the bounds of majoritarian politics in order to consolidate a constitutional order. Here I will give the highlights of only two, Bosnia and South Africa, for they represent the utterly unique circumstance in which a constitutional court is required to, in effect, adjudicate the constitutionality of a constitution itself. More centrally, the two represent markedly distinct positions in the attempt to create stable democratic rule in the context of extreme social polarization, along lines of ethnicity and religion in Bosnia and race in South Africa. As will be developed below, the Bosnian arrangement stemming from the Dayton accords hewed more closely to the consociational model described above. The Dayton accords created a formal power AUTUMN 2005

sharing arrangement along clear ethnic lines, cemented by a tripartite executive that would be assigned geographically to an area predetermined to represent one of the warring peoples. The litigation discussed emerged primarily from the organization of the executive, which ensured that the Bosniak minority living in the Bosnian Serb Republic could only choose for its executive representation from among the population that had com-

rule and flesh out the intuition that stable democracy requires more than just rushing to hold an election. Too often the holding of an election becomes the forum for the attempt to cement power in the hands of a dominant majority followed by a demoralizing descent into one-party rule and show elections. In the words of the cynical and oftentimes culpable ex-colonialists, this was one-man, one-vote, one-time.

“The ability of legal restriction to provide the basis for reconstituting society has begun to attract attention as a distinct form of ordering the transition to democratic rule.” mitted the worst communal atrocities seen in Europe since the Second World War. In some sense, South Africa confronted the same dilemma as Bosnia with two critical differences. First, the minority threatened by the exercise of untrammeled majoritarian rule was the militarily dominant white population. Second, the looming presence of apartheid made any attempt at formal assignment of power along racial lines an impermissible hearkening to the past. Whatever allure consociational models may have held for Dayton, they could not be directly invoked in the critical Johannesburg negotiations leading to the transfer of power from the apartheid rulers. Therefore, South Africa had to confront how to permit the creation of democratic political structures, and the inevitable emergence of black majority rule, while allaying the fears of the white minority that this “democracy” would simply be the code for racial revanchism. Without assurances to the apartheid rulers that there would be limits to demands for revenge and redistribution, power would only have been ceded at the conclusion of a civil war—if at all. The task therefore was to create limitations on majoritarian power without formal power sharing of the Bosnian sort. The experiences of Bosnia and South Africa fit into a broader international context. The demise of the Soviet Union and the fall of apartheid opened up the largest minting of new democracies since the end of the colonial period. Many, if not all, of these societies face the problems of religious and ethnic fracture. Comparative analyses shed light on the successes and failures in trying to stabilize democratic

With claims for democratic governance in countries like Iraq, the questions presented here take on greater urgency. Perhaps these questions of constitutional governance should have commanded the attention of comparative constitutionalism for some time.

I. Ethnic Power-Sharing: Bosnia Under the Dayton Accords

he 1995 Dayton Peace Agreement marked the end of the three-year civil war in the territory of Bosnia and Herzegovina. The Dayton accords sought to establish peace and stability through the classic form of consociational power-sharing among the dominant ethnic groups in the country: the Bosniaks, the Croats and the Serbs. The key governance elements were the creation of a weak central government and the reservation of significant authority to ethnically-distinct regional bodies denominated the “Entities.” The postwar constitution of Bosnia and Herzegovina elaborates further the composition of the country. Although it designates a sovereign state incorporating “Bosnia[k]s, Croats, and Serbs, as constituent peoples (along with Others), and citizens of Bosnia and Herzegovina,” it also provides for “a citizenship of each Entity, to be regulated by each Entity.” Both Entities, in turn, regulate citizenship, as well as all other internal affairs through their respective constitutions. According to their constitutions, the Federation of Bosnia and Herzegovina is an Entity of “Bosnia[k]s and Croats as constituent peoples,” while the Republika Srpska is the “State of Serb people and all of its citizens.” It is the definition of citizenship THE LAW SCHOOL

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according to Entity, and by extension, ethnic lines, that has served to enshrine ethnically based political power at the critical level of Entity governance. Thus, although the Constitution of Bosnia and Herzegovina establishes a three-member presidency that “shall endeavor” to act by consensus, the reality is that any member may block a decision deemed to be “destructive of a vital interest of the Entity from the territory from which he was elected.” Not surprisingly, the Entities of Bosnia and Herzegovina seized upon the ethnic/religious basis for power distribution to entrench themselves by directly linking ethnicity with citizenship and political rights in the Entities. The constitution of the Republika Srpska begins with an unequivocal invocation of its ethnic entitlement: “Starting from the natural, inalienable and untransferable right of the Serb people to self-determination on the basis of which that people, as any other free and sovereign people, independently decides on its political and State status and secures its economic, social and cultural development,” the Republika Srpska proudly declares itself a “[s]tate of Serb people and of all its citizens.” Its constitution ensures that the Serbian language “shall be in official use in the Republic” and further that “[t]he Serbian Orthodox Church shall be the church of the Serb people and other people of Orthodox religion.” More importantly, it declares that the “State shall materially support the Orthodox church and it shall co-operate with it in all fields and, in particular, in preserving, cherishing and developing cultural, traditional and other spiritual values,” conspicuously omitting any reference to the religions of Islam or Catholicism—those of the Bosniaks and Croats, respectively. Meanwhile, the Federation’s constitution preserves its status as an Entity of Bosniaks and Croats through its own decentralized system of government. The territory of the Federation is subdivided into cantons. All but two of the 10 cantons, which are based on ethnic predominance, are deemed either a “Bosniak canton” or “Croat canton,” and, accordingly, are governed by the majority ethnic group. Perhaps most damning to the consociational project are the incentives to validate and reinforce the ethnic cleansing of the Civil War period created by this ethnic assignment of power. For example, since Serb (and only Serb) members of the state common institutions are directly elected from the territory of the Republika Srpska, it is impossible for a non-Serb to represent the people of the Republika Srpska. Consequently, there is no meaningful man80

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ner in which Bosniaks or Croats may participate in, and be represented through, the electoral or democratic processes in that Entity. For any non-Serbs to return to a prewar home in the Republika Srpska means to accept permanent subordinate status in the Serb-dominated and -controlled Entity. The same holds true for Serbs in the Federation of Bosnia and Herzegovina. Such provisions, whether by design or effect, perpetuate the ethnically entrenched division of power and territoriality among the Entities emerging from the Civil War—a period in which the Serb population in Republika Srpska went from 54.3 percent to 96.8 percent of the total population, and the Bosniak population fell from 28.8 percent to 2.2 percent. They also provide a natural mechanism for the historically subjugated Serbs—the majority of the population of the former Yugoslavia, yet citizens of the poorer southern part of the country—to seek redress for perceived centuries of domination, first by the Turks and then by the more economically advanced Croatian and Slovenian populations in the northern parts of the country. This is not to exculpate the slaughter visited on the Bosniak population, but simply to reinforce the point that ethnic assignments of power seem particularly susceptible to the settling of historic scores on the basis of sheer power. The one (partial) exception to complete ethnically based paralysis of post-Dayton Bosnia and Herzegovina comes with the constitutional court, which as the primary federal judicial body in the country is entrusted with jurisdiction to “uphold [the] Constitution [of Bosnia and Herzegovina].” The ethnic composition of the nine-member court includes four members who are selected by the Federation House of Representatives and two members selected by the Republika Srpska National Assembly. To prevent ethnic deadlock in adjudication, however, the remaining three members of the court must be non-citizens, are selected by the President of the European Court of Human Rights “after consultation with the Presidency,” and cannot be citizens of any neighboring country. Precisely for this reason, the court became the forum for revisiting the democratic viability of compelled ethnic power assignments inherited from Dayton. The challenge to the constitutionality of many aspects of the Dayton accords was brought to the Court at the instigation of Alija Izetbegovic, the then-Chairman of the Presidency of Bosnia and Herzegovina, and himself a Bosniak. And here the Court rose to the occasion, striking down the charged provisions of the preambles of the Entities:

[S]egregation is, in principle, not a legitimate aim in a democratic society. It is no question therefore that ethnic separation through territorial delimitation does not meet the standards of a democratic state and pluralist society as determined by Article I.2 of the Constitution of BiH in conjunction with paragraph three of the Preamble. Territorial delimitation thus must not serve as an instrument of ethnic segregation, but—quite contrary— must provide for ethnic accommodation through preserving linguistic pluralism and peace in order to contribute to the integration of state and society as such.

While perhaps an apt statement of democratic aspirations, the court was forced into a direct confrontation with the legacy of Dayton: It is beyond doubt that the Federation of Bosnia and Herzegovina and Republika Srpska were—in the words of the Dayton Agreement on Implementing the Federation…—recognized as “constituent Entities” of Bosnia and Herzegovina by the GFAP, in particular through Article I.3 of the Constitution. But this recognition does not give them a carte blanche! Hence, despite the territorial delimitation of Bosnia and Herzegovina by the establishment of the two Entities, this territorial delimitation cannot serve as a constitutional legitimation for ethnic domination, national homogenisation or a right to uphold the effects of ethnic cleansing.

II. Antimajoritarian Constitutional Constraints: South Africa

he fall of apartheid came with the inauguration of an interim government that used formalized power sharing to ensure all groups a mutual veto over contested governmental action—i.e., the consociational formula. The Interim Constitution provided detailed power arrangements, along with a critical list of 34 Constitutional Principles of democratic governance—to which I shall return. The primary mechanism was the election of a parliament by proportional representation and the assignment of the position of deputy president to the representatives of each party holding at least 80 of the 400 seats in the National Assembly. Among the powers conferred as a result of this representation in the executive was the ability to participate in the selection of some of the justices of the Constitutional Court, a power reserved to the executive branch. This provision alone, however, was AUTUMN 2005

hardly sufficient to protect the interests of the white minority. Whatever the participatory mechanisms formally adopted, there was no escaping the fact that the African National Congress would control the parliament and that Nelson Mandela would serve as head of state. Just as critical to the success of the interim constitutional arrangement as the power sharing was the fact that this was an interim arrangement designed to last no more than five years and required to cede power to a more formal constitution that could only be implemented if deemed faithful to the original 34 Principles. Moreover, the National Assembly, required by Principle VIII of the interim constitution to be selected through proportional representation, would also serve as the formal drafting body for the final constitution. As a result, the final constitution would have two critical features. First, it would bear a democratic legitimacy that could not be claimed by a negotiated compromise among political leaders, no matter how much de facto authority they could claim. Second, the interim principles of the Constitution, rather than the formalities of power sharing, could serve to assuage minority concerns over the limits of majoritarianism. Beyond the familiar powers of judicial review over the constitutionality of proposed legislation, the South African Constitutional Court had an unprecedented power. Under the negotiated provisions of the interim constitution, the final constitution could not be adopted unless it faithfully adhered in its implementation to the negotiated general Principles set out in the interim constitution. And, it was the Constitutional Court that was entrusted with the power to ensure that the final constitution conformed to the 34 Principles. Despite the breadth of material covered in the 34 Principles, it is worth focusing on what may be subsumed under the category of antimajoritarian protections. As a general matter, these take three forms. First, there is an elaborate set of rights guarantees that extends to the confiscation of property. Although the new government would be devoted to the amelioration of disparities in wealth across racial lines, Principle V provides that “[e]quality before the law includes laws, programmes or activities that have as their object the amelioration of the conditions of the disadvantaged, including those disadvantaged on the grounds of race, colour or gender.” In essence, this Principle extends legal protection to the white minority to prevent simple expropriation resulting from the exercise of majority power. Second, there are limitations on the exercise of government power through a balancing of powAUTUMN 2005

failure to “entrench” the rights in question. In summary form, the court’s majestic ruling turned on the privileged constitutional status of bicameralism and divided government, federalism, supermajoritarianism for constitutional change, judicial review of legislation and a series of other constraints on what a democratic majority might choose to do. The Constitutional Assembly then revised the constitutional draft to meet the court’s concerns in October 1996 and, following a second round of judicial scrutiny, the new constitution was signed and implemented by President Nelson Mandela in December 1996.

III. Conclusion “My goodness, if I’d known how badly you wanted democracy I’d have given it to you ages ago.” ers within the national government and principles of federalism. These limitations include the requirements of formal lawmaking (Principle X) through a multi-party legislature (Principle VIII), separation of powers (Principle VI), an independent judiciary (Principle VII) and a multi-party representative government based on proportional representation (Principle VIII). More unique are the constitutional guarantees to the provinces and local governments to be able to claim an “equitable share” of national resources (Principle XXVI), and the creation of a Public Service Commission and Reserve Bank independent of legislative control (Principle XXIX). Third, there are protections provided by the supermajority processes needed to amend the Constitution that require not only a two-thirds vote in the upper house of the national parliament but approval by a majority of provincial legislatures (Principle XVIII). In July 1996, the proposed permanent constitution was submitted for review to the constitutional court, which rendered its decision two months later. Of greatest significance for present purposes are the provisions that reaffirmed limitations on government and those that were struck down for what may be termed an excess of majoritarianism. These primarily concerned the attempt to preclude constitutional review from certain categories of statutes, the absence of federalist safeguards on centralized power and the lack of supermajoritarian protection for certain components of the constitution itself, including the liberty protections of the Bill of Rights. With regard to the latter, the court found a violation of the principles of the interim constitution in the

he allure of consociationalism was its understanding that state authority could not achieve legitimacy without inclusiveness. At the same time, formal state entrenchment of racial or ethnic political power appeared historically to perpetuate—and in some instances exacerbate— the underlying societal division. The stakes for crafting a constitutional line that mediates these divides in fractured societies are incomparably high. South Africa avoided a massive bloodletting only through a combination of good fortune in finding a negotiated pathway and a level of inspired political leadership that only rarely graces the world stage. Bosnia and Herzegovina live under the perpetual threat of a sudden descent into renewed ethnic slaughter. In these countries, a lack of legitimacy in representation would trigger either the collapse of the central government or a last stand by an excluded group. Governmental structures had to be devised that could assure participation for all, temper the threat of majoritarian tyranny and guarantee the sanctity of the individual. This then is the point of convergence between the South African and Bosnian courts. Each saw in its constitutional authority a responsibility to mediate the inherent conflict between democratic selfgovernance and the risk of majoritarian oppression. Each helped its society move away from the risk of locking in social fractures that would have been present had the immediate majorities held unfettered power. At the same time, each showed itself to be quite sensitive to the need to assure meaningful minority participation in the structures of governance. Both the Bosnian and South African courts have shown a robust appreciation of the role of a strong judiciary in mediating the inescapable tension between constitutionalism and democracy. ■ THE LAW SCHOOL

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Good Reads By the full-time, visiting, global and library faculty September 1, 2003, through December 31, 2004. (Short pieces have been omitted.)

Books Baker, John H. Reports of Cases from the Time of King Henry VIII. London: Selden Society, 2004. Bell, Derrick A. Race, Racism and American Law. 5th edition. New York: Aspen Publishers, 2004. Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes for Racial Reform. New York: Oxford University Press, 2004.

Estreicher, Samuel Editor. Alternative Dispute Resolution in the Employment Arena: Proceedings of the NYU 53rd Annual Conference on Labor. New York: Kluwer Law International, 2004 (with David Sherwyn).

Billman, Brookes Federal Tax Practice and Procedure: Cases, Materials, and Problems. St. Paul, MN: West Group, 2004 (with Camilla Watson).

Cases and Materials on Employment Discrimination and Employment Law. St. Paul, MN: Thomson/West Group, 2004 (with Michael C. Harper).

Cassese, Sabino La nuova costituzione economica: lezioni. 3rd edition revised. Rome: GLF editori Laterza, 2004.

Cases and Materials on Employment Law. St. Paul, MN: Thomson/West Group, 2004 (with Michael C. Harper).

I procedimento amministrativo nel diritto europeo. Milan: Giuffrè, 2004 (with Francesca Bignami). Lo spazio giuridico globale. Rome: GLF editori Laterza, 2003. Trattato di diritto amministrativo: diritto amministrativo speciale. 2nd edition. Milan: Giuffrè, 2003. Chevigny, Paul Gigs: Jazz and the Cabaret Laws in New York City. 2nd edition. New York: Routledge, 2004. De Schutter, Olivier Une Constitution pour l’Europe: Réflexions sur les transformations du droit de l’Union europèenne. Brussels: De Boeck & Larcier, 2004 (with Paul Nihoul and Jean-Yves de Carlier). Dreyfuss, Rochelle C. Intellectual Property: Cases and Materials on Trademark, Copyright and Patent Law. New York: Foundation Press, 2004 (with Roberta R. Kwall). 82

Elkin-Koren, Niva Law, Economics and Cyberspace: The Effects of Cyberspace on the Economic Analysis of Law. Northampton, MA: Edward Elgar Publishing, 2004 (with Eli M. Salzberger).

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Fox, Eleanor M. Cases and Materials on U.S. Antitrust in Global Context. 2nd edition. St. Paul, MN: Thomson/West Group, 2004 (with Lawrence Anthony Sullivan and Rudolph J. R. Peritz). Garland, David La Cultura del Controllo. Milan: Il Saggiatore, 2004. Gillers, Stephen Regulation of Lawyers: Statutes and Standards. New York: Aspen Publishers, 2004 (with Roy D. Simon). Gillette, Clayton P. Editor. The Creation and Interpretation of Commercial Law. Burlington, VT: Ashgate, 2003. Local Government Law: Cases and Materials. 3rd edition. New York: Foundation Press, 2004 (with Lynn A. Baker). Liu, Joan Editor. Roaming the Virtual Law Library: A Guide to the Online Sources for Legal Researchers. Beijing: Law Press China, 2004 (with Liying Yu).

The Railway Labor Act and the National Labor Relations Act: A Comparative Appraisal for the Airline Industry. Washington, DC: HR Policy Association, 2004 (with Sheldon M. Kline).

Meron, Theodor International Law in the Age of Human Rights: General Course on Public International Law. Boston: Martinus Nijhoff Publishers, 2004.

Feldman, Noah What We Owe Iraq: War and the Ethics of Nation Building. Princeton, NJ: Princeton University Press, 2004.

Nelson, William E. In Pursuit of Right and Justice: Edward Weinfeld as Lawyer and Judge. New York: New York University Press, 2004.

Ferrari, Franco The Draft UNCITRAL Digest and Beyond: Cases, Analysis and Unresolved Issues in the U.N. Sales Convention. Munich: Sellier European Law Publishers; London: Sweet & Maxwell, 2004 (with Harry M. Flechtner and Ronald A. Brand). The 1980 Uniform Sales Law: Old Issues Revisited in the Light of Recent Experiences. Verona Conference 2003. Milan: Giuffrè; Munich: Sellier European Law Publishers, 2003.

Popa, Radu Sabrina si alte suspiciuni. Iasi, Romania: Polirom, 2004. Reid, John P. Controlling the Law: Legal Politics in Early National New Hampshire. DeKalb, IL: Northern Illinois University Press, 2004.

Richards, David A. J. Tragic Manhood and Democracy: Verdi’s Voice and the Powers of Musical Art. Brighton, UK: Sussex Academic Press, 2004.

Rubio-Marin, Ruth The Gender of Constitutional Jurisprudence. Cambridge: Cambridge University Press, 2004 (with Beverley Baines).

Roznoveanu, Mirela Born Again—in Exile. New York: iUniverse, 2004.

Shaviro, Daniel N. Corporate Tax Shelters in a Global Economy. Washington, DC: AEI Press, 2004.

The Life Manager and Other Stories. New York: iUniverse, 2004.

Who Should Pay for Medicare? Chicago: University of Chicago Press, 2004.

Silent Covenants: Brown v. Board of Education and the Unfulfilled Hopes for Racial Reform By Derrick Bell (Oxford University Press) In his 10th book, Derrick Bell, a former civil rights lawyer, asserts that history has proven the landmark Brown v. Board of Education ruling to be nothing more than “a magnificent mirage.” Fifty years after the decision that called for school desegregation, schools are still de facto segregated and blacks are still at a disadvantage, he says. That’s because while Brown called for school integration, it also stated that the process could take place with “all deliberate speed,” giving angry whites a way to resist the ruling and essentially turn it into more of a symbolic decision than an effective one. In what the New Yorker calls “a bold and sobering counterproposal,” Bell argues that blacks would have been better served had the Supreme Court upheld Plessy v. Ferguson and enforced “separate but equal” schools, with the emphasis on equal. Bell, whom the Boston Globe called “a self-consciously provocative writer,” sees Brown as an example of his “convergence theory,” in which blacks’ rights are “recognized and protected when and only so long as policy makers perceive that such advances will further interests that are their primary concern.” The primary concern of whites in the 1950s, he says, citing U.S. Justice Department briefs filed in Brown, was Cold War propaganda; officially rejecting segregation made America appear to be the embodiment of freedom. Thus, Brown was forged not from an urge for racial justice, but from what Bell calls a “silent covenant,” a tacit agreement between whites that did little to serve the interests of blacks. Silent Covenants was named one of the Best Black History Books of 2004 by Black Issues Book Review.

Rule of Law: The Jurisprudence of Liberty in the Seventeenth and Eighteenth Centuries. DeKalb, IL: Northern Illinois University Press, 2004.

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Skolnick, Jerome H. Crisis in American Institutions. 12th edition. Boston: Pearson, 2004 (with Elliott Currie). Steines, John International Aspects of U.S. Income Taxation. New York: John Steines, 2004. Weiler, Joseph H. H. Un’Europa cristiana: Un saggio esplorativo. M. Zanichelli, editor. Milan: BUR Saggi, 2003. Una Europa cristiana: Ensayo exploratorio. J. M. Oriol, translator. Madrid: Ediciones Encuentro, 2003. Uma Europa Cristã: Contributo para uma reflexão sobre a identidade europeia. A. Pereira, translator. S. João do Estoril, Portugal: Principia, 2003. Chrzescijanska Europa: Konstytucyjny imperialism czy wielokulturowosc? W. Mechera, translator. Poznan, Poland: W. Drodze, 2003. Ein Christliches Europa: Erkundungsgänge. F. Reimer, translator. Salzburg: Verlag Antón Pustet, 2004.

Chapters and Supplements Adler, Barry “A Case Study of Joint-Wealth Maximization in Legal Analysis,” in Festschrift to Charles J. Goetz and Robert E. Scott. Charlottesville, VA: University of Virginia School of Law, 2003. Allen, William T. “Crisis Management,” in Corporate Compliance Institute. New York: Practising Law Institute, 2004. Arlen, Jennifer “Evolution of Corporate Criminal Liability: Implications for Managers,” in Leadership and Governance from the Inside Out. Robert P. Gandossy and Jeffrey A. Sonnenfeld, editors. Hoboken, NJ: John Wiley & Sons, 2004.

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Baker, John H. “The Third University of England: The Inns of Court and the Common Law Tradition,” in The Selden Society Lectures, 1952–2001. Buffalo: William S. Hein, 2003. Been, Vicki L. “Lucas v. The Green Machine: Using the Takings Clause to Promote More Efficient Regulation?” in Property Stories: An In-Depth Look at Leading Property Cases. Gerald Korngold and Andrew P. Morriss, editors. New York: Foundation Press, 2004. Bradford, David F. “Ten Years of CES,” in Public Finance and Public Policy in the New Century. Sijbren Cnossen and Hans-Werner Sinn, editors. Cambridge, MA: MIT Press, 2003. Caldwell, Paulette “Hair Piece, Perspectives on the Intersection of Race and Gender,” in Critical Race Feminism: A Reader. Adrien Katherine Wong, editor. New York: New York University Press, 2003. Chase, Oscar G. “Discretion in Cultural Context,” in Discretionary Power of the Judge: Limits and Control. Marcel Storme and Burkhard Hess, editors. Mechelen, Belgium: Kluwer Law International, 2003. Chevigny, Paul G. “Control of Police Misconduct in the Americas,” in Crime and Violence in Latin America: Citizen Security, Democracy and the State. Hugo Frühling, et al., editors. Baltimore: Johns Hopkins University Press, 2003. Davis, Peggy C. “Women, Bondage, and the Reconstructed Constitution,” in Women and the United States Constitution: History, Interpretation and Practice. Sibyl Schwarzenbach and Patricia Smith, editors. New York: Columbia University Press, 2003. De Búrca, Gráinne “The European Court of Justice and the Evolution of EU Law,” in Law, Politics and Society. Tanja A. Börzel and Rachel A. Cichowski, editors. New York: Oxford University Press, 2003.

“Political, Legal and Constitutional Issues. European Constitutionalism and the Charter,” in The EU Charter of Fundamental Rights. Steve Peers and Angela Ward, editors. Oxford, UK: Hart Publishers, 2004. Dreyfuss, Rochelle C. “Varying the Course in Patenting Genetic Material: A Counter Proposal to Richard Epstein’s Steady Course,” in Perspectives on Properties of the Human Genome Project. F. Scott Kieff, editor. San Diego: Elsevier Academic Press, 2003. Dworkin, Ronald M. “Concept of the Sacred,” in Is Nothing Sacred? Ben Rogers, editor. New York: Routledge, 2004. “Equality of Resources,” in Social Justice. Matthew Clayton and Andrew Williams, editors. Malden, MA: Blackwell Publishers, 2004. “The Majoritarian Premise and Constitutionalism,” and “Political Equality,” in Philosophy and Democracy: An Anthology. Thomas Christiano, editor. New York: Oxford University Press, 2003. “The Secular Papacy,” in Judges in Contemporary Democracy: An International Conversation. Robert Badinter and Stephen Breyer, editors. New York: New York University Press, 2004. Estreicher, Samuel “Partial Strikes Under the Railway Labor Act: The Need for a Doctrine of Unprotected Concerted Activity,” in Airline and Railroad Labor and Employment Law: A Comprehensive Analysis. Philadelphia: ALI-ABA, 2003 (with Robert A. Siegel). Statutory Supplement to Cases and Materials on Employment Discrimination and Employment Law. St. Paul, MN: Thomson/West Group, 2004 (with Michael C. Harper). Eustice, James Federal Income Taxation of Corporations and Shareholders. 7th edition. 2003, 2004 supplements. Boston: Warren, Gorham and Lamont.

Law, Economics and Cyberspace: The Effects of Cyberspace on the Economic Analysis of Law By Niva Elkin-Koren and Eli M. Salzberger (Edward Elgar Publishing) Over the last quarter century, both the global and the national marketplace have been redefined by the expanding presence of the Internet. But has the field of law and economics kept pace with the changing environment? No, say Niva Elkin-Koren and Eli M. Salzberger in their new book, Law, Economics and Cyberspace: The Effects of Cyberspace on the Economic Analysis of Law. The authors examine all recent legislation, case law and academic writings about cyberspace and conclude that the “existing paradigms…are ill-equipped to analyze the new economic and noneconomic markets formed and affected by cyberspace.” Traditional methods of analysis are inadequate for several reasons, the authors argue. For example, cyberspace work is not linked to a workplace, community is not linked to geography and output is not always linked to profit maximization. Scholars must find a way to adapt to these new realities, say Elkin-Koren and Salzberger, or to create new paradigms that can incorporate the far-reaching effects of cyberspace.

Federal Income Taxation of S Corporations. 4th edition. 2003, 2004 supplements. Boston: Warren, Gorham and Lamont. Feldman, Noah “Aristotelian Equity and Accretionary Law,” in Maimonides: Some Further Thoughts in Law and Equity in the Jurisprudence of Maimonides. Hanina Ben-Menahem, editor. Jerusalem: Center for the Study of Jewish Law, 2004. Ferrari, Franco “Abschluß des Vertrages. Kommentar zu den Artikeln 14-24 CISG,” in Münchener Kommentar zum Handelsgesetzbuch. Munich: Beck Verlag, 2004.

“Allgemeine Bestimmungen. Kommentar zu den Artikeln 7-13 CISG,” in Münchener Kommentar zum Handelsgesetzbuch. Munich: Beck Verlag, 2004. “CISG and Private International Law,” in The 1980 Uniform Sales Law: Old Issues Revisited in the Light of Recent Experiences. Verona Conference 2003. Milan: Giuffrè; Munich: Sellier European Law Publishers, 2003. “CISG Rules on Exclusion and Derogation,” in The Draft UNCITRAL Digest and Beyond: Cases, Analysis and Unresolved Issues in the U.N. Sales Convention. Munich: Sellier European Law Publishers; London: Sweet & Maxwell, 2004. THE LAW SCHOOL

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“CISG’s Sphere of Application: Articles 1-3 and 10,” in The Draft UNCITRAL Digest and Beyond: Cases, Analysis and Unresolved Issues in the U.N. Sales Convention. Munich: Sellier European Law Publishers; London: Sweet & Maxwell, 2004.

“Interpretation of Statements,” in The Draft UNCITRAL Digest and Beyond: Cases, Analysis and Unresolved Issues in the U.N. Sales Convention. Munich: Sellier European Law Publishers; London: Sweet & Maxwell, 2004.

“Interpretation of the Convention and Gap-Filling,” in The Draft UNCITRAL Digest and Beyond: Cases, Analysis and Unresolved Issues in the U.N. Sales Convention. Munich: Sellier European Law Publishers; London: Sweet & Maxwell, 2004.

“Scope of Application,” in The Draft UNCITRAL Digest and Beyond: Cases, Analysis and Unresolved Issues in the U.N. Sales Convention. Munich: Sellier European Law Publishers; London: Sweet & Maxwell, 2004.

“Trade Usage and Practices Established Between the Parties,” in The Draft UNCITRAL Digest and Beyond: Cases, Analysis and Unresolved Issues in the U.N. Sales Convention. Munich: Sellier European Law Publishers; London: Sweet & Maxwell, 2004. “Writing Requirements,” in The Draft UNCITRAL Digest and Beyond: Cases, Analysis and Unresolved Issues in the U.N. Sales Convention. Munich: Sellier European Law Publishers; London: Sweet & Maxwell, 2004. First, Harry Antitrust Statutes, Treaties, Regulations, Guidelines, and Policies. 2003, 2004 supplements. New York: Foundation Press, 2003 (with John J. Flynn and Darren Bush). Business Crime, Cases and Materials. 2003–2004 Supplement. New York: Foundation Press.

What We Owe Iraq: War and the Ethics of Nation Building By Noah Feldman (Princeton University Press) In what the New York Times hailed as “part theoretical treatise, part political analysis, part memoir,” Feldman draws on his experience as a constitutional adviser in Iraq to make “a powerful and important” argument that having invaded Iraq, the U.S. must help true democracy come to that war-torn country. To do this, Feldman says, the U.S. must be a “nonpaternalistic nation builder” which first delivers security and then valid elections, in which all groups have representation and a voice. Feldman, who recently published a new book on the history of religion in America, Divided by God (see article on page 51), believes establishing democracy is the only possible means to bring peace to Iraq. He makes a compelling case, says Foreign Affairs, “set within a crisp and provocative examination of international law and historical experiences with colonialism, trusteeships, and mandates.” True democracy, Feldman says, is an antidote to terrorism; if people feel adequately represented, the impetus to terrorism is removed. In the Washington Post, Richard A. Clarke, the former White House counterterrorism coordinator under Presidents Clinton and Bush, gave the book high praise. He wrote, “Feldman’s book is insightful, accessible and highly recommended for policy makers and readers interested in understanding the opportunities and hazards that will confront America as the world’s foremost nation builder.”

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Fox, Eleanor European Union Law: Cases and Materials. 2004 Supplement. St. Paul, MN: Thomson/West Group (with George A. Bermann, William Davey, and Roger J. Goebel). “State Action in Comparative Context: What If Parker v. Brown Were Italian,” in 2003 Fordham Corporate Law Institute. International Antitrust Law & Policy. Barry Hawk, editor. Huntington, NY: Juris Publishing, 2004. Teacher’s Manual on U.S. Antitrust in Global Context. 2nd edition. St. Paul, MN: Thomson/West Group, 2004 (with Rudolf J. R. Peritz and Lawrence A. Sullivan). Friedman, Barry “Politics and Judicial Independence,” in Judicial Integrity. András Sajó and Lorri Rutt Bentch, editors. Boston: Martinus Nijhoff Publishers, 2004. Garland, David “Die Kultur der ‘High Crime Societies,’” in Sociologie der Kriminalitat, D. Oberwittler and S. Karstedt, editors. Wiesbaden, Germany: V. S. Verlag fur Socialwissenschaften, 2003.

Gillette, Clayton P. “The Perils of Article 2: Strategies of Interpretation,” in Festschrift to Charles J. Goetz and Robert E. Scott. Charlottesville, VA: University of Virginia School of Law, 2003. Gilligan, Carol “Foreword,” in Mystics, Mavericks, and Merrymakers: An Intimate Journey Among Hasidic Girls. Stephanie Wellen Levine. New York: New York University Press, 2003. “A Moonlight Visibility: Turning the Scarlet Letter into a Play,” in Hawthorne Revisited: Honoring the Bicentennial of the Author’s Birth. David Scribner, editor. Lenox, MA: Lenox Library Association, 2003. “Recovering Psyche: Reflections on Life-History and History,” in Annual of Psychoanalysis: Psychoanalysis and Women. Jerome A. Winer, James William Anderson, and Christine C. Kieffer, editors. Hillsdale, NJ: The Analytic Press, 2004. “Sisterhood Is Pleasurable: A Quiet Revolution in Psychology,” in Sisterhood Is Forever: The Women’s Anthology for a New Millennium. Robin Morgan, editor. New York: Washington Square Press, 2003. Hershkoff, Helen 2004 Civil Procedure Supplement for Use with All Pleading and Procedure Casebooks. St. Paul, MN: West Group, 2003 (with John Cound, Jack H. Friedenthal, Arthur R. Miller, and John Sexton). Revised Teacher’s Manual to Accompany Civil Procedure: Cases and Materials. 8th edition. St. Paul, MN: West Group, 2004 (with John Cound, Jack H. Friedenthal, Arthur R. Miller, and John Sexton). Hertz, Randy Federal Habeas Corpus Practice and Procedure. 2004 Supplement. Charlottesville, VA: LexisNexis.

Holmes, Stephen “Potemkin Democracy,” in The Making and Unmaking of Democracy: Lessons from History and World Politics. Theodore K. Rabb and Ezra N. Suleiman, editors. New York: Routledge, 2003. Issacharoff, Samuel Law of Democracy. Revised 2nd edition. 2004 Supplement. New York: Foundation Press (with Richard H. Pildes and Pamela S. Karlan). “The Story of Baker v. Carr,” in Constitutional Law Stories. Michael C. Dorf, editor. New York: Foundation Press, 2004 (with Stephen Ansolabe). Jacobs, James B. “Gun Licensing and Registration Would Not Reduce Crime,” in Guns and Crime. James D. Torr, editor. San Diego: Greenhaven Press, 2004. “Hate Crimes,” in Current Controversies in Criminology. Ronald J. Weitzer, editor. Upper Saddle River, NJ: Prentice Hall, 2003 (with Kimberly A. Potter). “Most Gun Control Laws Are Ineffective,” in Crime and Criminals. James D. Torr, editor. San Diego: Greenhaven Press, 2004. “Prison Reform Amid the Ruins of Prisoners’ Rights,” in The Future of Imprisonment: Essays in Honor of Norval Morris. Michael H. Tonry, editor. New York: Oxford University Press, 2004. Kornhauser, Lewis “Economic Rationality in the Analysis of Legal Rules and Institutions,” in The Blackwell Guide to the Philosophy of Law and Legal Theory. William Edmundson and Martin Golding, editors. Malden, MA: Blackwell Publishers, 2004. Koskenniemi, Martti “Letter to the Editor of the Symposium,” in The Methods of International Law. Steven R. Ratner and Anne-Marie Slaughter, editors. Washington, DC: American Society of International Law, 2004.

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Kumm, Mattias “The Future of Constitutional Conflict in the European Union: Constitutional Supremacy After the Constitutional Treaty,” in Altneland: The EU Constitution in a Contextual Perspective. Joseph H. H. Weiler and Christopher Eisgruber, editors. New York: New York University School of Law, Jean Monnet Working Papers, 2004 (with Victor Ferrerez Cornella). Liu, Joan “Finding Chinese Law on the Internet,” in Roaming the Virtual Law Library. Joan Liu and Liying Yu, editors. Beijing: Law Press China, 2004. Lowenfeld, Andreas F. “Jurisdiction, Enforcement, Public Policy and Res Judicata: The Krombach Case,” in Intercontinental Cooperation Through Private International Law: Essays in Memory of Peter E. Nygh. Talia Einhorn, editor. Cambridge: Cambridge University Press, 2004. “The Party-Appointed Arbitrator: Further Reflections,” in Leading Arbitrators’ Guide to International Arbitration. Lawrence W. Newman and Richard Hill, editors. Huntington, NY: Juris Publishing, 2004. “The United States and United Nations Sanctions,” in National Implementation of United Nations Sanctions: A Comparative Study. Vera Gowlland-Debbas, editor. Boston: Martinus Nijhoff Publishers, 2004. Maguigan, Holly “Cultural Evidence and Male Violence,” in Feminist Legal Theory: An Anti-Essentialist Reader. Nancy E. Dowd and Michelle S. Jacobs, editors. New York: New York University Press, 2003. “The Battered Woman’s Syndrome: A Sensible Legal Defense?” and “The SelfDefense Claims of Battered Women,” in Current Controversies on Family Violence. 2nd edition. Donileen R. Loseke, Richard Gelles, and Mary Cavanaugh, editors. London: Sage Publications, 2004 (with Sue Osthoff ). AUTUMN 2005

Malman, Laurie The Individual Tax Base, Cases, Problems, and Policies in Federal Income Taxation. 2004 Supplement. St. Paul, MN: West Group (with Linda Sugin, Lewis Solomon, and Jerome Hesch). Miller, Geoffrey P. “Economic Analysis of Conflict of Interest Regulation,” in Foundations of the Law and Ethics of Lawyering. George Meredith Cohen and Susan P. Koniak, editors. New York: Foundation Press, 2004 (with Jonathan R. Macey). “Ethical Considerations in Class Action Practice,” in Class Action Litigation: Prosecution & Defense Strategies. New York: Practising Law Institute, 2003. “Parental Bonding and the Design of Child Support Obligations,” in The Law and Economics of Child Support Payments. William S. Comanor, editor. Northampton, MA: Edward Elgar Publishing, 2004. “Universal Banks Are Not the Answer to America’s Corporate Governance ‘Problem’: A Look at Germany, Japan, and the U.S.,” in The Revolution in Corporate Finance. Joel M. Stern and David H. Chew, editors, Malden, MA: Blackwell Publishers, 2003 (with Jonathan R. Macey). Neuborne, Burt “Selected Supreme Court Cases 2001 Term (through April 30),” in Fourth Annual Supreme Court Review: October 2001 Term. Erwin Chemerinsky and Martin A. Schwartz, editors. New York: Practising Law Institute, 2003. Pildes, Richard H. Law of Democracy. Revised 2nd edition. 2004 Supplement. New York: Foundation Press (with Samuel Issacharoff and Pamela S. Karlan). Popa, Radu “Foreign Law: Introduction,” “Major Concepts on International Law,” “Online Sources for Civil Law Countries,” and “Online Sources for International Law and International Organizations,”

in Roaming the Virtual Law Library. Joan Liu and Liying Yu, editors. Beijing: Law Press China, 2004. Redlich, Norman “Constitutional Law,” in Understanding Law School: An Introduction to the LexisNexis Understanding Series and Tips on How to Succeed in Law School. Newark, NJ: LexisNexis, 2004 (with John Attanasio and Joel K. Goldstein). Revesz, Richard L. Environmental Law Statutes, 2004–2005 Edition. New York: Foundation Press. Richards, David A. J. “Right to Privacy and Gay/ Lesbian Sexuality: Beyond Decriminalization to Equal Recognition,” in Women and the United States Constitution: History, Interpretation and Practice. Sibyl Schwarzenbach and Patricia Smith, editors. New York: Columbia University Press, 2003. Rosenbloom, H. David “Deconstructing Section 905(c): An Examination of the Redetermination Rules After TRA 1997,” in Tax Strategies for Corporate Acquisitions, Dispositions, Spin-Offs, Joint Ventures, Financings, Reorganizations, & Restructurings. New York: Practising Law Institute, 2003. Rubio-Marin, Ruth “Language Rights: Exploring the Competing Rationales,” in Language Rights and Political Theory. Will Kymlicka and Alan Patten, editors. New York: Oxford University Press, 2003. Schenk, Deborah “Comment, Effects of Tax Simplification Options: A Quantitative Analysis,” in The Crisis in Tax Administration. Henry J. Aaron and Joel Slemrod, editors. Washington, DC: Brookings Institution, 2004. Federal Income Taxation: Principles and Policies. 4th edition. 2004 Supplement. New York: Foundation Press (with Michael Graetz). Federal Taxation of S Corporations. 2004 Supplement. New York: Law Journal Seminars-Press.

What’s Wrong with Children’s Rights By Martin Guggenheim (Harvard University Press) Does the concept of “children’s rights” inherently decrease a parent’s role in child care in order to increase that of the state? In What’s Wrong with Children’s Rights, Martin Guggenheim ’71 suggests that it does, and that therefore “children’s rights” cause more trouble than good for the children they are meant to protect. “The relations among children, parents and the various agencies that purport to help them are the subject of intense debate these days, and for good reason,” wrote reviewer Elliott Currie of the Washington Post, and so Guggenheim, “deserves considerable credit for laying out an ambitious and wide-ranging argument.” This argument rests on the belief that a child’s parents are best suited to care for the child and are the most likely to act in the child’s best interests. In this regard, Guggenheim doubts that “speaking in terms of ‘rights’ is even good for the children.” While Guggenheim cannot offer any definite solution to the problems created by children’s rights, he provides advice for future policy. He concludes that: “One thing is certain. Unless children’s rights include society’s obligations to deal with children well, children don’t need them.” Publisher’s Weekly says “Guggenheim does an admirable job outlining the history of children’s rights legislation and highlighting the detrimental impact it can have on families.” What’s Wrong with Children’s Rights, says PW, is “relevant not just for policymakers and academics but for anyone interested in the country’s social dilemmas.”

Schulhofer, Stephen J. “No Checks, No Balances,” in Civil Liberties vs. National Security in a Post 9/11 World. M. Katherine Darmer, Robert M. Baird, and Stuart E. Rosenbaum, editors. Amherst, NY: Prometheus Books, 2004. Silberman, Linda “Enforcement and Recognition of Foreign Judgments in the United States,” in International Business Litigation & Arbitration, 2003. John Fellas, editor. New York: Practising Law Institute, 2003.

“Enforcement and Recognition of Foreign Judgments in the United States,” in International Business Litigation & Arbitration, 2004. John Fellas, editor. New York: Practising Law Institute, 2004. “A Proposed Lis Pendens Rule for Courts in the United States: The International Judgments Project of the American Law Institute,” in Intercontinental Cooperation Through Private International Law: Essays in Memory of Peter E. Nygh. Talia Einhorn, editor. Cambridge: Cambridge University Press, 2004. THE LAW SCHOOL

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A Life of H.L.A. Hart: The Nightmare and the Noble Dream By Nicola Lacey (Oxford University Press) Herbert Lionel Adolphus Hart may have been one of the most important legal philosophers of the 20th century, but as Nicola Lacey reveals in her unprecedented biography, A Life of H.L.A. Hart: The Nightmare and the Noble Dream. Hart was a man plagued by self-doubt. An intellectually imposing don from Oxford, Hart is best remembered for embracing and advancing legal positivism, the theory that law can and should be separate from morality. His work impacted legal thought around the globe and even inspired one of his students, Ronald Dworkin, to spend the bulk of his career challenging it. (see “The Transcendent Lawyer,” page 12). Lacey, a professor of criminal law and legal theory at the London School of Economics and adjunct professor of social and political theory at the Research School of Social Sciences of the Australian National University and a regular visitor as a Hauser Global Professor at the Law School, is the first writer to be granted access to Hart’s private papers. She goes beyond Hart’s intellectual achievements to probe his inner demons—emotional instability and repressed homosexual tendencies. Some reviewers, like the Law School’s Thomas Nagel, feel that the book has weaknesses and that revealing Hart’s personal foibles was a disservice to his professional accomplishments. However, others applauded Lacey’s efforts to humanize the great thinker. The Sunday Telegraph in London called A Life of H.L.A. Hart an “impressive new biography…. As a legal theorist herself, [Lacey] is able to guide the reader expertly through Hart’s debates with philosophers, sociologists and lawyers. The arguments are sometimes dense, but the effort to understand them is repaid.” And Carlin Romano of the Chronicle of Higher Education called Lacey’s book “a brilliant mix of tightly reported intimate biography and expert intellectual assessment.”

Stevenson, Bryan A. “Close to Death: Reflections on Race and Capital Punishment in America,” in Debating the Death Penalty: Should America Have Capital Punishment?: The Experts on Both Sides Make Their Best Case. Hugo A. Bedau and Paul Cassell, editors. New York: Oxford University Press, 2004. Weiler, Joseph H. H. “EC—Asbestos. European Communities—Measures Affecting Asbestos and Asbestos-Containing Products,” in The WTO Case Law of 2001. H. Horn and P. Mavroidis, editors. Cambridge: Cambridge University Press, 2003 (with H. Horn). “Epilogue,” in Darker Legacies of Law in Europe: The Shadow of National Socialism and Fascism over Europe and Its Legal Traditions. Christian Joerges and Navraj Singh Ghaleigh, editors. Oxford, UK: Hart Publishers, 2003. “Human Rights, Constitutionalism and Integration: Iconography and Fetishism,” in Developing a Constitution for Europe. Erik O. Eriksen, et al., editors. New York: Routledge, 2004. “El principio de tolerancia constitucional: la dimensión espiritual de la integración europea,” in Derecho constitucional y cultura: Estudios en homenaje a Peter Häberle. F. Balaguer Callejón, editor. Madrid: Tecnos, 2004.

Articles Adler, Barry “Bankruptcy Primitives.” 12 American Bankruptcy Institute Law Review 219 (2004). “On the ‘Delawarization of Bankruptcy’ Debate.” 52 Emory Law Journal 1309 (2003) (with Henry N. Butler). Allen, William T. “Judge ‘The Game by the Rules’: An Appreciation of the Judicial Philosophy and Method of Walter K. Stapleton.” 6 Delaware Law Review 223 (2003) (with Leo Strine and Leonard Stark).

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“Securities Markets as Social Products: The Pretty Efficient Capital Market Hypothesis.” 28 Journal of Corporation Law 551 (2003). Alston, Philip “‘Core Labour Standards’ and the Transformation of the International Labour Rights Regime.” 15 European Journal of International Law 457 (2004). “Shrinking the International Labor Code: An Unintended Consequence of the 1998 ILO Declaration on Fundamental Principles and Rights at Work.” 36 New York University Journal of International Law and Politics 221 (2004) (with James Heenan). Arlen, Jennifer “Malpractice Liability for Physicians and Managed Care Organizations.” 78 New York University Law Review 1929 (2003) (with W. Bentley MacLeod). “Unregulable Defenses and the Perils of Shareholder Choice.” 152 University of Pennsylvania Law Review 577 (2003) (with Eric Talley). Arnold, Brian J. “Comments on Corporate Residence and International Taxation—A Tax Policy Perspective on Corporate Residence.” 51 Canadian Tax Journal 1559 (2003). “Tax Treaties and Tax Avoidance: The 2003 Revisions to the Commentary to the OECD Model.” 58 Bulletin for International Fiscal Documentation 244 (2004). “Threshold Requirements for Taxing Business Profits Under Tax Treaties.” 57 Bulletin for International Fiscal Documentation 476 (2003). Bar-Gill, Oren “Law and Preferences.” 20 Journal of Law, Economics and Organization 331 (2004). “Law of Duress and the Economics of Credible Threats.” 33 Journal of Legal Studies 391 (2004) (with Omri BenShahar). “Optimal Liability for Libel.” 2 Contributions to Economic Analysis & Policy 1065 (2003) (with Assaf Hamdani).

“Seduction by Plastic.” 98 Northwestern University Law Review 1373 (2004). “The Value of Giving Away Secrets.” 89 Virginia Law Review 1857 (2003) (with Gideon Parchomovsky). Barkow, Rachel E. “The Devil You Know: Federal Sentencing After Blakely.” 16 Federal Sentencing Reporter 312 (2004). “Recharging the Jury: The Criminal Jury’s Constitutional Role in an Era of Mandatory Sentencing.” 152 University of Pennsylvania Law Review 33 (2003). Bell, Derrick A. “Brown v. Board of Education: A Moot Court Argument— Brief for Respondents.” 52 American University Law Review 1401 (2003). “Diversity’s Distraction.” 103 Columbia Law Review 1622 (2003). “Examining ‘Diversity’ in Education—Diversity’s Distractions.” 103 Columbia Law Review 1622 (2003). Benoit, Jean-Pierre “Why Do Good Cops Defend Bad Cops?” 45 International Economic Review 787 (2004) (with Juan Dubra). Bradford, David F. “Addressing the TransferPricing Problem in an Origin-Basis X Tax.” 10 International Tax and Public Finance 591 (2003). “Uncertain Climate Thresholds and Optimal Economic Growth.” 48 Journal of Environmental Economics and Management 723 (2004) (with Klaus Keller and Benjamin Bolker). Bruner, Jerome “‘Commentary’ on Marshall Smith, ‘Education Reform: A Report Card.’” 56 Bulletin of the American Academy of Arts and Sciences 48 (2003). “Life as Narrative.” 71 Social Research 691 (2004). “On Learning: The Psychology of Learning—a Short History.” 133 Daedalus 13 (2004).

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Chevigny, Paul “A repressao nos Estados Unidos após o atentado de 11 de setembro.” 1 SUR: Revista internacional de direitos humanos 151 (2004). Choi, Stephen “Behavioral Economics and the SEC.” 56 Stanford Law Review 1 (2003) (with A. C. Pritchard). “Choosing the Next Supreme Court Justice: An Empirical Ranking of Judge Performance.” 78 Southern California Law Review 23 (2004) (with G. Mitu Gulati).

“A Framework for the Regulation of Securities Market Intermediaries.”1 Berkeley Business Law Journal 45 (2004). “How to Fix Wall Street: V Voucher Financing Proposal for Securities Intermediaries.” 113 Yale Law Journal 269 (2003) (with Jill Fisch). “Innovation in Boilerplate Contracts: An Empirical Examination of Sovereign Bonds.” 53 Emory Law Journal 929 (2004) (with G. Mitu Gulati).

“The Problem with Arbitration Agreements.” 36 Vanderbilt Journal of Transnational Law 1233 (2003).

“TRIPS—Round II: Should Users Strike Back?” 71 University of Chicago Law Review 21 (2004).

“A Tournament of Judges?” 99 California Law Review 299 (2004) (with G. Mitu Gulati).

Dworkin, Ronald M. “The Court and the University.” 72 University of Cincinnati Law Review 883 (2004).

Cohen, Jerome A. “The Plight of China’s Criminal Defence Lawyers.” 33 Hong Kong Law Journal 231 (2003). Cunningham, Noël B. “Textualism and Tax Shelters.” 24 Virginia Tax Review 1 (2004) (with James R. Repetti). Davis, Kevin E. “The Effects of Forfeiture on Third Parties.” 48 McGill Law Journal 183 (2003). “Promissory Fraud: A Cost Benefit Analysis.” 2004 Wisconsin Law Review 535 (2004). De Búrca, Gráinne “Beyond the Charter: How Enlargement Has Enlarged the Human Rights Policy of the European Union.” 27 Fordham International Law Journal 679 (2004).

Primer on Direct Taxation in the European Union By Ruth Mason (Thomson/West) Ruth Mason, deputy director of the International Tax Program, argues that the so-called four freedoms of the EC Treaty—the freedom of establishment, the freedom of movement of workers, the freedom to provide services and the freedom of capital movement— significantly constrain the sovereignty of member nations. She analyzes the impact of the four freedoms and the prohibition on nationality discrimination on domestic tax laws in the EU, with special emphasis on the decisions of the European Court of Justice. Says Professor Joseph Weiler: “NYU has long been recognized as the leader in the United States in the study and teaching of the law of the European Union with at least three of our full-time faculty members giving courses in this area as well as several Global Law School professors. It is telling that there is no faculty in Europe itself that has a richer offering in this area. Professor Mason’s book adds a particularly bright feather to this cap. It provides a timely introduction to European Union law on income taxation, with an up-to-date examination of the major intellectual currents emerging in the tax decisions of the European Court of Justice. Her book will aid scholars, teachers and practitioners interested in understanding this new and increasingly important area of law and will further enhance our reputation in another area of NYU leadership, taxation.”

AUTUMN 2005

“The Drafting of a Constitution for the European Union: Europe’s Madisonian Moment or a Moment of Madness?” 61 Washington and Lee Law Review 555 (2004). Dreyfuss, Rochelle C. “The Federal Circuit: A Continuing Experiment in Specialization.” 54 Case Western Reserve Law Review 769 (2004). “International Intellectual Property Law and the Public Domain of Science.” 7 Journal of International Economic Law 431 (2004) (with Graeme B. Dinwoodie). “The Law and Economics of Intellectual Property Rights: Games Economists Play.” 2 American Law Review (Law Press China) (2003). “Protecting the Public Domain of Science: Has the Time for an Experimental Use Defense Arrived?” 46 Arizona Law Review 457 (2004).

“L’égalité et la Vie Bonne.” 4(3) Revue de Philosophie et de Sciences Sociales 307 (2003). “Hart’s Postscript and the Character of Political Philosophy.” 24 Oxford Journal of Legal Studies 1 (2004). “Rawls and the Law.” 72 Fordham Law Review 1387 (2004). “Response to Overseas Commentators.” 1 International Journal of Constitutional Law 651 (2003). Elkin-Koren, Niva “The Invisible Handshake: The Reemergence of the State in the Digital Environment.” 8 Virginia Journal of Law and Technology 6 (2003) (with Michael Birnhack). Estreicher, Samuel “Negotiating the People’s Capital.” 25 Journal of Labor Research 191 (2004). “Rethinking the Binding Effect of Customary International Law.” 44 Virginia Journal of International Law 5 (2003). Feldman, Noah “Constitutions in a Nonconstitutional World: Arab Basic Laws and the Prospectus for Accountable Government.” 1 International Journal of Constitutional Law 390 (2003). “The Theorists’ Constitution—And Ours. (Book Review: Identity in Democracy by Amy Gutmann).” 117 Harvard Law Review 1163 (2004). “The Voidness of Repugnant Statutes: Another Look at the Meaning of Marbury.” 148 Proceedings of the American Philosophy Society 27 (2004). Ferejohn, John “Constitutional Adjudication: Lessons from Europe.” 82 Texas Law Review 1671 (2004) (with Pasquale Pasquino).

“The Law of Exception: A Typology of Emergency Powers.” 2 International Journal of Constitutional Law 210 (2004) (with Pasquale Pasquino). Ferrari, Franco “Contrattazione via mezzi informatici e la Convenzione della Nazioni United sui contratti de vendita internazionale di beni mobile.” Diritto communitario e degli sambi internazionali 1 (2004). “La disciplina sostanziale della vendita internazionale ed il saggio d’interessi.” Giurisprudenza di merito 445 (2004). “Divergences in the Application of the CISG’s Rules on Non-conformity of Goods.” 68 Rabels Zeitschrift für ausländisches und internationals Privatrecht 473 (2004). “Form und UN-Kaufrecht.” Internationales Handelsrecht 1 (2004). “International Sales Law and the Inevitability of Forum Shopping.” 23 Journal of Law and Commerce 169 (2004). “Nuove e vecchie questioni in material di vendita internazionale tra interpretazione autonoma e ricorso alla giurisprudenza straniera.” 156 Giurisprudenza italiana 1405 (2004). “La place de la regionalisation dans l’unification du droit de la vente.” 2004 Revue de droit des affaires internationals 445 (2004). “Les rapports entre les conventions de droit matériel uniforme en matére contractuelle et la nécessité d’une interpretation interconventionnelle.” 130 Journal du droit international 791 (2003). “Trade Usage and Practices Established Between the Parties Under the CISG.” 3 International Business Law Journal 571 (2003). Franck, Thomas “Agora: Future Implications of the Iraq Conflict—What Happens Now? The United Nations After Iraq.” 97 American Journal of International Law 607 (2003).

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“Criminals, Combatants, or What? An Examination of the Role of Law in Responding to the Threat of Terror.” 98 American Journal of International Law 686 (2004). “Preemption, Prevention and Anticipatory Self-Defense: New Law Regarding Recourse to Force?” 27 Hastings International and Comparative Law Review 425 (2004). “The Role of International Law and the UN After Iraq.” 98 American Society of International Law Proceedings 169 (2004)

“The United States and the International Criminal Court: Unilateralism Rampant.” 35 New York University Journal of International Law & Politics 519 (2003) (with Stephen Yuhan). Friedman, Barry “The Cycles of Constitutional Theory.” 67 Law and Contemporary Problems 149 (2004). “The Importance of Being Positive: The Nature and Function of Judicial Review.” 72 University of Cincinnati Law Review 1257 (2004).

“Mediated Popular Constitutionalism.” 101 Michigan Law Review 2596 (2003). “Under the Law of Federal Jurisdiction: Allocating Cases Between Federal and State Courts.” 104 Columbia Law Review 1211 (2004). Garland, David “Beyond the Culture of Control.” 7 Critical Review of International Social and Political Philosophy 160 (2004). “Crime Control and Late Modernity in the US and the UK.” (German translation) 36 Kriminologisches Journal 3 (2004). “Crime Control and Social Order.” (French translation) Cahiers de la securite interieure, issue 55 (2004) (introduction by Jean-Paul Brodeur). Gillers, Stephen “Multijurisdictional Practice of Law: Merging Theory with Practice.” 73 Bar Examiner 28 (2004). Gillette, Clayton P. “Direct Democracy and Debt.” 13 Journal of Contemporary Legal Issues 365 (2004).

Jury Trials and Plea Bargaining: A True History By Mike McConville and Chester L. Mirsky (Hart Publishing) In Jury Trials and Plea Bargaining, Mike McConville and Professor of Clinical Law Emeritus Chester Mirsky offer a detailed study of the evolution of criminal justice in the Western world, paying specific attention to the dramatic shift in the judicial system created by the onset of plea bargaining. UCLA Law School Professor Rick Abel says that “Mirsky and McConville offer a superb historical account of the emergence of plea bargaining—making excellent use of newly discovered archival sources.” Jury Trials and Plea Bargaining examines case files, court reports and statistical data between 1800 and 1865, tracing what the authors call the “systematic adoption of plea bargaining” which slowly replaced trial by jury as “the principal method of disposition in criminal cases.” Mirsky and McConville lay out the various arguments both for and against plea bargaining, such as the method’s effective, high conviction rate against the generally lessened criminal penalty that it produces. Jury Trials takes a fresh view of an oft debated topic. Says Abel: “The book forces both apologists for plea bargaining and reformers to rethink their theories and recommendations.”

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“The Law Merchant in the Modern Age: Institutional Design and International Usages Under CISG.” 5 Chicago Journal of International Law 157 (2004). “Rolling Contracts as an Agency Problem.” 2004 Wisconsin Law Review 679 (2004). Gilligan, Carol “Knowing and Not Knowing: Reflections on Manhood.” 2(2) Psychotherapy and Politics International 99 (2004). Golove, David “Military Tribunals, International Law, and the Constitution: A Franckian-Madisonian Approach.” 35 New York University Journal of International Law & Politics 363 (2003). Grimm, Dieter “Aufsatze—Integration durch Verfassung. Absichten und Aussichten im europaischen Konstitutionalisierungsprozess.” 32 Leviathan 448 (2004). “Note dall’Europa—Trattato o costituzione?” 24 Quaderni costituzionali 163 (2004).

Guggenheim, Martin “Maximizing Strategies for Pressuring Adults to Do Right by Children.” 45 Arizona Law Review 765 (2003). “Stealth Indoctrination: Forced Speech in the Classroom.” 2004 University of Chicago Legal Forum 55 (2004). Harrington, Christine B. “Book Review: On Law, Politics, and Judicialization by Martin Shapiro and Alec Stone Sweet.” 2 International Journal of Constitutional Law 561 (2004). Hershkoff, Helen “Crisis, Community, and Courts in Network Governance: A Response to Liebman and Sabel’s Approach to Reform of Public Education.” 28 New York University Review of Law and Social Change 319 (2003) (with Benedict Kingsbury). Hulsebosch, Daniel J. “The Ancient Constitution and the Expanding Empire: Sir Edward Coke’s British Jurisprudence.” 21 Law and History Review 439 (2003). Issacharoff, Samuel “The American Law of Repose.” 23 Civil Justice Quarterly 324 (2004). “Between Civil Libertarianism and Executive Unilateralism: An Institutional Process Approach to Rights During Wartime.” 5 Theoretical Inquiries in Law 1 (2004) (with Richard H. Pildes). “Collateral Damage: The Endangered Center in American Politics.” 46 William & Mary Law Review 415 (2004). “Constitutionalizing Democracy in Fractured Societies.” 82 Texas Law Review 1861 (2004). “Emergency Contexts Without Emergency Powers: The United States’ Constitutional Approach to Rights During Wartime.” 2 International Journal of Constitutional Law 296 (2004) (with Richard H. Pildes). “Is Section 5 of the Voting Rights Act a Victim of Its Own Success?” 105 Columbia Law Review 1710 (2004).

“Throwing in the Towel: The Constitutional Morass of Campaign Finance.” 3 Election Law Journal 259 (2004). “Where to Draw the Line: Judicial Review of Political Gerrymanders.” 153 University of Pennsylvania Law Review 541 (2004) (with Pamela S. Karlan). Jacobs, James B. “Labor Racketeering: The Mafia and the Unions.” 30 Crime and Justice 229 (2003) (with Ellen Peters). “Mapping the U.S. Gun Culture: A Content Analysis of Gun Magazines.” 16 Journal of Firearms & Public Policy 135 (2004). “The RICO Trusteeships After Twenty Years: A Progress Report.” 19 Labor Lawyer 419 (2004) (with Eileen M. Cunningham and Kimberly Friday). “Ten Years of Court-Supervised Reform: A Chronicle and Assessment.” 6 Criminal Law Review 3 (2004) (with Kristin Stohner). Kahan, Marcel “Corporate Constitutionalism: Antitakeover Charter Provisions as Precommitment.” 152 University of Pennsylvania Law Review 473 (2003) (with Edward B. Rock). “The Foundations of Freezeout Laws in Takeovers.” 59 Journal of Finance 1325 (2004) (with Yakov Amihud and Rangarajan K. Sundaram). Kingsbury, Benedict “Crisis, Community, and Courts in Network Governance: A Response to Liebman and Sabel’s Approach to Reform of Public Education.” 28 New York University Review of Law and Social Change 319 (2003) (with Helen Hershkoff ). “Indigenous Groups and the Politics of Recognition in Asia: Cases from Japan, Taiwan, West Papua, Bali, the People’s Republic of China, and Gilgit.” 11 International Journal on Minority and Group Rights 1 (2004) (with Kirsty Gover).

AUTUMN 2005

Kumm, Mattias “Constitutional Rights as Principles: On the Structure and Domain of Constitutional Justice. A Review Essay on A Theory of Constitutional Rights by Robert Alexy.” 2 International Journal of Constitutional Law 574 (2004). “International Law in National Courts: The International Rule of Law and the Limits of the Internationalist Model.” 44 Virginia Journal of International Law 19 (2003).

Disarming Manhood: Roots of Ethical Resistance By David Richards (Swallow Press) Throughout mankind’s history of aggression, male individuals have employed violence as a tool to defend their honor, their reputation and, above all else, their manhood. To avoid proliferating this type of violence, says David Richards in Disarming Manhood: Roots of Ethical Resistance, certain male pioneers have had to disassociate themselves from these “dominant conceptions of violent manhood” and establish a tradition of masculine nonviolence. Richards traces the lives of five such men—William Lloyd Garrison, Leo Tolstoy, Mohandas Gandhi, Martin Luther King Jr. and Winston Churchill. These men, he says, shared a “psychology capable of understanding and resisting injustice based on violence, which in turn enabled them to mobilize and lead remarkably successful…movements of public resistance.” By associating with the experiences of specific women in their lives, Richards argues, these men blurred the “sharp psychological lines between…manhood and womanhood,” and were therefore motivated by an asexual ethos instead of a pressure to protect the male pride. “It’s a brilliant and original study of the sources of a resisting voice,” says gender scholar Carol Gilligan, the author of In a Different Voice. “At a time when manhood is being re-armed, this is a very important book.”

Klein, April “Board Composition, Committees, and Organizational Efficiency: The Case of Nonprofits.” 32 Nonprofit and Voluntary Sector Quarterly 493 (2003). “Likely Effects of Stock Exchange Governance Proposals and Sarbanes-Oxley on Corporate Boards and Financial Reporting.” 17 Accounting Horizons 343 (2003). Kornhauser, Lewis “Governance Structures, Legal Systems, and the Concept of Law.” 79 ChicagoKent Law Review 355 (2004).

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“The Legitimacy of International Law: A Constitutionalist Framework of Analysis.” 15 European Journal of International Law 907 (2004). Levinson, Daryl “Collective Sanctions.” 56 Stanford Law Review 345 (2003). López, Gerald P. “Shaping Community Problem Solving Around Community Knowledge.” 79 New York University Law Review 59 (2004). Lowenfeld, Andreas F. “Fireman’s Fund Insurance Company, Claimant, and the United Mexican States, Respondent.” 15(6) World Trade and Arbitration Materials 3 (Dec. 2003/Jan. 2004) (with Francisco Carrillo Gamboa and Albert Jan Van Dan Berg). “Investment Agreements and International Law.” 42 Columbia Journal of Transnational Law 123 (2003).

“Valuation of Interests ‘In Transit’ in Family Limited Partnerships.” 6(1) Business Entities 4 (2004) (with Jerald D. August).

“Oakdale Justice: Routine Vacatur of Stays in the Western District of Louisiana.” 8 Benders Immigration Bulletin 6 (2004).

Meron, Theodor “Procedural Evolution in the ICTY.” 2 Journal of International Criminal Justice 520 (2004).

Nagel, Thomas “Comments: Individual Versus Collective Responsibility.” 72 Fordham Law Review 2015 (2004).

Miller, Geoffrey P. “Attorney Fees in Class Action Settlements: An Empirical Survey.” 1 Journal of Empirical Legal Studies 27 (2004) (with Theodore Eisenberg).

Nelson, William E. “Brown v. Board of Education and the Jurisprudence of Legal Realism.” 48 Saint Louis University Law Journal 795 (2004).

“Bad Judges.” 83 Texas Law Review 431 (2004).

“Justice Byron R. White: His Legacy for the Twenty-First Century.” 74 University of Colorado Law Review 1291 (2003).

“Catastrophic Financial Failures: Enron and More.” 89 Cornell Law Review 423 (2004). “Conflicts of Interest in Class Action Litigation: An Inquiry into the Appropriate Standard.” 2003 University of Chicago Legal Forum 581 (2003).

Neuborne, Burt “Response to Professor Gardner: Is There a Theory in This Class?” 35 Connecticut Law Review 1519 (2003).

“Norms and Interests.” 32 Hofstra Law Review 637 (2003).

“Senate Proposal on Drug Importation Treads on Constitutional Rights.” 1(4) Andrews Patent Litigation Reporter 14 (2004); 20(7) Andrews Pharmaceutical Litigation Reporter 15 (2004).

“Review of the Merits in Class Action Certification.” 33 Hofstra Law Review 51 (2004).

“Sanctions and International Law.” 4 Hibernian Law Journal 1 (2003). “Trade Controls for Political Ends: Four Perspectives.” 4 Chicago Journal of International Law 355 (2003).

“Intimate Violence as Intimate: The Journey and the Path.” 9 Cardozo Women’s Law Journal 461 (2003).

Koskenniemi, Martti “‘By Their Acts You Should Know Themº’ (And Not by Their Legal Theories).” 15 European Journal of International Law 839 (2004).

“Transatlantic Business Transactions: Some Questions for the Lawyers.” 26 Houston Journal of International Law 251 (2004).

“The Work of the International Law Commission at Its Fifty-Fifth Session (2003).” 73 Nordic Journal of International Law 99 (2004).

Maxfield, Guy “Valuation of Interests ‘In Transit’ in Family Limited Partnerships. Part 1.” 5(5) Business Entities 6 (2003) (with Jerald D. August).

“Moving Beyond the Criminal Justice Paradigm: A Radical Restorative Justice Approach to Intimate Abuse.” 31 Journal of Sociology and Social Welfare 49 (2004) (with Peggy Grauwiler).

“Valuation of Interests ‘In Transit’ in Family Limited Partnerships. Part 2.” 5(6) Business Entities 20 (2003) (with Jerald D. August).

“The Province of the Judiciary.” 37 John Marshall Law Review 325 (2004).

“Norm Enforcement in the Public Sphere: The Case of Handicapped Parking.” 71 George Washington Law Review 895 (2003).

Mills, Linda G. “Fighting for Child Custody When Domestic Violence Is at Issue: Survey of State Laws.” 48 Social Work 463 (2003) (with Amy Levin).

“The Many as One: Integrity and Group Choice in Paradoxical Cases.” 32 Philosophy and Public Affairs 249 (2004) (with Lawrence Sager).

“Marbury v. Madison, Democracy, and the Rule of Law.” 71 Tennessee Law Review 217 (2004).

Morawetz, Nancy “Determining the Retroactive of Laws Affecting the Consequences of Criminal Convictions.” 30 Fordham Urban Law Journal 1743 (2003).

Noble, Ronald K. “Les habits neufs d’interpol.” 102 Politique Internationale 197 (2004). “Interpol’s Contribution to the World’s Anti-Terrorism Fight: Its Role and Activities in a Changing World Environment.” 20 Crime and Justice International 4 (2004). Perry, Stephen “Harm, History, and Counterfactuals.” 41 San Diego Law Review 1283 (2003). “Ripstein, Rawls, and Responsibility.” 72 Fordham Law Review 1845 (2004).

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FACULTY FOCUS

Pildes, Richard H. “Between Civil Libertarianism and Executive Unilateralism: An Institutional Process Approach to Rights During Wartime.” 5 Theoretical Inquiries in Law 1 (2004) (with Samuel Issacharoff ). “Competitive, Deliberative, and Rights-Oriented Democracy.” 3 Election Law Journal 685 (2003). “Conflicts Between American and European Views of Law: The Dark Side of Legalism.” 44 Virginia Journal of International Law 145 (2003). “Democracia y Representacion de Intereses Minoritarios.” 3 Fundamentos: La Representación Política 331 (2004). “Emergency Contexts Without Emergency Powers: The United States’ Constitutional Approach to Rights During Wartime.” 2 International Journal of Constitutional Law 296 (2004) (with Samuel Issacharoff ). “The Supreme Court, 2003 Term—Foreword: The Constitutionalization of Democratic Politics.” 118 Harvard Law Review 28 (2004). Revesz, Richard L. “Anti-regulation Under the Guise of Rational Regulation: The Bush Administration’s Approaches to Valuing Human Lives in Environmental Cost-Benefit Analysis.” 34 Environmental Law Reporter 10954 (2004) (with Laura J. Lowenstein). Richards, David A. J. “Ethical Religion and the Struggle for Human Rights: The Case of Martin Luther King, Jr.” 72 Fordham Law Review 2105 (2004). “Book Review: Governing Sexuality: The Changing Politics of Citizenship and Law Reform by Carl F. Stychin.” 2 International Journal of Constitutional Law 727 (2004).

Rosenbloom, H. David “Banes of an Income Tax: Legal Fictions, Elections, Hypothetical Determinations, and Related-Party Debt.” 32 Tax Notes International 989 (2003); 3(3) Diritto e Pratica Tributaria Internazionale 733 (2003). “Intermediate U.S. International Tax Update: Foreign Currency Transactions and Translation.” 29(2) The International Tax Journal 32 (2003). “Response to: ‘U.S. Tax Treatment of Foreign Source Income Earned in Developing Countries: Administration and Tax Treaty Issues.’” 35 George Washington International Law Review 401 (2003). “Thinking About Subpart F, the Domestic Base Company.” 82 Taxes 153 (2004). “Why Not Des Moines? A Fresh Entry in the Subpart F Debate.” 32 Tax Notes International 895 (2003); 102 Tax Notes 274 (2004). Schenk, Deborah “A Positive Account of the Realization Rule.” 57 Tax Law Review 355 (2004). Schulhofer, Stephen J. “Checks and Balances in Wartime: American, British, and Israeli Experience.” 102 Michigan Law Review 1906 (2004) Shaviro, Daniel N. “Accrual Accounting and the Fiscal Gap.” 41 Harvard Journal on Legislation 209 (2004). “Assuring the Future of Social Security: Privatization and Other Reforms—Social Security Privatization and the Fiscal Gap.” 65 Ohio State Law Journal 95 (2004). “The New Age of Big Government—Made Worse by the 2001-2003 Tax Cuts, the Looming Federal Fiscal Crisis Means More Government Intervention in Human Lives.” 27 Regulation 36 (2004). “Reckless Disregard: The Bush Administration’s Policy of Cutting Taxes in the Face of an Enormous Fiscal Gap.” 105 Tax Notes 387 (2004).

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“Replacing the Income Tax with a Progressive Consumption Tax.” 103 Tax Notes 91 (2004). “Rethinking Tax Expenditures and Fiscal Language.” 57 Tax Law Review 187 (2004). “When Rules Change Revisited.” 13 Journal of Contemporary Legal Issues 279 (2003). Silberman, Linda “The Impact of Jurisdictional Rules and Recognition Practice on International Business Transactions: The U.S. Regime.” 26 Houston Journal of International Law 327 (2004); 39 Revista di Dirritto Internazionale Privato e Processuale 707 (2003). “The Importance of Private International Law for Family Issues in an Era of Globalization: Two Case Studies—International Child Abduction and Same-Sex Unions.” 32 Hofstra Law Review 233 (2003). Steines, John “Foreign Tax Credit Reform: A Response to Peroni, et al.” 101 Tax Notes 134 (2003); 31 Tax Notes International 1213 (2003). Stevenson, Bryan A. “The Ultimate Authority on the Ultimate Punishment: The Requisite Role of the Jury in Capital Sentencing.” 54 Alabama Law Review 1091 (2003). Stewart, Richard B. “Administrative Law in the Twenty-First Century.” 1 Global Administrative Law Review 204 (in Chinese). “The GM Cold War: How Developing Countries Can Go From Being Dominoes to Being Players.” 13 Review of European Community & International Environmental Law: RECIEL 247 (2004) (with E. Meijer). “Practical Climate Change Policy: A Sensible Middle-ofthe-Road Alternative Exists Between the Defective Kyoto Protocol and Do-Nothing Policy.” 20 Issues in Science and Technology 71 (2004) (with Jonathan B. Wiener).

Stimpson, Catharine R. “Texts in the Wind.” 30 Critical Inquiry 434 (2004). Taylor-Thompson, Kim “Taking It to the Streets.” 29 New York University Review of Law and Social Change 153 (2004). Thompson, Anthony C. “Navigating the Hidden Obstacles to Ex-Offender Reentry.” 45 Boston College Law Review 255 (2004). Tyler, Tom R. “Affirmative Action in an Institutional Context: The Antecedents of Policy Preferences and Political Support.” 17 Social Justice Research 5 (2004). “Enhancing Police Legitimacy.” 593 The Annals of the American Academy of Political and Social Science 84 (2004). “The Group Engagement Model: Procedural Justice, Social Identity, and Cooperative Behavior.” 7 Personality and Social Psychology Review 349 (2003) (with Steven L. Blader). “Profiling and Police Legitimacy: Procedural Justice, Attributions of Motive, and Acceptance of Policy Authority.” 42 Criminology 253 (2004). “The Role of Procedural Justice and Legitimacy in Shaping Public Support for Policing.” 37 Law and Society Review 513 (2003). Weiler, Joseph H. H. “La citoyenneté européenne: un ‘exercice cynique de relations publiques’?” 901 Problèmes politiques et sociaux 29 (2004). Wishnie, Michael J. “The Border Crossed Us: Current Issues in Immigrant Labor.” 28 New York University Review of Law and Social Change 389 (2004). “Emerging Issues for Undocumented Workers.” 6 University of Pennsylvania Journal of Labor and Employment Law 497 (2004); 9 Benders Immigration Bulletin (2004).

“State and Local Police Enforcement of Immigration Laws.” 6 University of Pennsylvania Journal of Constitutional Law 1084 (2004). Yermack, David “Remuneration, Retention, and Reputation Incentives for Outside Directors.” 59 Journal of Finance 2281 (2004). “What’s in It for Me? CEOs Whose Firms Are Acquired.” 17 Review of Financial Studies 37 (2004) (with Jay C. Hartzell and Eli Ofek). Zimmerman, Diane L. “Is There a Right to Have Something to Say? One View of the Public Domain.” 73 Fordham Law Review 297 (2004).

Miscellaneous Amsterdam, Anthony “Courtroom Contortions.” American Prospect, July 2004, p. A19. Arnold, Brian J. “Canada. (Worldwide Tax Overview: 2003 in Review)” 33 Tax Notes International 19 (2004). “Canada’s 2004 Budget Tax Measures Spare Income Trusts.” 34 Tax Notes International 10 (2004). Chase, Oscar “Civil Procedure in the Transnational Curriculum.” AALS Conference on Educating Lawyers for Transnational Challenges (with Helen Hershkoff ). Davis, Kevin E. “Book Review: Corporate Insolvency Law: Perspectives and Principles by Vanessa Finch.” 38 Canadian Business Law Journal 309 (2003). Dreyfuss, Rochelle C. American Law Institute, Intellectual Property: Principles Governing Jurisdiction, Choice of Law and Judgments in Transnational Disputes (Preliminary Draft No. 2), January 20, 2004 (with François Dessemontet and Jane Ginsburg). Dworkin, Ronald M. “The Election and America’s Future.” The New York Review of Books, November 4, 2004, p. 6. AUTUMN 2005

Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism By Geoffrey R. Stone (W.W. Norton & Co.) Winner of the 2004 Los Angeles Times Book Prize in the field of history, Geoffrey Stone’s Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism recounts the U.S. tendency to neglect the First Amendment in times of war. Devotion to our country and desire for safety have often left the freedom of speech in their wake, and Stone, a recurring visitor to the Law School, relies upon the wealth of examples from American history to illustrate “the challenge of balancing liberty and security in times of great national crisis.” On behalf of achieving this balance, Perilous Times also outlines the logic behind the First Amendment and the feasible reasons that could require its restriction, supplying instances when the rule was bent too far in both directions. Despite America’s history of missteps—such as the McCarran Act of 1950, which required all “Communist-action” organizations to register with the attorney general, and the Sedition Act of 1918, which forbade an Americans to use “disloyal, profane, scurrilous, or abusive language” about the U.S.—Stone believes progress is being made. “The major restrictions…of the past would be less thinkable today,” he writes, because “Americans have come increasingly to celebrate and take pride in the nation’s commitment to civil liberties.” More progress, Stone concludes, can be made by establishing safeguards from similar acts in the future. The L.A. Times called Stone’s work “a valuable reminder of why we should never take this historic freedom for granted.” And Christopher Capozzola of the Washington Post agrees, calling Perilous Times a “masterful history of free speech in wartime America…. We have long needed this book, though perhaps never as badly as we do today.”

“Arbitration Act Versus Bankruptcy Code: Battle of the Titans.” New York Law Journal, January 5, 2004, p. 3 (with Steven C. Bennett). “Eliminating Judicial Review of Arbitration.” New York Law Journal, March 4, 2004, p. 3 (with Steven C. Bennett). “The ‘Sawtelle’ Saga Continues.” New York Law Journal, July 2, 2004, p. 3 (with Steven C. Bennett). “Significant Nonlabor ‘Labor’ Decisions of the Supreme Court’s 2003-2004 Term.” 33(1) Labor and Employment Law 7 (2004). “‘Suders’ and Employer Liability.” New York Law Journal, June 24, 2004, p. 3 (with Steven C. Bennett). “When Appointment of International Arbitrators Fails.” New York Law Journal, May 14, 2004, p. 3 (with Steven C. Bennett). “When Is Domestic Arbitration International?” New York Law Journal, November 4, 2004, p. 3 (with Steven C. Bennett). Friedman, Barry “Symposium: Constitutional Borrowing. Editor’s Introduction.” 1 International Journal of Constitutional Law 177 (2003). Garland, David “Foreword to the Italian Language Edition,” in La Cultura del Controllo. Milan: Il Saggiatore, 2004. “The Work of Theory.” Perspectives: ASA Theory Newsletter, April 2004, p. 5. Gilligan, Carol A Radical New Map of Love (video recording). Norcross, GA: Playback Now, 2003. Gillers, Stephen “The Prudent Jurist (monthly column).” Legal Affairs.

“Terror & the Attack on Civil Liberties.” The New York Review of Books, November 6, 2003, p. 37. “What the Court Really Said.” The New York Review of Books, August 12, 2004, p. 26.

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Estreicher, Samuel “Arbitrating Employment Disputes with Registered Representatives.” New York Law Journal, August 4, 2004, p. 3 (with Steven C. Bennett).

“Scalia’s Flawed Judgment.” The Nation, April 19, 2004, p. 21. “Tortured Reasoning.” American Lawyer, June 2004, p. 65.

Hershkoff, Helen “Civil Procedure in the Transnational Curriculum.” AALS Conference on Educating Lawyers for Transnational Challenges (with Oscar Chase). “Lawmaking and Judicial Review: What Degree of Deference Should State Courts Give to Legislative Findings?” 2004 Forum for State Appellate Court Judges, Roscoe Pound Institute, Washington, DC. Holmes, Stephen “Figures of Speech.” The American Prospect, November 2004, p. 11 (with Karen J. Greenberg). “No Grand Strategy and No Ultimate Aim. Book Review: Incoherent Empire by Michael Mann.” The London Review of Books, May 6, 2004, p. 9. “Rise of the Vulcans: The History of Bush’s War Cabinet.” The Nation, May 3, 2004, p. 25. Jacobs, James B. “Corruption and Democracy.” 84 Phi Kappa Phi Forum 21 (2004). Lowenfeld, Andreas F. American Law Institute, International Jurisdiction and Judgments Project (Tentative Draft No. 2), April 13, 2004 (with Linda Silberman). “Remembering Bob Hudec.” 6 Journal of International Economic Law 730 (2003). Mills, Linda G. “Insult to Injury: Rethinking Our Responses to Intimate Abuse. A Reply to Walter DeKeseredy.” 44 British Journal of Criminology 983 (2004). Nagel, Thomas “Much Ado. Book Review: Why Is There Something Rather Than Nothing by Bede Rundie.” TLS: The Times Literary Supplement, May 7, 2004, p. 3.

Pildes, Richard H. “The Role of Legislation in the Field of Public Law.” 7 New York University Journal of Legislation and Public Policy 1 (2004). Roznoveanu, Mirela “Book Review. Comparative Constitutionalism: Cases and Materials by Norman Dorsen.” 32 International Journal of Legal Information 132 (2004). Shaviro, Daniel N. “Book Review: Contemporary U.S. Tax Policy by C. Eugene Steuerle.” 57 National Tax Journal 961 (2004). “The New Age of Big Government.” 27(1) Regulation 36 (2004). “Social Security Privatization and the Fiscal Gap.” 65 Ohio State Law Journal 95 (2004). “Splitting the Baby: An Intermediate Tax Rate for Repatriations of Foreign Source Active Business Income?” National Tax Association Proceedings, 95th Annual Conference on Taxation 294 (2003). Silberman, Linda American Law Institute, International Jurisdiction and Judgments Project (Tentative Draft No. 2), April 13, 2004 (with Andreas F. Lowenfeld). “Enforcement and Recognition of Foreign Country Judgments in the United States.” 16 International Quarterly 253 (2004). Stimpson, Catharine R. “Academics in Literature— The Contradictory Representation of Academic Life in Literature Offers a Long and Rich History Full of Both Negative and Positive Portrayals.” 90(3) Academe 51 (2004). “Reclaiming the Mission of Graduate Education.” The Chronicle of Higher Education, June 18, 2004, p. B6.

Neuborne, Burt “Informal Remarks on the Limits of Facial Review in Complex Cases.” 6 University of Pennsylvania Journal of Constitutional Law 101 (2003).

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Student Spotlight

As exhilarated chants of “Three-Peat” echoed off the lacquered floors of Coles gymnasium, Coach Douglas Heitner ’06 (not pictured) cleared another spot on the Violets’ mantel for the Dean’s Cup trophy. Law School students proved they were better prepared for “court” by defeating Columbia’s Lions, 72-66, in the fourth annual charity basketball game. During the halftime game, NYU’s faculty trounced Columbia’s 9-2. The money earned from memorabilia and ticket sales funds summer public interest grants at both schools.

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AUTUMN 2005

s tu d e n t

n ew s

Das Wins Public Interest Award

fter spending three ican Civil Liberties Union, years getting a douthe Legal Aid Society, the ble degree, working Healthy Homes Project and at various public the Law School’s own Immiinterest organizagrant Rights Clinic, for which tions and editing the Das had the distinction of NYU Review of Law & Social drafting a brief and arguing a Change, Alina Das ’05 has seen case in front of the U.S. Court her hard work pay off. Not only of Appeals for the Second was she nominated by seven Circuit. (See “Students Argue of her peers for the Pro Bono Home Is Where the Heart Is” Publico, an award from the on page 6.) Public Service Law Network, But, Das is modest about but she beat out a record numher accomplishments, and ber of candidates to take the directs praise toward her award home. classmates, saying she is Das said the announcetouched that “fellow stument was especially signifidents, who are also doing a cant because it was an affirlot of work, would take the mation from her classmates. time to nominate me.” Das “It was very encouraging to has since gone on to clerk in know other students support Portland, Maine, for Judge the work I did.” Kermit Lipez of the U.S. The best of the bunch: Alina Das earns recognition for her public interest work. The work that she did was Court of Appeals for the First indeed remarkable, and her time manageing a degree in the Wagner School of PubCircuit and plans on pursuing a career in ment skills alone could have clinched an lic Service. Her résumé is a veritable who’s public interest law, focusing on civil rights award. Das was a Root-Tilden-Kern Pubwho of public interest law: She’s worked for and poverty issues. Das is one to watch, for lic Interest Scholar simultaneously pursuthe NAACP Legal Defense Fund, the Amersure. —Jill Filipovic

Change Comes to the Curriculum Students push for simple but profound change in first-year course selection

hen the Class of 2009 selects its courses, they’ll have a choice that no previous class had—postpone Property until their second year, and take an elective: International Law, Corporations, Constitutional Law or Taxation. The shift is significant. “Curriculum change is not easy to come by,” says Anne Lai ’06, who had presented the idea of an elective to the Student Bar Association back in November 2003. In Spring 2004, 240 or so students signed a petition urging for International Law to be offered as an elective during the second semester. They argued the course benefited students accepting summer posts with international organizations. In response, Dean Richard Revesz appointed a Special Committee on International Law—including Lai, Professor Norman Dorsen as chair, Vice Dean Clayton Gillette, professors Paula Galowitz and Stephen Holmes and Christopher Delphin ’05—to examine the issue. AUTUMN 2005

The committee sent out a student questionnaire that confirmed there was ample demand, but to their surprise, they realized a similar need existed for other courses. “Many students other than those in the international field take summer positions where a course under their belts would be beneficial,” said Dorsen, citing the “traditionally strong student demand for Corporations, Constitutional Law and Taxation.” The committee, with the approval of the faculty, concluded that a change was warranted, but that International Law should not be the sole first-year elective. The question remained, which of the preexisting second-semester courses could they postpone to make room for new electives? The nascent Administrative and Regulatory State was removed from consideration. After just one year, “it is too soon to judge whether or not the course is meeting those purposes,” said Dorsen.

To choose between the remaining two options, Property and Criminal Law, Dorsen spoke individually to professors in those fields. While property professors were generally open to the idea of an elective substitution, criminal law professors were unanimously opposed. Since Property remains a required course for graduation, the committee suggested adding it to the choices for first-year electives, resulting in a final five: Property, International Law, Corporations, Constitutional Law and Taxation. “The first year elective is a brilliant idea; I only wish it had happened last year so I could take advantage of it,” says Matthew Schrumpf ’07. In addition to the intended benefits of restructuring the curriculum, Schrumpf points out that “the opportunity to get a head start on a particular interest area allows you to take a wider variety of courses in your second year and gives you another chance to meet students outside your section.” —Jeremy Coleman THE LAW SCHOOL

STUDENT SPOTLIGHT

Who’s the star? Jessica Kaufman with documentary subject Darnell Williams.

Back from the Brink

essica Kaufman ’06 was working as a legal intern to free a death-row prisoner last summer at Northwestern University School of Law’s Center on Wrongful Convictions (CWC), when her case became the subject of an A&E documentary, American Justice: Countdown to an Execution. The prisoner, Darnell Williams, had been on death row for 17 years, convicted of murdering John and Henrietta Rease, an elderly couple who looked after foster children. Convinced that there was persuasive evidence that Williams was wrongly convicted, CWC attorney Juliet Yackel spent years seeking to overturn the jury’s decision. However in 2004, Williams lost his final appeal before the Indiana Supreme Court; his execution was set for the following month. In desperation, Yackel took Williams’s case to the media, and a documentarian agreed to produce his story. Ultimately, Countdown to an Execution, while sympathetic to Williams, reveals how gray the truth can be. The evidence uncovered by the CWC team, which included an eyewitness recantation, new DNA evidence and proof of Williams’s memory loss, as well as a medical condition that made him particularly sensitive to alcohol, was not enough to overturn the conviction. But it raised enough questions to compel former acting Governor of Indiana Joseph Kernan

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to make Williams the first person in Indiana in almost 50 years to receive a gubernatorial commutation from capital punishment to life in prison without parole. When the documentary debuted on A&E in March, Kaufman invited Yackel and writer/producer Shane DuBow to show the

film at the Law School and answer questions. DuBow talked about his ambivalence regarding Williams’s innocence or guilt: “I don’t think I ever got one thing to hold onto to make me feel one way or the other.” Kaufman, who wrote two sections of the clemency petition that was submitted to the governor, interviewed jurors, attended hearings and talked with victim’s families, said, “Darnell’s case made me realize the power of generalized fear, and how expendable the life of one young black man can be in the face of it.” She also criticized the lack of resources applied to his case: “Some of the difficulty in knowing what really happened in Darnell’s case stems from inadequate police work, inadequate lawyering at trial and an inadequate sense that the obligations of the justice system should not change with the race and the wealth of the defendant.” Kaufman also described how she became emotionally affected by Williams’s life story. “One thing that will stay with me for a long time was the sense of sadness I felt when I read a social worker’s report on Darnell’s background,” she said. “Just before any of this started, Darnell had overcome so many enormous challenges. He had a good job that he was successful at, he was engaged, he had plans. And then, seemingly all of a sudden, he was on death row.” Darnell Williams will likely remain in prison for the rest of his life, his legal recourses at a virtual end. Kaufman’s life has also changed. She has become dedicated to “not just winning an individual case, but working for broader justice.” ■

Sister Advocate Kelia Cummins marshalls her legal resources to overturn policy at her sister’s high school

hen school officials prevented 18-yearold Kimberly Cummins from applying to Harvard University, she enlisted help from her big sister Kelia Cummins ’05. The result was what Kelia called “a political and administrative campaign to change an unfair and ridiculous policy.” Kimberly began her senior year at Brooklyn’s Boys and Girls High School excited and ready to apply to colleges. In a class of more than 1,000 students, Kimberly was ranked 11th—still within the top one percent—with an 86.6 GPA. Though she was aware that Harvard was far from a lock, Kimberly wanted to apply early-action. Not only was she involved in a number of extracurricular activities while carrying Advanced Placement courses, she had

attended a program at Harvard the previous summer. At a scholarship informational meeting during the fall, the high school’s two college advisers informed the senior class that only the top five students would be allowed to apply to Ivy League schools, and that no one would be permitted to apply to any schools to meet the early-action or earlydecision deadlines. The school provided no explanation for this policy, though Principal Spencer Holder claims the incident was a misunderstanding. School officials refused to clarify their policies until after Kelia Cummins took up her sister’s complaint. When she attempted to meet with school officials, Kelia was told that they were under no obligation to explain their policies, and AUTUMN 2005

that decisions regarding the college application process would stand. Frustrated, Kelia contacted nonprofit advocacy groups, elected officials, law firms, a federal judge, colleagues and professors at the Law School, and media outlets. Kelia and Kimberly’s determination eventually paid off. Over the past year, Kimberly’s story appeared in the New York Times, the Christian Science Monitor, and on NY1 and CBS. After garnering the attention of the public and various community groups, Kimberly was able to apply to Harvard by the November 1, 2004 early-action deadline. After the incident, the New York City Department of Education issued a statement to the media confirming that the Boys and Girls High School, as well as other public schools, would have to follow citywide rules allowing students to apply wherever they want. “The problem was bigger than just Kimberly’s desire to apply to Harvard,” says Kelia, now an associate at Ropes & Gray in New York. “There are students who do not necessarily have aggressive family members or other outlets to ensure their rights are protected.” Though Kimberly’s early-action application to Harvard was initially deferred and eventually rejected, she was grateful for the opportunity to apply to the schools of her choice. This fall, Kimberly will attend the University of Michigan with a prestigious Gates Millennium Scholarship. “Hopefully the results of this challenge to the school’s policy extend beyond my sister’s personal achievements,” said Kelia. “Ideally, these efforts will benefit other students and address inefficiencies in the public school system as a whole.” —Shakera Khandakar

Photo: Robert Stolarik/The New York Times

Big sis Kelia looks out for Kimberly’s best interests.

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The Prosecution Prevails Warren Braunig wins over some very picky judges at the Marden Moot Court Competition

Tough competition: The victorious prosecutors, Warren Braunig, far right, and Sarah Trombley, stand with the defense team of Michael Blauvelt, second from left, and David Chubak.

udges of the 19th annual Orison S. Marden Moot Court Competition certainly didn’t pull any of their punches when questioning the aspiring lawyers that argued before them and more than 100 students in attendance. Michael Blauvelt ’06 spoke only the first sentence of his argument—that the criminal prosecution of his client, for threatening someone’s life, violated his First Amendment right to freedom of speech—when Frank H. Easterbrook of the U. S. Court of Appeals for the Seventh Circuit interrupted, “I thought it was one of the core principles that there’s no First Amendment right to shout ‘Fire!’ in a crowded theater.” In the hypothetical case, United States v. Monash, prepared by Lila Acharya ’06 and Chris Desmond ’06, and loosely inspired by the movie Win a Date with Tad Hamilton, Peter Monash learned that his girlfriend won a night out with teen heartthrob Hamilton. A jealous Monash wrote a menacing letter to Hamilton, who in turn contacted the authorities. No action was immediately taken, but years later, the government prosecuted Monash for making the threats, and won a conviction. Blauvelt and David Chubak ’05 argued for the defense that the conviction required reversal because the prosecution waited too long to bring charges against Monash, and that the threat wasn’t to be taken seriously.

Sarah Trombley ’06 and Warren Braunig ’05 argued for the prosecution that the threat frightened Hamilton and was enough to sustain the conviction. They also argued that the delay in bringing charges didn’t require reversal, though they conceded it hurt Monash’s ability to defend himself in court. Easterbrook sharply questioned Braunig about the strategic decision to admit that Monash had been prejudiced by the delay in bringing charges. “By conceding substantial prejudice, you seem to be conceding the second half of the case,” Easterbrook said. Braunig coolly replied that the decision to concede prejudice was made before he was assigned the case. The judges, who also included Richard A. Paez of the U.S. Court of Appeals for the Ninth Circuit and Rosemary S. Pooler of the U.S. Court of Appeals for the Second Circuit, ruled that Braunig and Trombley were the winning team, and awarded Braunig the prize for Best Performance in Oral Argument. Easterbrook praised all of the finalists for their eagerness to answer the judges’ questions, and offered some advice. “The most important thing to do is [to] be able to engage in a give-and-take with the court as if it’s a conversation, because that’s how you persuade,” he said. “I was impressed, and my colleagues were also impressed, by the willingness of [the finalists] to have a giveand-take.” —Wendy Davis THE LAW SCHOOL

STUDENT SPOTLIGHT

The GRAMMY for Best Essay Goes to… Adam Giuliano and Adam Halston Dunst impress entertainment attorneys with their legal scholarship on issues affecting the music industry

The winning platform: Essay-writing champ Adam Giuliano, second from right, and Adam Dunst, far right, with Janet Reno, the former attorney general of the United States, and fellow contestants.

his past winter, Adam Giuliano ’05 took the top prize and a $5,000 cash scholarship at the 7th Annual GRAMMY Foundation Entertainment Law Initiative (ELI) Legal Writing Competition. Giuliano won for his essay “Steal this Concert? The Federal Anti-Bootlegging Statute Gets Struck Down, But Not Out,” in which he examined the constitutionality of the statute in United States v. Martignon.

The ELI, established in 1998 by some of the nation’s most prominent entertainment attorneys, sponsors initiatives such as the legal writing competition in order to promote the debate of legal issues currently affecting the music industry. Giuliano learned about the Martignon case while working for the Prosecution Clinic. “The statute raised such interesting constitutional, copyright and com-

merce clause issues—especially in light of the attention given to intellectual property rights these days—that I wanted to focus on the issue further.” In his essay, Giuliano concluded that, “the anti-bootlegging statute represents a constitutional exercise of the commerce clause power that does not undercut the copyright clause.” Giuliano presented the paper at a luncheon sponsored by the foundation, and was asked to argue his position by ELI guest, former U.S. Attorney General Janet Reno. Giuliano called the exchange “a learning experience,” and said, “Responding to Janet Reno forced me to strip away what might seem important as a law student, and instead hone in on what substantively matters as a lawyer.” Adam Halston Dunst ’05 was one of four runners-up in the competition for his essay titled, “‘It’s Mine! No, It’s Mine! No, It’s Mine!’ Works-Made-For-Hire, Section 203 of the Copyright Act, and Sound Recordings,” and was awarded a $1,500 scholarship. In addition to receiving their scholarships, Giuliano and Dunst were given tickets to attend the GRAMMY Awards ceremony and other events. Both winning essays were published in ELI’s Arts & Entertainment law journal, and will appear in the Vanderbilt Journal of Entertainment Law and Practice this fall. —S.K.

Seeking Talented Students and Alumni? If your organization has hiring needs for part-time interns, summer associates, or full-time employees at any level, zero in on the top talent at NYU School of Law. The Office of Career Services will post a job for students or alumni free of charge. Your listing will be emailed exclusively to NYU alumni, or students, as appropriate. Simply complete the online form at the URL listed below, or contact Wendy Siegel, director of recruitment and marketing, at (212) 998-6090 or at law.careers@nyu.edu. www.law.nyu.edu/depts/careerservices/jobform.pdf NYU School of Law is committed to a policy against discrimination in employment based on race, color, religion, national origin, age, handicap, sex, marital or parental status, or sexual orientation. The facilities and services of NYU are available only to those employers who agree to abide by this policy.

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The U.N., Preying on the Weak By Peter Dennis Peter Dennis is a 2005 graduate of the New York University School of Law. He worked for the Foundation for International Dignity in the refugee camps surrounding Kenema, Sierra Leone, in 2003. Anyone who was shocked by the most recent revelations of sexual misconduct by United Nations staff has never set foot in a U.N.sponsored refugee camp. Sex crimes are only one especially disturbing symptom of a culture of abuse that exists in the United Nations precisely because the United Nations and its staff lack accountability. This lack of accountability is the central blemish on today’s United Nations, and it lies behind recent headlines. Whether taking advantage of a malnourished refugee or of a lucrative oil-for-food contract, the temptation is there, the act is easy and the risk of punishment is nil. I arrived in Sierra Leone as a legal aid worker in the summer of 2003, one year after the release of a damaging report on sexual abuse in U.N. refugee camps in West Africa. Although the report’s description of widespread sexual abuse had prompted Secretary-General Kofi Annan to issue a strongly worded “zero tolerance” policy, I found abuse of a sexual nature almost every day—zero compliance with zero tolerance, as one investigator was to write. U.N. leaders had simply not expended any effort beyond lip service to carry out this zero tolerance policy. In fact, abuse at these camps went beyond sexual violations: Injustices of one sort or another were perpetrated by U.N. missions or their affiliated nongovernmental organizations every day in the camps I visited. Corruption was the norm, in particular the embezzlement of food and funds by NGO officials, which often left camp resources dangerously inadequate. Utterly arbitrary judicial systems in the camps subjected refugees to violent physical punishment or months in prison for trivial offenses—all at the whim of officials and in the absence of any sort of hearing. I became especially involved in the plight of 11 young Liberian men from the Tobanda refugee camp near Kenema, Sierra Leone. They had been arrested and imprisoned, without trial, by the U.N.-sponsored camp management. The accusation: stealing plastic tarps. The refugee youths had received permission from camp management to use surplus tarps for housing, but they had not been given explicit permission to do so by officials of the Office of the U.N. High Commissioner for Refugees (UNHCR). The camp’s management later had them arrested by the local authorities, and they remained in a squalid, inadequate Sierra Leonean state prison, without a formal trial or any legal representation. Of course, the

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UNHCR officer assigned to monitor refugees in local prisons would be unaware of this fact—a prison log book revealed that he had not visited the prison for several months. By the time the young men were freed they had spent four months in a filthy, damp prison and were suffering from malaria, scabies and malnutrition. The prison was just yards from the UNHCR (and UNICEF) headquarters in Kenema. This experience was sadly typical for the refugees with whom I worked. Although charged with the care of desperate refugees, many of the UNHCR staff remained ambivalent or hostile to the basic rights and needs of these vulnerable people. And they acted without fear of consequence. The risk to these staff members is low in U.N. refugee camps, because peacekeepers engaged in criminal acts are immune from local prosecution. Therefore, local parties seeking justice must travel to the peacekeeper’s home country. U.N. workers from countries with unresponsive legal systems, or those committing unspectacular crimes, can sleep easy. At the same time, local NGO employees who are contracted by the United Nations to work in the camps are covered by a de facto implied immunity. That is, if these individuals are identified as being connected with U.N. operations, they will probably never face

charges for their actions by local authorities. In West Africa, most of the sexual misconduct accusations are leveled against local NGO staff members. If the United Nations is to enjoy such immunity, it is incumbent on the organization to police itself aggressively and thoroughly. Yet the recent stonewalling over a series of scandals from the United Nations—from oilfor-food to a sexual harassment imbroglio involving a high U.N. official—are typical of a bureaucracy dedicated to self-preservation. This code of behavior travels rapidly down the organizational chart. The message is: Cover your tracks and the United Nations will obstruct your prosecution. After the 2002 report documented sexual abuse, Annan’s steely resolve led to exactly zero criminal prosecutions of U.N. officials for sexual abuse. I expect little difference now that refugee camp conditions have returned to the headlines. As before, Annan has delivered vague statements but prosecuted no one. It appears that the status quo reigns and that those perpetrating all sorts of abuses in refugee camps may continue undisturbed. The United Nations is a vital institution that needs a housecleaning. Originally published in The Washington Post, April 12, 2005.

Smile for the camera! When Peter Dennis toured the Largo Refugee Camp near Kenema, Sierra Leone with a photographer, Liberian refugee children who were awaiting rations from the World Food Program clamored to get in the picture. Dennis says, “Many of these children have only ever lived in refugee camps. All of these children were born during the war.”

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When the Feds Overstepped: The Preemption of Predatory Lending Laws

By Nicholas Bagley

hen the Office of the Comptroller of the Currency made an aggressive bid to preempt state laws that were designed to protect low- and moderateincome borrowers from predatory lending, Nicholas Bagley ’05 responded by writing the note excerpted below. Bagley originally became interested in housing affordability and development issues before law school, while working as an eighth-grade English teacher at I.S. 158 in the South Bronx. “Working at a tough school, I learned firsthand how critical strong communities were to the proper functioning of a school,” says Bagley. “Predatory lending is a growing problem in many of these communities and has effects that go well beyond the housing market.” The note from which the following excerpt was taken, “The Unwarranted Regulatory Preemption of Predatory Lending Laws,” was published in the NYU Law Review (December 2004), where Bagley was a notes editor (200405) and a staff editor (2003-04). He wrote the piece under the supervision of then-Professor 98

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Michael Schill (who is now dean of the UCLA School of Law). Bagley graduated this past year summa cum laude and was awarded the Law School’s University Graduation Prize, an honor awarded to the student with the highest academic average after five semesters. Currently, Bagley is clerking for the Honorable David Tatel of the U.S. Court of Appeals for the District of Columbia Circuit. Next year, he will clerk for Justice John Paul Stevens of the United States Supreme Court.

Introduction In January 2004, the Office of the Comptroller of the Currency (OCC) determined that the National Bank Act preempted a recently enacted raft of state consumer-protection laws that state legislatures had hoped would curb what they perceived as an epidemic of predatory lending. The OCC’s comprehensive regulation effectively guts states’ ability to legislate against predatory lending practices and sets federal law as a de facto ceiling for borrower protection from abusive lending.

This Note argues that the OCC overstepped its congressionally delegated authority in enacting this regulation, and that courts should strike it down in order to leave space for state legislatures and Congress to develop and test novel responses to the growing problem of abusive lending. By preventing states from crafting their own responses to a serious and growing problem—one that defies a straightforward legislative approach—the OCC has virtually ensured that vulnerable borrowers will remain underprotected by underinclusive and underenforced federal law. The preemption regulation thus exemplifies the threat to states’ legislative independence posed by allowing weakly accountable federal agencies the unfettered authority to preempt allegedly conflicting state laws. The desirability of judicial policing of agencies’ preemptive authority is plain when, as here, agency preemption threatens to hamstring states in their efforts to address what their legislatures have deemed a serious consumer-protection issue. As Iowa’s Attorney General put it when testifying before Congress about the OCC preemption, “What we are discussing here today [are] not just…arcane, obscure banking regulations. These are fundamental issues of democracy, accountability, federalism, and the boundary between legislative prerogative and bureaucratic fiat.”

The Inherent Tension in Regulatory Preemption Asking whether a state statute is preempted by federal law is tantamount to asking whether “Congress, in enacting the Federal Statute, intend[ed] to exercise its constitutionally delegated authority to set aside the laws of a State[.]” That inquiry is complicated, however, when a federal agency, citing its ambiguous origination statute, explicitly determines that the statute preempts state laws. In that case, the question becomes whether the judiciary should infer that Congress intended to delegate to the relevant agency the authority to preempt the allegedly conflicting state law. The application of Chevron deference would of course call for such an inference. Courts rarely interfere when federal agencies undertake to interpret congressional AUTUMN 2005

ambiguities or silences. Moreover, allowing for some measure of regulatory preemption makes good policy sense. Federal agencies, particularly in highly technical fields (like banking) have the expertise and the institutional capacity to make refined judgments about whether state laws will in fact conflict with congressional purposes. In some tension with this, however, is the Supreme Court’s longstanding insistence that there is a presumption against a judicial inference of a congressional intent to preempt state law in the face of congressional ambiguity, particularly when the state law is “in a field which the States have traditionally occupied.” The Court has identified the source of this authority in principles of federalism that are jealous of the federal government’s efforts to wrest “substantial sovereign powers” from states. The Supremacy Clause does, of course, permit Congress to “impose its will” on the states, but the Court has explained that it “must assume Congress does not exercise [this extraordinary power] lightly.” This gives rise to a conundrum: Does Congress, in speaking ambiguously about the scope of its intent to permit an agency to preempt contrary state law, intend to confer that decisionmaking authority on a federal agency? If that agency furthers Congress’s intent by “speaking” on its behalf, we would likely want to craft a background rule that Chevron deference ought to apply to preemption regulations. If our goal, however, is ensuring that the power of the federal government is checked by the democratic process, we may want to temper that deference somewhat and scrutinize the preemption efforts of a weakly unaccountable agency. Despite its manifest importance, to date the Supreme Court has not provided lower courts with meaningful guidance on the question.

Preemption Regulations v. Conventional Regulations Treating preemption regulations and conventional regulations differently may at first blush appear to lead to an asymmetrical result: A conventional agency regulation that had the effect of displacing state law but did not speak to preemption would be entitled to Chevron deference, whereas a preemption regulation affirmatively displacing precisely the same laws would not. The difference between “preemption” and “conventional” regulations lies in the role that the judiciary plays in settling the preemption question. Courts normally afford Chevron deference to agency regulations without preemption provisions, proAUTUMN 2005

viding an assurance that the relevant agency did not exceed its authority or exercise that authority arbitrarily. Once those regulations overcome the Chevron hurdle, however, courts will apply well-settled preemption principles to determine whether state law must give way to the regulation—and will put a thumb on the scale of allowing both federal and state regulations to stand. A preemption regulation purports to settle the scope of federal preemption, however, and reflects an agency’s effort to transform the preemption question from a judicial inquiry into an administrative fait accompli. By policing only for arbitrariness, the application of the deferential Chevron doctrine to a preemption regulation would effectively strip the judiciary of most of its responsibility to play a role in determining whether ambiguous congressional enactments should preempt conflicting state laws.

The Judiciary Should Not Categorically Defer to Agency Preemption Decisions This Section argues that the judiciary, in the absence of an explicit indication to the contrary from Congress, should neither categorically defer to agencies’ decisions to preempt nor stand as an unwavering obstacle to regulatory preemption. Deference to administrative rulemaking is normally justified by the presumption that when Congress has expressed no particular intent on a subject, it meant to leave its resolution to the agency. The force of that presumption is undercut in the context of agency preemption, however, by the contrary presumption that Congress does not normally intend to preempt state law unless it explicitly says so. Careful judicial review of preemption regulations will, inevitably, give rise to the criticism that judges should not be permitted to render discretionary policy decisions. This criticism could come on two fronts: (1) that courts are institutionally ill-equipped to second guess an agency’s determination as to whether a state law conflicts with its congressional authority; and (2) that weakly accountable judges should not be rendering policy decisions that ought more appropriately be left to Congress and, by extension, congressionally created agencies. The first argument is overstated. Although agencies are manifestly better than courts at making substantive policy decisions—providing one unimpeachable rationale for judicial deference—there is less reason to believe that they are better equipped than courts at striking an appropriate federalstate balance. But even in those cases where

an agency can bring substantial expertise to bear on the preemption question, the argument ignores the fact that there are few meaningful institutional constraints on a federal agency’s willingness to issue expansive preemption orders. Courts, in contrast, do have the institutional capacity to investigate the substantive reasonableness of an agency’s decision to preempt. Their automatic deference to agency preemption would create an effective presumption that Congress intended to make an unchecked delegation of preemptive authority whenever it passed a broadly worded origination statute—an unlikely and unwise presumption in a healthy federal system. This is not to say that agencies will not sometimes understand far better than courts the complex interactions between state laws and complicated federal regulatory regimes. While courts do have substantial experience in resolving preemption questions, and while fears that agencies will exceed the scope of their authority counsel against a categorical application of Chevron deference, in technical fields an agency determination that state law should give way to federal law is entitled to some weight in considering whether a preemption regulation is appropriate. Courts, however, need not abandon the field in order for regulatory preemption to serve a beneficial purpose. The second argument—that courts should not make these kinds of policy decisions—rests on the assumption that administrative agencies have a democratic pedigree merely because they were established by a popularly elected Congress. This misses the point. What is at issue is the relative accountability, in the context of administrative preemption, of administrative agencies as compared to the judiciary. On this front, neither agencies nor the courts can make a strong claim of democratic responsiveness.

Conclusion Judicial review remains the most viable way to ensure that federal agencies do not overstep their authority and threaten the independence of state legislatures. Whatever the strains on judicial competence, the judiciary should not be chary of intervening when the validity of state legislative enactments and the preservation of the delicate federal balance are at issue. ■ The author would like to thank Kristina Daugirdas, Michael Schill, Richard Revesz, Barry Friedman, Derek Tarsy and Luminita Poziumschi for their comments and support. THE LAW SCHOOL

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Fishing Quotas: One for Me and One for You the amount of fish allowed to be caught in a given fishery per season. The paper focuses on allocations in IFQs and will discuss other dedicated access privilege programs such as community quotas, cooperatives, and geographically based programs only when they relate to IFQs. The structure of the analysis is as follows. First, the excerpt will briefly examine the history of IFQs and examine the importance of the initial allocation in the IFQ process. While in a Coasian world the initial allocation does not matter, in a political and economic world with transaction costs, allocation decisions are important for the success of implementing the program and for improving efficiency in post-implementation trades which are impacted by such transaction costs. The original paper examines property theories from Elizabeth Rolph, Gary Libecap and Leigh Raymond which attempt to explain initial allocations of rights in various types of public resource. The paper also reviewed initial allocations in fisheries in the United States and abroad to compare and contrast practices with the theories. Those are omitted here. Finally, the excerpt will offer two of the paper’s four recommendations for changing the process and substance of initial allocations of IFQs to improve the chances of adoption of the programs.

By Dallas DeLuca

riting his note on allocations of individual fishing quotas (IFQ) was the perfect way for Dallas DeLuca ’05 to combine his interest in ocean issues and his experience working for the Department of Commerce as an international trade specialist. “Having always lived near the ocean— New Jersey, New York City, Washington, D.C., San Francisco, Miami, Istanbul—I have just always been interested in ocean issues,” says DeLuca. “I liked the IFQ program because of the possibility it holds out for rationalizing the fishing industry and I was interested in the impact government has on markets, since I worked for the government for five years.” DeLuca originally came up with the topic in Professor Katrina Wyman’s Advanced Environmental Law Class after a guest speaker from the Natural Resources Defense Council discussed environmental issues relating to fisheries. DeLuca decided to focus on the IFQ program and to write about the initial allocations because, according to him, “it basically creates the initial winners and losers in the market.” 100

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Below is an excerpt of the note published as “One for Me and One for You: An Analysis of the Initial Allocation of Fishing Quotas” in the NYU Environmental Law Journal (September 2005) where DeLuca was the notes editor. The note also won the Sive Paget Award for best environmental law note by an NYU Environmental Law Journal editor. This fall DeLuca joins Cleary Gottlieb Steen & Hamilton in New York City as an associate. Next year, he will begin clerking for Justice Thomas Balmer of the Oregon Supreme Court for the 2006-08 term.

Introduction This is an excerpt of a much longer paper that examines initial allocations of individual fishing quotas (IFQs) and attempts to describe a framework for explaining past allocations and to provide a template for future allocations. The examination of the initial allocations is guided by property theory frameworks. An IFQ is one of several types of dedicated access privilege programs, which are output control management techniques where privileges are granted “to catch a specified portion” of

A Short History of the Right to Fish Government control of fishing rights in legal doctrine is as old as the Roman Empire. Governmental allocation of national property is at least this old as well, with the Roman Republic and Roman Empire both making a practice of dividing conquered lands into farming plots and distributing the plots to soldiers at the end of their military service. The re-allocation of state property and benefits to citizens has been contentious throughout history and continues to be so today in areas as diverse as taxi cab medallions, grazing rights, and, the focus of this comment, fishing rights. Control and regulation of fishing rights arises from the scarcity of fish. Many commercial fisheries are experiencing overexploitation due to a typical ‘tragedy of the commons’ as described by Garrett Hardin almost a half century ago. Commercial fisheries are overutilized due to overfishing in the U.S. and abroad. The three most recent National Marine Fisheries Service Reports to Congress have reported an averAUTUMN 2005

age of 23% of major U.S. fisheries subject to overfishing and 30% of major U.S. fisheries overfished. Some fisheries have closed due to overfishing. In response to declining fisheries, governments around the world have responded with a variety of measures, from banning foreign vessels to restricting the length of the fishing season, the number of participants, and the type of gear or boats that can be used. A fundamental aspect of many of these fishery protection programs is limiting the total allowable catch (TAC) of the target fish per year. Each coastal nation determines the TAC based (at least in theory) on scientific evidence with the goal of restoring the fishery population so that it can be harvested at a “maximum sustainable yield” (MSY). In the U.S., the Magnuson-Stevens Fishery Conservation and Management Act of 1976 (Magnuson-Stevens Act) authorizes regional fishery management councils, with the advice and consent of the Secretary of the Department of Commerce, to create fishery management plans (FMPs). These management plans can utilize many types of input (or effort) restrictions, such as restrictions on gear, access, season length and locations. For many fisheries, the results of these restrictions were

Restrictions on one aspect of fishing resulted in increased fishing effort in other aspects—a “balloon effect.” The extreme result was a one- to two-day fishing season in the Alaskan Halibut fishery during which the total allowable catch for the year was caught.

example, at the local level, some municipalities have implemented “tax increment financing” (TIF) schemes to pay for infrastructure improvements which lead to increased property values; the normal property tax rate applies (no increase or decrease in the tax rate), but the increased tax revenue resulting from rising property values is dedicated to pay for those infrastructure improvements. Alternatively, if diverting tax money in this manner is politically impossible, federal money currently earmarked for fishing vessel construction assistance should be diverted into structural adjustment programs for communities harmed by changes in fishing practices. The diversion of revenue from the general Treasury would only occur for so long and only for as much as is needed to compensate those directly harmed by the IFQ allocation. The diversion of the capital gains tax would recoup some of the value given to the quota holders without hindering the market for quota beyond the degree to which the normal tax structure impacts any market. The use of the tax money would compensate those harmed by the IFQ scheme, thereby providing an equivalent to the status quo for these fishery participants. This compensation program will help reduce opposition from those excluded in the initial allocation to the IFQ scheme, thereby increasing the political viability of the allocation. It will also make the allocation process easier to negotiate because instead of dividing the quota pie into ever smaller slices to accommodate all claimants, some groups can be removed from negotiations completely by giving them these compensating side-payments, thereby decreasing the number and heterogeneity of the negotiators. This will leave larger quota shares for the remaining participants, increasing the likelihood of acceptance of the program.

less than optimal and frequently resulted in drastically abbreviated fishing seasons (“derbies”) with a myriad of problems, such as over-capitalization of the fleet, high by-catch, high-grading, ghost fishing and unsafe fishing practices which resulted in loss of boats and lives. Moreover, the annual catches still frequently exceeded the TAC. Essentially, the restrictions created a “balloon effect”—if you squeeze one area of a balloon, another area increases in size; similarly, restrictions on one aspect of fishing resulted in increased fishing effort in other aspects of fishing. The extreme result was a one- to two-day fishing season in the Alaskan Halibut fishery during which the entire TAC for the year was caught.

No Auctions; Continue Allocation by Historical Effort Despite the background norm of the public trust doctrine and the arguments of those espousing it, the government should not change the law and auction IFQ allocations for those fisheries where IFQs are deemed the appropriate regulatory structure. Auctions will reduce the resource rents (the value of engaging in fishing in that fishery) that will accrue to the quota holders, by reducing the quota-holders’ net wealth position through payment to the government in the auction. This reduces the benefits for the quota-holding fisherman (by channeling some of the value to the government), and “sharply

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In response to the mounting problems of fisheries management, the U.S. and other nations implemented IFQs to allocate the right to fish and to eliminate the need to “race to fish” for some of the commercial fisheries. With a guaranteed right to catch a certain amount of fish, a fisher has no need to rush to catch the fish before the TAC is reached and the fishery is closed. The distribution of these rights to fish for a portion of the TAC has been the most important hurdle to further implementation of the IFQ-based fishery management plans.

Recommendations Structural Adjustment Funded by the Capital Gains Tax on Quota Sales Protecting the power and wealth configurations of the status quo is important in gaining acceptance for the IFQ. However, the granting of an IFQ, even if based on grandfathering, will reduce wealth (or the belief in the opportunity for wealth), for those that receive no quota share or whose employment or processing work declines as a result of the IFQ program (thereby creating opposition to implementation of the IFQ). The Florida spiny lobster program provides a hint as to how to remedy this situation: create a tax on the sale of quota

shares and recycle the proceeds into sidepayments to prior fisheries participants who receive little or no quota allocations. Unfortunately, the size of the Florida spiny lobster tax and its “first sale only” nature will create great distortions in the resale market reducing the efficient (re)allocation of the resource. Instead, the proceeds of the existing federal and state capital gains taxes levied on the sale of quota shares should be diverted to funding structural adjustment programs for fishing industry workers and communities, similar to the adjustment programs for U.S. communities harmed by the impacts of NAFTA. Such dedicated tax programs have already been implemented in the U.S. For

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reduces their enthusiasm for it.” This would violate Libecap’s first requirement for successful property regime change, as the quota holding fisherman will, at best, be at a status quo position and many fishers will believe they are worse off if they lack the financial resources to bid successfully for quota share. The relatively miniscule benefit to the Federal Treasury from auctions is dwarfed by the additional opposition that would be engendered by a rent-reducing auction. This Note recommends that allocations should continue to be based on historical effort as measured by landings and capital investment in boats. Additionally, if it is possible to measure accurately past crew participation, then quotas should be allocated to skippers and crew as well as to owners, since this allocation will create an IFQ program with future potential income, per participant, that most closely reflects prior participation and prior financial results. By hewing closely to a Pareto Optimal goal while rewarding those politically and culturally considered deserving of fishing quotas—fishers historically in the fishery—the allocation will increase the chances of acceptance of the IFQ.

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Super Sing-A-Long ZAP! POW! Caped crusaders save vanishing professors in the 2005 Law Revue

Conclusion IFQs provide the opportunity for rational capital allocation in a fishery and decrease the negative aspects, such as lost gear, ghost fishing, unsafe fishing and short seasons, which have become associated with input controls. Implementation of an IFQ program depends on current fishery participants’ acceptance of the new allocation of fishing privileges. IFQs are more acceptable to fisheries participants if they create opportunities for increasing financial returns for all participants as compared to credible expected future returns under the current property regime. Correspondingly, “losers” in the IFQ allocation, such as laborers and on-shore processors or other members of the “fishing community” that are excluded from an allocation and also have resulting harms from the new system, should be provided a compensating sidepayment. Future successful IFQs, including multi-species IFQ programs, will be built on past successes and dependent on a fishing culture where IFQs are an accepted norm. ■ The author would like to acknowledge and thank Katrina Wyman, Sharon ChaitinPollak and the staff of the New York University Environmental Law Journal for their invaluable assistance. 102

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From left: Emily Bushnell, Joseph Alonzo and Sarah Burleson strike a pose in the name of justice.

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awman: Legend of the Dork Knight,” the 2005 Law Revue’s student-written musical send-up of Law School life, was a raucous spoof modeled on the Batman movies. The revue featured Lawman (Joseph Alonzo ’06), an inept caped superhero, and his diligent sidekicks Robin (Emily Bushnell ’05) and Lawgirl (Sarah Burleson ’07). The trio battle the Evil Injustice League, which is responsible for the disappearance of Law School faculty, including former professors Larry Kramer and Michael Schill. The action heats up when supervillains Toxic Parsley, aka Professor Vicki Been (Erica Alterwitz ’05); Miss Kitty, aka Professor Rachel Barkow (Emily Huters ’07); and the nefarious Clownman, aka Dean Richard Revesz (Ariel Joseph ’06), kidnap Professor Linda Silberman (Deborah Katz ’07) at the Fall Ball, leaving behind a clue: the National Labor Relations book. Lawgirl visits with labor and employment law expert Professor Samuel Estreicher, unaware that he has a sinister alter ego, The Waddler, who sings the anti-labor union number “Poor Unorganized Souls.” He

tricks Lawgirl into revealing Lawman’s identity with the promise of a firm job. In another funny musical interlude, Lawgirl and Robin complain in song that Lawman always steals their crime-fighting thunder. The caper concludes in a cartoonish frenzy when Toxic Parsley kidnaps Robin; Lawman and Lawgirl save their comrade; and Parsley tells them that Professor Silberman is being held in Clownman’s lair. Bursting into the dean’s office, Lawgirl and Robin overcome Clownman’s secret weapon—a two-headed “Argentinian Ball of Brawl,” aka Vice Deans Barry Adler and Clayton Gillette. Professor Silberman is saved. Justice is served. In a fourth-wall-breaking twist, the real Dean Revesz, along with professors Barkow, Been and Estreicher, took to the stage and retaliated with a skit of their own called “Gunner Bingo,” poking fun at students’ classroom habits of surfing the Web, playing online poker and laughing inappropriately when reading instant messages. The night ended on a high note with the crowd-pleasing ditty “It’s Good to Be at NYU Law.” ■ AUTUMN 2005

2005 Order of the Coif Inductees The following students were selected as candidates for membership in the New York University Chapter of the Order of the Coif, based on their cumulative averages for five semesters of law study:

Honoree Catherine Rein flanked by Dean Richard Revesz and Professor Oscar Chase.

Honor Society Inducts Alumna and Thirty-Two Students

ith proud family members, professors and friends in attendance, the NYU chapter of the Order of the Coif, a national honorary society dedicated to encouraging excellence in legal education, inducted 32 new members from this year’s graduating class during a ceremony in the Helene and Alan Fortunoff Faculty Library in Vanderbilt Hall. The Order of the Coif honors academic achievement in the study of law; under its national constitution, membership is limited to the top 10 percent of the senior class. Based on an honor originally bestowed upon England’s most prestigious barristers, the modern order has 77 chapters in leading American law schools. “When you consider the overall talent of the NYU School of Law student body, it is easy to see that the Coif honorees have truly distinguished themselves,” said Professor Oscar D. Chase, president of the NYU chapter of the Order of the Coif. “I consider it a privilege to preside over the induction ceremony each year.” After the provisional members were inducted, Dean Richard Revesz presented School of Law alumna Catherine Rein ’68 with an honorary membership to the Order of the Coif. Rein, who had also been inducted as a student, is currently the senior executive vice president and chief administrative officer of MetLife and chairs the MetLife

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Foundation, which supports educational, health, civic and cultural organizations. Rein serves on the board of directors of New England Financial, the Bank of New York and the First Energy Corporation. She is also a trustee of the New York University Law Center Foundation and a member of the American Bar Association, the New York State Bar Association and the Association of the Bar of the City of New York. ■

Nicholas J. Bagley Jessica P. Barkhuff Emily Ann Berman Park Bramhall Warren A. Braunig Kevin M. Brown Alicia A. D’Addario Kristina B. Daugirdas Drew C. Ensign David Feirstein Narendra K. Ghosh Matthew J. Ginsburg Debra L. Greenberger Lisa M. Herman Janet M. Hostetler Alexandra Knight John A. Levy Brianne M. Lucyk Erin K. McCormack Luke McLoughlin Matthew Mitchell Oates Dominic F. Perella Gina R. Rhodes Abigail E. Rosen Aaron Joseph Schechter Ashika Singh Lauren Stark Kathyrn Stewart Lindsay M. Traylor Nina Rachel Wasow Margaret D. Welles Robert M. Wertman

The Largest Public Interest Job Fair Yet

overnment agencies, groups that represent the indigent and lawyers specializing in civil rights work were among the 150 public employers from across the country that participated in the 2005 Public Interest Legal Career Fair. The event, hosted by the NYU School of Law, was sponsored by 21 law schools from New York, New Jersey and Connecticut and was NYU’s largest fair yet, with more than 1,000 students in attendance. From her spot in Greenberg Lounge, Risa Kaufman, associate counsel at the Community Service Society in New York City, noted that her organization does most of its summer recruiting at the job fair. “This is always a fantastic way to meet a lot of students,” said Kaufman, who added that she was seeking individuals with backgrounds

in volunteer work, or other internships— “anything that speaks to their commitment to doing public interest work.” ■

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The Judge Who Said “Yes” to Gay Marriage

Choice goods for a great cause: Bidders competed for more than 400 donated items.

500 Brave Winter Snow to Fund Summer Internships

he buzz grew inside the west wing of Vanderbilt Hall as students, faculty and alumni streamed in to attend the NYU School of Law’s 11th Annual Public Service Auction. “Twilight on Washington Square” brought more than 500 people in from the evening’s bitter snowfall and raised more than $90,000 for summer internships in public service. Bidders strolled among the silent auction’s four rows of tables laden with more than 400 donated items. Competition was highest for wine store gift certificates and an iPod Mini. Generous hopefuls also vied for children’s books, spa treatments, bar exam review sessions, cooking lessons and faculty donations such as espresso lessons, a tennis match and autographed books. Cochairs Anne Kennedy ’06 and Allison Joy Rosendahl ’06 planned the event with a 35-member student committee, and enlisted first- and second-year students to comb the campus, and beyond, for donations and contributions. The live auction raised $26,000 and moved high-end prizes like an eight-person chocolate tasting, a wine and cheese graduation party, NASCAR tickets and seats at

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the U.S. Open. Notable hawkers included Professor Burt Neuborne, Candice Jones ’07 and Sienna Fontaine ’07, who charmed bidders with humor and finesse. Starting with an opening bid of $700, the night’s biggest moneymaker was a set of 2005 Super Bowl tickets that garnered $4,700 thanks to the enthusiasm of auctioneer Beverly Farrell ’01. Bids also piled up for a weekend at Professor Sylvia Law’s five-bedroom home in Woodstock ($1,900), a Paris getaway ($2,000) and a retreat for eight to the dean’s Connecticut home ($1,650). Dollar Wars pitted class against class in a mad scramble to collect the most dollar bills and earn a spot in a “pie duel” with Dean Richard Revesz. The winning 2L class sent Oliver Carter ’06 to the stage for the face-off. Standing back to back, Dean Revesz and Carter each took three paces, turned and launched cream pies at one another, sending a barrage of dessert flying in all directions. “[The auction] allows people to come together around a common purpose that is light-hearted fun and makes a difference,” says Pascale Walker, associate director of the Public Interest Law Center. ■

s a young lawyer working for Legal Services in Brooklyn, Doris Ling-Cohan ’79 experienced her share of prejudice. “When I went to court,” she recalled, “I was often mistaken as an interpreter.” Even after she became the very first Asian American woman elected to the New York State Supreme Court in 2002, Ling-Cohan still had to deal with inconsiderate com- Doris Ling-Cohan ments. After adjourning a case during her first year on the bench, one particularly insensitive lawyer asked her if she was using the “Chinese calendar.” “Many of us do not realize that we may be, in fact, subjects of racial profiling,” said Ling-Cohan. Her untitled talk for the Sixth Annual Korematsu Lecture depicted prejudice against Asian Americans through unsentimental personal anecdotes and hard-fought career milestones. Ling-Cohan exhorted the approximately 80 students and alumni in attendance to fight discrimination. “We have not reached our potential in the law firm community,” said Ling-Cohan. She remarked that prejudice still pervades the legal culture. “As AsianPacific Americans, we have not made sufficient progress if a partner at a major law firm would make jokes about dogs in Chinese restaurants in an email,” Ling-Cohan said, referring to an incident last year in which a partner in the London office of Dewey Ballantine dashed off an email response to a plea to adopt dogs that read, “Please don’t let these puppies go to a Chinese restaurant.” Ling-Cohan also implored the crowd to use their law degrees to fight social injustice. “The struggle does not end when you have a BMW in your driveway,” she said. In February, Ling-Cohan fueled controversy when she ruled that same-sex couples had a constitutional right to marry in New York. “I have been attacked as an activist judge for deciding a case that others brought to me,” she said, adding that she has received hate mail accusing her of “destroying the institution of marriage.” But with characteristic toughness she added that the case also taught her a valuable lesson: “Do not fear criticism. It will make you stronger.” ■ AUTUMN 2005

On Car Transmissions and Common Law: The NYU Journal of Law & Liberty

aw professors are fond of unusual analogies. But Professor John Hasnas of George Mason University School of Law may be the first to work automobile trivia

into his legal scholarship. Inaugurating the speaker series hosted by the new NYU Journal of Law & Liberty, Hasnas spoke on “Hayek, the Common Law and Fluid Drive” last November. Hasnas’s paper of the same title appeared in the first issue of the journal, which is dedicated to critical discussions of Nobel Prize-winning economist Friedrich August von Hayek’s influence on legal scholarship. Among the most important contemporary defenders of free markets and classical liberalism, Hayek is best known for his devastating critique of socialism and planned economies, most forcefully articulated in his polemical 1944 book, The Road to Serfdom. His work influenced the economic policies of many politicians, notably Margaret Thatcher and Ronald Reagan. But Hayek also developed a theory of law, which he considered critical to his economic theories. Based on the common law, Hayek’s theory specified the legal rights and

doctrines he considered critical to the rule of law and free societies. Unfortunately, according to Hasnas, Hayek confused common law and customary law, rendering his theory of law self-contradictory. Hasnas compared Hayek to a person familiar with manual transmission automobiles suddenly introduced to “fluid drive,” a now obsolete version of automatic transmission. Because he knew civil law, Hayek attributed its topdown, rule-based nature to the common law, assuming that common law developed as it did because judges rather than legislatures formulated legal rules. In addition to the four-person speaker series, which included talks by Andrew Morriss, the Galen J. Roush Professor of Business Law and Regulation at Case Western Reserve University, Cardozo Law School Professor Daniel Crane and Georgetown University Research Professor Seth Tillman, the journal had an ambitious first year in which it also conducted a symposium called “Private Property & the Rule of Law.” ■

Exceeding First-Year Expectations: The NYU Journal of Law & Business

he Law School’s youngest publication, the NYU Journal of Law & Business, has surpassed even its founding members’ original ambitions by attracting substantial attention and finding timely and innovative articles to fill three large editions in its first year. The Journal of Law & Business was conceived by Editor-in-Chief David Chubak ’05, Managing Editor Christopher Murillo ’05 and Senior Notes Editor David King ’05. “We sought to create an enterprise that would give students opportunities and unique experiences involving the intersection of corporate law, strategy and management,” explained Chubak. A glance at the tables of contents of the first three issues confirms that the journal has, indeed, attracted academic scholarship on issues of law and business including, but not limited to, corporate governance and market policy, mergers and acquisitions, venture capital and private equity, bankruptcy and restructuring, capital markets, intellectual property and securities law. AUTUMN 2005

“Our goal is to be a timely and valuable resource that is read by our nation’s leading attorneys and scholars. We are not looking to merely take up space in law libraries and on Westlaw,” explained Chubak. The Journal of Law & Business has also created a forum for the educational development of students throughout the New York area. Guest speakers in the past year included partners at major firms such as Ira Millstein from Weil, Gotshal & Manges, and Glenn Colton, from Wilson Sonsini Goodrich & Rosati. Additionally, the journal provides opportunities for interaction between law students and legal practitioners through the consultation of its professional advisory board. The journal’s success has sparked growth in new areas. It has initiated a program designed to allow students to contribute and take prominent roles in writing articles in tandem with local attorneys, and will have its first symposium, on the topic of corporate compliance in the Sarbanes-

Oxley era, in 2005-06. Incoming Editor-inChief Marie Dalton ’06 commented, “Given the remarkable achievements the journal has attained in its first year of publication, we hope its second year will further fulfill this journal’s legacy of becoming a highly respected and valuable legal publication.” ■

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More Influence for Immigrants

hat political power do immigrants of color possess? This was the central question explored in a symposium organized by the Asian-Pacific American Law Students Association, South Asian Law Students Association and Latino Law Students Association. The first panel of the symposium, “The History of Minority Exclusion from the Political Process,” delved into the dispiriting history of roadblocks to immigrants’ participation. Burt Neuborne, the John Norton Pomeroy Professor of Law at NYU, remarked that the history of democracy was as much about exclusion as inclusion of certain groups. Pointing to laws prohibiting African Americans, nonlandowners and women from voting, Neuborne argued that the United States operates a class-based democracy in which the wealthiest and bestconnected two percent of the population, “super-citizens,” control the country’s political agenda. Acknowledging that minorities are not merely victims, however, Angelo Falcón, senior policy executive of the Puerto

Rican Legal Defense and Education Fund, pointed out that immigrants can hinder themselves. He emphasized the difficulty of discussing a single agenda for communities of color and stressed that tensions exist within and among immigrant communities. The lack of a clear agenda, he said, was due to both a “dispersal of interests” as well as community leaders’ “intellectual laziness.” In another workshop, Bryan PuFolkes ’94, the executive director of New Immigrant Community Empowerment, discussed the possibility of noncitizen voting in municipal elections with New York City Councilmember Charles Barron. PuFolkes’s explanation of the implications of majority-minority cities and neighborhoods was of special interest to some. The last panel discussion left participants with tools for action. In “Elections 2000, 2004, and a Vision for Moving Forward,” representatives from three organizations spoke of their plans to increase the political power of different immigrant groups. Renee Saucedo, the director of the San

Francisco Day Laborer Program of La Raza Centro Legal, argued that noncitizens must exercise political power despite not having the right to vote. Another panelist, Rupa Parekh of the South Asian American Voting Youth, discussed the challenges of getting young South Asians to the polls. Finally, David Moon, a program director at the Center for Voting and Democracy, argued that Electoral College reform and a system of proportional representation could help represent the interests of immigrant-based communities of color. At the conclusion of the symposium, law students of color were invited to a networking session with New York-based civil rights groups in Lipton Hall. Over 30 students took advantage of the chance to talk to potential employers. “We’re very happy to be here because it’s very important for us to keep working to make sure that our staff is as diverse as we can have it be, and the only way to do that is to do outreach,” said Adele Bartlett, supervising attorney with MFY Legal Services. ■

Scholarship Reception

Grateful scholarship recipients meet donors at the annual fall reception. Clockwise from upper left: Norma Z. Paige ’46 flanked by Paige Scholars from left: Stephanie Brannen ’07, Tatyana Levina ’07 and Jared Rose ’07; Donors Jay M. Furman ’71, second from left, and David Malkin ’67, with scholars; Herbert Hirschhorn ’32 (J.S.D. ’34) with Vilas Dhar ’07; Diane Creedon and John J. Creedon (LL.M. ’62), flank Creedon scholars Oona Peterson ’05, left, and Erin McCormack ’05; Kenneth M. Raisler ’76, right, with An-Bryce Scholar Jason Washington ’07, who graciously spoke on behalf of all the scholars.

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AUTUMN 2005

Barristers’ Ball

Fall Ball

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Around the Law School

The New York University School of Law continues to distinguish itself as a leading forum for the open exchange of ideas and viewpoints, and as a magnet for notable lecturers, scholars and guests. This past year was no exception. Above, SecretaryGeneral of the United Nations, Kofi Annan, delivered remarks at the 10th anniversary of the Hauser Global Law School Program.

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After 9-11

“Our leadership,” Hersh concluded defiantly, “is in la-la land.” While Hersh viewed Abu Ghraib through a cultural and political lens, the CHRGJ invited panelists to make a closer legal examination. In November, “From Torture to Trial: Guantánamo and Beyond” became the venue for critiques of the detention of alleged “enemy combatants,” which presents one of the starkest conflicts between individual liberty and state power. Panelist David Rose, an investigative journalist, said that the United States had “effectively created a hermetically sealed system” wherein detainees were presumed to

the extent to which the accused in these facilities were denied basic due process rights. They also rejected the legitimacy of military commissions, which restrict access to crucial evidence and don’t require the witness to face the accused, in lieu of trials. Fischer pointed out that the law is unclear on whether military commissions are legal. However, he also noted that due process rights are guaranteed under basic military law. Criticisms weren’t always directed at the Administration, however. At “Torture: The Road to Abu Ghraib and Beyond,” a September discussion sponsored by the CLS, the panelists—journalists Dana Priest of the Washington Post and Anthony Lewis of the New York Times, defense attorneys Joshua Dratel and Major Michael “Dan” Mori, Professor Stephen Gillers ’68 and Samuel Rascoff, former Special Assistant to Ambassador L. Paul Bremer—looked inward as they scrutinized the legal community and its complicity in the torture scandal.

be guilty. Rose disputed the claim that the harsh circumstances of the detentions had nonetheless produced good intelligence. “Torture and coercive interrogation are not effective…. Instead it gives the enemy extraordinary recruitment ammunition.” The panelists, who also included Reed Brody, special counsel for prosecutions with Human Rights Watch; Margaret Satterthwaite ’99, research director of the CHRGJ; and Miles Fischer, chair of the Committee on Military Affairs and Justice of the Association of the Bar of the City of New York, were shocked by

“When things get tough, the law disappears,” said Professor Burt Neuborne, who moderated the session. “What’s more, attorneys historically have aided and abetted in its disappearance. Law has been placed in the service of barbarity as often as it has been placed in the service of decency.” The panelists frequently referred to The Torture Papers: The Road to Abu Ghraib, a compilation of the Bush administration’s declassified memos and documents relating to torture that was coedited by CLS Executive Director Karen Greenberg and Joshua Dratel

“There was a before 9-11 and there was an after 9-11. After 9-11 the gloves come off.”—J. Cofer Black, former director of the CIA’s Counterterrorist Center By Ranjani Ramaswamy

our years after the terror attacks on New York and Washington, D.C., the Law School community has become an important resource in the national debate over the myriad issues relating to our post–9-11 world. Whether by inviting prominent experts to campus or by publishing books and drafting original research that has been disseminated worldwide, the Center on Law and Security (CLS) and the Center for Human Rights and Global Justice (CHRGJ) have been at the forefront of the discourse, wrestling red-hot issues like torture, torture by proxy, national security, war and nation-building and the legitimacy of international trials. More often than not the tone at the events was of concern that the U.S. uphold the liberties that make it a great democracy, even at a difficult period in the nation’s history. At times, this concern turned into criticism, as guest speakers and center scholars reacted to lowered standards for human rights and liberties.

Torture

Illustration by Alex Nabaum

erhaps no one knows more about moral consequences than investigative reporter Seymour Hersh. Decades ago he broke the story of Vietnam’s My Lai massacre. In 2004, as a staff writer for the New Yorker, he again used words and pictures to show the world the shocking torture and abuses at Abu Ghraib prison in Iraq. Last November, Hersh was invited by the CLS to talk about his latest book, Chain of Command: The Road from 9/11 to Abu Ghraib (HarperCollins, 2004), a severe indictment of the Bush administration for what Hersh called its ignorance, ideological agenda and overwhelming failure of leadership. He stressed that the support for Iraqi insurgents and the Baath leadership resulted from incompetent U.S. military policy and conduct, highlighted by prisoner abuse at Guantánamo Bay and Abu Ghraib. “The Muslim world sees this as torture, and to humiliate men in this way is against the Koran. Instead of getting the good intelligence you get when you establish rapport with people, we have committed grave international war crimes,” said Hersh. AUTUMN 2005

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and published last January. (See “Torture Papers Makes a Mark” on page 4.) In a notorious August 1, 2002 memo, U.S. Department of Justice Assistant Attorney General Jay S. Bybee wrote to then-White House Counsel Alberto Gonzales that international law prohibits only extreme acts that intentionally inflict severe pain or suffering, while permitting “cruel, inhuman, or degrading” treatment. “I was shocked. I was angry. I felt betrayed by people in my profession,” Gillers told the audience of several hundred students and community members. He added that the tone of the memos overall—“dismissive, absolute, certain, relentless”—stunned him as much as the content. “Even the fiercest lawyer in corporate practice,” wouldn’t give such advice without qualifying it, said Gillers. Two-time Pulitzer Prize-winner Anthony Lewis said that he was surprised that the Justice Department memos “read like the advice of lawyers for a Mafia don,” as opposed to the work of public servants. “Is there something we’re not doing in American law schools?” asked Neuborne, wondering if law schools trained their students to be overzealous. As The Torture Papers proved, one of the most effective ways that the CLS invites the public to scrutinize the administration is by publishing official records without too much commentary or spin. Last February the center released a fact sheet called the “Terrorist Trial Report Card,” a statistical analysis of all cases against terrorists since 9-11, which comprehensively outlined the charges, convictions, plea bargains and sentencing of the alleged terrorists.

Margaret Satterthwaite, back right, at Congressman Markey’s introduction of the Torture Outsourcing Prevention Act.

The results call into doubt the argument that coercive interrogation and abuse produces results. “Of the 120 terrorism cases recorded on Findlaw, the major information source for legal cases of note, the initial major charges leveled have resulted in only two actual terrorism convictions—both in a single case, that of Richard Reid, the notorious shoe bomber,” says Karen Greenberg.

Torture By Proxy

ore shocking than blurring the legal definition of torture, according to the CHRGJ’s Margaret Satterthwaite ’99, is the covert practice of torture outsourcing. Known as extraordinary rendition, the practice involves transfer of the accused to a country where they are more likely than not to be tortured. “Public condemnation

Panelists for the Center on Law and Security’s torture forum included, from left: Samuel Rascoff, Major Dan Mori, Joshua Dratel, NYU School of Law Professor Burt Neuborne and Dana Priest.

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might help shut Guantánamo down,” says Satterthwaite, “but the torture will continue in secret detention facilities if we don’t put an end to torture and the clever strategies used to propagate it. Numerous transfers to an environment of torture and over 30 disappearances (we know of ) since 9-11 is not lawful under any circumstances.” In October 2004, Satterthwaite and the CHRGJ published with the support of the Association of the Bar of the City of New York a white paper called, “Torture by Proxy: International and Domestic Law Applicable to ‘Extraordinary Renditions.’” The report set out the responsibilities of the U.S. government to investigate, prosecute and punish U.S. involvement in extraordinary renditions, including criminal prosecution wherever appropriate. (The impact of this report and others detailing instances of extraordinary rendition prompted the Italian government last June to investigate the role of CIA agents in the extraordinary rendition of Abu Omar, an Egyptian citizen who had been living in Milan. That investigation is ongoing.) The CHRGJ’s efforts paid off in February when Massachusetts Democratic Congressman Edward Markey introduced the Torture Outsourcing Prevention Act. Heavily supported by the research and reports of the center, the act reaffirms existing standards against extraordinary rendition and states that the practice violates U.S. law, policy and the various treaties it has ratified, such as the 1984 United Nations treaty that clearly states that “no exceptional circumstances whatsoever…may be invoked as a justification of torture.” In the statement she read at Congressman Markey’s press conference, Satterthwaite said, “Extraordinary rendition is prohibited by both domestic and international law, and we commend Congressman Markey’s efforts to end this odious practice.” Taking their fight against extraordinary rendition to the next level, the CHRGJ published “Beyond Guantánamo: Transfers to Torture One Year After Rasul v. Bush” in June, exactly one year after the Supreme Court’s ruling, which held that U.S. courts have jurisdiction to consider claims by foreign nationals captured abroad and which rejected the executive branch’s claim to complete freedom from judicial scrutiny even in Guantánamo Bay, Cuba. “As the pressure on the Administration to close the Guantánamo Bay facility intensifies...transfers to countries [where there is a risk of torture] is likely to increase,” says Satterthwaite. “Congress must ensure that the Administration does not resort to transfers and disappearances as a means of solving the Guantánamo problem.” AUTUMN 2005

Panelists and organizers of the Center for Human Rights and Global Justice discussion, from left: David Rose, Reed Brody, Margaret Satterthwaite, Miles Fischer, Smita Narula, Angelina Fisher and Hina Shamsi.

National Security

hen Thomas Kean and Lee Hamilton, the chair and vice-chair, respectively, of the 9-11 Commission, discussed their bestselling The 9-11 Commission Report: Final Report of the National Commission on Terrorist Attacks Upon the United States (W. W. Norton & Company, 2004), they reminded us all that indeed there was a “before 9-11.” The two were guests of the Center on Catastrophe Preparedness and Response last November, and they used the occasion to note that the attacks were caused by a failure of intelligence, communication and most importantly, “a failure of imagination.” Their concerns have not been appeased, however, as current policy has strayed from the commission’s recommendations. What America needed, said Hamilton forcefully, was international cooperation. “The struggle against terrorism is a generational challenge.”

War In Iraq

Reuters/Ho

rofessor Noah Feldman, a faculty codirector of the CLS, has had a rare vantage point regarding the war in Iraq. An expert of both constitutional law and Islam, Feldman was asked by the Coalition Provisional Authority in early 2003 to help them plan for Iraq’s constitutional design. In his 2004 book, What We Owe Iraq: War and the Ethics of Nation Building, Feldman argues that nation builders should focus on providing security, without arrogantly claiming any special expertise in how suc cessful nation-states should be made. Upon AUTUMN 2005

the book’s publication in November (see “Good Reads” on page 84), Feldman was invited by the CLS to speak at the Law School. He said it baffled him when people ask him to define the “we” in “What We Owe Iraq.” Each and every American as part of the collective United States, said Feldman, should assume the responsibility to restore peace in Iraq where the U.S. has robbed the country of security and order. Iraq has become a fascinating specimen for political theorists, Feldman said. Rather than progressing after the removal of Saddam Hussein, Iraq has descended into a Hobbesian state of nature. He questioned whether it is better to live in a dictatorship where one is tortured and killed by the government, or an anarchy where one is tortured and killed by random people. “There’s no way a reasonable person can think this was a good war with good implementation,” Feldman said. “There are 27 million in Iraq who did not ask us to invade.”

1990. The controversial decision to try the former Iraq leader in the country he once ruled, as opposed to an international tribunal, left some observers arguing that any trial will be blatantly political—so much so that it might both rally supporters of Saddam and simultaneously cast doubt on whether justice is being served. The November panel included New Yorker staff writer Mark Danner; Gary Bass, a Princeton University assistant professor of politics and international affairs; Tom Parker, the former U.K. special adviser on transitional justice in Baghdad and head of the Coalition Provisional Authority’s crimes against humanity investigation unit; and Professor Noah Feldman. NYU School of Law Professor Stephen Holmes, a faculty codirector of the Center on Law and Security, moderated. Iraqis are likely to view the upcoming trial of Saddam Hussein as a sham—“something that has the veneer of law, but has, in fact, come about through force of arms,” said Danner. “There are good reasons why people in the human rights movement are skeptical about national trials,” said Bass. For one thing, he said, international tribunals carry more moral weight than those of any one country. Another danger of the trial, said Bass, is that Saddam could foment unrest in Iraq by giving the same sort of speeches that Slobodan Milosevic has been wont to make in his trial in the Netherlands. Bass cautioned, “Saddam’s rhetoric of defiance will find an echo within the broader Middle East.” With the trial of Saddam Hussein scheduled for this November, time will soon tell whether these dire predictions will bear out. ■

The Trial Of Saddam Hussein

an international trials ever have legitimacy? Will Saddam Hussein’s trial turn into a media circus instead of a legitimate prosecution of a dictator who must answer for crimes dating back to 1974? In November 2004, a panel sponsored by the CLS mulled over the legal, political and cultural issues. Captured on December 13, 2003, Saddam Hussein was charged with killing and oppressing Kurds, assassinating political party members and illegally invading Kuwait in

Former Iraqi dictator, Saddam Hussein, awaits trial.

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In the past several years, the national conversation on capital punishment has increasingly focused on the morality of executing minors and the mentallyimpaired. But the death penalty for ordinary adults still remains a compelling topic at the Law School. By Wendy Davis

hile the U.S. Supreme Court and politicians continued to struggle last year with the appropriateness of the death penalty, NYU School of Law hosted a number of programs about capital punishment. Lawyers who represent death-row inmates fleshed out some of the more abstract legal issues with real-life anecdotes. Meanwhile, academics and judges with a variety of opinions debated whether the death penalty, especially for juveniles, has a place in the legal system.

Capital Defenders Make Their Cases

ast September, Bryan Stevenson, professor of clinical law and founder and executive director of the Equal Justice Initiative of Alabama (EJIA), inaugurated the 2004 Root-Tilden-Kern Monday Night Speaker Series by talking about his work representing capital defendants. During his lecture, “Confronting Injustice,” Stevens described some of the cases he has worked on in the last two decades. He detailed the case of Walter McMillian, a black 45-year-old pulp-wood worker, who despite the testimony of several witnesses that he was at home working on his truck at the time of the crime, was held on death row for 13 months before going to trial. Stevenson conveyed the palpable hopelessness of the local black community, and how some despaired of bringing children into a world where this type of injustice was routine. Stevenson took McMillian’s case, and after the three witnesses who had implicated McMillian admitted to giving false testimony, all charges were dropped and he was released after six years on death row. But not all of his cases have had happy endings. One of the most heart-rending anecdotes came from one of Stevenson’s earliest cases with the EJIA. On the day of his execution, moments before he was

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pulled away and strapped into an electric chair, a man that Stevenson had not been able to save told him, “More people have asked me if they can help me in the last 14 hours than anyone has in the last 19 years.” Criminal defense lawyer Dennis Riordan came to the Law School at the end of March to discuss the case of his client, death row inmate Damien Echols, who, along with Jessie Misskelley and Jason Baldwin, was convicted of the 1993 murders of three 8year-old boys in Arkansas. The killings appeared to have been carried out ritualistically and, Riordan said, the prosecution secured convictions by portraying the defendants as Satan worshippers, in part because they dressed in black and were interested in occult mysticism.

Misskelley was sentenced to life plus 40 years, Jason Baldwin received life without parole and Echols, the lead defendant, was sentenced to death. He is still on death row. A 1996 HBO film about the case, Paradise Lost: The Child Murders at Robin Hood Hills, helped galvanize national support for Echols and the other defendants, with many now believing the men were wrongly convicted. Riordan told the NYU audience there was no physical evidence, motive or connection between the defendants and the victims. Instead, the prosecution relied heavily on an error-filled confession extracted from Misskelley, who has an IQ of 72, and on the fact that the defendants were misfits in West Memphis who wrote dark poetry and liked to read Stephen King novels. “Echols and Baldwin were convicted on the Misskelley statement, a statement that is demonstrably false, and that the jury were supposed never to have heard, and legally should not have been submitted,” said Riordan. “There was no way that these two kids were not going down like a rock in that community at that time.” While a lack of physical evidence may not convince a jury of innocence, unequivocal DNA evidence may overturn a conviction. In January, the Innocence Project’s Executive Illustration by Alex Nabaum

The Death Penalty

Judge Alex Kozinski

Professor Burt Neuborne

Director Madeline deLone ’94 and staff attorney Vanessa Potkin were joined by their client Clark McMillan for a Root-Tilden-Kern Monday Night Speaker Series appearance. The Innocence Project at the Benjamin N. Cardozo School of Law at Yeshiva University works to exonerate the wrongfully convicted through postconviction DNA testing. The project handles only cases where postconviction DNA testing can yield conclusive proof of innocence, which was the case with McMillan, who was cleared of rape and robbery charges after spending 22 years in jail. McMillan is one of more than 150 people to have been exonerated by DNA evidence. DeLone told the audience that a vast majority of the exonerees (87 percent) were convicted based on mistaken eyewitness identifications. She attributed much of those errors to bad police procedure in conducting lineups and other forms of pretrial identification. The Innocence Project is lobbying for eyewitness identification reforms, a moratorium on the death penalty and for postconviction rights to DNA testing.

The Juvenile Death Penalty

The other panelists were less certain. Christina Swarns, director of the Criminal Justice Project at the NAACP Legal Defense and Education Fund, said that the death penalty is disproportionately imposed on juveniles of color. Mary Hahn, a lecturer in law and supervisor of the Lowenstein Clinic in International Human Rights at Yale Law School, pointed out that the United States is among the very few countries that permit the execution of minors. Jeffrey Fagan, professor of law and public health at Columbia Law School, said that far fewer juveniles are sentenced today than a decade ago. The drop, he says, reflects a growing view that executing juveniles is especially problematic.

Kozinski, a noted libertarian, argued that the death penalty is a legitimate option and that despite evidence that innocent people have been wrongly convicted and executed, “if you accept a justice system with proof beyond a reasonable doubt,” rather than one based on proof beyond all doubt, “you should accept the death penalty.” He argued that capital punishment serves as “an expression of moral outrage of the community” and is the only foolproof way to protect others from becoming victims. “There’s only one category of people that doesn’t kill again, and that’s the people who have been executed.” Neuborne also invoked morality but as a reason to oppose the juvenile death penalty.

“More people have asked me if they can help me in the last 14 hours than anyone has in the last 19 years.” —A condemned man, moments before execution.

About four months later, the U.S. Supreme Court ruled in Roper v. Simmons that executing defendants who were under 18 at the time of the crime was unconstitutional. Roper did not, however, end the debate. Just one week after the decision was rendered, the NYU chapters of the Federalist Society and the American Constitution Society invited Ninth Circuit Court Judge Alex Kozinski and Burt Neuborne, John Norton Pomeroy Professor of Law at NYU, to wrestle with the death penalty in front of an overflow crowd of more than 200 students.

He said Roper followed the tradition of Brown v. Board of Education, in that neither history nor textualism guided the justices. Moral philosophy did. “Justice Kennedy effectively declares in the opinion, ‘I’m making an individual moral choice—that I cannot conceive of an appropriate moral situation in which it would be appropriate to execute a 16-yearold or a 17-year-old,’” Neuborne said. “To have an institution that intervenes on behalf of the weak and to say there’s no moral limit on what they can do, that is not something I apologize for,” he concluded. ■

n October, about two weeks after the U.S. Supreme Court heard oral arguments in Roper v. Simmons, a case concerning the juvenile death penalty, professors and practicing lawyers on both sides of this emotional issue presented their divergent views at a panel discussion sponsored by two student organizations, Law Students Against the Death Penalty and Law Students for Human Rights. New York Law School professor Robert Blecker took the controversial stance that the “worst of the worst” of juvenile offenders shouldn’t be spared. For instance, he said, consider the case of Mark Anthony Duke. At age 16, Duke shot his father and his father’s girlfriend and then slit the throats of their 6-year-old and 7-year-old daughters. “He’s evil. He’s vicious. He deserves to die. I’m certain of that,” said Blecker, a nationally known death penalty proponent. AUTUMN 2005

Moderator Steven Hawkins, left, along with panelists Christina Swarns, Robert Blecker, Jeffrey Fagan and Mary Hahn, discussed juvenile executions.

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Election 2004 With the nation fighting a controversial war, the 2004 Presidential election was one of the most hotly contested in history. Unknown until November 2: Would Ohio become the vortex of voter irregularities that Florida was in 2000? Would young, liberal Americans get to the voting booths in high enough numbers to unseat a wartime president? By Wendy Davis

ast year’s U.S. presidential elections brought politics to the Law School and sent students and faculty into the world. In the weeks leading up to November 2, students campaigned for candidates, while professors debated matters ranging from whether the war in Iraq would influence the election to whether the Electoral College should be eliminated. Even after George W. Bush was reelected, professors and politicians continued to dissect the data and analyze what really won America’s vote.

Reading the Election Tea Leaves

ith memories still strong of the 2000 presidential election—in which Al Gore won the popular vote, but George W. Bush won the presidency—law professors came to the Law School in October to debate whether the Electoral College should be reformed. The week before the election, the NYU School of Law chapter of Just Democracy sponsored a debate between Yale Law School Professor Akhil Reed Amar and Professor Samuel Issacharoff.

Amar criticized the Electoral College as a “relic” that no longer serves a useful purpose. Replacing the Electoral College with direct elections would encourage people in every state to vote, Amar said. Issacharoff, on the other hand, said he doesn’t see a problem with splitting the population into smaller voting segments. “The framers had very little commitment to direct political power unmediated by some sort of control by the states,” Issacharoff said. That same week, NYU School of Law professors John Ferejohn, Rachel Barkow and Stephen Holmes participated in a panel that explored some of the broader issues that the current campaign has raised, while Professor Avishai Margalit, Schulman Professor of Philosophy at the Hebrew University and Hauser Global Law School Program visiting fellow, gave an international perspective on the presidential election. Ferejohn expressed surprise that, just days before the election, political scientists were unable to predict a winner from their empirical studies. Barkow chalked up the perplexing state of polling data to the media’s failure to accurately shape the issues that dominated this presidential campaign. For instance, Barkow said, much of the postdebate coverage was about Bush and Kerry’s body language and eye contact rather than the substance of their remarks. Margalit said he saw an increased “Israelization” of American politics. Since the September 11 terrorist attacks, campaign topics are personal safety, terrorism and war—issues with which Israel is all too familiar. These are the “politics of fear,” which have unfortunately masked the underlying source of this fear, he said. Holmes added that the current electorate does not have an adequate basis to form an intelligent opinion because the government is increasingly opaque. “In war,” he said, “citizens get less privacy and the government gets more secrecy.”

Rallying Voters

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Illustration by Alex Nabaum

he last weekend in October 2004, more than 50 students who supported Senator John Kerry took a nine-hour van ride to the Midwest, to rally support in the crucial swing state of Ohio. The students, organized by the Law Democrats and Matthew Hand ’05, knocked on doors, worked the telephones, dropped off leaflets at people’s homes and did paperwork at campaign headquarters. One volunteer, Jay Wilson ’06, wrote of the experience in an essay published on the Law School’s Web site. His favorite task, he wrote, was “visibility”—going to street

Some packed air mattresses; others simply brought a toothbrush. In swing states such as Ohio, community centers became improvised dormitories for Democrats canvassing for John Kerry days before the 2004 election.

corners with a group of 15 to 20 other volunteers and waving signs at passing drivers. “Motorists in turn would honk and wave and we responded by yelling or jumping up and down,” he wrote. Election day saw Wilson and others rising at 3:45 a.m. to monitor polling stations. They redirected voters who showed up at the wrong site and advised people how to cast provisional ballots. Election officials tapped one volunteer, Christopher Pelham ’05, to enter the polls and help process voters. “This unusual move by the precinct election judge showed just how desperate the situation was in some places,” wrote Wilson. The trip home, however, was “somber” for the Democratic volunteers. “As we crossed western Pennsylvania…we heard Kerry’s concession speech on the radio. Some students shed tears as they listened, while others simply stared out the windows.”

Postelection Analysis

reelection concerns that the 2004 election would be marred by voting irregularities of the kind that cast so much doubt on the results of the last election, did not play out. Visiting Professor Nathaniel Persily analyzed the voting procedures and found lots of problems, but not enough to question the results. Persily, an assistant professor of law and political science at the University of Pennsylvania Law School, said most of last year’s voting troubles fell into the category of “regular irregularities”—ones that appear every election cycle, such as long lines, incompetent poll workers, partisan secretaries of state, voter error, fraudulent registration and ballot fraud. This year the problems were exacerbated by the high

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voter turnout, but the issues were for the most part similar to previous years. The only unique set of problems in this election came from new voting technology. One widely reported problem occurred in Gahanna, Ohio, where an electronic voting machine recorded 4,238 votes for Bush at a polling site in which only 638 people voted.

That the election turned out to be anticlimactic was confirmed four months later, when former Oregon Senator Robert Packwood ’57 and former U.S. Housing Secretary Andrew Cuomo analyzed the election results in what had been billed as a partisan debate. The event was less of a debate than expected. Though Packwood is a Republican and Cuomo a Democrat, both speakers indicated that they shared similar opinions about the last presidential election. Both agreed that gay marriage gave Bush an unexpected edge, when a November 2003 decision of the Massachusetts Supreme Judicial Court— which held that gay couples had a right to marry under the state constitution—galvanized conservatives to turn out the vote. Additionally, they both agreed that Bush’s certainty in his beliefs gave him an advantage over Kerry—even though many voters might not have agreed with Bush’s views. “In a time of war,” said Cuomo, “that certitude gave people confidence.” Packwood agreed. “The public, I think, for better or worse, gives Bush credit for standing firm on the issues.” ■

Professor Rachel Barkow lamented that the media examined Bush and Kerry’s body language more closely than the substance of their remarks. New voting technology, however, also cured other problems. One notorious form of old voting technology, the punch card ballot, often leads to overvoting or undervoting, in which a ballot records a vote for two candidates or no candidates at all. In the states with new technology, this problem was solved. Unfortunately, some states still use the old technology. In Ohio, a hotly contested state that still used the punch card ballots, 76,068 punch card ballots recorded no votes for president. Another potential controversy stemmed from the long lines at the many polling places in Ohio, resulting in thousands of citizens leaving without voting due to the wait. But, despite the irregularities, in the end voter turnout decided the election, Persily said. “The fact that Republicans were able to counter the Democrats’ get-out-the-vote drive with their own meant that Republicans were ultimately able to win the election.” A trusted name in Election 2004 analysis: visiting professor Nathaniel Persily

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Animal Law How do you protect the interests of beings that have no legal standing? Can you equate the treatment of animals to historical abuses of segments of the human race? These are the kinds of questions that a growing body of lawyers and law students are exploring through animal law. By Delcianna Winders ’06

Illustration by Alex Nabaum

ark! Who goes there? With about 50 law schools offering it as a course of study, animal law is emerging as a serious legal academic field. In its ninth year, the NYU chapter of the Student Animal Legal Defense Fund (SALDF) was particularly active, hosting several events a month and sending participants to Harvard Law School to participate in the National Animal Advocacy Competition. Further evidence of animal law’s growing popularity is that non-animal-focused organizations cosponsored events with SALDF. The tone for the year was set last fall when renowned philosopher Tom Regan—often called the philosophical father of the modern animal rights movement—discussed

his book Empty Cages: Facing the Challenge of Animal Rights to a capacity crowd in Greenberg Lounge. The book, published in 2004, explores the ways in which our legal system often operates to legitimize institutionalized cruelty to animals used for food, clothing and research. Most of the speakers throughout the year focused on challenging cultural attitudes toward animals. Most controversially, Charles Patterson, the author of Eternal Treblinka: Our Treatment of Animals and the Holocaust, was the guest of SALDF in November. He argued that the justification for killing animals because they are lesser beings shares certain similarities to the historical justifications offered for genocide. The holocaust wasn’t the only historical analogy that came up throughout the

year. Dr. Paul Waldau, director of the Center for Animals and Public Policy at Tufts University spoke in February as part of the Public Interest Law Center’s Monday Night Speaker Series on “Animal Law, Cultural Change and Public Policy.” Waldau emphasized the cultural transitions underlying the increased attention to animal suffering in our society, and the relationship between law and culture. He suggested that subtle shifts in language can make a serious difference, encouraging students to speak of “nonhuman animals” instead of just animals. “The cultural shifts are not going to come easily,” he said, just as, for example, “ending race-based slavery was hard.” Indeed, Steven Wise, another SALDF speaker, underscored the lessons animal law can draw from previous legal transitions, while also being attentive to the distinctions between animal law and historical legal transitions focused on human populations. A legal historian and animal law practitioner with over 20 years of experience, Wise visited the campus last year with sponsorship from the Office of the Vice Dean. Author of the ground-breaking book Rattling the Cage: Toward Legal Rights for Animals, which has shaped the terms of animal law discourse, Wise discussed his most recent work, Though the Heavens May Fall: The Landmark Trial that Led to the End of Human Slavery, just weeks after it was

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The Lone Wolfson This spring, the NYU School of Law will offer Animal Law for the first time. David Wolfson, a mergers and acquisition specialist and partner at Milbank, Tweed, Hadley and McCloy, will teach the course as an adjunct professor. He is a leading animal law litigator and scholar, whose animal law courses at schools including Harvard and Yale have consistently been praised by students. Wolfson’s course at the Law School will explore such topics as legal standing and the challenges it poses for litigating on behalf of animals, the legal status of animals as property, and the knotty, controversial implications of recent proposals for various forms of legal “personhood” and legal rights for animals. The cochair of the NYU chapter of the Student Animal Legal Defense Fund, Delcianna Winders ’06, talked with Wolfson in July to get to know him a little better.

featured on the cover of the New York Times Book Review. He read from this narrative of slave trials, contextualizing the legendary decision that led to the abolition of slavery in England and elsewhere. After analyzing the decision and the factors leading up to it, he turned to a discussion of what this momentous historical legal shift can teach those practicing and studying animal law today. An event with Joan Dunayer emphasized the ways in which language shifts are emblematic of underlying cultural shifts, both historically and today. Dunayer has graduate degrees in literature, education and psychology, and has written two books on speciesism, the failure to accord consideration and respect to nonhuman animals based on species alone. She presented ways in which speciesism plays out in philosophy, law, language and activism. Some speakers took a different tack altogether, relying on their art work to explore the position of animals in our society. Photographer Frank Noelker, for example, presented a slideshow of his recent zoo portraits, which explore the nature, purpose and implications of zoos; author and artist Marjorie Spiegel showed her powerfully graphic photodocumentary series “Them: A Look Inside Slaughterhouses.” Both events challenged their audiences with moving and often disturbing imagery, affording a unique perspective on our relationships with animals and their shifting positions in contemporary society. The consistency of the message from the year’s guests points to a shift underway in the way animals are viewed and treated. The fact that the Law School will offer its first animal law class in Spring 2006 is proof of that. ■ AUTUMN 2005

Do you feel a particular responsibility being the very first professor to teach animal law at NYU? Yes, because the law students have been trying to get this animal law course for a very long time. The students at NYU are probably some of the most committed students on this issue. So to actually have them succeed and have the course offered and to teach it is great. What exactly is animal law? On the one level is the sort of black letter law—what laws relate to animals, how much do they cover, how well are they enforced. But on the other level animal law is looking at: Is the way we currently treat animals legally appropriate? What are the differences between humans and nonhuman animals to justify the way we treat them under the law? Should we question whether they’re classified as property? The whole concept of justice. What are the most important practical issues in the field? Just how the laws work and how they’re enforced. And to understand that you have to understand the system. In particular you have to understand state criminal law and then federal administrative law. So it’s a very practical legal field. How do you describe the course that you teach in particular? I focus more on the history and the philosophy. I try to get an understanding of where we come from, why do we think this way. Maybe a little bit more on the science behind how animals are understood today. Another fact that makes me different is that I am a corporate mergers and acquisitions lawyer. I’m a partner at a Wall Street law firm. That has to influence me, maybe focusing more on the economic side of arguments. Certainly a focus of mine is the emotional side. You can’t talk about animal issues without recognizing why people are getting so upset and dramatic. I try to bring that into the course.

Adjunct Professor David Wolfson conversing with Delcianna Winders.

What is the most important contribution that NYU in particular can make to the field? Presuming that it’s a popular course, that it becomes part of the curriculum. In time, you want to encourage a whole host of academic, and legal behaviors that you would in any other issue. So you want to promote conferences, for example. For some reason there is a very active group of lawyers that practice animal law in this town. There’s an animal law section of the Association of the Bar of the City of New York and the New York State Bar Association, there are a number of lawyers that do pro bono work; there are a number of lawyers that do it full time. And so I think the Law School has a terrific, terrific opportunity to train law students who want to actually practice while they’re in law school. A clinic-type operation would be great. Where do you see the field of animal law going in the next 10 years? It’s so hard to predict. In the next few years we’ll move from a subject that’s on the fringe to where it’s treated with real credibility. And then we’ll move into the realm that all law movements move into, which is working on legislation or in the courts, and it will become a public policy-type of a movement. Do you see animal law becoming a foundational part of legal education? I see no reason why it shouldn’t be, given the unbelievable involvement between animals and humans in our society. I mean humans interact either with live animals or the parts of dead animals in such an unbelievable way, it seems to me strange to not focus on it. What sorts of career options are out there for students interested in animal law? The more society cares about the issue, the more there will be opportunities for lawyers to do something. The thing that drew me to animal law initially and has made me particularly lucky to participate in it, is that it is the beginning of a social justice movement; it’s the beginning of a legal field within the law. And it’s going to just develop and develop.

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Hearing JFK’s Call to Service The Eighth Annual Attorney General Robert Abrams Public Service Lecture

lowing with idealism after law school, the future Wisconsin Governor James Doyle provided legal services for the Navajo Nation in Arizona. One client’s truck had broken down after buying it from a dealership, and the interest rate given wasn’t accurately disclosed, violating the Truth in Lending Act. Filing a class-action suit on behalf of all the customers, Doyle— admitting he was a little full of himself—was excited about handling the case and was boosted by successes in the lower courts. Reality hit when his client came back to him two years later and asked if he might get his truck anytime soon. “Public service isn’t what I decide it is,” Doyle said last January. “It’s making sure my eyes are open and I understand what people need.” Doyle shared his experiences at the Eighth Annual Attorney General Robert Abrams Public Service Lecture, which presents accomplished lawyers discussing their public service work. Doyle’s career in the public sector includes three terms as district attorney, three more as Wisconsin attorney general, and his first term as governor—the first Democrat in over 16 years. First inspired by President John F. Kennedy’s call to public service, Doyle joined the Peace Corps after completing his undergraduate degree. Filled with hopes of changing the world, he came to some realizations during his assignment in Tunisia.

Healy Lecture

John Kimball, left, and Paul Niemeyer

The Honorable Paul V. Niemeyer of the U.S. Court of Appeals for the Fourth Circuit was the speaker for the Seventh Biennial Nicholas J. Healy Lecture on maritime law. Judge Niemeyer spoke on the laws regarding treasure salvage.

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“This village had survived for thousands of years,” Doyle said. “And I, with a B.A. in history, wasn’t going to save anyone.” The experience led him to Harvard Law School after he realized he needed a practical skill if he was to make an impact. Law school provided him with the tools he needed, but Doyle said getting over his grandiose ideas was an equally important part of becoming a better public servant. As governor, Doyle’s vision is more comprehensive than in his early career. Since 2003, he has launched a controversial Web site for purchasing cheaper prescription

drugs from Canada, increased funding for public schools (while balancing the budget), advocated a kindergarten program for 4-yearolds and pushed for smaller class sizes. Doyle said he now sees the flaws of the anti-money, don’t-sell-out philosophy of the ’60s. The governor, who loved the eight years he spent in private practice, noted that many of Wisconsin’s child care centers, and a program funded by the Gates Foundation to make larger high schools into more effective institutions, wouldn’t be possible without private capital. The lecture’s namesake, former New York State Attorney General Robert Abrams ’63, added Doyle’s “great jump shot” to his achievements, and remarked that, “Jim Doyle is the paragon of how you can be engaged in politics and still be a person of integrity and decency.” ■

“Ask not what your country can do for you…”: Wisconsin Governor James Doyle, center, with Dean Richard Revesz and former New York State Attorney General Robert Abrams

Esther Chavez Cano: Defender of Women

ver the past 10 years, more than 350 women have been found raped, murdered and mutilated in and around the border city of Juárez, Mexico. Except for a few confessions extracted under torture, no one has been charged. In fact, local police have actively thwarted efforts to investigate. One woman has been campaigning to raise international awareness of the horrors that plague her home town. Esther Chavez Cano continued to spread her message as she gave the 11th Annual Rose Sheinberg Lecture last October. When the killings started in 1993, Cano was well into her 60s and had just opened a small boutique in Juárez. Whenever a woman was found dead, she would close her store as a sign of sorrow and remem-

brance. But even as the death toll mounted, nothing was done. A powerful advocate for women’s rights, Cano opened a safe haven called Casa Amiga (Friendly Home) in 1999, and has continually clashed with the Mexican government as a result. Cano’s lecture was introduced by Eve Ensler, author of The Vagina Monologues. “There are a few people who you meet in your life who change your life,” she said, “and Esther Chavez Cano is one of these. She is my friend and I admire her beyond words.” From behind the lectern, in soft Spanish translated by an interpreter, Cano chilled the room with examples of appalling brutality. “Women here are unable to develop their full human potential due to the denial of AUTUMN 2005

Root-Tilden-Kern Monday Night Speaker Series 2004-05 The Abrams Public Service lecture is part of the RTK speaker series. In addition to Jim Doyle, other speakers included: “Confronting Injustice,” Professor of Clinical Law Bryan Stevenson, executive director, Equal Justice Initiative of Alabama, September 13, 2004. “Racial Injustice in the War on Drugs: Lessons in Advocacy from Tulia, Texas,” Vanita Gupta ’01, assistant counsel, NAACP Legal Defense Fund, September 20, 2004. “Using Your Law Degree to Do Good,” Steven R. Banks ’81, attorney-in-chief, Legal Aid Society, September 27, 2004. “Public Education Policy at the Federal, State and Local Levels: What’s a Lawyer to Do?” Amanda Broun ’82, senior vice president, Public Education Network in Washington, D.C., October 11, 2004. “Prosecuting Terrorist Support Networks,” Cherie L. Krigsman ’92, trial attorney, U.S. Department of Justice, October 25, 2004. “A New Vision for Public Education,” Chancellor Joel Klein, New York City Department of Education, November 1, 2004. “From NYU to the California Water Wars: 20 Years as an Environmental Advocate,” Hamilton Candee ’83, senior attorney and codirector, Western Water Project, Natural Resources Defense Council, November 8, 2004.

their right to bodily integrity and their right to travel,” she said. Still, the reasons for the situation remain murky. One possible culprit is Juárez’s proximity to El Paso, just across the border in Texas where an estimated 700 convicted sex offenders have been sent following their release. Combine this with a culture of misogyny and police corruption, and the scene is set for a hellish array of sex crimes dubbed the “Maquiladora (Factory) Murders.” For the past five years, Cano has worked with Ensler to support V-Day, a global movement to stop violence against women. Last year, V-Day organized 7,000 women and men to march on Juárez. Still, the murders continue. “In Juárez, the violence is right in your face, and in the summer, the earth cracks open from the heat,” said Cano. ■ AUTUMN 2005

“Strategies for Combating Domestic Violence: Ghana and Sierra Leone,” Nana Afadzinu, former coordinator, National Coalition on Domestic Violence in Ghana, and Hanatu Kabbah, deputy director and cofounder, Lawyers Centre for Legal Assistance in Sierra Leone, November 22, 2004. “A Presentation on the Exonerated,” Madeline deLone ’94, executive director, and Vanessa Potkin, staff attorney, The Innocence Project, and Clark McMillan, exoneree from Memphis, Tennessee, January 31, 2004. “Combatting the War on Drugs: A Multifaceted Approach to Public Interest Lawyering,” Daniel N. Abrahamson ’91, Drug Policy Alliance, February 7, 2004. “Animal Law, Cultural Change and Public Policy,” Dr. Paul Waldau, Center for Animals and Public Policy at Tufts University School of Veterinary Medicine, March 7, 2004. “Scholarship in the Public Interest,” Professors Randy Hertz and Deborah Malamud, and Kirsten D. Levingston, program director, Brennan Center Criminal Justice Program, March 21, 2004. “Using a Multi-Pronged Strategy to Advance Women’s Rights in Colombia,” Monica Roa (LL.M. ’03), director of Gender Justice, Women’s Link Worldwide, March 28, 2004.

Esther Chavez Cano reflects on a decade of unpunished violence against women.

Columbia law professor Kendall Thomas, left, with Professor Derrick Bell

Silent Racism Bigotry is the subject of the Bell Lecture

he United States is on the verge of a “putatively post-racial age,” where the very word “race” appears to be disappearing from public discourse, said Kendall Thomas, the Nash Professor of Law at Columbia Law School. Speaking at the Ninth Annual Derrick Bell Lecture on Race in American Society, Thomas cautioned that racism itself is far from obliterated. “Both the phenomenon of racism, and the need to understand it, will not disappear if everyone stops talking about race tomorrow,” he said. In his speech, “Condoleezza Rice and Wanda Jean Allen,” Thomas examined the role of race in the trial of Wanda Jean Allen, a black lesbian executed by Oklahoma after being convicted of murdering her girlfriend. Thomas proposed that the prosecution tried to “masculinize” Allen at trial not only to play on antigay sentiment among the jurors, but to more subtly evoke the “dangerous deadly hyper-masculinity of black man” in the defendant. At trial, the prosecution told the jury that Allen was the dominant, supposedly male partner in the relationship. Thomas explained that the prosecutor even brought out evidence that Allen sometimes signed her name “Gene,” rather than the feminine “Jean,” on cards to her girlfriend. “Consciously or not, the prosecution used its homophobic hand to play…race cards,” said Thomas. Such tactics, he said, show that race can be injected into trials through imagery, even when the word isn’t spoken. Thomas also spoke about what he terms the “politics of enjoyment,” or the pleasure derived by some death penalty advocates from executions. In Allen’s case, it manifested itself in “the smug, barely concealed delight Oklahoma officials seem to take” in her impending death sentence. ■ THE LAW SCHOOL

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Original Intent v. Dynamic Interpretation Judge Wood delivers the James Madison Lecture

ould a disdain for communes illustrate a dynamic view of the U.S. Constitution’s meaning? Judge Diane Wood of the U.S. Court of Appeals for the Seventh Circuit thought so, and argued that the U.S. Supreme Court’s broad interpretation of the Constitution enabled it to strike down a 1960s law that allowed only family members to live together in the city of East Cleveland, Ohio. At last October’s annual James Madison Lecture, Wood, a senior lecturer in law at the University of Chicago Law School and the first woman to hold a named chair at the school, made her case for interpreting the Constitution dynamically rather than literally. Wood said that the Court’s view in the East Cleveland case—that certain rights are implicit in the language of the 14th Amendment’s “liberty” clause—shows that the 200-plus-year-old Constitution is a document that changes with the times. “If we really had the narrowly literal Constitution, it would be ready for the dustbin, unless it was amended significantly,” Wood remarked. Wood pointed to “judicial elaborations” made to the constitutionally mandated structure of the government, such as the creation of independent administrative agencies from the New Deal to the current Sentencing Commission, as well as the right of the president to take military action without consulting Congress, which holds the power to declare war. Yet, she said, the “sound and fury” emanating from “original intent” advocates opposed to those with a more flexible view often escalates when discussing individual rights, such as how we

define “unreasonable,” “just compensation” or “cruel and unusual punishment” in the Bill of Rights. The Court’s generous take on our constitutional rights has been critical to our leadership in international human rights, Wood added. Many of the human rights guaranteed in treaties are not specifically spelled out in our Constitution, but most are protected as a result of judicial interpretation. “If our understanding of our own Constitution were more cramped,” said Wood, “we would be forced to admit that there is no secure constitutional foundation for these international human rights norms.”

Judge Diane Wood, second from left, with her 2004-05 clerks, Peter Leckman, Heather Lewis and Tai Lui Tan.

Toward a Grand Strategy Gary Hart says the U.S. lacks a defining principle

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t the end of August 1991, the Soviet Union collapsed and America lost its central organizing principle,” said former Senator Gary Hart during a lecture at the NYU School of Law. The former member of the U.S. Senate’s Armed Services Committee, two-time presidential candidate and author of The Fourth Power: A Grand Strategy for the United States in the Twenty-First Century, spoke on national security and U.S. strategy at the invitation of the Law School’s Center on Law and Security and the NYU Center for Catastrophe Preparedness and Response.

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It’s time, Wood said, to end this debate between those who think the Constitution should be taken at its literal word and those who see the document as a living, evolving guide that serves the country over time, just as the Framers intended. Any mistakes can be, and have been, corrected by Court decisions or, when absolutely needed, by constitutional amendment. The alternative generates a Texas constitution, Wood said, one that has been amended 432 times and runs more than 140 pages. “Our 18th-century Constitution, while a bit cryptic at the edges,” Wood concluded, “is a real treasure.” ■

Hart said the central organizing principle—the containment of communism— emerged after World War II out of the National Security Act of 1947 and created the Central Intelligence Agency, the National Security Council and the “Long Telegram” on Soviet policy, written by George Kennan and published in 1947 by Foreign Affairs magazine. Containment drove U.S. policy and action for the next 46 years. Hart argued that the United States currently needs a “grand” strategy for the 21st century, and had even suggested creating a group to consider the nation’s direction in a

memo to President Clinton. Hart described the administration’s approach in the words of former National Security Advisor Sandy Berger: “We don’t have a strategy. We deal with things as they arise.” A grand strategy, Hart said, is determined by defining our powers—economic, diplomatic, political and military—and the country’s core principles, and then using those powers to achieve our purpose. Hart described the four revolutions that have occurred since 1991 which make this strategy an imperative. In the mid-’90s, economic (globalization) and information (the Internet) revolutions took place. These were followed by the diminishing power of nations and the shifting definition of war as involving violent non-state actors. AUTUMN 2005

Does Taiwan Need Its Own Constitution? Chinese law scholars debate a new constitution at the Gelatt Dialogue

he constitution foisted on Taiwan in 1947 by former Chinese leader Chiang Kai-shek has become “a major source of political instability and confusion,” said Lung-chu Chen at the Tenth Annual Timothy A. Gelatt Dialogue on Law and Development in Asia, sponsored in cooperation with the Council on Foreign Relations. “We need a constitution of our own, not something that has been imposed on us,” said Chen, a professor at New York Law School, and an adviser to Taiwan’s pro-independence Democratic Progressive Party. The current constitution, said Chen, exemplifies a charter “applied to the wrong place, at the wrong time, to the wrong people.” Joining Chen in the program, moderated by Professor Jerome Cohen (LL.M. ’64), were Law School Professor Frank Upham, Professor Wen-Chen Chang of the National Taiwan University School of Law, and Professor Michel Rosenfeld of Cardozo Law School. In Taiwan, constitutionalism is tied to the question of independence from the People’s Republic of China. Although Taiwan and China have been separate for more than 50 years, some view a new constitution as the first step toward pronouncing independence, as China still claims jurisdiction over Taiwan. Chen Shui-bian, recently reelected as president of Taiwan, supports a new constitution for the country, while China holds it will oppose any attempt by Taiwan to declare autonomy. To Chen, Taiwan’s need for a constitution outweighs any opposition from mainland China. “Creating a new constitution appears to be imperative,” he said.

While the 9-11 terrorist attacks reflect these last two revolutions, Hart, who cochaired the U.S. Commission on National Security for the 21st Century, argued that fighting terrorism isn’t a sufficient principle to guide this country through the century. “What does security mean?” he asked. “Ten people will give you 10 different answers. To some it’s having a steady job, while to others it’s not worrying about pollution from a power plant impairing their health. To some it’s creating a better energy policy so we don’t have to send people into Gulf War III because of our dependency on foreign oil.” Today’s challenges have two things in common, Hart pointed out: None lend themselves to an easy solution and none can be solved by one nation alone. AUTUMN 2005

Professors Jerome Cohen, Wen-Chen Chang, Frank Upham, Michel Rosenfeld and Lung-chu Chen discuss what makes a constitution.

Other speakers expressed more hesitation. Rosenfeld indicated certain countries don’t depend on a constitution for individuality. Germany and France, he said, would maintain their national identities regardless of their constitutions. The United States, on the other hand, would be “very difficult to imagine without its constitution.” Upham added that a national charter might not be essential. “What’s in a constitution as a document is not very important in the short-run,” he said. Japan has a constitution (imposed by the United States after World War II), but politics in the coun-

“You can’t send peacekeepers into a combat zone,” Hart said, referring to the genocide in Darfur. “We should take the lead in creating an international peace-making force.” As for criticism of the United Nations, Hart was reminded of Thomas Jefferson who said that expecting laws and institutions to stay the same over time is like a man trying to wear the same coat he wore as a boy. Overall, Hart believes, we have lost a sense of the common good taught in ancient Greek civics. “This school, I know, urges its students to not only become the best professionals we can be, but also the best citizens we can be,” he said, encouraging debate on the topics of the talk. “If the commons is not secure, then we are not secure.” ■

try largely centers on two powers not in the document—the Liberal Democratic Party and the bureaucracy. Cohen posed the question of whether Taiwan’s constitution is even relevant— other than as “international propaganda.” The answer is yes, said Chang. The power of the constitution can be seen in how the country has changed in recent years. Since 1990, the constitution has undergone reforms six times. Those changes, she said, “paved the way for the democratization of the political process in Taiwan.” ■

Former Senator Gary Hart shares his views on national security.

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Examples of Contract Law in the Old Testament

A judicial renaissance: South African justices share their points of view at the Law School. From back left: Professor Burt Neuborne, Justice Albie Sachs, former Chief Justice Arthur Chaskalson and former Justice Richard Goldstone. In the foreground, from left: Professor Eleanor Fox and Patricia Murphy Gruber.

South Africa: The First Decade

rthur Chaskalson, then-chief justice of the South African Constitutional Court said last December that it was nothing short of miraculous that in just 10 years reformers had transformed South Africa from a segregated, oppressive nation into a thriving democracy. “The struggle for freedom was a struggle against overwhelming odds,” Chaskalson said at an academic presentation called “The Road to Justice and Democracy in South Africa.” Joined by the Constitutional Court’s then-Deputy Chief Justice Pius Langa (now chief justice), Chaskalson spoke about the fight for freedom and the court’s role in that endeavor. “The new state established in South Africa in 1994 grew out of that struggle, and the legal order that we have reflects core values,” he told the crowd, which included South African Constitutional Court Justice Albie Sachs and former Justice Richard Goldstone.

Chief Justice Pius Langa

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An integral part of establishing that new order was finding judges who reflected the demographics of the country, said Langa. In the past, many of the existing judges were white men, but given South Africa’s legacy of oppression, it was crucial to appoint diverse judges to the constitutional court, as well as to lower courts in the country. “We don’t yet have the right balance, but we are getting there,” Langa said. The constitutional court currently has two female judges and eight men, with a mix of black and white judges. Over the past decade a number of high-profile decisions have been closely watched by the international legal community, Professor Burt Neuborne said. A 1995 decision that the death penalty violated the South African constitution drew global attention. Neuborne also called an opinion about whether a law banning hate speech was constitutional—an issue that vexes civil libertarians—a “statesmanlike effort to reach compromise.” Langa added that the court’s key opinions interpreting the constitution have been influenced by past injustices. In one case, the court protected people whose houses were being sold for trifling debts by finding that such sales violated the right of access to housing. In another, involving the impoundment and sale of stray livestock, the court found the impounder’s actions could violate the guarantee of access to the courts. Given the decisions, one member of the audience asked whether the court is criticized for being activist. Said Chaskalson, the answer depends on who’s giving it. “Some say we’re too timid. Others say we interfere too much.” ■

n the Bible, making a vow is akin to entering into a near-ironclad contract, even when the parties fail to foresee its consequences, said Professor Robert Alter to an audience of about 100 attending this year’s Caroline and Joseph S. Gruss Lecture in Talmudic Civil Law. Alter is a professor of Hebrew and comparative literature at the University of California, Berkeley. Before lawyers eked out their livings scrutinizing written contracts, the Bible offered a version of contract law in the form of oaths, Alter said. On rare occasion, people could change the terms of a vow, but the Bible frequently imbues the spoken word with almost magical powers, giving readers the sense that a promise is a “potent entity in the world.” Alter recounted the story of Jephthah’s daughter, in which Jephthah vowed, to tragic end, that if he won in battle, he would sacrifice the first person he saw on his return home. That person was his own daughter and while it’s not clear whether she was killed, Alter’s focus was on her unusual reaction: She unquestioningly accepted that her father’s vow must be fulfilled. “Speech counts for a great deal in the biblical world,” said Alter. “A vow, once promised, has efficacy.” Reading from his own translation of the Bible, Alter examined biblical passages depicting people talking about vows others have made. To Alter, there is significance when one person repeats the oath of another but changes the wording. Minor changes can signify a great deal, said Alter. In some cases, they can modify the terms of a deal; in others, they change how the listener receives news of it. “Attend very closely to the words. Attend very closely to the repetitions,” instructs Alter. When you read the Bible, “look for what happens when the repetitions are changed.” ■

Professor Robert Alter

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From left: New York State Chief Judge Judith Kaye, California Chief Justice Ronald George, IJA coordinator Alison Kinney and Professor Oscar Chase

Retrofitting the Court California judicial reformer is the 11th annual Brennan lecturer

ne doesn’t often hear a State Supreme Court justice compared to R&B legend James Brown, but it happened last January when Chief Judge of the State of New York Judith Kaye ’62 introduced California Chief Justice Ronald George by drawing a parallel between the Godfather of Soul and George, whom she called the “hardest working man in the court business.” George, who became California’s top judge in 1996, gave the 11th Annual Justice William J. Brennan Jr. Lecture on State Courts and Social Justice. Cosponsored by the Institute for Judicial Administration and the Brennan Center for Justice, the lecture capped off the Conference of Chief Justices in New York, which included the participation of court officers from 29 states. George has been serving the State of California since 1972 and began his role as chief justice by visiting each court in the system. He found that access to, and the quality of, justice varied. The judicial branch subsequently set three priorities: shifting court funding from the local to the state level, consolidating the dual-level trial courts and improving court facilities. “During the past decade, California’s judicial branch has taken a decidedly pragmatic approach to shoring up the institutional independence of the judiciary,” George said. He determined that better coordination among the courts, and with state agencies, was essential, and that the public needed better services, such as more interpreters to handle the 100-plus languages spoken in the courts. To accomplish these goals, and to prevent the closure of courts in some counties, centralized funding became imperative, AUTUMN 2005

said George. In 1997, the judicial branch convinced the state legislature to make court funding a state-level responsibility. A constitutional amendment was passed in 1998 combining the municipal and superior courts—the two-tiered trial court system—cutting the 267 existing trial courts

down to 58 by 2001. Finally, George said, California had to tackle its crumbling, unsafe courthouses. “Unfortunately,” George indicated, “our temples of justice include many buildings that would be unable to withstand even a moderate earthquake—structures in which toxic mold, falling asbestos tiles and peeling lead paint make the courthouse a dangerous place to work.” With the passage of legislation in 2002, George said, the facilities are no longer a burden on the counties, but are managed statewide by the judicial branch. Funding for physical improvements is generated by additional filing fees, court revenue and a bond measure they hope to place on next year’s ballot. While the initiatives have not been greeted with enthusiasm by every judge, George believes that the outcome has increased access to courts, improved services and benefited the public with better administration of justice. “We work with words and persuasion, not with the power to appropriate or legislate,” George said, regarding the judiciary. “We shall be measured in the end by how well we perform our constitutional function of providing fair and accessible justice and preserving the rule of law.” ■

First Annual Nelkin Lecture

M. Susan Lindee, third from right, with the members of the Nelkin family, from left, Arthur and Beth Nelkin, Mark Nelkin, David Nelkin and Lisa Nelkin.

M. Susan Lindee, a professor in the department of history and sociology of science at the University of Pennsylvania, delivered the First Annual Dorothy Nelkin Lecture, “Moments of Truth: Genetic Disease in American Culture” in September 2004. Lindee’s discussion focused on the active collaboration of laypeople and disease sufferers with researchers in medical studies involving twins, the Amish and Ashkenazi Jews. A professor who taught at the School of Law and in the University’s department of sociology, Dorothy Nelkin passed away in May 2003.

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Updating Global Tax Treaties The KPMG Lecture on current issues in taxation

ast November, Barbara Angus, international tax counsel in the Office of Tax Policy at the U.S. Department of the Treasury, delivered the keynote speech on international tax treaties at the fourth annual KPMG Lecture on Current Issues in Taxation, sponsored by the New York University School of Law Graduate Tax Program and the Tax Practice of KPMG LLP. Angus led into a discussion featuring NYU School of Law International Tax Program Director H. David Rosenbloom and John Venuti, of KPMG’s Washington National Tax Office. The three took questions from the floor while KPMG Partner Lawrence Pollack (LL.M. ’88) chaired the event. Citing the fact that over half of U.S. exports are produced by international companies, Angus noted that competitiveness in international markets is crucial to the success of many U.S. businesses. “Tax treaties tend to be more evolutionary than revolutionary. That’s why tax treaties rarely make headlines,” she said. Angus added, “Our tax developments have not kept pace with the international economy.” These concerns are at the heart of a recently enacted bill that attempts to rework

tax law dogma left over from the 1960s. According to Angus, it includes “the most significant set of tax reforms in two decades.” The reforms were above all an attempt to rationalize tax law to better reflect the way business is done in a global economy. “Ninety-five percent of the potential market is outside our borders, therefore we must work to keep these borders open,” she said. Rosenbloom asked what the solution was for countries that agreed to the terms of tax treaties, in principle, only to cast them aside in practice. Venuti questioned whether arbitration was the answer. Angus said that arbitration in international tax treaties is a delicate matter. The type of aggressive litigation that can be effective in corporate disputes isn’t so useful when countries have to come back to the table in ongoing negotiations. Parties need to know that the threat is there yet maintain amicable relations. According to Angus, U.S. tax law may be a strict church, but it is not a jealous one. “Our goal must be with each tax treaty entered into, to improve the treaty network overall,” she said, emphasizing that treaties should leave both countries better off. “[It] is not a poker game,” she said. ■

Tillinghast Lecture

David Tillinghast, left, with Wolfgang Schön

Wolfgang Schön, director of the Max Planck Institute in Munich, was the speaker at the Ninth David R. Tillinghast Lecture on International Taxation last fall. He spoke on “The Odd Couple: A Common Future for Financial and Tax Accounting.” The lecture is published in the Tax Law Review and was presented by the NYU School of Law and the New York law firm Baker & McKenzie to honor David R. Tillinghast, a partner in the firm and a leading international tax lawyer.

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Harold “Hal” Hicks III, U.S. Department of Treasury

When Tax Pros Become Snowbirds

his past winter, for the second year in a row, tax experts flocked to the Sunshine State for the Gerald L. Wallace-Charles S. Lyon National Tax Workshop. The workshop drew tax professionals from the United States and Europe who spent three days in Orlando, Florida, working through various tax-related scenarios. Why Florida? Co-chair Jerald David August (LL.M. ’80), a partner at Fox Rothschild, wanted to make sure the event wasn’t New York-centric. “In recognition of the fact that our graduates are all over the country, I thought it would be nice to get out of Vanderbilt Hall,” he said. When not in a workshop, attendees could enjoy the Florida sunshine as well as golf, tennis and outings to Disney World. Named for tax education innovators Gerald Wallace and Charles Lyon, the program was designed to deliver the best features of the weeklong summer tax workshops previously held at the Law School during the 1970s and 1980s. Attendees absorbed sessions such as “International Taxation” taught by Harold “Hal” Hicks III (LL.M. ’91), associate chief counsel of international taxation at the U.S. Department of Treasury; Robert J. Peroni (LL.M. ’80), Parker C. Fielder Regents Professor in Tax Law at the University of Texas School of Law; and NYU School of Law faculty including H. David Rosenbloom, director of the International Tax Program; Professor John P. Steines Jr. (LL.M. ’78); and Adjunct Professor Charles I. Kingson. Other sessions included “Tax Procedure and Litigation,” “Estate Planning,” “Ethical Considerations in Tax Practice,” “Partnership Taxation,” “Tax Planning for Troubled Companies and Workouts,” “Corporate Taxation,” “Taxation of Subchapter S Corporations” and “Recent Developments in Income Taxation and Tax Accounting Matters.” ■ AUTUMN 2005

Chinese Judges Experience New York Judiciary

n a Tuesday afternoon in July, judges visiting from the People’s Republic of China peppered Bronx County Judge and former prosecutor, Martin Marcus with questions. Is it normal to move from being a prosecutor—considered equally prestigious to a judgeship in China—to the judiciary? Does he preside over cases tried by former colleagues? Is it embarrassing to be reversed on appeal? “Never happens,” Marcus grinned in answer to that last question. It’s a judge’s job to apply precedent or, if there isn’t any, to create new law. If an appeals court disagrees, well, that’s the nature of the job. “I accept what they say, if it’s a close case,” he said. The 24 Chinese judges were at the Law School for a three-week training program conducted by NYU School of Law’s Institute of Judicial Administration and Temple University, with a grant from the U.S. Department of Justice. Marcus, a 15-year veteran of the bench, told the judges about criminal procedure in New York State. As for the judges’ other questions, Marcus explained that being a

East meets West. Professor Oscar Chase, center, stands with Law School Research Scholars Ping Yu and Mary Holland on his right, and Judge Martin Marcus with Weihua Li of the National Judicial College of China.

prosecutor isn’t all that prestigious in New York—unless you’re the chief prosecutor. The visiting judges’ agenda also included meetings with New York’s Chief Adminis-

Judicial Watch Appellate judges ponder the next Supreme Court

hile appellate judges sipped cabernet sauvignon, U.S. Solicitor General Paul Clement referenced a pertinent issue considered by the U.S. Supreme Court in the last year—interstate wine sales. That was not a case that he argued as the government’s top Supreme Court attorney, but Clement, who enjoys California wines, said it was definitely one of abiding interest to him. The

United States Solicitor General Paul Clement, at center

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Court struck down bans prohibiting out-ofstate wineries from shipping directly to consumers, citing those laws as discriminatory. “I applaud the Court,” Clement said. “I think they got it exactly right.” As a distinguished speaker, Clement highlighted several Court decisions at a weeklong training for appellate judges at the NYU School of Law last July. Sponsored by the Law

trative Judge Jonathan Lippman, Federal District Court Judge Denny Chin and trips to city locales such as the Red Hook Community Courts. ■

School’s Institute of Judicial Administration, in cooperation with the Federal Judicial Center’s Orientation for New Federal Appellate Judges, the unique Appellate Judges Seminar welcomed 47 judges from as far as Guam. Clement noted that with the public’s focus on Justice Sandra Day O’Connor’s retirement, and other possible Court vacancies, the term’s significant cases are in danger of being forgotten. Consider United States v. Booker, said Clement, in which the Court determined that mandatory federal sentencing guidelines conflict with the Sixth Amendment and must be regarded only as advisory. The judgment, he pointed out, affects the 1,200 cases heard each week in the nation’s courts. The Court also took on the Ten Commandments. In Kentucky, county officials had posted the Commandments in courthouses, and a Texas suit challenged a 40year-old state capitol monument. “You might find it surprising,” quipped Clement, “that the two-ton monolith is constitutional, and the 8 1/2-by-11 sheet of paper is not.” Also reviewing rationales in medical marijuana, eminent domain and First Amendment cases, Clement pointed out that the justices consider every argument’s merits. “It really does matter what theory is presented to the Court.” ■ THE LAW SCHOOL

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Alumni Almanac

“We share an incredible, unique community,” said Dean Richard Revesz to revelers at the Weinfeld Gala, held on January 20, 2005 at the Rainbow Room. In the spectacular ballroom, twinkling with its Fire and Ice décor, Revesz lauded the alumni for seeking out innovative ways to enhance the education of current and future Law School students. An-Bryce scholar Jason Washington ’07 echoed the dean’s sentiment, and personally thanked alumni for helping students achieve their goals.

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Intellectual Property’s Billion-Dollar Man

arc Marmaro ’72 has taken on some tough cases in his 32-year career—he represented MGM in its protection of the James Bond trademark and copyrights— but Medtronic v. Michelson has certainly been his biggest challenge (and reward) to date. Defending inventor Dr. Gary Michelson against Medtronic, the $70 billion biotechnology corporation whose subsidiary Medtronic Sofamor Danek was laying claim to the patents for Michelson’s spinal surgical devices, took years of legal battle and three months of trial during a humid Memphis summer in 2004. Ultimately Marmaro prevailed when the jury awarded $560 million to Michelson last October, the largest patent award of that year. In May 2005 Medtronic announced that it would settle all claims for a staggering $1.35 billion, resulting in the largest onetime intellectual property award in U.S. history. Marmaro, a founding partner in the Los Angeles firm of Jeffer Mangels Butler & Marmaro, specializes in general business and commercial litigation for many high-profile clients. Based on his work in the MGM case, Marmaro was selected by Michelson in 2001 as one of two lawyers to represent him in the battle against Medtronic. Marmaro’s biggest challenge was how to make the jury understand dense technical subjects, including the mechanics of hundreds of Michelson’s medical innovations. “It was definitely an intricate case from top to bottom, especially on the complexity of issues and the number of documents involved,” said Marmaro. His team spent hundreds of hours with Michelson, learning about his spinal implants and surgical tools and how they worked. “We knew we had to make our case as understandable and straightforward as possible,” Marmaro explained. “To do that, we stuck to one main theme: an individual against a company that had all the power to make someone comply. We had to show the jury how and why they had the power to reward Michelson for his inventions.” Marmaro and his legal team prepped for two years before the trial. Much of their case was made through aggressive cross-examination of the defense’s witnesses. When Medtronic witnesses contradicted them-

selves, Marmaro countered with video clips of their depositions for jurors. The result: an amazing total of 40 recorded impeachments. The single most damning piece of evidence, however, was a spreadsheet titled “Michelson Points of Negotiation.” Sent as an email attachment to the president of Sofamor Danek, the spreadsheet listed the advantages of not striking a deal with Michelson, including minimizing royalties and using litigation to force the doctor into global settlement. After the executive testified on the stand that he couldn’t recall having received the spreadsheet, Marmaro projected it on TV screens set up in the courtroom. “When we found that document, we knew it would be crucial,” said Marmaro. “That cross-examination was the highlight of this case.” NYU’s Pauline Newman Professor of Law, Rochelle Dreyfuss, an intellectual property specialist, said this case stands out because an individual persevered over a company, when it’s typically the opposite. “Even though Medtronic is so big that settling the case won’t affect its corporate earnings, this case might send a message to corporations to take the ‘little guy’ more seriously,” she said. Michelson is not the average little guy, having spent $60 million of his own money on the case. Marmaro praises his client for hanging tough, however. “This case shows what one individual can do when standing up to a Fortune 500 company laying claim to his life’s work.” —Vanessa Richardson

Alumni Applause Helen S. Motro ’73 (LL.M. ’85) has written a book entitled Maneuvering Between the Headlines: An American Lives Through the Intifada (Other Press, 2005), a firstperson nonpolitical memoir. Jennifer A. Stiller ’73 was selected by the American Health Lawyers Association to serve in its inaugural class of fellows. Richard Marmaro ’75 has been inducted into the International Academy of Trial Lawyers. Peter R. Pitegoff ’81 has been appointed dean of the University of Maine School of Law in Portland, Maine. James B. Milliken ’83, a Root-Tilden alumnus, was appointed president of the University of Nebraska at a ceremony that took place January 27, 2005. Jo-Ann Wallace ’84 has been appointed president and chief executive officer of the National Legal Aid & Defender Association (NLADA). Salvador Alex Litvak ’90 directed his first feature film, When Do We Eat? The trailer can be viewed at www.whendoweeat.com. Eric Feichthaler (LL.M. ’01) was elected mayor of Cape Coral, Florida, on April 5, 2005. Feichthaler beat the incumbent and a two-term councilperson to become the second-youngest mayor of Cape Coral. Anjana Malhotra ’02, a Root-Tilden-Kern alumna, was the author of a report released by Human Rights Watch and the American Civil Liberties Union that was critical of the U.S. detention of Muslim men. The study, which was featured in the New York Times, was funded by a fellowship Malhotra received from the Open Society Institute. She is currently an Aryeh Neier Fellow and works jointly with Human Rights Watch and the ACLU. Rachel Meeropol ’02 was named one of The National Law Journal’s 40 under 40, a list of leading young attorneys in various areas of law who have made significant achievements, and are expected to continue to exert influence in the legal profession. Meeropol is a staff attorney at the Center for Constitutional Rights, New York, and is at the forefront of national civil rights litigation. She has been involved in cases such as Doe v. Bush and Rasul v. Bush, and is currently lead counsel in Turkmen v. Ashcroft. David H. Webber ’02 won third place in the 4th Annual New York Law Journal Fiction Writing Contest. The winning piece can be read at www.nylawyer. com/fiction/04/webber.html. Send your class notes, news of your recent achievements or accolades, to the Alumni Relations office: law. classnotes@nyu.edu.

Marc Marmaro

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The Dean’s Strategic Council Ends on an Ambitious Note Releases final recommendations for business law, the Graduate Tax Program, alumni facing retirement and a new capital campaign.

wo years ago Dean Richard Revesz formed the Dean’s Strategic Council to harness the deep resources of the alumni and to define the goals and aspirations of the NYU School of Law. In May 2005, the council released its final report recommending program changes and an ambitious capital campaign before throwing its own farewell party and dissolving, its job done. The council held its inaugural meeting in November 2003—to identify the issues NYU School of Law would face in the coming

decade. “I wanted to get a new generation of alumni involved in leadership positions in the Law School community by making them knowledgeable about issues facing the Law School and asking them to come up with good ideas for shaping the next phase of NYU’s development,” said Revesz. Eighty-one alumni drawn from finance, real estate, media and entertainment, government, cultural institutions, public service, academia, business and, of course, the nation’s top law firms, took a fresh look at the challenges ahead for the NYU School of

Building a bridge: Dean Richard Revesz with Strategic Council Chair Eileen FitzGerald Sudler

Shawn Creedon ’02 looks on as Rachel Robbins ’76 and other alumni help shape the Law School’s future.

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Law and came up with ambitious and innovative recommendations. The council’s final report endorses a capital fundraising campaign focused on supporting students and faculty, rather than bricks and mortar, with money dedicated to programming, scholarships and expanding the faculty in areas of excellence. The $400 million campaign is the largest in the school’s history. “The most surprising thing I learned as chair of the Dean’s Strategic Council,” said Eileen FitzGerald Sudler ’74, “was that the Law School’s astonishing successes over the last 20 years have been built on a comparatively thin base of resources.” Sudler, Florence Davis ’79, Wayne Perry (LL.M. ’76) and Kenneth Raisler ’76 are now serving as vice chairs of the capital campaign steering committee, with trustee Anthony Welters ’77 as the campaign chairman and 32 alumni as committee members. In addition to strategizing about fundraising, the council also created a blueprint for the Law School in a number of other areas, including ancillary income programs, fundraising strategies and the foreign LL.M. program. The council’s Committee on Business Law proposed ways for the Law School to interact more productively with the legal and business communities of New York City. “We want to give business-oriented students the practical training and hands-on experience already extensively available to [those] interested in public service careers,” said Revesz. The Committee on the Graduate Tax Program addressed important “second generation” goals of fine-tuning. And the council’s creativity in setting an agenda was nowhere more apparent than in the work of the Committee on Public Service and Careers in Transition. Having identified a growing number of alumni who are reaching retirement or are pursuing new careers in public service, the committee proposed counseling programs to assist in the transition. In true NYU tradition, Sudler initially embarked on a career in public service, working for the Legal Aid Society in the South Bronx and later in the U.S. Attorney’s Office in New Jersey. Even after she moved to private practice, she continued to affect her community through a range of charitable endeavors. Crediting the Law School for making this values-oriented service ethic part of who she is, Sudler remarked that the council’s most significant discovery while forecasting the next 10 years was realizing that enthusiasm and deep commitment to academic development were predominant characteristics of the alumni. “I have always been proud to be an NYU alum, now more than ever,” she said. ■ AUTUMN 2005

Do Courts Decide What Is a Family?

ow that the State of Massachusetts recognizes gay marriage, is state-sponsored polygamy next? Decidedly not, is what Justice John Greaney ’63 of the Supreme Judicial Court of Massachusetts told those who gathered for last fall’s double-billed Melvyn and Barbara Weiss Public Interest Lecture and the Law Alumni Annual Fall Lecture, cosponsored by the Law Alumni Association and the Public Interest Law Center. Polygamy “wouldn’t stand a chance in Massachusetts,” said Greaney, who wrote a concurrence in Goodridge v. Department of Public Health, the landmark Massachusetts case recognizing same-sex marriage. Greaney’s conclusion was confirmed by panelists Professor William Eskridge Jr., a visiting professor at the NYU School of Law, and Associate Justice Barry Cozier ’75 of the Appellate Division of the Supreme Court of New York. The panel focused on the historical evolution of the legal definition of a fam-

ily, from the 1950s’ notion of “mom, dad, and two toothy children,” as described by Eskridge, to the many arrangements recognized today—single parents, same-sex parents and “parents by estoppel,” which got a chuckle from the Law School crowd. Greaney traced the evolution of family law in the State of Massachusetts, illustrating how the legal structure of families has changed throughout the past two decades. “People create children, but lawyers and judges create families,” Greaney said, paraphrasing a colleague. Cozier summarized a similar history in the State of New York that he says leaves no doubt that “the myth of the traditional family has been exploded.” Should courts make decisions about what constitutes a family, or is that best left to legislatures? Courts don’t always get to make that choice, according to Greaney. “The fact of the matter is,” he said, “although newer families have made some gains in the legislatures, many of them are resorting

Justice John Greaney

to the courts, not the legislatures, for status recognition.” Legislatures and courts aren’t the only groups fighting over the issue. “America is red, not blue,” Eskridge told the crowd. “The Northeast does not reflect the rest of the country.” How same-sex marriage fares with Americans might depend, he said, on the “grand social experiment” currently underway in Massachusetts. ■

A Resounding Voice for Stem Cell Research U.S. Representative Diana DeGette ’82 felt she had scored the victory of her nine-year political career when her bill (H.R. 810) to expand federal funding for embryonic stem cell research passed the House in May 2004. “Without a doubt, this is the greatest achievement of my career,” said DeGette with a trace of warranted reserve. “But the fight is not over, because the bill is not law yet.” While at the Law School, the former RootTilden scholar focused on public service and constitutional theory, working with the Prison Law Clinic, the Aspen Institute and the ACLU. Leading the Student Bar Associa-

tion (SBA), she says, spurred her interest in civil service. “After I graduated I really didn’t intend to run for office,” she said. “But being president of the SBA taught me that you can make social change through elected office.” The Colorado Democrat has rallied for an increase in funding since her now-11-year-old daughter was diagnosed with diabetes seven years ago. While DeGette served as cochair of the Diabetes Caucus, she became convinced that stem cell research could profoundly affect the lives of people just like her. Now serving her fifth term, DeGette has suddenly altered the landscape of contemporary American politics.

Congresswoman Diana DeGette with, from left, Senator Orrin Hatch, Michael J. Fox and Senator Tom Harkin

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While maintaining ethical guidelines for stem cell research, H.R. 810 increases the number of embryonic stem cell lines that qualify for federal funding. High-profile opponents—like President Bush, who has threatened to veto the legislation—have argued that creating new embryonic stem cell lines is unethical because the process destroys unique human lives. “We knew that we had formidable opponents—the Christian coalition, the leader of the senate and the president,” DeGette said. “I was afraid we might lose votes when the president threatened to veto the bill.” DeGette’s supporters, including 50 House Republicans who helped the bill pass, believe that stem cell research could lead to cures for Parkinson’s and Alzheimer’s, among other diseases, thereby saving lives and sparing families the anguish that accompanies these illnesses. Although the bill’s passing in the House was a major accomplishment, the margin of victory fell short of the two-thirds majority needed to override a presidential veto. Then, in July, the bill received a nod from a previously opposing force when Senate Majority Leader Bill Frist announced to the Senate that he would support certain components of H.R. 810. “Until today, there had been an ideological logjam in the Senate preventing stem cell research from coming up for a vote,” DeGette said in a July 29 statement responding to Frist’s announcement. “Senator Frist’s speech this morning gives new hope for everyone who supports medical research.” —Joseph Tuzzo

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From Ballrooms to Classrooms Alumni get dressed up and get down to business at the annual Reunion Weekend

ew York’s historic Waldorf=Astoria Hotel became a satellite of the Law School campus as 10 classes and the Golden Circle held individual receptions and dinners on Reunion Weekend. The event in April culminated in the All-Reunion Dance, where the tunes of the legendary Peter Duchin Orchestra floated until midnight. During daylight hours alumni gathered at Washington Square to attend panel discussions for continuing legal education credit. In addition to a tax panel that was a joint academic effort of the Law School reunion and the 60th anniversary of the Graduate Tax Program (see “The Graduate Tax Program Turns 60” on page 132), alumni attended panels on ethics, the transition from active practice to semiretirement and sports law.

“The Most Unforgettable Ethical Problem I’ve Ever Had” Three graduates shared with alumni moral quandaries they’ve faced in their careers. Sheila Birnbaum ’65, a partner at Skadden, Arps, Slate, Meagher & Flom, posed hers

as a hypothetical involving a pharmaceutical company that has had a drug pulled from the market. The pharmaceutical firm’s insurance company pays the lawyer’s bill to investigate the R&D behind the drug, for the policy denies coverage if the insured engaged in intentional or criminal actions. The lawyer has found evidence that the pharmaceutical company illegally covered up unfavorable test results. What does she do? The insurance company is paying her, yet the pharmaceutical company is her client. According to Birnbaum, “Your ethical obligation pursuant to the Model Rules is very clear: your first and only duty is to your client, which is the insured.” Anne L. Clark ’90, a partner at Vladeck, Waldman, Elias & Engelhard, said her major ethical problems arise in situations where her employee clients together sue their employer for discrimination. Ethical problems arise when the employer is willing to settle at a high figure with some, but not all, of the clients. Some of the clients would do best to sue individually, but for

others, their best interest is to sue together, force the employer to settle with them as a group and divide the money evenly. Clark says she tells the clients that they must make an affirmative decision to pursue the case together or separately. As the only plaintiff’s lawyer on the panel, Robert Conason ’60 of Gair, Gair, Conason, Steigman & MacKauf brought a different perspective to the matter. He presented the problem of a client who said on the stand she was 71 years old, yet later her true age was confirmed to be 74. The discussion got quite heated in response to this, as Conason insisted he would not come forward with the information since it would harm his client, while some members of the audience expressed disapproval because the client’s age would factor into damages and thus is material to the suit. “Sports Economics—Sustaining the Business in Challenging Times” Alumni holding various positions in the sports world shared their unique perspectives on the changing economic climate of sports in the United States and abroad. David Kahn ’93, general manager of the Indiana Pacers; Joel Litvin ’85, the NBA’s chief legal officer; and John Shaw ’76, president of the St. Louis Rams, discussed trends in the economics of their various sports, focusing primarily on labor relations, salary caps and community issues. The three highlighted a few topics that drew considerable interest from the audience. As players become bigger figures in American society, representing management against strong player unions is becoming increasingly complicated. The panelists discussed the ins and outs of various salary cap rules, focusing on the current collective bargaining between leagues and unions regarding hard and soft caps and the appropriate percentages players are due. Top, from left: The Honorable James G. Exum Jr. ’60, Joseph Einstein ’60 (LL.M. ’65) and Lewis Stein ’60; Bottom, from left: Mitchell Rutter ’80; Eleanor Kurz ’55 with Alice Herb ’55 (LL.M. ’92); Judy Bartlett ’95, Professor Derrick Bell and Lisa Boykin ’95

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Attendance at games is another growing problem, according to the panel. Americans are much more active and have demanding schedules, and this makes drawing crowds to long seasons very difficult. The panel differentiated football—where few games are played, and only on one day a week—from other sports such as basketball and baseball, which have long seasons of hundreds of games, and long playoff periods. Finally, the three discussed community issues, specifically municipality stadium building, and focused on the proposals to build stadiums for the New York Jets and New Jersey Nets in New York City. The panelists highlighted their previous experiences with stadium building and statewide lobbying, and discussed their feelings about the proposals and effects on taxpayers. “From Doing Well to Doing Good” Panelists offered expertise on making the transition to nonprofits after retirement. With life expectancy well surpassing age 65, people face many years of productivity beyond retirement. Those years increasingly include nonprofit work. Panelists including Frederick Schwartz of the Brennan Center for Justice, Deb Ellis ’82, Anthony Essaye and Brian Hofland, director of the Aging Program at the Atlantic Philanthropies, discussed this phenomenon and how both lawyers and organizations can make it work. Ellis, assistant dean for public interest law, suggested that retiring lawyers consult PSLawNet to find organizations, and enumerated issues lawyers should consider before beginning a search, such as whether they want to do legal or nonlegal work, advocacy or transaction and how they can use their legal skills in nontraditional ways. For instance, one way attorneys can serve nonprofits is as administrators. With experience from private practice, attorneys often can help organizations where the demands of the mission can leave little time for overall management, says Ellis. Essaye, copresident of the International Senior Lawyers Project and retired partner at Clifford Chance, is creating a new kind of public defenders’ office, staffed by older attorneys who can address “legal needs that just aren’t being met or are being met by lawyers who meet their clients for the first time at the courthouse door.” Hofland described how his program seeks to “convince organizations that engaging older adults would be good for their organizations and yield a good return on their investment. There’s a lot of talent and we need to figure out how to get the nonprofit world to pay attention to older attorneys,” he said. ■ AUTUMN 2005

A Legal Career Based on Compromise Guests of the Roundtable Hosted by Dean Richard Revesz, the Dean’s Roundtable Luncheons bring students together for intimate conversation with alumni about the alternative career paths they have taken after getting their law degrees. In addition to Kenneth Feinberg, guests over the past year have included: Jeffry Aronsson (LL.M. ’79) CEO, Donna Karan International Kenneth W. Bond (LL.M. ’76) Partner, Squire, Sanders & Demsey In all fairness…Kenneth Feinberg

Kenneth Feinberg ’70, Dean Richard Revesz’s guest at November’s roundtable, was reflective and engaging when discussing his twodecade career as an expert in mediation and alternative dispute resolution (ADR), and his role as special master for the September 11 Victim Compensation Fund. “A mediator must synthesize enormous amounts of information, assess the merits of each party’s position and get to the nub of the dispute,” Feinberg said, adding that mediators must be determined to stay at the table until a deal is reached as well. “You need a healthy dose of creativity and flexibility, because there is always more than one way to close the gap between two opposing parties.” Feinberg’s impressive career has taken him from the U.S. Attorney’s Office to the U.S. Senate Committee on the Judiciary, and then on to become a partner at a private law firm. Advising students to plan ahead, Feinberg said, “Don’t underestimate your NYU degree and the flexibility it can give you.” The network he established while a clerk on the New York State Court of Appeals contributed in part to his first mediation, when he was appointed special master in 1984 for the Agent Orange settlement, one of the largest mass tort claims of its day. Over the past 20 years, ADR has moved beyond traditional fields such as securities, labor disputes and mass tort litigation. Recently, Feinberg was involved in setting up a compensation scheme for evacuating settlers from Israel’s Gaza Strip, and was contacted to play a role as a mediator in the settlements of child abuse claims against the Catholic Diocese of Cincinnati. Reflecting somberly on the September 11 Victim Compensation Fund, in which 97 percent of victim’s families opted to take settlements, Feinberg said the most difficult task was listening to the surviving relatives. “There were 901 hearings,” he said. “And each story was more tragic than the next.” Kenneth Feinberg recently published What Is Life Worth? (PublicAffairs, 2005), a personal account of his effort to compensate grieving families for catastrophic loss.

Leonard Boxer ’63 Chairman, Real Estate Department, Stroock, Stroock & Lavan Robert Conason ’60 Partner, Gair, Gair, Conason, Steigman & MacKauf Francois Chateau (LL.M. ’82) Partner, Salans Eric Dinallo ’90 Managing Director, Morgan Stanley John Eastman ’64 Partner, Eastman & Eastman Laurie Ferber ’80 Managing Director, Goldman, Sachs & Company Vincent Gallagher ’68 Managing Director, Needham & Company Richard Ketchum ’75 Chief Regulatory Officer, New York Stock Exchange Katherine S. Lauderdale ’78 Senior Vice President and General Counsel, Public Broadcasting Service Donald Meltzer ’84 Vice Chairman, Corporate Finance and Origination, North America Dresdner Kelinwort Wasserstein Kathryn Reimann ’82 Senior Vice President and Compliance Officer, American Express Company Toni Rembe (LL.M. ’61) Partner, Pillsbury Winthrop Catherine Rein ’68 Chief Administrative Officer, Metropolitan Life Insurance Stephen Ross (LL.M. ’66) Chairman and CEO, Related Companies John J. Shaw ’76 President, St. Louis Rams

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The Graduate Tax Program Turns 60

ew ethical guidelines and other developments in tax law were the talk around Washington Square last April. More than 100 tax professionals and alumni returned to campus for a workshop exploring current tax issues and a gala dinner at the Waldorf=Astoria celebrating the Graduate Tax Program’s 60th anniversary. During the soirée, Gersham Goldstein (LL.M. ’64), a partner in Stoel Rives, spoke about how his career plans changed after meeting the program’s founder, Gerald L. Wallace—the much beloved pioneering professor of graduate tax education. Goldstein originally thought he wanted to specialize in civil rights, but after an encounter with “the most interesting man I had ever met in my life,” he shifted gears to specialize in tax law. But all was not champagne and chocolate as the alumni attended panel discussions about the latest developments in corporate tax, international tax, partnership tax, tax reform, estate planning and how new ethical rules will impact the practice of tax law. The latter was the subject of a one-hour discussion led by Goldstein who said the new ethical standards, which became effective in June 2005, are fraught with pitfalls. “Be scared,” he offered, speaking to a Law School reporter later. “You could get your ticket punched.” Pulitzer Prize-winning New York Times journalist David Cay Johnston and Acting Assistant Secretary for Tax Policy at the U.S. Treasury Department Gregory Jenner ’79 were featured in “How Did Taxes Become a Dirty Word?”—a panel discussion about the public perception of taxes. The panel, moderated by Ronald and Marilynn Grossman Professor of Taxation Deborah H. Schenk (LL.M. ’76), also included Wayne Perry Professor of Taxation Daniel Shaviro. Schenk remarked that civil discourse about tax policy seems more difficult than ever, and the panelists discussed how to make the tax system fairer and easier to understand while balancing many needs, including budget deficits, tax incentives and tax rates. Other panelists included Jerald August (LL.M. ’80), a partner at Fox Rothschild; Adjunct Professors W. Lesse Castleberry (LL.M. ’75) and Stephen D. Gardner (LL.M. ’65), both partners at Kronish Lieb Weiner & Hellman; Gerald L. Wallace Professor of Law James Eustice (LL.M. ’58); Norman Sinrich ’52 (LL.M. ’53), of counsel at Feingold & Alpert LLP; and Professor John P. Steines Jr. (LL.M. ’78). ■

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BLAPA Honors Three Alumni in Public Service At the annual Black, Latino, Asian Pacific American (BLAPA) Law Association Spring Dinner, honorees Sharon Hom ’80, executive director, Human Rights in China; Professor Jenny Rivera ’85, City University of New York School of Law; and Kenneth Thompson ’92, partner, Thompson Wigdor & Gilly LLP, were recognized for their outstanding individual achievements. Hom enchanted the audience with a life lesson about finding success through happiness. Rivera spoke passionately about increasing diversity in legal academia, especially at the Law School. Thompson, a former federal prosecutor, delivered a stirring argument regarding the importance of helping the less fortunate. The organization bestowed a lifetime achievement award on Professor Derrick Bell for his outstanding contributions to the professional and academic legal communities. In accepting his award, Bell spoke of how fortunate he and the audience are to be part of the NYU family, and encouraged prospective students to discover its spirit and community. BLAPA also recognized the achievements of the first Furman Fellow, the late Kim Barry ’98 (see page 54). Accepting on behalf of the Barry family, Kim’s sister Tracy thanked the NYU School of Law administration and community for their support.

BLAPA also recognized its annual Public Service Scholarship Award recipients at the dinner. Proud honorees Adrienne Austin ’05, Tammy Kim ’06, Susan Shin ’06 and Jason Williamson ’06 all demonstrated extraordinary dedication to public service, and truly earned their $5,000 awards. President Michelle Meertens ’98 announced that next year the BLAPA Scholarship (in the amount of $10,000) would be awarded to one firstyear law student. In addition, the creation of a BLAPA General Fund, separate from the Public Service Scholarship Fund, will enable BLAPA to appeal to a wider range of its members’ professional interests. Clockwise: Professor Derrick Bell with Michelle Meertens; Sharon Hom, Patrick Michel ’96 and Dean Richard Revesz; from left: Lidia Kidane ’03, Adaobi Ukabam ’03 and Sandra Rodriguez ’02; Niki Fang ’07 with Natalie Hiott-Levine ’95

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Commissioner Kelly Heightens Security

ighting crime in New York City is daunting enough, and now the New York Police Department has the added burden of combating international terror. But the men and women in blue have risen to the challenge, according to Police Commissioner Raymond W. Kelly (LL.M. ’74). “Despite the added demands of our post–September 11 world, and despite our diminished resources, crime has continued to drop,” Kelly said during his keynote address at the annual Alumni Luncheon at the Pierre Hotel in New York last January. The murder rate is at its lowest since 1963, Kelly reported, drawing applause from the approximately 300 audience members. “Why is crime down? Are we lucky? No. We make our own luck,” he said, before describing a police initiative dubbed Operation Impact, which includes efforts to “flood the zone” of high-crime areas with more police officers. Kelly also detailed the police department’s post–9-11 antiterrorist efforts, which include hiring individuals fluent in foreign languages to infiltrate chat rooms on the Internet. “Unlike an academically trained linguist, our people know the language of the back streets of Karachi, because they grew up on the back streets of Karachi,” he said.

Blue’s top brass: Police Commissioner Ray Kelly, center with S. Andrew Schaffer, left, and Dean Richard Revesz

Addressing some problems and issues that have arisen in recent years, Kelly defended the NYPD’s handling of protesters during the Republican convention in August 2004. The police department arrested more than 1,800 people, mostly for minor infractions. Many of those arrested were held for more than 24 hours before seeing a judge. Rumors surfaced that the police department intentionally delayed the arraignment process to keep protesters in custody until President Bush left town.

Kelly denied the police had such a plan. He explained that the lengthy detentions were caused by a sudden influx of arrestees, including many out-of-towners whose backgrounds needed to be investigated. The commissioner acknowledged the public’s concern that the department provide high-level security while also being aware of people’s civil rights. “In defending the city from both conventional crime and terrorism, we must protect the privacy of our citizens,” he said, as the audience cheered. ■

Weinfeld Gala Right: Vicki Been ’83, far left, with Geri Pollack and her husband Lester Pollack ’57, chairman of the Law School board of trustees; Dean Richard Revesz, Leila Thompson ’05 and Jason Washington ’07 Below, from left: Samuel Paige (LL.M. ’52) and Norma Z. Paige ’46; Dwight D. Opperman, left, with Professor Emeritus Howard Greenberger ’54; Jay Furman ’71 and Victoria Moran

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The Dean’s Travels in Asia

nderscoring the importance of Asia to the academic work of the Law School, Dean Richard Revesz and his family spent five weeks visiting alumni and meeting with leaders in Beijing, Shanghai, Hong Kong, Taipei and Tokyo. The trip was remarkable— in fact the Tokyo gathering was the largest regional event to date—and has since fortified a pipeline for academic, political and cultural dialogues during the coming years.

Right column, from top: Professors Jerome Cohen (LL.M. ’64) and Vicki Been ’83, U.S. Ambassador to China Clark Randt, his wife Sarah Talcott and Dean Richard Revesz standing behind his niece Kelsy Been and children Sarah and Joshua in Beijing; Dean Revesz with Taipei’s Mayor Ying Jeou Ma (LL.M. ’76); Shaolin Luo (LL.M. ’00), Jiaolin Song (LL.M. ’01), Dean Revesz, and Joanne Du (LL.M. ’01); Xinmei Chen ’03, Professor Cohen and Dean Revesz in Beijing; middle column: Professor Cohen with Lawrence Yee ’77 in Hong Kong; Yi Lin (LL.M. ’02) and Yafeng Sun (M.C.J. ’93) in Shanghai; left column: Dean Revesz and Harumichi Uchida (LL.M. ’79) in Tokyo; bottom photo, front row: Professor Been, third from left, Dean Revesz and Professor Cohen pose with alumni during a reception in Shanghai.

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Gatherings and Get-Togethers

he NYU School of Law hosts a number of receptions and meet-and-greets each year that bring alumni, students and future prospects together on their home turf. Last year, alumni such as Jerome Kern ’60, in Denver, and Marc Platt ’82, in Los

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Angeles, graciously opened their homes for gatherings. But regardless of their setting, the regional events are an opportunity for making friendly connections, sharing experiences and reinforcing ties to the Law School and its community.

Clockwise from top, left: Lawrence Green ’77 with Justice John Greaney ’63 and Jay Siegel ’53 in Boston; Dean Richard Revesz and Charles Compton ’68 in Palo Alto; a gathering at the Los Angeles home of Marc Platt ’82; New York University and Law School alums mingled in San Francisco; Paul Berger ’57 speaks with Dean Revesz at the Washington, D.C. offices of Arnold and Porter; Colorado host Jerome Kern ’60, left, with Cecil Morris Jr. ’82.

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Holiday Spirit Hits Hollywood and the Beltway

Recent Washington, D.C. and Los Angeles graduates from 1995–2004 made time to enjoy the winter holiday season with fellow alumni. The east coast extravaganza, top row, was hosted by Rafiq Kalam Id-din ’00 and Damon Terrill ’99; while Tinseltown’s stylish party, bottom row, was hosted by Lisa Boykin ’95, John Purcell ’91 and Claudia Teran ’97.

The Law School Heard ’round the World

uring the spring of 2005, faculty were dispatched to such far-off locales as Shanghai, Paris and Buenos Aires to deliver talks on their myriad disciplines and answer candidates’ questions about the Law School and its LL.M. program. Alumni in each city were also invited to attend these functions, and to act as ambassadors to prospective students.

Professor Ronald Dworkin, far right, in London.

Professor Frank Upham, far left, in Shanghai.

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Professor Benedict Kingsbury, far right, in Toronto.

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Of Public Interest

Recognition from the Top

In the ’60s, almost everyone said they wanted peace and love. But at the Law School, students did more than talk, they practiced the art of making the world a better place. Now, more than 35 years later, four Age of Aquarius alumni are leading public interest organizations in Washington, D.C. Here, some snapshots of what these committed lawyers are doing.

Nancy Duff Campbell ’68 The copresident of the National Women’s Law Center, Campbell advocates for the rights of destitute women and champions child support, custody and visitation causes. She has fought on behalf of female military personnel victimized by sexual harassment and combated unfair employment policies.

Alan Houseman ’68 A key player in civil legal aid in the United States, Houseman, executive director of the Center for Law and Social Policy, helped get the Legal Services Corporation Act through Congress and set the framework for the Corporation.

Ron Pollack ’68 The founder of the Food Research and Action Center (FRAC), Pollack won two Supreme Court cases on the same day —both challenged the constitutionality of congressional statutes cutting tens of thousands of people from Food Stamps. Pollack, now executive director of Families USA, also litigated the case that created Women Infants Children (WIC), a federally-funded food assistance program.

James Weill ’69 President of FRAC, Weill is leading a campaign to end hunger in the U.S. He helped reorganize the Medicaid and Food Stamps programs, secured millions of dollars to support low-income people and restructured laws concerning the rights of children born out of wedlock and the enforcement of the child support system.

Geraldine Ferraro, center, with husband John Zaccaro, left, and Lester Pollack

n the ninth floor aerie of Furman Hall, the Lester Pollack Colloquium Room can literally take one’s breath away with its expansive views of New York City. Dean Richard Revesz, in his remarks at the room dedication, praised Pollack ’57, chair of the NYU School of Law board of trustees since 1998 and active member since 1981, for his decades of steadfast service and dynamic leadership, having overseen the institution during the Law School’s remarkable transformation and physical expansion. The dean also noted that the colloquium room is now a premier forum for the intellectual exchange that Pollack’s leadership has advanced. ■

Lester Pollack in front of his portrait.

Why Make a Bequest to NYU School of Law? “I have benefited greatly by the legal education I received at the NYU School of Law, and I would like to acknowledge that benefit. Making a bequest as part of our Class Gift for our 45th Reunion made sense to me for three reasons: First, our children have established their own lives and are financially independent, so a bequest is now possible without placing our beneficiaries at a financial disadvantage. Second, by making a charitable gift I am helping to pass along my values to my children and grandchildren, whom I hope will recognize the importance of charitable giving. Finally, a gift to the School of Law upon my death will help to replace my annual gifts—and at this stage in my life a bequest seems painless compared to annual giving.”

Nancy Duff Campbell

Ron Pollack

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Alan Houseman

James Weill with Senator Richard Lugar

—R. Philip Steinberg ’60 If you would like to include the Law School in your estate plans, or for more information, please contact: Marsha Metrinko NYU School of Law 161 Avenue of the Americas, 5th Floor New York, NY 10013 Telephone: (212) 998-6485 Facsimile: (212) 995-4035 Email: marsha.metrinko@nyu.edu

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A smiling Margaret D. Welles holds the 2005 Law School Banner at All-University Commencement. In a long-running NYU tradition, each school selects a student to proudly lead its processional toward Washington Square Park with the violet hues of the University banners held high for all to see. Dean Richard Revesz, in choosing Margaret, recognized her outstanding academic performance in addition to her thoughtfulness, generosity and intellectual sophistication.

Commencement 2005 Celebrating the lifelong pursuit of knowledge

ashington Square Park was a sea of violet on May 12 as more than 6,000 students and another 15,000 family and friends gathered to celebrate New York University’s 173rd Commencement Exercises. New York University President John Sexton presided over the ceremonies. Shirley Tilghman, a biologist and the first woman president of Princeton University, received an honorary Doctor of Science and delivered “A Response on Behalf of the Honorary Degreee Recipients,” an NYU commencement tradition. In her brief address, she spoke of being “struck by the ubiquity of the human appetite for knowledge.” She then expressed her hope that “your appetite for knowledge will never be fully satisfied.” Sexton also bestowed honorary degrees on three others. Artist Louise Bourgeois, now 94 years old, was too frail to receive her Doctor of Fine Arts in person. She is best known as a sculptor of large-scale works that beg for psychological and intellectual examination. “Celebrated sculptor, prominent contemporary artist, you have created works that unlock treasures of memory and metaphor,” said Sexton. He also expressed his appreciation for her seven-decadelong friendship and generosity to the NYU Institute of Fine Arts (IFA), where her husband Robert Goldwater was on the faculty. Recently, Bourgeois donated the full edition of six cast-silver sculptures titled The Institute, 2002, to the IFA. The institute will install one in its Great Hall and will make the others available for acquisition to raise funds. Nobel Laureate Eric Richard Kandel collected yet another mark of distinction with an honorary Doctor of Science from NYU. A neuroscientist, Kandel pursued the “mapping of the fundamental machinery of the mind for over three decades…and helped explain for humankind the precious and mysterious gift of memory.” The leading authority on the evolution of Christianity, religion scholar Jaroslav Jan Pelikan Jr., received a Doctor of Humane Letters. In his citation, Sexton focused on Pelikan as a “brilliant exemplar of the central aim of a university to create and transmit knowledge, and astute commentator on what a university is and ought to be.” The University also bestowed its highest honor, the Albert Gallatin Medal, to Jan Vilcek, head of the cytokine research unit at NYU’s School of Medicine. Vilcek is the discoverer of Remicade, a drug that relieves arthritic pain. The Lewis Rudin Award for Exemplary Service to New York City went to

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developer Bruce Ratner, president and CEO of Forest City Ratner Companies. Ratner has developed commercial, retail, hotel and entertainment real estate in all five boroughs and is currently championing the creation of a Frank Gehry-designed stadium in Brooklyn for the Nets basketball team. The commencement exercises ended, as they began, with a corps of Scottish bagpipers accompanying the smiling violet-robed graduates as they left the park. ■

Mina Kim, left, embraces fellow graduate Lisa Khandhar.

Law School Convocation A call for service to all

n May 13, the NYU School of Law held its 2005 Convocation at Madison Square Garden. With thousands of guests looking on, the law faculty honored 958 graduating J.D., LL.M. and J.S.D. candidates. Dean Richard Revesz began the ceremony by speaking warmly of the graduating class of J.D. candidates whose first year coincided with his first as dean. He then highlighted many of the achievements of the graduates and detailed ongoing institutional changes, including the expansion of the law school infrastructure, faculty and scholarship programs. He ended by exhorting students to continue their hard work in pursuing excellence in the profession and to stand up for and pursue such ideals as justice and the rule of law. “More than at any point in recent history, society needs the insights, skills, talents and commitment of imaginative problem-solvers and justice-seekers. The vexing issues we must confront…require nuanced understanding and sound judgment about legal and political systems. They require problem-solving abilities that can cut across disciplines and across cultures. They require a firm moral compass.” Former Law School Dean and University President John Sexton expressed eager anticipation to returning to the classroom this fall after three years of self-imposed exile. He also praised Dean Revesz and indulged in his characteristic humor, poking fun at himself and his legal alma mater, Harvard Law School. Anthony Welters ’77 congratulated the graduates on behalf of his fellow members of the Law School Board of Trustees. Student speakers Nomaan Raja, an LL.M. student from Pakistan, and J.D. candidates Angelica Jongco and Jesse Wegman reflected on friendships that will be missed and anticipated the promising careers

awaiting the class. Raja’s insightful sketch of the experience of foreign students was a hit with his LL.M. classmates. Wegman thoughtfully described how a fairly routine property case taught him that law is ultimately about people’s individual stories, which shape and are shaped by law. Jongco and keynote speaker Helaine M. Barnett ’64, president of the Legal Services Corporation, spoke passionately about social justice. Jongco, who earlier in the spring had won an argument in the Third Circuit Court of Appeals (see “Students Argue Home Is Where the Heart Is,” page 6), movingly shared her sense of responsibility for the immigrant client she defended in her case and decried the “deficit of justice” in the United States. The U.S. “ranks first in gun violence, first in putting people in prison and first in the greatest inequality between rich and poor,” she said and urged her classmates to fill the need for more “good and ethically ambitious lawyers.” Barnett noted with approval the parity between men and women in law school enrollment and the significant minority enrollment rate at NYU. She then called for public provision of lawyers for the poor in civil cases. “The guarantee of a lawyer for the poor has not yet been extended to civil cases. As one commentator has noted, it is simply unacceptable in a civilized society that the only time a poor person can get into court with a lawyer is when he or she commits a crime.” Barnett closed by beseeching the graduating class—regardless of the career they pursue or area of law they practice—to take seriously the lawyer’s version of the Hippocratic oath, the aspirational Model Rule of Professional Conduct calling for each lawyer to spend 50 hours a year on pro bono matters. THE LAW SCHOOL

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The highlight of the ceremony for most attendees was, of course, the presentation and hooding of individual degree candidates. One by one the graduates walked jubilantly across the stage dressed in violet robes, some carrying their infant children, and were given velvet hoods symbolizing completion of their legal studies. Many graduates chose to be hooded by family members who are themselves graduates of the NYU School of Law. And major benefactors like John Creedon ’62 and Jay Furman ’71 hooded recipients of the scholarships they endow. Scores of graduates were singled out for special recognition in the Convocation program. Numerous awards honored excellence in a variety of areas, including highest grade-point averages, general academic scholarship, service to the Law School, scholarship in specific subject areas, law journal contributions and student notes. The Convocation was followed by a wine and cheese reception at the Law School and, later, exuberant carousing throughout the city that lasted well into the night. ■ Top row, left: Angelica Jongco delivers an address for the J.D. graduates; right: Nomaan Raja gives his address to the LL.M. graduates. Second row, left: Christina Weis and Mitchell Kent proudly present the Class of 2005 Gift. The class raised more than $30,000 in gifts and pledges; right: Trustee Anthony Welters. Third row, left: Helaine Barnett, president of Legal Services Corporation, gives the convocation address; right: Jesse Wegman speaks to his fellow J.D. candidates. Bottom: The Theater at Madison Square Garden.

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Hooding Album 2005 In the NYU School of Law tradition, graduates may add the personal touch of inviting relatives who are alumni or staff of the Law School to perform the hooding ritual. Changwan Son (LL.M.) with his wife, Kangwon Joo (LL.M. ’04)

Keren Avayu (LL.M.) with her husband, Ron Deutsch (LL.M. ’02)

Rehan Hasan (LL.M.) with his sister-in-law, Asma Hasan ’01, and his daughter, Farah

Cynthia Carlson (LL.M.) with her cousin, Joel Cooper (LL.M. ’58)

Douglas Segal ’00 (LL.M.) with his father, David Segal (LL.M. ’67)

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

Mirt Zwitter-Tehovnik (LL.M.) with his sisters, Mirna Zwitter-Tehovnik (LL.M. ’01) and Jasna Zwitter-Tohovnik (LL.M. ’99)

Benjamin N. Strauss with his wife, Jessica Fried ’03

Margaret D. Welles with her father, David D. Welles (LL.M. ’66 Taxation)

Jenya Green with her father, Mark Green, (Distinguished Visitor 2002)

Christopher A. Smith with his wife, Maria McFarland ’01

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Brina Milikowsky with her father, Nathan Milikowsky ’69

Jonathan L. Adler with his uncle, Arthur Rheingold ’67

Jessie Melissa Beller with her father, Gary A. Beller ’63, (LL.M. ’72)

Suzanne Romano with her fiancé, Andrew Thau ’03

Nathaniel Orenstein with his cousin, Renee Hurtig ’04

Michael Koplow with his father, Meyer G. Koplow ’76

Elizabeth M. Frankel with her father, Michael I. Frankel (LL.M. ’78 Taxation)

Jeffrey M. Zavatsky with his father, Peter G. Zavatsky ’76

Gaylynn Burroughs with her fiancé, Matthew Howard ’04

Jonathan A. Scharf with his grandmother, Pearl R. Lawrence ’44, and his father, Jared J. Scharf (LL.M. ’78)

Michael S. Estreicher with his uncle Herb Estreicher ’88

Lauren R. Leicht with her father, Steven M. Leicht (LL.M. ’78 Taxation)

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Abigail E. Rosen and Peter C. W. Rosen with their father, Jeffrey A. Rosen ’65

Brian P. McCloskey with his wife, Rebecca Peterson-McCloskey ’02, and his father-in-law, Andrew Peterson (LL.M. ’85)

Larissa Annoual-Chapoteau with her cousin, Alice Eddie Backer ’02

Laura M. Bilotta was hooded by Law School Trustee Sloan Lindemann ’93

Anthony Bonan was hooded by Law School Trustee David Malkin ’67

KPMG Scholar Jonathan A. Goldstein (LL.M.) was hooded by Lawrence Allen Pollack (LL.M. ’88)

Creedon Scholar Erin K. McCormack was hooded by Law School Trustee John Creedon ’55

Sinsheimer Public Service Scholar Sonja Shield was hooded by Law School Trustee Warren J. Sinsheimer (LL.M. ’57)

Furman Academic Fellowship Program Scholar Emily A. Berman was hooded by Law School Trustee Jay Furman ’71

An-Bryce Scholar Leila Kimberly Thompson was hooded by Beatrice Welters, pictured with Law School Trustee Anthony Welters ’77

Creedon Scholar Oona M. Peterson was hooded by Law School Trustee John Creedon ’55

Bright Lights Since 2003, scholarship donors and trustees have had the honor of hooding scholarship recipients and family friends onstage.

AUTUMN 2005

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A Chat with Anthony Welters

aw School Trustee Anthony Welters ’77 is the chairman of the new $400 million NYU School of Law capital campaign, announced this fall. A 1998 recipient of the Horatio Alger award, Welters, along with his wife, Beatrice, recently gave $10 million to the NYU Partners Fund, to expand core arts and science scholarship and programs throughout the university. He talked in August with freelance writer Hagar Scher about his inspiring life story and what motivates him today. In addition to being president and CEO of AmeriChoice (which operates managed health care plans for beneficiaries of government health care programs), you give your time to several boards and charities. Why add chairing the capital campaign to your to-do list? This campaign is really impor-

tant for the long-term infrastructure of the NYU School of Law. When we look back 20 or 30 years from now, I hope it’s viewed as a defining moment in terms of dealing with the issue of need-based scholarships and also sending a signal to the faculty that the community is committed to making sure they are able to move forward. Are need-based scholarships more important now than ever? Yes. There’s a lot of talent

Bea and I both love old mystery movies. And when we have quiet time, we just talk about things. You need quiet conversation because during the course of the day, people are tugging at you. We come home and kind of let down. alone together?

As a young boy, you helped your family out by shining shoes, selling papers and sweeping the floor of a barbershop. What useful lessons did you take away from these jobs?

What I understood from shining shoes, working, was that you could always do more than you did the day before. The earlier you learn that lesson, the more enjoyable life will be for you because you’re not afraid.

in America, but there’s a lot of competition to try and capture it. Making sure financial barriers are not a factor in students’ decision-making is very important.

That I can use my resources to make a difference in the lives of others.

Did you ever make a decision you regret because of financial pressures? While I was

What’s your least favorite thing about having money? That I lack a certain level of freedom

in law school, I worked 30 hours a week and I missed out on a lot. I was an outsider at NYU because I just wasn’t there. Hopefully, those with scholarships can really be part of the community and get the depth and breadth of a law school experience, which goes far beyond the classroom.

because there are all sorts of expectations. And that there’s a tendency for people to give a level of deference that they should never give. You know, just because someone knows how to make money doesn’t say that they know what the hell they’re talking about.

Bea and I attended Manhattanville College together. I’ve known my wife all of my adult life. As a matter of fact, we’ll soon celebrate our 30th anniversary. How did you meet your wife, Beatrice?

Congratulations! How will you celebrate?

We’re thinking about South Africa. 144

You both have a lot on your plates. What do you when you have an evening to spend

THE LAW SCHOOL

What’s your favorite part of being wealthy?

Do you still have moments when you pinch yourself and think, “Wow, look at my life!”

All the time. But I also constantly remind myself and others that at the end of life, people don’t talk about things; they talk about family, friends and good times. You want to know that your feet are firmly planted on the ground. That’s easy because my wife will say, “Before you come upstairs

will you please take out the garbage?” Or a good friend will say back to me, “That’s the dumbest thing I’ve ever heard.” You’ve said, “Living your beliefs is the greatest testament to who and what you are.” Is that also your view of politics? We have a

great political system. I also think it is turning into a system that’s less tolerant of people who have different views and that’s troubling to me. I believe in the robust debate of issues and I think politically we’re marginalizing the need to disagree and pushing aside advocates of great debates. You have two teenage sons. Are you optimistic about the world they are inheriting? I

grew up in tough areas of Harlem and then over in Brooklyn, so when I listen to people talk about it being tough now, I have a different perspective. I look at my sons and I hope that if they get anything from my wife and me it is that we believe in giving back. ■ AUTUMN 2005

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