Cardozo Life Winter 2001

Cardozo

LIFE

From the Dean

Su san L. Davis
EDITOR

Pau lette Cr owther
A S S O C I ATE ED ITO R

Elections and Transitions
During the last couple of months, it was difficult to avoid seeing a lawyer on television or in the news. The election con test brough t Florida and US Supreme Court deliberations and argum ents into ev ery home and automobile, and even on to desktops through the Internet. Given the co llective energy of Cardozo’s faculty, it will come as no surprise that many of them had much to say and write abou t the election . Cardozo professors appeared on television and were published in journals an d newspaper s locally and nationally—even internation ally. Some of their though tful w ords have been reprinted later in this issu e of Cardozo Life. Of course, no one had a bigger role than adjunct p rofessor David B oies, whose representation of Al Gore took him through Florida’s courts to the US Supreme Court. Now that the election is over and the presiden t is inaugurated, it is still easy to watch more legal wrangling either on Court TV or the likes of Law and Order, The Practice, an d LA Law re-runs. Perhaps this media activity helps fuel the num ber of applications the Law School is receiving; but surely it imp acts on the number of students who dream of litigating, w hether defending or prosecuting. Many Cardozo graduates go on to practice criminal law. Th ey are at the Manhattan DA’s office, the US Att rney’s office, in p rivat e practice, at the o Legal Aid Society, and elsewhere— in New York and around the count ry. Pr ofiles of some of th ose who decided to follow their dreams are included in the pages that follow. Most of them received training in Cardozo’s wellknown Crim inal Law Clinic and Intensive T rial Advocacy Program, both of which are su pported by the Jacob Burns Ethics Center, which sp onsors an annual lectu re an d courses in professional resp onsibility. Robert Benn ett, Presiden t Clinton’s lawyer, was th is year’s lecturer . For myself, I am still here this sem ester as a dean waiting to be relieved of duty. Indications are that my successor will be chosen soon and I can retu rn to th e faculty an d other activities. You should all have confidence, as I do, in the ultimate su ccess of our transition p rocess. B eing Cardozo’s dean has been an entirely satisfy ing experience for m e p ersonally and professionally. I look forwar d to giving my successor some suggestions and then getting qu ickly ou t of the way so the new regime can take hold. Warm good wishes,

J u d y T cker u
A RT D IR EC TO R CONTRIBUTORS

No rman Goldb erg , Su sa n Lern er Peter Rob erts on , Deb ra L. Rothenberg J eff Storey ’01, Denn is Wile
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Cardoz o Life is publishe d tw ice ea ch ye ar by the De pa rtme nt of Communica tions and Public Affairs Benjamin N. Cardozo School of La w Jac ob Burns Institute for Adva nced Lega l Studie s Yeshiva Unive rsity Brookdale Cent er, 55 Fifth A venue New York, New York 10003 Phone (212) 790-0237 FAX ( 212) 790-0322

q

Edit orial cont ributions and submissions are we lcome . This publicat ion a cce pts no re sponsibility for unsolicit ed manuscripts or photogra phs. All submissions are subject to editing a nd are use d a t the e ditor’s discretion.

Y E S H I VA U N IV E RS IT Y

Rob ert M. Beren
C HA IR M A N, B O A R D O F TRUS TEES

No rman Lamm, Ph .D.
PRESIDENT

CARDOZO LIFE

W IN T E R

2001

Cardozo

LIFE

Features
Election 2000. . . . . . . . . . . . . . . . . . . . . . 15
Alm ost a dozen Cardozo professors were featured on television news shows and were quoted in and wrote extensively for the lo cal and national media as th e election cont est unfolded. T heir varied opinions on the Florida and US Supreme Court decisions, the electoral college, and more are high lighted in a chrono logical, edited compilation.

Derrida on the Death Penalty . . . . . . . . . . 22
The famed philosopher and perennial visitor to Cardozo led a discussion th at tou ched on cru elty , capital punishm ent, and W estern philosoph ical tradition.
BY K YR O N H U IG E N S PRO FE SS O R O F L A W

Ethics, Zealous Advocacy, and the Criminal Defense Attorney. . . . . . 24
In th e annual Jacob Bu rns Ethics Center Lecture, Mr. Ben nett focused on the issues of ethics and morality an d the tension created for practicing lawyers by the sometimes co nflict ing roles of officer of th e court , good public citizen, and zealous advocate.
BY RO BE RT S . BE N N E T T PA R TN E R, SK A D D E N , A RP S, S L A TE , M E AG H ER & FLO M L LP

Departments
Around Campus . . . . . . . . 3
Joint Venture with Cal Press • LL.M. Program Flourishes • Dickinson Gives Tenzer Lect ure • Co nference Debates Cooperating Witnesses • Mo ot Court Team Advances to Finals • Panel Explores Ways to Bring Technological Advant ages to More Comm unities • Stud ents Organize ABA/ADR Chapter • Budapest is Site of Summer ADR Program • IP and ADR Converge in Panel • Event s on Napster and Trademark

Making a Real Difference in Criminal Law . . . . . . . . . . . . . . . . . . . . 28
Alm ost one-q uarter of those gradu ating from Cardozo decide to p ursue a career in criminal law. Therefore, there are many hund reds of Cardozo graduates work ing in cities and states th roughout the country at not-for-profit organizations, government agencies, and private firms defending and prosecuting cases Mr. Storey, a student in . the Criminal Law Clinic, met with a numb er of alumni and learned that their law sch ool experiences and training helped them achieve their dreams.
BY J E FF ST O RE Y ’01

Faculty Briefs. . . . . . . . . . 11
Stein Joins Faculty • New s Briefs

Alumni News & Notes . . . 34
Tributes & Reunions • Alumni Join Board • $50,000 Goes to Clinic • Honor Roll of Do nors • ClassActions

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BEN JA M IN N . CARD O Z O SCH O O L O F LAW

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D I R E C T O RY

Jaco b Bu rns I nsti tu te for Ad va nced L al Stud ies eg Y iva Un iversi ty esh Bro okd ale Cen ter 55 Fifth Avenue New Yo rk, New Y 1 00 03 -43 91 ork Pau l R. Verkuil Dean Stewart Sterk Sen io r As sociate Dean Matthew L evine As sociate Dean fo r Bu si nes s Affairs J acq uelyn Bu rt As si stan t De an fo r Placement Jud y Mend er As si stan t De an fo r Stud ent Services Robert Sch wartz As sistan t De an fo r Admissions

Earle I. Mack Chair man Sh eld on H. Sol ow Steph en J. Schu lte Steph en B. Siegel Vice Chairmen Barry A. Sh enkman T asurer re Ro nn ie Heyman Secretary Robert M . Beren L eon Black Harvey R. B lau Leon H. Charney Arthu r M. Gol d berg* Sh immie Horn E. Billi I vry Eric M. Javits Dr. Ira Ku kin Jon ath an Kukin Dr. No rman L amm Th omas H. L ee Mark S. Lieberman Jeffr ey H. L ria o Lawre nce R ub en Barry K. Sch wartz Ro mie Sh apiro Bo nn ie Stei ng art Ra ch el L. Warren Steph en A. Weiss Sigg i B . Wilzig Seli g A. Zises Honorary Directors Morris B. Ab ram* Josep h Ap pl eman Ho n. Marvin E. F rankel Ho n. Stanley H. Fu ld Ab raham S. Guterman Prof. Lo uis Hen kin Samuel J. He yman Ed gar J. Nathan I II

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ALUMNI
Tributes, a Wine Tasting, Seminars, and Reunions Add to Campus Life
Alu mni were back on campu s th is fall to serve as mentors to current students, see old classmates, and pay tribute to Cardozo’s deans. A cocktail party held in October honored deans Paul Verkuil and Michael Herz for achievements during their tenures. The theme, “ Fighting for Cardozo’s Future,” was carried through with music from the film Rocky and antiq ue English b o ing x gloves for each d ean. A holiday wine tasting an d networking party at Union S quare Wines in early December brought NYC alums together to sample nine wines. The event was so well attended that it was standing room only. Laurence Go ttlieb ’93, Marc Mukasey ’93,

news & notes

Nikiforos Mathews ’96, J oel Schmidt ’96, Craig Warkol ’99, and Susan Schwab ’00 spoke to current students about t heir postgraduate clerkship exp eriences and encouraged them Dean Pau l Verku il an d Dean M ich ael Herz to pursue th is rewarding opportunity. At a luncheon for stuaspects of life at an Intern et dents, Donald Scherer ’93, comp any and how the CEO of Crossbord er Solustudy of law provides a u setions, discussed various fu l backround for business.

Lieberman and Weiss Join Board
At th e ann u al Bo ard o f Directo rs d in ne r n ew b oard memb ers Ma rk Liebe rman ’84 an d Step h en Weiss ’90 were in troduced. Chairman Earle Mack p rese nted De an Verk uil with a Baccarat crysta l g avel to co mmemo rate his ten u re as d ean . The h ig hlig h t o f th e even ing featu red Prof. Larry Cun n in g ham ’88 , w ho g ave a pre view of his n ew b oo k, Ho w to Th in k L ike Ben jamin Grah am an d In vest Like Warren Bu ffett. Lisa Fo y ’9 3, Jo s h So hn ’97, an d YU Pres id en t Norma n Lamm

Chairman Earle Ma ck an d Ma rk Ste ph en Weiss ’90, Rach el War ren ’92 , an d Pro f. Larry Cu nn in g ham ’88 Lieberman ’84

(Fro m le ft) Aliy a Nels on ’01, Samu el T eg aye ’02 , Mich elle s Ricard o ’0 2, and Jo h n Po tter ’00 at BALL reu nio n . SA

(Fro m left) Vivien Na im ’88 , Howa rd Lieb ’83 , M elan ie Leslie ’9 1, Lis a Fo y ’9 3, M axin e Stein ’94, Rob ert Bern stein ’9 5, T ricia Pan tzer ’9 5, Dean Verk uil, Dean Herz, L wren ce Klein ’94. a

Alum ni Association Chair Joshua Sohn ’ 97 reserved the conference room, which was filled to capacity, at Piper Marbury Rudnick & Wolfe, L.L.P. for an alumni breakfast; Howard Abrahams ’94 brought in Bradford Hildebrandt of Hildebrandt, Inc. to speak . Mr Hildebrandt, who h as . been a consultant to many of the recent law firm mergers arou nd t he world, discussed significant aspects of law firm strategies, mergers and acquisitions, practice management, p art ner and associat e compensat ion structures, and New Y rk o City real estate leases. Three stu dent organizations hosted their ann ual reunions t his fall. BALLSA gave a cocktail party with live music. Th e Arts & Entertain ment Law Journal held its annual d inner following the Tenzer Distinguished lecture, featuring Q. Todd Dickinson, under secretary of com merce for intellect ual property and director of the US Patent
W I N T ER 2001

Office. The annual Law Review alumni party was h eld at th e Manhattan Penthouse, bringing together professor alumni, and s, current stu dents.

New Alumni Director Starts
Barbara A. Birch was named director of alumni aff airs and started at Cardozo on January 2. For the p ast four years, sh e has been at Hofstra University School of Law, most recent ly as assistant dean fo r law alu mni affairs. In that p osition, she had responsibility for alumni programming and the annual fund. She is currently studying at Hofstr for a an MBA in mark et ing and anticipates graduating in May 2002. She holds a BA summa cum laud e from State Un iversity of New Y ork at Binghamton.

(Fro m le ft) Prof. T b y Go lick , Ro ch elle Fed er Han se n ’79 , Dean o Verku il, an d Jo el Strau ss ’92.

Graduates Direct Funds to Bet Tzedek
Two Cardozo graduates were co-lead counsel in a securities class action suit and have directed $50,000 from the settlement to the Bet Tzedek Legal Clin ic. J oel Strauss ’92 of Kaplan, Kilsheimer & Fox LLP and Rochelle Feder Hansen ’79 of Bernstein Litowitz Berger & Grossmann LLP repre-

sented plaintiffs/shareholders in an alleged stock market fraud. Th ey were successful in negotiating a favorable set tlement for the victims. After distributing the monies to class members at a rate of 110% of their losses there was money rem aining in the settlement fund. According to the terms of the settlement, those monies would be distrib uted to consumer advocacy organizat ions in

United States Supreme Court Gro up A dmission
B e admitte d to th e US Su preme Co u rt with fello w Ca rdozo alu mn i. Jo in u s in Wash in g to n, DC o n M arch 2 7, 2 001 , fo r th e sw earin g -in ceremo n y an d to h ear o ral a rgu men ts. Fo r mo re informatio n an d to mak e a reserva tion , call Barba ra Birch, director of alu mn i affairs, at 2 12-790 -0 298 . Sp ace is limited .

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accor dance with th e cy pres doctrine.“Rochelle and I discussed beneficiaries; we recognized the good work that Bet Tzed ek does, and as alu mni of Cardozo we thought this would be an approp riate organization,” said Joel. Toby Golick , director of the clinic, comm ented : “$50,000 is a significant donatio n and can positively impact the work we do h ere. It means a lot to us that Cardozo alums are respo nsible for this donat ion.”

Letters
Another Tribu te to Morri s Abram
After rea d ing [Dean Verkuil’s] trib u te to M o rris Abram in th e Su mmer 200 0 issu e of Cardo zo Life (p.1 5), I wan ted to sh are w ith you a n en co u nte r I h ad with M orris ne ar th e en d o f h is life . In th e fall o f 1 999 , I was invited by Mo rris’s son an d da ug h ter-in-law to th eir ho me fo r d inn e r. Upo n arriving , I wa s in tro du ce d to Mo rris, wh o wa s, acco rd in g to his da u gh ter-in-law, “a lso a lawyer.” Exh au sted fro m a fu ll d ay a t w ork , an d so mewh at regrettin g h avin g accepte d a mid -week d in ne r in vitatio n , I sat d o wn w ith Mo rris in a co rn er of the livin g ro om an d p repared to make small talk u ntil dinn er was served. Wh at fo llo we d wa s o ne o f th e mo st en ga gin g and me morable con versa tion s I h ave h ad w ith an yo ne (much less a b ran d -n ew acq uainta n ce) in a very lo n g time. In th e sp an o f a h alf-ho u r o r so , we cove red a wid e ran ge o f to pics, in clud in g th e p ractice o f law , classica l mu sic, an d the in flu en ce o f MTV o n p o pu la r cu ltu re! Wh en h e learn ed I h ad g rad u ated fro m Card o zo , Mo rris asked ma ny q u estio ns ab ou t the cu rren t sta tus of the sch o o l, its facu lty, an d my exp erie nce th e re.

Th e Ca rdo zo Alu mni Asso ciatio n e lected ne w officers in Ju ne 20 00. Th ey a re Jo sh ua So hn ’97, ch air; L Fo y ’93 , isa sen io r vice cha ir; Step h an ie Gayd en ’93 , p ro gra m vice ch air; Tricia Coh en Pan tzer ’98 , treasure r; Ro bert Bern stein ’9 5, co rresponding secr etary; an d Lawrence Kle in ’94, record in g secretary. Th e Executive Committee is lo o kin g fo r vo lu nte ers to serve o n the fo llo win g stan d in g co mmittees: CL ECaree r Develo p men t, Stu d en t Relation s, No n -Leg al Attorn eys, an d Ou treach. To volu n tee r, con tact th e Of fice o f Alu mni Affairs at 212-790-0298. Don n a Co sta ’87 an d Jame s E. Sch walbe ’93 h ave b een n a med ch airs for the 20 01 Alu mn i An nu al Fun d . Sp ecia l th an ks to Step he n A. Weiss ’9 0 a nd Ch risto ph er A. Seeg e r ’90 fo r th eir su p erb leade rship du rin g th e p ast two aca demic ye ars. Alu mn i who wan t to a ssist with this year’s a nn u al fun d sh o uld co n tact th e Office o f Alu mn i Affairs at 212 -7 90-029 8.

I th o u gh t ab ou t my co nversatio n with M o rris fo r man y d ays. Ap art fro m th e d ive rse and stimulatin g to p ics we co vered , I felt privileg ed to h ave m t o n e o f th e fou n d ing fo rces b eh in d a sch o ol e at wh ich I sp en t th ree of the mo st ch allen ging a nd en joya ble years o f my life. Perha ps for Mo rris th ere wa s a feelin g a s well o f h avin g co me fu ll circle. Whe n I men tio n ed to Morris’s so n severa l d ays la ter h o w very mu ch I ha d en jo yed talk ing w ith h is fathe r, h is so n replied th at M o rris h ad to ld h im th at h is co nve rsatio n with me so meh o w h ad mad e worth w hile all th e effort h e had pu t in to help estab lish Card o zo man y years ag o . Wh en I le arn ed o f h is d eath , I fe lt b oth a d ee p pang o f sad ness an d a gratefu ln ess th at I’d ha d th e o p p ortu n ity to mee t su ch an extrao rdinary p erso n, if o n ly b riefly. Read in g you r tribu te to Morris revived th ose fee lin gs for me a nd p ro mp ted me to offer a trib u te of my o wn to a remarkab le man . —Jen n ifer Newco mb ’97

Letter fro m Sarajevo
I’m a law clerk at a n in tern atio na l cou rt, Th e Hu man Rig hts Ch amb er, w hich wa s set up u n d er th e Dayto n Pea ce Acco rd . It h ea rs claims o f h u man rig h ts vio latio n s arisin g u n de r th e Euro p ea n Co n ven tio n o f Huma n Rig h ts th at have o ccurred sin ce the sig n ing of the Dayton Peace Acco rd (Decemb er 1 4, 1 995 ) to the p resen t. The co u rt meets fo r o n e week eve ry mon th a nd is mad e u p o f 1 4 ju d ge s: six a re n atio n al (two Bo sn ian , tw o C ro atian , a nd tw o Serb ian ) an d eigh t a re in ternational, fro m all o ver Eu ro p e. M ost of th e cases invo lve p roperty issu es: Peo p le are tryin g to g et the ir h omes b ack. Th e cou rt also h ea rs cases regard ing tre atmen t o f war crimin als, fro zen b an k acco u nts, an d religio u s p roperty d estro yed d urin g th e wa r, as we ll as on e s in volvin g labo r rig h ts, d iscrimina tio n , fair trials, p ensio n s, etc. The law clerks—abo u t five in tern atio nal lawyers paid by ou r respective go vernments—prepare the cases a nd d raft memo ran da an d d ecisio ns for the ju d ge s to review. We p rese nt the cases, th ey qu estio n u s, d iscuss the cases, a n d then make d ecision s o n th em. It is very in tere sting to w atch the in tern atio n al co mmun ity imme rse itse lf so comp letely in th e reb u ild in g of Bo sn ia an d Herzeg ovin a. It is pa rticu larly inte restin g fo r me to o b serve the in ternatio n al commu n ity’s wo rk in an a rea wh ere there h as been an e xtreme case o f eth n ic co nflict resultin g in wha t was esse ntia lly eth n ic cle an sing . One o f th e main o bjectives o f Da yton is to reverse th e effects o f th e clea nsin g . Ho weve r, th e co u ntry is d ivid ed b etween th e gro u p s—e ach w ith mu ch lo ca l au to n omy—an d th e fed eral go vern men t is very weak. Acco rdingly, it is an u p h ill b attle . Th e co u rt h as issu ed a pp ro ximately 500 d ecision s in the five years it ha s b een in existen ce an d h as abo u t 4 ,500 ca ses p en d in g. I g u ess th e qu estio n remain s w hethe r it is really po ssib le to imp ose co n sen su s fro m th e o u tsid e. I sup p o se o n ly time will tell. —She ri Ro sen be rg ’94

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around

CAMPUS
compilations introduce and make accessible European jurisprudence and ph ilosophy to an American audience wh ile providing a focus for peop le interested in the intersect ion of the three field s. Professor J acobson noted th at th is marks the first time that a law scho ol has formalized a relationsh ip with a university p ress. “It will be exciting for our students and important for

Dean Announces Joint Venture with Cal Press
Paul Verkuil announced recently that Cardozo has entered into a relationship with the University of Califo rnia Press to p ublish Ph ilosoph y, Social T heory an d T he Rule of Law—an international and interinstitutional series of scho larly bo oks. Th e series will be relaunched under the

ausp ices of the Jacob Burns Institute for Advanced Legal Stu dies. Eric Smoodin , ph ilosophy editor, University of Califo rnia Press, said , “We are convinced that it will be a successful and ongoing series for us. The renewed interest that Cardozo has shown matches ou r own, and I’m especially impressed by the id eas and quality of scho larship among the Cardozo editors.”

Professors Art hu r Jacobson and Michel Rosenfeld, who were among th e series founders, will remain on the editorial board, which will b e expanded to include Prof. Peter Goodrich and two members of th e University of California faculty. Eigh t books have already been published, and plans call for publishing two or more books p er year over the course of the five-year agreement. These edited

LL.M. Program Flourishes
In January, 18 students grad uated from Cardozo’s LL.M. program and 15 more began their stu dies, joining 34 LL.M. candidates who entered in the fall. Approximately 60% of the students are studying intellectual property, and twothirds come from abroad; all add to t he growing diversity found on camp us. This year, stud ents represent 30 countries, coming from Europe, Asia, the Mid dle East, South America, and New Zealand. T he variety of interests and backgrounds among the LL.M. student s is well shown by Victor Knapp and Elin a Koci. Knapp is a criminal defense lawy er and an actor who recently appeared in a film, playing a terrorist. Koci, who is Albanian, won a Ron Brown Fellowship to study intellectu al p roperty law and is known as Albania’s first specialist in the area of IP. According to Toni Fine, direct or of graduate and international programs, several new p rograms were instituted this y ear to enhan ce the graduate student experience and strength en t he bonds between LL.M.s and th e larger Cardozo community . Among them are informal, weekly roundtables th at featu re invited guests speak ing on topics of particular interest, an alumni mentoring progr am, and a syst em that pairs incoming students with those who are returning.

the faculty.” Future book s will b e printed with credits to th e Jacob Bu rns Institute for Advanced Legal Studies, the Benjam in N. Cardozo School of Law, and Y shiva e University. According to Dean Verkuil, “T he University of Califo rnia Press is, with Harvard, Y le, Princeton, a and Chicago, one of t he top university presses in the country.” He said that this pu blishing venture will attract scholars to an d increase the intellectu al reputation of Cardozo. The book series will also provide a fo cu s fo r promoting and publishing future scholarly conferences—one on Niet zsch e scheduled for the spring may become th e basis of a future book, as may one p lanned on Spinoza. Professo r Goodrich said , “It ad ds to Cardozo’s huge reputation in int erdisciplinary legal studies, creating an international dialo gu e in an area that is known to be insular—legal philosophical thought.” In a separate but related agreement, University of Califo rnia Press has agreed to pu blish Cardozo Studies of Law and Literature. According to Pro f. Richard Weisberg, Cardozo will retain complete editorial control of the journal while “all of the business, marketin g, and p rinting will be handled by this wonderful university press, which will help t build the field of o law and literature.” The journal will be relaunched, with a name change, probably in th e fall of 2001. Professor Weisberg said
4

that a new editorial structure will be p ut in place so that he, Professor Goodrich, Michael Pantazakos, and Prof. Penelo pe Pether of Washington Law School at American University will be ge neral editors each responsible for one number a year. “This expansion will further enrich the scop e and content of our sem inal journal.” Up to 10 student editors will continue to work on the p ub lication, includ ing the one chosen an nually by the Law Schoo l as the Floersh eimer Fellow in the Humanities.

Dickinson Gives Tenzer Lecture
The at t rney examiners o who review patent ap plications fo r the United States may be d ealing with innovatio ns that are “unimaginable,” but the spate of useful and novel inventions

need not be “unmanageable.” In fact, the economy has been well served by an intellectual prop erty system that “is strong by being flexible.” That was the m essage from Q. Todd Dickinson , the Clinton administration’s po int man on domestic and international int ellectual property issu es, wh en he gave the Annual Tenzer Distingu ished Lecture in Intellectual Property. In addition to d irect ing the United States Patent and Trad emark Office, Dickinson was the Under Secretary of Commerce for Intellectual Property. In “E-Com merce and Business Methods Patents: An Old Debate for a New Economy,” Dickinson said

that d espite the cont roversy surrounding such patents there is nothing in the legal standards governing intellectu al p rop erty that would deny limited p roperty rights to their developers. A novel poin t- and- click method for ordering goods over the Internet deserves protection in mu ch the way the cash register did in the 19th century. Dick inson added, ho wever that the , Patent Office has revised its

Legal A id President Talks on Public Interest Law
At th e first lectu re of th e Access to Ju stice serie s, sp on so red b y th e Jaco b Burn s Ethics Cen ter, Dan iel Greenberg, pre sid en t an d atto rn ey in ch ief, Legal Aid Society, sp o ke ab ou t “ Clien t Commitmen t an d C uriosity: How to Thin k Ab o u t a Ca reer in Pu b lic In terest L ” aw.

C AR DO Z O L I F E

procedures to control the n umber of business meth od patents it issues. In areas such as the protection of databases that “can be pirated in the blink of an eye,” Dick inson said th at his agency has tried to set a balance between protection of inventors’ property rights and the wid e dissem ination of innovation. As ev id ence of its success, h e noted that this country’s biotechnology in dustry is healthier than those of its Europ ean comp etitors, resulting in research scientists moving to the United States. At th e same t ime, there is a growing appreciation of intellectu al property in once-skeptical develop ing countries. The Patent Office h as moved to make mo re than two million patents and registered trademarks and app lications freely available on the Internet and to implement electronic filing of trad emark and patent applications. T his activity is taking place against a backdrop of increasing globalization and international legal norms for the prot ection of intellect ual p roperty. As a result, while officials ponder the effects of sophisticated compu ter networks, th ey also must develop effective global en force ment mech anisms to protect t he folklore of traditional cultures. Dickinson conclud ed that th e US intellectual property system is well prepared for t he challenges of the future. “We are not a typical government agency,” he said.
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Ava tar Record s an no u n ced th e do n atio n o f $ 10,0 00 to the In no cen ce Pro ject at a p ress confere nce h eld in the Jacob Bu rn s M oo t Co u rt Roo m. Th e d o natio n was mad e in ad van ce o f a Jan u ary release of Oz—Th e So u nd track, an all-star rap co mp ilatio n from th e HBO p riso n d rama Oz. Avata r Pre side nt Larry Ro bin so n is sh o wn h ere g ivin g the co n trib ution to Prof. Barry Sch eck w h ile so me o f th e a cto rs an d rap p ers loo k on . A pe r co p y ro yalty w ill b e do n ated to the In n ocen ce Pro ject as well. Sh o wn at ba ck (fro m le ft) are Oz cast memb er De an Win ters, Oz mu sical sup erviso r Ch ris Terg eso n , Oz creator an d execu tive p ro du cer To m Fo ntana , an d so u n d track artist Ph aro ah e M on ch.

Sen io r Associate De an Stewart Sterk in au g u rated a mo nth ly b ag el lu n ch to cre ate a way fo r th e entire C ard o zo co mmun ity to meet info rmally an d to kee p th e lin es of co mmu nicatio n op en . “First Wed n esd ay” h as b een well-atten d ed b y stu d en ts, facu lty, a nd administratio n . David Taw il ’0 2, SBA sen ato r said , “En co u rag ing this kin d o f in teractio n is a , gr eat ide a; it sig nifican tly b o o sts sch o o l mo rale.”

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Conference Debates Cooperating Witnesses
A recent Un ited States Supreme Court decision described how the story of a key prosecution witness evolve , under careful d coaching, from “ muddied memories,” to providing a very detailed and powerful account of a capital mu rder . The FBI was rocked by revelations that key mob info rmants in Boston had used their relatio nship with federal agents to eliminate their comp etition while they continued to commit crimes, up to and including murder. In Canada, the govern ment of Ontario convened

a commission to examine th e case o f a young m an who h ad been exonerated of murder charges 10 years after t he testimo ny of jailhouse inform ants played a pivotal role in his conviction. Th ese and other cases were cited in an ambitious day-long conferen ce at Cardozo on wh at organizers described as a t roubling “conu ndrum ”: Is justice obtainable in a system that increasingly relies on deals stru ck with “cooperating witnesses”—also known as “crim inal informants” or “snitches”—who barter false testimony in exchange for lenien t treatment by prosecutors of their own lawbreaking? More th an 150 prosecutors, defense attor-

neys, jud ges, an d academics attend ed the conference, which Prof. Ellen Y roshefsky , the conference a organizer, said was th e first op portu nity for criminal justice system p rofessionals to debate issues surrounding the use of informants. It was sponsored by th e Jacob Burns Ethics Center and the Cardozo Law Review. Professor Y roshefsky a said that m ost prosecutors are convinced that many significant cases could not be mad e without the help of cooperating witnesses. Th ey also believe that vigorous cross-examination, careful corroboration, and other ch ecks bu ilt into the system are sufficient to p revent wrongful convictions based on false testimony.

Card o zo p ro fesso rs were on th e airw aves, in th e p ress, on TV an d even , o nline at do t.com ne ws service s. Th ey w ere o n ha n d at a ll h o urs of the d ay to h elp inte rpret fo r Americans an d th e wo rld the co mp lex an d un p reced en ted le gal d evelo p men ts in th e w eeks followin g th e p resid en tial ele ctio n . Marci Hamiton , M ich ael Herz, Jo h n McGin n is, Le slie Newman , Mo n ro e Pr ice, Da vid Ru d en stin e, Dean Pau l Verku il, an d Ed Ze lin sky were o n CNN, CBS, NBC, M SNB C, NY1, Na tion al Pu b lic Rad io, Fox New s, a nd WPIX. They we re q u o ted in th e New Y rk Times, USA Today, The Jeru sale m Po st, h ad o p -ed s p ub lish ed in the New Y rk Po st, o o an d were co nsu lte d for ba ckg ro u nd expertise fo r o th er med ia o u tlets. See p . 15.

However, Professor Y roa shefsk y and her colleagues indicated th at false testimony was a factor in 21% of 77 wrongful convictions. Th e wh ole prob lem is “grossly exaggerated,” said Shirah Neiman, deputy US Att orney for the S ou thern District of New Y ork. She insisted that mo st informants signed up by h er office tell the truth, and carefu l procedures catch mistakes before any dam age is done. Some p rosecutors and investigat ors rely o n “common sense” or their “gut ” to ferret out informant s who are lying. But Saul Kassin, a professor of psych ology , argued that “as a general rule, we are terrible human lie detectors.” Stud ies indicate that m ost p e ple’s abilo ity to detect a falsehood is not significantly better than would be achieved by flipping a coin. “Experts,” such as FBI agents and judges, do not do much b etter. Prosecutors and judges scoffed at Kassin’s research, suggesting th at psychologist s w ere looking for lucrative expert witness fees. Neiman said that psychologist s “ obfuscate” the issues of a trial and shade the tru th to help t heir clients. Judge Stephen S. Trott of the United States Court of App eals for t he Ninth Circuit, who gave the luncheon keynote and participated on one panel, said that p rosecutors had to be very careful in working with informants. The screening system works pretty well, but “th ere are way too many individual
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Gerald Le fco urt, Es q., an d Lore tta Lyn ch , US Atto rney, Eastern Dis trict o f NY , were co mmen tato rs at conferen ce p an el.

disasters where the justice goes haywire.” Criminals understand that the best way to get o ut of trou ble is to cut a d eal with the government. “Frequently they tell th e truth, but frequently they lie,” he said. Prof. H. Richard Uviler, Columb ia Law School, said that prosecut ors do n ot h esit ate to rev k e the “cono tracts” of witnesses wh o lie. But Prof. Bennett L. Gershman of Pace said that man y p rosecutors are motivated by a “conviction psychology” instead of a desire to “do just ice Wit nesses .” have an incentive to t ell prosecutors not the truth, but what they wan t to hear. Th is trait is enco uraged by improper coaching of witnesses, “the dark , dirty secret of th e American adversary system.” Tradit ionally , partisans of th e adversary system have relied on cross-examination at trial to disclose if any witness is lying. New Y ork attorney Gerald Lefcou rt complained that prosecutors do not turn over enough information to facilitate effective questio ning. “It’s the policy to mak e sure that d efense attorneys are not fully prepared,” he said. Other speakers said
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prosecutors may be reluctant to tu rn over more than the b are minimum of inform ation because they think it would b e used by the defendant, who has as much, if not more, incentive to lie as the informant. In any case, US District

Judge Gerald E. Lynch, who sits in the Sou th ern District, pointed out that since most cases are resolved through pleas, “95% o f defend ants never get any trial.” Cross examination—“th e great engine of truth” —may be irrelevant in such a system. When all is said and done, however, “somebody has to tell who is telling th e truth,” said J udge Lynch.

“Prosecutors are in a key po sition to do that.” To help them do a better job, p anelists offered a variety of suggestions. Among them were better supervision and training, fuller d ocumentation of plea negotiation s includ ing the u se of vid eotaping, beefed-up internal standards, addition al court hearin gs to rev “tainted” eal testimony , more detailed instructions by ju dges to alert juries to th e problems of info rmant t est imony, tough er punish ment for inf orm ants who lie, and a restriction, if not outright ban, on the use of jailhouse snitches.

Int ell ectual Property Program Launc hes Sp eak ers Series

In the fall, the inauguration of the Law Sch ool’s Intellectual Property Speakers Series was instituted to provide another forum at Cardozo for discussion of cuttingedge issues in the field. Students were invited to th e colloquium following each faculty talk. Speakers includ ed: Alfred C. Y associate dean for academic affairs en, and professor of law, Boston College Law Schoo l; Julie Coh en, associate professor of law, Georgetown University Law Cent er; and (pict ured below) Peter Feng, associate professor of law and d eput y head of th e law dep artment, University of Hong Kong. Speakers in the spring are: Michael Froomkin, professor of law, University of Miami School of Law; Robert Denicola, Margar et Larson Professo r of Int e llectual Property Law, University of Nebraska College of Law; We y Gordon, Paul J. Liacos Scholarnd in-Law and p rofesso r of law, Boston University Law School; and Arti Rai, associate professor of law, University o f San Diego Law School.

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Moot Court Team Advances to Finals
Cardozo’s Moot Court Honor Society won second place in the team competition fo r the Annu al National Moot Court Comp etition for region II h eld at th e New Y ork City Bar Association. The team advanced to the nationwide competit ion held in J anuary . W inning team members wer e Aglaia Dav is ’01, who also was a ru nnerup for Best Oralist; and J ason Halper ’01 and J ennifer Loyd ’01. T he team also won Best Brief in region II. They argued whether it violates the first amendment to hold a newspaper civ illy liable for obtaining information in violation of the fed eral v iolat ion statute.
Ju dg es fo r th e fina ls were (on le ft) Ho n . M arty Sch u lman , NY Sta te Sup reme Cou rt; Ira Gla ss er, execu tive dire cto r o f th e American Civil Lib erties Unio n ; a nd (n o t p ictu red ) De an Stewart Ste rk.

Th is ye ar, o rie ntation was ex ten ded to in clu d ed a sp ecial lu nche o n in ad d itio n to th e traditio n al bo at cru is e. Cardozo’s First Ann u al Ne w Stu d en ts Lu nch eo n was held at th e recen tly o p en ed Cen ter for Jewish His tory, ju s t a few b lo cks fro m Card ozo . A g o o d n u mb e r o f faculty an d curren t stu dents were o n h an d to welco me memb ers o f th e class o f 20 03. Sh own here are T ran Smith ’0 3 and Portia Down in g ’0 3.

The Paulsen Moot Court Comp et ition, as is the tradition, wrestled with topical issues before the US Supreme Cou rt—th is year they argued about the constitu tionality of police roadblocks and drug t e ing of st pregnant women. The winner was Mary Alestra ’01 and runner-up for Best Oralist was Scott Sisun ’0 . 1 Th e other two finalists were Rach el Hirsch feld ’01 and Aaron Kranich ’02.

Panel Explores Ways to Bring Technological Advantages to More Communities
The emergence of the Internet and new technologies has created a gap between th ose p eople and communities that make effective use of information technology and those that can not becau se o f lack of knowledge and /or access to hardware. This phenomenon is known as the d igital divide. At “Bridging th e Digital Divide: Equ ality in th e Information Age,” legal experts and consumer advocates discussed the social implications of this issue and ways in which variou s communities can engage in and be empo wered by technology . Panelists were Tracy Cohen, regulato ry adv isor, Internet Service Providers Association of South Africa, and research associate, Wits

University, Johannesburg; Mark Cooper, director of research, Consum er Federation of America; Mary Keelan, telecommunications ad vo cacy consultant, Libraries for the Future; and Stefaan Verhu lst, scholar-in residence, Mark le Foundatio n, and director, Progr amme in Comparative Med ia Law & Policy,
Mary Keela n

University of Oxford. Peter Y ’99, executive director of u the Intellectual Property Law Program and deputy director of the Howard M. Squadron Program in Law, Med ia & Society at Cardozo, moderated.
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Students Organize ABA/ADR Chapter; Negotia tion Teams Go to Finals
A dispute resolut ion sect ion of th e American Bar Associat ion is encouraging the development of law scho ol chapters: Cardozo’s ADR Society, formed this fall, is one of the first such chap-

ters nationwide. Fifty students have already joined. Through a combination of lectures, symposia, comp etitions, and pub lic service projects, Societ y organiz ers Cy nt hia Devasia ’ 02 and Jonas Karp ’02 hop e to ed ucate Cardozo stu dents and th e community about d ispute reso lution. “We intend to sho w our p eers wh at an important tool mediation

is,” said Ms. Devasia. The So ciety’s inaugu ral event, “All About ADR,” was a presentation b y Daniel Weit z ’96, statewide ADR coordinator for the New Y ork State Unified Cou rt S ystem. Among the activ ities planned is settin g up or su pport ing peer mediation program s in K–12 schools. The Kukin Progr am for Conflict Resolut ion hosted

the 12th Annu al Cardozo / ABA Negotiation Competition. Two winning teams, Venu s Sahwany ’02 and Me gan W eiss ’02 and Alexandra Hochman ’01 and Sima Saran ’01, went on to represent Cardozo in the ABA Regional Competition held at Albany Law School, where the S ahwany/ Weiss team advanced to the final round.

Budapest is Site of Summer ADR Program
This summ er, Cardozo is launching an intensive international conflict resolution program set in the d ynam ic context o f Central and Eastern Europe’s emerging democracies. “Managing Conflict and Fostering Democratic Dialo gue” will be taugh t at Cent ral Eu ropean University (CEU) in Bu dapest, Hungary , and is co-sponsored wit h Hamline Un iversity Sch ool of Law. Students from US and international law schools and graduate programs will learn side by side using mu lt inational examples. Prof. Lela Love, director of Cardozo’s conflict resolution program, hopes to put critical negotiation skills in the hands of fu tu re lawyers. S he notes, “In Eastern Europe there is not sufficient education about or awareness of m ediation, but th e need is great. Many of the students who study with us m ay be among the next generation of leaders and sch olars who will sh ape their countries’ legal systems. Understanding alternat ive methods o f conflict resolution can help establish responsive justice systems that support efforts to institutionalize the rule of law in new democracies.” Faculty in the program come from five countries and include leading professors and practitioners in ADR. The four-week ABA-approved summer program is taught in English and offers six credits. Through highly in teractive classes, students will exam ine mediation theory and skills and the impact of cultu re and context and can choose to focus on labor disputes in emerging democracies or on international applications of conflict theory.

Cardozo’s Strengths in IP and ADR Converge in Pioneering Panel
In October the Cardozo Onlin e Journ al of Conflict Resolution and the International Trademark Association cosponsored a symposium on “Using Alternative Dispute Resolution in Intellect ual Property Cases.” Participants explored th e common ground between these two legal fields, addressin g topics such as mediation and arbitration in patent, trademark, and cop yright cases, as well as the future of alternativ e disp ute resolution in int ellectual property cases. “Bo th ADR and IP

Jim Dav is o f Ho wrey , Simo n , Arn o ld & White (on left) an d Th oma s Creel of Kaye, Sch oler, Fierma n, Hays & Handler.

are hot legal areas today. Their confluence brings together two of Cardozo’s highest ranked programs and is of great interest to students, mediators, and the p racticing bar,” noted Professor Love, director of

Cardozo’s ADR program. Panelists included Prof. Hal Abramson , Touro Law School; T homas L. Creel, Kaye, Scholer, Fierm an, Hays & Handler, LLP; Jim Davis, Howrey, Simon, Arnold & White, LLP; and

Bruce Keller, Debevoise & Plimpton. Moderators were Cardozo graduates Prof. David Korzenik ’79, Miller & Korz enik, LLP; and Marc Lieberstein ’92, Ostrolenk, Faber, Gerb & Soffen, LLP. An edited transcrip t o f the symposiu m will b e available in the spring at th e Online Journal’s website: www.cardozo.yu.edu/cojcr

Students Organize Events on Napster and Trademark
The Intellectu al Propert y Law Society sponsored a panel to d iscuss the effects of th e Napster d ecision on the music industry, record ing artists, and fans. “Taking Sides on Napster” featured speakers (below from left) Michael Carlinski, Esq., Orrick, Herrington & Su tcliff; Marylin McMillan, chief information technology officer, New Y ork University; Prof. Barton Beebe, mod erator; Sam Kaplan, Esq., Boies, Schiller, Flexner; Whitney Broussard, Esq., Selverne, Mandelbaum & Mintz. “Trademark 101,” an op en forum o n anything and everyth ing to d o with trademark, was an opportu nity for Cardozo students to ask what they really wanted to know about the field. Panelist s on hand to answer their questions were Prof. Barton Beebe; Debbie Cohn, director of trademark examining operatio ns at the US Patent and Tradem ark Office (US PTO); and Stewart Bellus, attorney, Collard & Roe, and former trademark examiner at the US PTO. The event was spo nsored by the AELJ and Center for Professional Development.

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Et h i c s, Zealous Advoca cy, and the Criminal De fense At to rn ey
Robert S.Bennett Pa rt n e r,Ska d d e n ,Ar p s,Sl a te,Meagher & Flom LLP

A

p art from being flatt ered, I am grateful to have been invited to address this distinguished gathering because it has caused me to focus on issues of ethics and morality that are daily comp anions of a p racticing lawy er. xxx We are instructed by our codes of professional resp onsibilit y and to ld by professors, legal scholars, and mentors th at we lawyers as guardian s of the , law, play a vital role in the preservation of so ciety, that we have an obligation to adh e to the highest standards re of ethical and moral conduct, and t hat in our words and deeds we must promote respect for the law and o ur profession. We mu st deal cand idly with others, and we sh ould u se our education, skills, and training to d o public go od. Finally , we are instru ct ed to be zealous advocates on behalf of ou r clients. I agree with all of th is, and I have tried in 30-plus years of practice to honor these goals. But I wo uld b e less than candid if I said it was easy . At times, there is some moral conflict because these roles do not always work in harmony. The zealou s advocate often speaks and acts in ways that t m any are morally questionable, less th an o candid, and d o not pro mote respect fo r the law in the eyes of th e pub lic. I believe the legal p rofession has do ne a po or job of givin g guidance to its mem bers on how to resolve the tension among these sometimes conflicting roles. And we have done a miserable job in explaining our role to the pu blic. We have avoided dealing with difficult ethical issues by using generic words in our disciplinary rules

and codes of responsibility and n ot d ealing wit h the underlying problems. We act as if litigation is simp ly a “no holds barred” game and all you need to do is follow the rules to be morally and ethically pure. This was most dram atically and forcefully stated b y Lord Brougham in t he 19th centu ry when d efending Britain’s Queen Caroline, who faced an attempt by her hu sband , King George IV to obtain a divorce by charging , her with adu ltery, th us ruining her nam e and putting at risk her fortune and p osition in society. Lord Brougham let it b e known that in the queen’s defense he would prove that the king himself was guilty of adultery and had secretly married a Catho lic, thus putting at risk his title to the throne. His tactics outraged many who felt he went bey ond t he bound s o f eth ical advocacy . He just ified his con duct as follows: “[A]n ad vocate, in the discharge of his d uty, kno ws bu t one person in all th e wo rld, and that person is his client. T save that client by all mean s and expedients, and at o all h azard s and costs to other persons…. And in perfo rming th is d uty h e must not regard the alarm, th e torments, th e destruction which he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of co nsequen ces, t hough it s ou ld be his unhappy fate to involve his cou ntry in conh fusion.” A very strong case can be made that while Lord Brougham’s rhetoric was excessive his actions on behalf , of h is client were ap propriate. I am told that some y ears after the case was concluded, Lord Brough am att ended a

EDITO R’S NO TE:

This a rtic le is an edite d version of the Ja cob Bur ns Ethic s Center lecture delivere d by Mr. Bennett on Februa r y 8, 2000.
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dinner at which the most respected Chief J ustice Cockbu rn was speaker. Lo oking disapprovingly at Brougham, Cockburn stat ed th at while it was approp riate to be a zealous advocate, a lawyer should not be an “assassin.” How do we, in our adversary system, recon cile our roles as officer of t he cou rt, role model, and p ublic citizen with that of t he zealous advocate? I think we can all agree that the defense attorney’s obligation is to represent a client even if it means that the truth is undermined in a particu lar case. Defense attorneys are entitled to put the prosecu tion case to the test, and a defendant has a constitut ional right to have his lawyer do so. Ou r society has decided that a defendant must be free to be fully cand id with h is or her lawyer without suffering any consequences and th at guilt is to b e decided in th e courtroom and not in the lawyer’s office. Sometimes the public unfairly crit icizes us for seeking the acquittal of one we believe to be guilty or vigorously representing one whose innocen ce is not clear. T his is p articularly true when the crime is h eino us. Unfortun ately, the pub lic, by and large, believes that as officers of the cou rt our only goal should be the truth. The Bill of Rights and in particular the Fourth Am endm ent prohibition against un reasonable searches and seizures often are obstacles to reaching th e truth . Sometimes, in our legal system, the tru th must be sacrificed for more imp ort ant principles. Also , let us not forget that we allow, and the courts condone, the police to engage in deception and ruse by lying to suspects about the evidence against them in the hope t hat t hey will confess their guilt. Is it appropriate for one who is an officer o f the court to present a false

and faulty logic. So me lawyers offer the questionable notion that the only “truth” in a criminal trial is what a ju ry tells us it is. Sometim es lawyers hide behind the assertion that it is the job of the jury and not the lawyer to decide the case, t hereby evading th e tou gh moral questions. Becau se we give special meaning to terms in ou r codes o f conduct, our narrow definitions often d o not comport with their general and common-sense meanin gs or notions of fairness. This leaves us vu lnerable to public attack. A few years ago I p articip ated on a panel with some of the country’s best-known d efe se lawy ers. To my n astonishment, all of them said t hat they never tried to mislead or deceive jurors. Rightfully, th e were snickers re in the aud itorium, including my own . T hese distinguished lawyers wer e not lying b ut giving very narrow and, I believe, insupportable definitions of the terms “misleading” and “deception.” If we are to be honest, we must acknowledge that first-rate trial lawyers wo rk very hard at in serting their own credibility into a trial for the benefit of their clients and, when necessary, use that credibility to argue to the jury p rop ositio ns that they know beyond any reasonable doub t are false. At tim es we use our training and skills to discredit truth-telling witnesses hoping to make them ap pear to be fools or liars. Y the prestigiou s American College of Trial Lawet yers, whose membership consists of the elite of th e trial bar t ells u s in their Code of Trial Condu ct t hat in our , representation of our clients we should not engage in chicanery.

So m e t i m e s, in our legal sys te m , the truth must be for more impo rt a nt pri n c i p l e s.
defense or to prese evidence which supp orts such falnt sity? Is it approp riate for us to use every stratagem o r device in an effort to lead the jury to reach a conclusio n th at th e attorney k nows is not the truth? How much maneuvering or, to put it more harshly, chicanery can we engage in without cro ssing et hical and moral boundaries? Can we be ethical lawyers and still engage in morally repugnant behavio r? One reason lawy ers are criticized as much as we are is that rat her than deal with the issu es head-on, we often duck the hard q uestions by engaging in glib d istinctions
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s a c ri f i ce d

Does su ch an adm onition bear scrutiny? Doesn ’t a good lawyer regularly try to in duce beliefs in juries th at the lawy er believes to be false, and in doing so deceive the jurors? And in picking jurors, don’t we often, where there is a strong case of gu ilt, seek out jurors who we believe, or at least h ope, will d isregard the evidence an d return a verdict based on prejudice or passion? W hen we do these things, are we promotin g respect for t he law? In h is book Ethics for Adversaries—T he Morality of Roles in Public and Professional Life, Arth ur Is ak Ap plb aum, as sociate profes sor of public p olicy at
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Harvard Univer sity’ Kennedy Sch ool of Government, s asks, in a critical way, if lawyers can, sim ply because they are playing the role of a zealous ad vocate, describe a lie or a deception as something else and then claim the moral high ground for th eir actions. He compares us to Henri Sanson, the executioner of Paris during the French Revolut ion, who killed witho ut moral concern because it was his professional job to do so. He tortured, beheaded , and mu tilated p eople and argued that since his act ions were performed in the fulfillment of his professional role, he was morally justified even if the same

ascertain or present the truth. If he can confuse a witness, even a truthful one, or make him app ear at a disadv ntage, unsure or indecisive, that will be his normal a course. More often t han not , defense counsel will crossexamine a prosecution witness, and impeach him if he can, even if h e thinks th e witness is t elling t he t ruth, just as he will attempt to destroy a witness who he thinks is lying. As p art of the du ty imp osed on the m ost honorable defense counsel, we countenance or require conduct which in many instances h as litt le, if any, relation to the search for truth.”

c h i ca n e ry

How much maneuve ring or, to put it more harshly, can we engage in without crossing ethical and moral bo u n d a ri e s ?
I agree with Justice Wh ite’s comments, and I believe it wou ld be appropriat e to cross-examine the eld erly victim in the way d escribed, because the government h as the bu rden of proving its case. But should we not acknowledge that we are engaging in conduct th at raises moral issues b ecause we are trying to d iscred it a truthtelling wit ness and that seems to conflict with the highsounding principles in our Codes of Professional Resp onsibility, su ch as promoting respect for the law, acting with candor, and not engaging in chicanery? We must acknowledge that at times there are differences between what is ethical and what is moral. I have been faced with sev ral ethical conflicts in m y e professional life; one hap pened a very long time ago. At my first meeting with a client who was nervous and concerned about how much he should tell me, I explained the crim inal p rocess and my role as defense attorney. I to ld him h e could be fully candid with me becau se even if he had accepted the payoff he was charged with taking, it would make “no difference in my representing him.” Ap parently feeling comfortable with me, he promptly ad mitted his guilt. As the trial ap proached, he told me he wanted to testify and d eny his gu ilt. When I told him I cou ld not ethically allow him to give perjured testimony, he reminded me that I said “it wo uld mak e no difference.” He was right. I unintentionally misled him . Wh at I should have said is that it will make no d ifference as to “wheth er I represent you, but it could make a difference as to how I will d o it.” Fortunately, the matter was resolved before this issue had to be resolved. In the p reamble to the Cod e of Trial Conduct, the
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actions would be condem ned if committed outside his profession. Defense lawyers don’t execute p e ple, of o course but have we, lik e the executioner of Paris, de, fined our role in such a way th at we av oid co nfronting the difficult moral issues raised by ou r actions? Let us assume that your client confesses to y ou that he mu gged an eld erly victim and befor she got a good e look at him he knocked off her glasses. Y ur client wants o to testify and deny he was the mugger. It is clear that you cannot eth ically allow you r client to take the stand and commit perjury. Section 7-102 A.4 of the Code of Professional Responsibility in New Y ork states that in the rep resentation of a client, a lawy er shall not “knowingly use perjured testimony or false evidence.” On the other h and, as zealous advocate, am I not permit ted to rip the eld erly victim to shreds on cross-examination, and try to distort what I know to be the tru th by suggesting th at she didn’t get a good look at the mugger, or that her sight was bad, or her recollection faulty because of age? Most would agree that su ch advocacy is considered eth ically appropriate. While the general public has great trouble with such actions by a defense attorney, there is solid support for such activity . One of the very best art iculations of that role is found in a d issenting opinion by former Associate Justice Byron White—no liberal jurist to be sure—on rights of d e fend ants in United States v. Wade (righ t to counsel in line- up) 388 U.S. 218 at 256–258. After pointing out that law enfor cement has an ob ligation not to conv ict the innocent and must always be dedicated to reaching the truth, he says: “But defense co unsel has no comparable obligation to
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American College of Trial Lawyers tells us that we hav e a specific responsibility to strive for prompt, efficient, and just disposition of litigation. In light of this, how do you feel about t he zealous advocate who wants his client to avoid judgment and plays the system by continuing his client ’s case by playing fast and loose with the court ’s docket, making one excuse after another for a delay ? As a result, the comp laining witness is worn d own and the case is no t prosecuted . In such a situation, are we to totally disregard th e rights of the victim and society by taking advantage of the deficiencies of th e system and by

above-mentioned activities than a civil advocate or legal counselor might have. However, it does not wh olly relieve us of moral responsibility for our actions. Alth ough I have some concerns—as I have been sharing with you—I have never regretted my d ecision to be a lawyer. There is no greater professional satisfaction than to guide a clien t from peril to safet y and p reserve his or her freedom, future, reputation , and , at times, life. While client relationship s can be a great source of sat isfaction, they do present p itfalls which you can and s ou ld safely avoid . To clients in t rouble, the law is not h

… h ave we, l i ke the executioner of Pa ri s, defined our ro l e in such a way that we avo i d the difficult moral issues raised by our act i o n s ?

co n f ro nt i n g

u sing trickery to d elay and defeat a prompt and just dispo sition on the merits? While a defendant is entitled to a vigorous defense is he entitled to game-play ing with , the court’s d ocket? Sup pose a lawyer in a civil p rod uct-liability case were to follow Lord Brougham’ s rationale and effectively keep a defective and dangerous drug or p rod uct on the market by creating confusion and d elay wit h aggressive litigat ing tactics. What if the advocat e introdu ced into evidence a scientific report t hat said the product was safe bu t th e attorney k new the rep ort was based on faulty data? Could you use this as evidence? In th e 1990 case of Lincoln Savings v. Danny Wall, which d ealt with the savings and loan crisis, U.S. District Cou rt Jud ge Stanley Sp orkin found that t he Federal Bank Board acted properly in placing Charles Keating’s b ank in receivership because it was engaging in unsou nd business practices and sk ullduggery. T he jud ge po intedly asked about the lawyers and acco untant s who reviewed or app roved t he bank’s transactions: “Where were these professionals… when these clearly improp er transactions were being consummated? Why didn’t any o f th em speak up or disassociate themselves from t he transactions? Where…were the…attorneys when these transactions were effectuated?” These remark s and the lawsuits t hat followed against law firms raised serious questions about the duty of lawyers to their clients and the appro priate parameters of zealous representation. The fact that a criminal defendant is presumed under the law to be innocent and to have certain constitu tional rights gives the criminal defense lawy er greater just ification for m any of the
WINTER 2001

about legal theory, morality, or eth ics: It is about freedom, reputation, financial survival, and keeping what is theirs. Many clients don’t care how t heir lawyer gets the result s they want. Y will not be a go od or responsible lawy er if you ou blindly follow a client’s instructions. Somet imes, at th e risk of losing a client, you must say you cannot do what the client wants you to do. As a law yer you m ust constantly be attuned to the legal theory, ethics, or morality of a situation. They are your daily companions as a practicing lawyer. And you m ust never become so close to yo ur clients that you lose y our ind ependence, objectivity, or ability to do what is right. When you become a “player” with a perso nal interest, your objectivity will be clouded, your adv ice will be slanted. The great Justice Oliver Wendell Holmes observed that the law is the witness and external deposit of our moral life and that the practice of it tend s to m ake goo d citizens. But he goes on to observe that if you want to know the law and noth ing else, you sh ould look at it from the perspective of a “bad man.” The bad man asks at what poin t, if I do something, does the public force come d own up on my head? The b ad man asks, where is the line I cannot cross with ou t risk of p unishment? In y our professional life you will run acro ss those clients who view the law as a “bad man” d oes. Be careful. Y our job is to get y our client o ut of trouble, not get yourself into it. And always remember that the most valuable asset you h ave is your reputation for honesty and integrity. s Once lost , it can never be regained.
27

M AR CH 7

Intellectual Property, World Trade and Global Elites
M ARC H 1 2

Intellectual Property Speaker Series: Robert Denicola
MARCH 15–18

Cardozo/BMI Entertainment and Communication Law Moot Court Competition
M AR CH 2 7

US Supreme Court Swearing-in Ceremony
AP RIL 2

Copyright Law as Communications Policy: Convergence of Paradigms and Cultures
AP R IL 2 3

Intellectual Property Speaker’s Series: W endy Gordon
AP R IL 2 6

Priv atization of our Discourse II: A Post-election Conversation about American Public Speech
JU NE 1 0

Benjamin N. Cardozo School of Law Commencement

ClassActions
Class of 1980
Steve n S. Golde nberg is of counsel to Greenbaum , Rowe, Sm ith, Ra vin, Davis & Him m el, L.L.P., an d has been selecte d for in clu sion in The Best La wyers in Am erica 2001–2002.

tions, condom inium construc tion, a nd labor an d e m ploym e nt issues.

Class of 1983
Nancy Kramer wa s a spokesperson for Cardozo in a New York Law Journal article about hirin g trends. Naomi P. Meisels is c ounse l at the NYC office of B ryan Ca ve, L.L.P .

Class of 1981
Gail Markels is senior vice preside nt and gen eral coun sel of the Interactive Digital Software Associa tion, IDSA. Anthony L. Rafel joined Riddell Willia ms in S ea ttle as a pr incipal. His pra ctice foc uses on re al esta te transac-

an entertainm ent lawyer in NYC and organized and serve d a s the ar tistic director of the P hiladelphia Festiv al of World Cine ma. Holly Kennedy P assantino was na m ed of coun sel to Whitem an Osterm an & Ha nna, wher e she joined the firm ’s corp orate practice group.

Class of 1985 Class of 1984
R ab bi Steven Et tinger was a Scholar in Re siden ce at Congregation Be th Sholom and is president of Machon L’T rah. Phy llis Kaufman is o Dr. Adena K. Be rkowitz gave birth to her fourth c hild, Alexandra Nicole .

his wor k on beha lf of the e lder ly an d indigen t. He has worked at NY LAG for 10 years and watched it grow into a 30lawyer organiz ation with a $5 m illion bu dget. David Singer, vice president of Robison Oil in Moun t Kisco, was electe d to the board of directors of th e Boys & Girls Club of Northern Westchester. He resides in Bedford Hills with his wife and thr ee children. Joseph M. Vann is a m e mber in the corpora te reorganiza tion and cr editors’ rights pr actic e of Gr at ch J acobs & Br ozman, PC. .

Class of 1986
Mary Jam es Courtenay, CEO of Mary’s Gam es, LLC, based in Seattle, re leased a new board gam e called “Disorder in the Court.” Merritt McKeon, a native of Laguna Beach, CA, was the featured speaker at the Leisure World Dem ocratic Club an d ran as the Dem ocratic candida te for the 70th Assem bly District. Richard R eice is vice pr eside nt of hum a n resources, labor, and em ployment law a t Citizen’s Com m unication in Stamford, CT. P eter Allen Weinmann m ar ried Am elida Ortiz on Septem ber 3 in Buffa lo. He is in p rivate pr actice, conc entrating on em inent doma in an d tax asse ssm ent c hallenges for com m erc ial properties.

Class o f 1988
Lawrenc e A. Cunningham, a professor at Ca rdozo and director of the S am uel and Ronnie Heyman Center on Corpora te Governance, authored a ne w book, How to Think like Benjamin Graham and Invest like Warren Buffett (McGraw-Hill). Lawrence R osen was nam ed ge neral counsel for the Am er ican Society for the P revention of Cru elty to Anim als, I nc.

Alan Fu terfas ’87 may be th e first Cardozo g rad u ate to arg ue an d w in a case in th e US Sup reme Co urt, Artu z v. Ben ne tt. After prep arin g fo r an o ral arg u men t th at h e d escribed as “ all-en co mp assin g an d exh au stive,” h e p resente d the case fo r h is clien t, To ny Be nn ett, wh o se app licatio n fo r h ab eas co rp us relief wa s d ismissed b y th e d istrict co urt o n the g rou n d s th at th e ap p licatio n was u ntime ly. Fu terfas’s firm su ccessfully had th at d ecisio n reversed by the US Co u rt o f Ap pe als fo r th e Secon d Circu it, wh ich th e n reman d ed it b ack to the d istrict court. The Qu een s Co u nty District Attorney’s o ffice p etitio n ed fo r certiorari, wh ich w as g ran ted . Th e qu e stion p resente d to th e Su p reme Co u rt o n Octo b er 10, 200 0, was wh eth er a n ap p lication fo r sta te p o st-co n victio n relief, wh ich con tain s claims tha t are p roced u rally b arred , is “p ro p erly file d” within th e mean in g o f sectio n 224 4 (d)(2) of Title 2 8 U.S.C., su ch that th e time d urin g wh ich such state p ost-co n victio n relief is p e nd in g to lls th e o n e-year limitatio n s p erio d with in wh ich a state in mate mu st o rdina rily file h is fed era l h ab eas co rp us pe titio n. On Nove mber 7, the u nan imou s d ecisio n , au th o red b y Ju stice Anto n in Sca lia, ag reed with Fu terfas’s in terp retation o f th e statu te an d affirmed th e decisio n o f th e Se co n d Circuit.

Class of 1989
Barbara Brach er Olson and he r husband, Theodore, wh o represente d George W. Bush in th e US Supre me Cou rt du ring the ele ction, were recent ly fea tured in the “Public Lives” colum n in The New York Times, Dece m ber 9. The article reads in part, “ the As power couples of Washington com e an d go, the Olsons m ay have proven them selves in a class by them selves in the last eight yea rs, be coming the
37

Class of 1987
Yisroel Sc hulman, executive director of the New Y rk o Legal Assistance Gr oup (NYLAG), was given the Attor ney Ge ne ral’s Award for

W I N T ER 2 0 0 1

m ost cele brated an d acutely dedicate d pa ir of c on servatives who, with great conviction, h ave opposed and harrie d Clinton Dem ocra ts in the main capital a ren as: the courts, the Congress, and the me dia.” Da vid B. Cohe n and his wife, Gila, announce the birth of th eir fir st child, Sarah Morga n. Barry G. Margolis announc es the form ation of

Margolis Be rgson L.L.P., in NYC. Lisa M. Peraza joined Hodgson R uss Andr ews Woods & Goodyear in B oca Raton, F L, as a se nior associate in the firm ’s im migr ation practic e group.

twins Eitan Baruc h a nd Arie lla Zahava. Jan Louise Ulman is coun sel to the planning board of the Town of Greenburgh, NY.

Class of 1991
Merrill Cohen was featured in a rec ent issue of New York Lawyer. S he fou nded her own pra ctice in 1994 after special-

Class of 1990
Howard Berglas and h is wife, Judy, an nounc e the birth of

izing in im m igration law with several firm s. She ha s handle d asylum pe titions for clien ts from Africa, China, Egypt, Rwa nda, and Albania, som e pro bono. Karen F iszer Stern, a sen ior attorne y for the S ocial S ec urity Administration , Office of General Counsel in Manhattan, was m arried to Jeff Ste rn this summer.

GIVING

JUL 1, 199 9 – JUNE 30, 2000 Y

Th is w as a n o tab le ye ar in Cardozo’s givin g h isto ry th an ks to th e emerg en ce o f a much w ider ran g e o f su p p ort. Esp ecially sig n ifica n t was a $5 millio n gift from Dr. Step h en H. Flo ersh eimer, p aren t of a 19 93 alu mn us, to estab lish a ce nte r fo r co n stitu tio na l democracy. Th is is th e sin gle larg e st g ift fro m an in d ivid ual in th e Sch oo l’s h isto ry. Ano th er milesto ne was ach ieved with C ardozo’s first class-givin g camp aig n . Vseve lo d (Steve) M aksin a n d Micha el Pop e org a nized the d rive, w h ich raised mo re th an $2 5,00 0 fro m th e Class o f 2 000. We are g rate fu l for the in cre ased su p po rt fro m b o ard membe rs, alu mn i, p arents, frien d s, stu d en ts, an d fo u nd ation s, brin g in g Cardozo’s 199 9–20 00 ph ila nth ro p ic to tal to a ne w hig h o f ju st u n d er $ 8 million . Every effort has been made to en su re the accu racy of this list. If you r name h as been misprin ted o r omitted, please accept o ur apol og ies, an d n otify Deb bie Niederhoffer, directo r o f develop ment, at 21 2-7 90-02 88, so that our records may be co rrected.

Robin H. Kaplan ’96 Meyer Z. Last ’82 Loubess Foundation Lela P. Love Fo-Ching Lu ’00 Vsevolod (Steve) Maksin ’00 Marcraft Clothes Inc. Marjorie Miller ’84 Erin Naftali ’00 Linda F Post ’95 . Beatrice Potter Marnie H. Pulver ’00 Joanna Raby ’00 Franklin A. Rumore Kurt M. Sanger ’98 David Schierholz ’00 Beatrice & Samuel A. Seaver Foundation Jacqueline B. Stuart ’90 James H. Sullivan ’00 Adrienne Toscano David E. Tweten Nancy Wolf ’89 Mark Stuart Yager man ’79 Maki Y oshida ’00

$500,000–$5,000,000
Jacob Burns Foundation Dr. Stephen H. Floersheimer Thomas H. Lee & Ann G.Tenenbaum

$100,000–$499,999
Steven & Carol M. Antler Shimmie & Alissa Horn William K. Langfan Overbrook Foundation Stephen & Wendy Siegel

$10,000–$99,999
Hugh J. Andersen Foundation Anonymous (2) Ronnie & Samuel J. Heyman Nathan Kacew ’98 Kukin Foundation L. Family Foundation Carol & Earle I. Mack Phyllis & W illiam Mack Sondra & David Mack Tami & Fredric Mack Open Society Institute Lawrence & Selma Ruben Rose C. Stern Irving Stern Foundation Sy Syms Foundation

Stephen A. ’90 & Debra Weiss ’90 $2,500–$4,999 M & B W eiss Family Foundation Anonymous Norman & Rosita Winston Aviva Appleman Foundation Inc. Joseph Appleman Karen Appleman $5,000–$9,999 Shari Appleman Aeroflex Incorporated Tammy Appleman Broadcast Music Inc. Charitable Steve Field ’00 Gift Fund Michael Pope ’00 Dr. Melvin & Carol Ann Feiler Andy Warhol Foundation For The The Hammer man & Frisch V isual Arts Inc. Foundation The J. Paul Getty Trust $1,000–$2,499 Griffon Corporation Alex Altman Gilbert & Shelley Harrison Altman Foundation James Heller T iffany Rosenhaus Berger Fr ed Hone Andrew Berkowitz ’00 Joel & Hilda Karp Blau Kramer W actlar & Lieberman Samuel H. Kress Foundation Gary J. Brody ’90 Mollie Parnes Livingston Patrick G. Cadiz ’00 Foundation Jennifer Cannata ’00 Jeffrey & Sivia Loria Covington & Burling Podell Rothman Banfield & Simon & Annie Davis Foundation Schecter V incent J. Donnelly Reed Foundation Inc Sanfor d Paul Dumain ’81 Barry K. & Sher yl Schwartz Mark W. Floersheimer ’93 Romie & Blanche Shapir o Elsa Greenber g Joseph F. Stein Foundation Inc. Jack Byron Hartog ’02 Wildes, Weinberg, Gr unblatt & David Herman ’93 Wildes, P.C. Rober t D. & Virginia Joffe Siggi B. Wilzig Ben Kaplan

$500–$999
Jeffrey Blumenfeld David R. Buchanan ’93 Michael L. Bunder ’93 Karen A. Coffey Leslie J. Cowne ’80 Sandra J. Feuerstein ’79 Monroe H. Freedman John L. Hanks Michael Herz Herbert Kronish Adam S. Lurie ’00 Valerie Mahoney ’00 Peter J. McHugh ’01 New York State Bar Association Deborah J. Palfrey Rabbi & Mrs. David M. Posner PricewaterhouseCoopers Leon Silverman Andrew L. Sole ’99 Edward & Regina Solomon Marianne Spinelli ’90 Janis Warren ’79

$100–$499
Howard Abrahams ’94 Wendy Adler ’88 Lynn C. Amari ’98 Keith H. Archer ’82 Ruth H. Axelrod ’90

Jerry Louis Barta ’82 Eunice Becker ’79 Renato Beghe Roberta Benjamin ’83 Sheila Berg Lori-Ann Bernath ’79 Adam Ber nick ’98 Kenneth K. Bezozo ’80 Jeffrey F Bier ’97 . Bluefield-Princeton United Jewish Charities Charles & Dolores Bradley III Michael David Braff ’82 Julie Marcus Brail ’94 Marc Brick ’82 Holly S. Brown-Weissman ’83 Jean-Marc Br un ’91 Orland Campell, Jr. Mirry Hwang Capio ’93 Muriel Caplan ’79 Carla Wise Chanin Catherine Marie Cohen Topp ’00 Tracey Simone Cosby ’00 Susan Stein Danoff ’87 Doreen Davidowitz ’81 Susan K. Day Walda M. Decr eus ’93 Tanis B. Deitch ’93 Leslie Sarah Deutsch ’88 Harold Eisenstein ’86 Louis Epstein ’83 Abbey Feiler ’99 James Fink Michael K. Fistel ’89 Alan S. Fox ’83 Lisa D. Foy ’93 Myra L. Freed ’80 Seth Freeman Steven M. Friedland ’99 Barbara L. Friedman ’95 Robert F. Frier ’80 Katherine H. Fritts ’92 Alan Futerfas ’87 Gary J. Galperin ’80 Lawrence I. & Adina Garbuz ’95 Thomas R. Garland Stephanie Y. Gayden ’93 Julie K. Gershman ’95 Lisa Post Gershon ’91 Hal I. Gilenson ’91 Robert Fr ed Giusti ’80 Wendi Gail Glassman ’80 Paula Knoll Gold ’83 Andrea L. Greene Goldman ’90 Barry Goldstein Lila Goldstein Toby Golick

Class of 1992
R achel Warren, a m em ber of Cardozo’s Board of Directors, was m ade a par tner at Davidoff & Ma lito L.L.P.

Class of 1994
Felicia S. Hoeniger was nam ed Tax Legal Director of the Le ga l Division by the Com m issione r of Revenue

Services in Connecticut. Tom Hroncich, Jr., co-founder of Ga y Dem ocrats of Suffolk County, wa s the only Democratic candidate to qu alify to run for New York’s 7th District Assem bly race.

Class of 1995
Felicia Stacey Gordon joined the New Y ork County

Lawyers Association, a nd chairs the Foreign and I nterna tional Law Com m ittee law student inter nship program. Catherine Larocca has joined Seltzer Caplan McMahon Vitek in the ir busine ss insolvency and creditor’s rights group in S an Diego, CA. Y. David Taller wrote a n article, “Proof of Recurring Conditions Can S atisfy P rima

Facie Requirem ent For Notice in S lip-and-Fall Litiga tion,” which wa s published in the September 2000 New York State Bar Association Journal.

Class of 1996
Joshua G. Gerstin was appointed by the Florida B ar to serve on its Con su m er Protection Law Com m ittee. In

Alan Gotthelf ’01 Kenneth W. Graham Wayne M. Gr eenwald ’79 Jonathan R. Gr oss ’97 Eric J. Gr uber ’87 Malvina Halberstam Elissa Kahn Halperin ’82 Joelle L. Halperin ’83 Elaine M. Harrison ’92 Rober t Hart ’99 David L. Heath ’99 Nancy Heller ’84 Ross Neil Herman ’87 Mitchel Iban Herstic ’81 Ronald S. Heymann ’79 Miriam S. Higgins ’95 Henriette D. Hoffman ’79 Paul Indig ’90 Arthur & Judith Jankolovits Sarah Jane Jelin ’79 Muriel B. Kaplan ’80 Deborah Katz ’86 Sharon D. Katz-Pearlman ’84 Jeffrey L. Kinzler ’84 Kirkland & Ellis Foundation Arnold P. Kling ’83 H. Albert Korn David Korzenik ’79 Judith B. Kunreuther ’91 Nathan G. Lamm ’00 Ellen & Jonathan Langemann Lillian Joan Laserson ’83 Judith Lebson ’90 Stephan Robert Leone ’88 Ilyse Levine & David Weinstein Jeffrey I. D. Lewis ’86 Lisa Z. Lisser ’91 Sheri F London ’93 . Harvey Lubitz Marilyn Luneberg Frederick A. Mar golin Stacey A. Mar ques ’00 Kenneth Matthews ’79 Stephen B. Meister ’79 Gary S. Miller ’88 Mary Millman ’81 Peter Misener Seth A. Moskowitz ’97 Shoshana Myerson ’89 Charles B. Neustein Nik Nikci ’01 Bebe E. Novich ’90 Barbara S. Odwak ’80 Mark M. Oh ’98 Jason Okun ’00 Paltrowitz Family Foundation Rober t Parker ’00

Penny E. Paul ’89 Martha P Pierce . Harlan J. Protass ’95 Craig S. Provorny ’86 Vered Rabia ’98 Jacob Raby Lorraine A. Raggio ’93 Peter Reinharz ’80 Leah Richter ’93 Mark David Rolnik ’79 Joshua Ronen Michelle Leslie Roth ’94 Harriet Rothfeld ’79 Jamie Rothman ’00 Lucille A. Roussin ’96 Arleen Rubin ’80 Adam J. Safer ’94 Debra Samuelson ’90 Glenn Scott Schattner ’79 David Alan Schrader ’88 Schreiber Family Foundation Susan B. Schwab ’00 Charles J. Schwartz Martin E. Segal Neel Shah ’00 Jason K. Shames ’99 Dana Ellen Shanler ’87 Leon Shenker ’00 Jonathan Lee Sherman ’89 Warren Eliot Shimoff ’82 Scott Douglas Silverman ’83 Jeffrey S. Sinko ’92 Jonathan E. Sirota ’85 Skadden Arps Slate Meagher & Flom Steven P. Skulnik ’83 Steven Smedresman ’79 Joshua S. Sohn ’97 Sosnow & Freed Neil Geoffrey Sparber ’83 William W. Specht Renato C. Stabile ’97 Suzanne A. Staubach Maxine Stein ’94 Sheldon D. Stern Jonathan D. Strum ’84 Stephen Sultan Susan Taigman ’99 Michael J. T aubenblat ’88 The Jewish Welfare Fund Of Danville, VA Carol E. Thurer ’92 Daniel F Tritter ’82 . Douglas C. Turnbull ’94 Karel Lee T urner ’87 Stephen Alan Verp ’87 Jason M. V ogel ’99

Mor ton Wachspr ess Beth A. Wahl ’84 Joan G. W aks ’85 Lisa Fishbone Wallack ’93 David L. W allen ’85 Kate Wallen ’85 Rachel L. Warren ’92 Neal J. Weinr eb Paul H. Weinstein ’80 Audry Weintrob ’84 Howar d H. Weller ’90 Pami G. Wexelman ’96 Susan Whitehead ’82 Jeffrey P Wiegand ’82 . Karen Gantz Zahler ’81 Ella Zarky Laurie Zeligson ’84 Edwar d Alan Zelinsky Jay H. Ziffer ’83 Peter B. Zlotnick ’90

UNDER $100
Adrienne B. Alexander ’86 Elyse M. Allen Car ol Ash ’94 Miriam A. Bacon ’96 Bank Leumi Trust Co. of NY Janet B. Barsky ’85 Mathew T. Bergman ’99 Michael B. Berman ’84 Nancy E. Ber man ’91 Tzvi Ber stein ’84 n Felicia Bieber ’85 Phillip L. Billet ’80 Elana Billig ’96 Sharon Blau ’80 Stephen H. Block ’92 Nancy L. Bloomgarden ’80 Nelson John Bogart ’87 Shoshana T imima Bookson ’82 Etzion Brand ’79 Ira L. Brandriss ’97 Sheryl L. Bregman ’91 Andrew Brodnick ’85 Rafael I. Castellanos ’86 David Gary Cher na ’83 Fred H. Cohen Bruce David Cohen ’81 Arlana S. Cohen ’81 Charles De LaFuente ’81 Ilene S. Deutsch ’96 David B. Diamond ’99 Howar d Fred Dubs ’79 Jacqueline G. Eckhouse ’96 Kerry Marshal Elgarten ’83 Charis Emley

Franklin Englander ’93 Lawrence Falk ’90 Sharyn F Feinbloom ’98 . Steven Feldman ’85 Andrew L. Feldman ’86 Susan Feldman-Gordon ’79 Richard M. Fierberg ’98 Aviva Finkelstein ’84 Robin A. Fleischner ’80 Jessica Friedman ’96 Patricia E. Fr ome ’84 David M. Gellman ’94 Tiiu E. Gennert ’00 Charles Gershbaum ’90 David J. Glauber man ’86 Andrew M. Gold ’86 Bruce Gold ’80 Linda Gold ’81 Lisa S. Goldberg ’85 Seth Z. Goldberg ’94 Marcia J. Goldstein ’89 Ellen F. Gottlieb ’85 William Gr eenblatt ’82 e David I. Greenbaum ’98 Sami B. Groff ’97 Susan Gr ossman ’81 Benjamin R. Gruberg ’97 Ruth M. Gursky ’80 Mitchell Floyd Guss ’79 Debra E. Guston ’88 Jeffrey S. Gutman ’93 Paule Harris ’86 Rebecca M. Heller ’97 Sandra R. Holtz ’85 James D. Horwitz ’84 Jill B. Inbar ’96 Morris J. Kaplan ’85 Ilene Kass ’79 Michael David Katz ’94 Benjamin Yehuda Kaufman ’88 Andrew C. Kirwin ’92 Robert Knapp Neil J. Koren ’96 Jeffrey M. Kramer ’87 Daniel S. Kriegsman ’95 Roberta Kronheim ’85 La Crosse Jewish Welfar e Fund Asher I. Labendz ’92 Karen Landman Lisa B. Landsman ’84 Samanth J. Leventhal ’96 Michelle S. Levitz ’94 Victoria Li ’94 Edner P Louis . Barbara J. Mandel ’84 Michael Maur o ’99 Jed D. Melnick ’99

Metr opolitan Life Foundation Kenneth Michaels ’93 Esther Elkin Mildner ’83 Rober t Misthal Valery Molot ’85 Steven Monn ’82 Mara B. Moradof f ’88 Peter M. Nadler ’82 Linda Krasropolsky Newman ’86 Julie P. Passman ’90 Ellen Radin ’82 Jules S. Reich ’79 Republic National Bank Of NY Aubrey E. Riccardi ’99 James C. Richmond Philip Michael Roberts ’80 Marc R. Rosen ’98 Tova Rosenberg ’02 Karen C. Rothman ’91 Jeffrey Rubin ’89 Allen F. & Ruth Schechter Ronald B. Schlossberg Jennifer A. Schneider ’98 Eugene Schneur ’98 Barbara Seider Gary P. Shaffer ’79 Menashe Y aakov Shapiro ’00 Stephanie Thea Shatkin ’79 Edwar d Daniel Siegel ’79 R. Ellen Sigal ’91 David F Silver ’83 . Sher ry L. Silver ’91 Barbara R. Silverstone ’91 Donald R. Simpson ’90 Sisterhood Adath Israel Lisa C. Spring ’80 Jodi Lynn Bayr d Steiner ’96 Teresa M. Stoeth ’80 Mary Isabelle Swartz ’88 Steven R. Tarasuk Arthur M. Tasker ’92 Diane M. Venezia ’95 Angela M. Waithe Michael I. Weiss ’92 Michele Weissman ’90 Judith Wildman ’81 Douglas R. W olf ’91 Brian D. Yomtov ’99 Amy J. Zeidman ’90 Harry Zelcer ’83 Ephraim Z. Zinkin ’96 Andrew S. Zucker ’99

addition, he was appoin ted by the Palm Bea ch County B ar Association to serve on its Com m unity Association Law Committee. Jo n Henes starte d a software com pany, BlazeVentures, tha t helps law firm s and their clien ts m anage docum en ts and com m un ica te instan tly on a sin gle secure Web-based platform. Shimm ie Horn ope ne d up a new restaurant, Triomphe, in his Ir oquois Hotel on 44th Street in Manha ttan. Richard Horowitz was inte rvie wed by Investor’s Business Daily about his wor k c onsulting on industrial espiona ge and othe r corporate se curity c ases. Jeff Marx has wr itten a nd sold over 4,000 copies of h is recent book, How to Win a High School Election. Ephrain Zinkin announces the birth of a dau ghter, Tam ar S arah.

Miller, Canfield, Pa ddock, and Stone, PL.C., in the ir Ann . Arbor, MI, office.

Class of 1999
Pete r J. Bilfield has join ed Littm an Krooks Roth & Ball P.C. Lisa Dawson has join ed Koenitsberg & Rubin , L.L.P, . in NYC. Steven J. German practic es a t Terris, Pravlik a nd Millian, L.L.P in Washingt on, ., DC, and was par t of an eigh tattorne y te am that litigated Ha rris v. Flor ida Elections Canvassing Commission, from the Florida state court all the way to th e US Supre me Cou rt. He r epresen ted a group of Florida voters in the overseas absentee ballot e lection contest cases. Ran Z. Schijanovich is a deten tion attorney with the Cath olic Le gal Immigra nt Network an d has worked since Fe bruary at the Elizabe th, NJ, De ten tion Center. Daniel E. Schoenberg is an associate in the corporate and bankruptcy taxation pr actice of Gratch Jacobs & Brozm a n, P.C. Mary Ka te Woods joined the Los An geles fir m of White O’Connor Curr y Gatti & Avanzado, which spe cializes in media a nd ente rtainment litigation. Andrew S. Zucker is an a ssocia te in the litigation departme nt of Norris, McLa ughlin , & Marcus, PA. .

Wickersham & Ta ft. David D. Kim joined the intelle ctual property de partm en t of Norris, McLa ughlin & Marcus, P.A., in their NYC office. Sharon Steiglitz joine d the corpora te m ergers a nd acquisition s departme nt of Cadwalader, Wickersha m & Taft’s NYC office.
LL.M . A LU M N I

Class of 1999
R oberta Kraus is an a ssociate a t the Manha ttan law firm Robin Blecker & Daley, where she pra ctic es trademark, copyright, a nd I nter ne t law. Efrat Le v is a legal counselor in the Fin ance and In terna tional Ac tivity Departm ent of B ank Hapoalim B.M., the largest ban k in Israe l. She published “The In dentur e Trustee: Doe s It Really Protect Bondholders?” in the U. Miami Bus. L. Rev. She a nd her husband, Zev, an ou nce the bir th of their second son , Gil, last J anuary.

corpora te departme nt at Corr s Chambers Westgar th in Sydney. Zh i (Le on) Li re turned to China after graduation to r esum e his law practice. With several Sh anghai lawyers he will be starting a ne w law firm , Sinotim es Partners, which will serve high-tech com pan ie s. R uth Metcalfe-Hay works as a contra ct a dministrator in the legal departme nt of Computer Sc iences Corporation in NYC.

IN M EM O RIA M

Judy Abrams ’96 had bee n a for m er associate at Fried, Frank, Ha rr is, Shr iver & Ja cobson and at Ca rdozo was a m em ber of the Law Review. Sh e is survived by her 15yea r-old son. R avindra (Ra v) Murthy ’96 was a m em ber of the Law Review an d clerked for the Honora ble Leon ar d Bern ikow, US m agistrate ju dge for th e Southern Distr ict of New York, prior to prac ticing at Debevoise & P lim pton. Pam ela VanderputtenSilvernagle ’90 was an attor ney with the Sussex Cou nty Public Defe nder’ Office in s the child gu ardian progr am. Sh e is survived by her husband, S ean Mike, and he r son, Se an Michae l, J r . Ian A. Sp etga ng ’82 was a me m ber of Tem ple Judea of Bu cks Cou nty, wher e he taught r eligious school. He is survived by h is wife, Judith A. Gerber and two ch ildren, , Sarah and David Spetga ng. Laurie Beth Tobin ’82 was an a ttorn ey in Woodbridge, NJ, and a m em ber of the New Jersey State Bar She was 45 . years old.
CARDOZO LIFE

Class of 1997
Jacqueline Klosek is an associate in the corporate departme nt of Goodwin, Procter & H oa r L.L.P. Luca , Palombo wa s recently marrie d and ha s followed a fourgeneration fam ily tradition by open ing a new ba kery in Co-op City.

Class of 2000
Julia Bo gudlova is at Lowenfeld & Associates in NYC, where she works on international copyright protection matters. S he plans to take th e pate nt bar in April. Isabel Feichtner is em ployed at Cravath Swaine & Moore as a foreign associate in the corporate departm en t. She plans to re turn to Germ any in August to pur sue her Referendiat (practical tra in ing). R obert Greenberg continues a s a professor of busine ss law at Yeshiva University’s Sy Sym s School of Busin ess. Angela Kirtlan re turned to he r native Australia, wh ere she wor ks on mergers and acquisitions and privatization m atters in the

Class of 1998
Yae l Ork aby Aspir an nounc es the birth of a son, Ga brie l Noa h. Dary l G. Berg is now director of business developm en t, New Media, for EMI Recorded Music. Adam S. Bernick, an associate with Eizen F ineburg & McCarth y, L.L.P., in Philade lph ia, authored an article in Pennsylva nia CPA Journa l, entitled “It’s Never too Early to Save for Colle ge.” Theodore E. Froum is an a ssocia te in the business and finance gr ou p of
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Class of 2000
Grego ry M. Dell is an a ssistant state attorney in Broward County, FL. Jill Farbman is an associate in the governmental affairs group of Riker, Danzig, S che rer, Hyland & Perretti in Morristown , NJ. Erez Gilad is an associate an d m em ber of the financia l re structur ing departm ent at the NYC office of Ca dwalader ,

Cathy Po tler

Marc L Mu ka sey .

Dan iel M. Felb er

Jorg e San to s

P HO TOS: SUS A LERNER N

Ma ki ng aRe al Di f fe re n ce i n Cri m i n a l Law
Jeff Storey ’01

R

ookies at big law firms may be pulling down six-figure salaries in posh surroundings, but many graduates o f Cardozo opt instead for t he grittier, less remunerative career of the criminal lawyer. T hey are holding demanding jobs where th ey are convinced t hey can “make a real difference” . Hundreds of grad uates work as prosecutors and defense attorneys in a system comm itted bo th to individual rights and to the safety of society. Ethical prosecutors strive to “d o justice.” T hink Law and Order. Zealous defense attorneys work to protect their clients against the overwhelming power of the state. Think T he Practice . Prosecutors and defense attorneys sometimes disparage each other, but they have a lot in common, not least a bed rock idealism. T hey also frequent ly share a zest for courtroom competition, the thrill of going toe to toe with an ad versary. And they take intense satisfaction from a calling that permits t hem to share th e dram a of people’s lives. The “right result” in th is system is supposed to emerge from lawyerly battles of wit s and facts, but the performance of the attorneys does not always approximat e this high ideal. Cardozo is com mit ted to the encouragement o f high-quality criminal advocacy. With its extensive clinical program, the School seeks to inculcate both the ded ication and the practical skills th at stud ents will need to surv ive in th e high- stakes, high-pressure world of criminal law. For example, stud ent s in the Criminal Law Clinic rep resent clients in Manhattan Criminal Co urt. Those in the appeals clinic writ e briefs for incarcerated inmates. Others sign up for internships at local and federal prosecutors’ offices. An intense trial advocacy program gives students an opportunity to learn from real attorneys. Trial team competitions allow stud ents to experiment with their techniq ues. Following are examples of how some alumni are using their skills and how they regard their vocation.

M A RC L. M UKA SEY

’93 guesses that only one percent of law school graduates ever get to try a case in court. But
2001

the self-proclaimed “adrenalin junkie” has tried seven cases six resulting in guilty verdicts, during his three , and a half y ears as an assistant US attorney in the Southern District in New Y rk. o In Cardozo’s Criminal Law Clinic, the future prosecuto r frequently disagreed with professors with a criminal defense bent, but “Barry [Scheck] and Ellen [ Y roshefsky] a introduced me to ho w mu ch fun it was standing in a courtroom arguing for y our side.” Th ey also “taught me a lot” about h ow to make those arguments— sharing skills from the advocates’ tool kit such as h ow to tell a sto ry effectively, use body language, and cross-examine witnesses. “Cardozo turns out lawyers ready to go into the cou rtoom,” Mu kasey says. Wh ile growin g up , Mukasey, 33, also had a men tor close to home. His father Hon. Michael B. Mukasey, , served in th e US Attorney’s Office wit h Rudolph Giuliani, for whom Marc campaigned in 1989. Michael Mukasey became a US district judge in 1988 and was named the chief ju dge of the S ou thern District this year. His son turns aside questions about fo llowing in his father’s footsteps. “I’m not smart enough,” he jokes. Before joining the US Attorney’s Office, Marc Mukasey was a staff attorney for the Securities and Exchange Comm ission and served as a law clerk for I. Leo Glasser, a d istrict judge in New York’ s Eastern District. As an assistant US attorney, h e start ed in the General Crimes Unit before movin g to Narcotics, where, among other cases, he prosecuted a ring that was allegedly dispatching sleek black limousines to deliver cocaine to professional offices and exclusive apartments. Mukasey, who now prosecutes violent gangs, says he has “the best job in the country.” Surround ed by dedicated and intelligent lawy ers and agents, he loves th e work so much th at he say s he wou ld do it fo r free. “Where else can you argue for the right cause every single time?” Mukasey says. Bu t he insists that his job is to “do justice” rather than to pile up convictions. J ustice Sut herland, in a 1935 US
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Supreme Cou rt decision, said th at a US attorney “may strike hard blows” but not “foul ones.” Mukasey says that “it is a beautiful thing to live by that credo.” He gets great satisfaction fro m getting “bad guys” off the streets, but he says he also is happy when h e can exoner ate a suspect. The courtroom is a comp etitive arena, and Mukasey enjoy s the comp etition. However he adds, “I wouldn’t , get into the arena unless I was confident the d efendant was guilty beyond a reasonable dou bt, and I had th e evidence to prove it.”

Att orneys like G A R Y G. BECKER ‘83 are often asked h ow they can d efend gu ilty people. T Becker the qu estio n o , isn’t relevant. To him , the job of the defense attorney is to ensu re that the defendant is treated fairly in an arena where the odds are stacked against him or her. “I stand u p for principles,” he say s . Becker, 46, learned how to structure a legal argument in Cardozo’s Criminal Law Clinic. He also discovered th at “I identified more with the individual than with the state.” Today, he wo rk s with Gerald Lefcourt, a p rominent Manhattan defense attorney. A self-d escribed “true believer,” he says he could never be a prosecutor. “I’m not someone who gets up in th e morning an d assigns blame,” h e says. “Prosecutors get to assign blame.” Prosecutors may get satisfaction from getting “bad guys” off t he street, but Becker says th at their definition of “bad guys” includes “every body from people who blow u p the World LAU RIE M ACLEOD lives Trad e Center to those on a farm in northwestwho smoke mariju ana ern Massachu setts, t wo in the privacy of their hours from Boston. But own h om e ” s. this beautiful rural area Becker believes that h as its share o f crim inal the line between “crimviolence. “Y ou’d never inals and peop le like imagine wh at goes on you and me is exat night,” say s Ms. tremely blurry,” a po siMacLeod ’84, wh o runs tion he illus trates by a five-attorney s tate recounting an overprosecutor’s o ffice in heard conversation in Franklin County. which a presumably MacLeod, 45, grew law-abiding woman told Ren ato C . Sta bile a nd Gary G. Be cker up in Delaware and a com panio n that she went to college in Massachusetts. After graduation and h ad registered her car in T s, where the rates are lower exa before enrolling in law schoo l, sh e ran a restaurant an d than in New Y ork. T hat’s a crime, Becker says. music hall in Northampton. She met her husb and, Mark But ting heads with prosecutors wh o refu se to give an H. Bluver, at one of h is performances as a professional inch can b e frustrating, bu t Becker enjoys the courtroom clown, his bu siness at th e time. Bluve also went to law r battle. He has deploy e h is advocate’s skills for a wide d school at Cardozo, grad uating a y ear after his wife. He variety of clients, inclu ding a “human fly” wh o climbed works at a law firm in Springfield. “I don’t know whether th e World Trade Center, a small-time bookmaker arrestit’s a step up or a step down” from his previous career , ed under a big-time money- laundering statute that could his wife jokes. have brough t him a 20-year prison sentence, and a
30 CARDOZO LIFE

woman who se settlem en t from a form er husband the government sou ght to seize because the money allegedly had b een earned through a crime. Th e qu est ion in su ch cases freq uently is no t one of ou t-and- ou t guilt or innocence but whether th e draconian p enalties so ugh t by p rosecutors represent “an approp riate use of the system.” In one particularly “righteous cause,” Becker represented a former lawy er who had served a six-year prison sentence for dealing drugs. Be cker persuaded a state court to restore th e man’s righ t t p ractice law by telling o a “story of redemption.” “It was one of those cases wh e I felt like I made a re difference,” he says. Becker says that t he financial rew ards of his calling are not great. A first-year associate on Wall Street frequently earns as much as a veteran defense attorney. But Renato C. Stabile ’97 was glad to get a job at the Lefco urt offices. The office get s great cases, and “you really get to work with people in a personal way ,” says Stabile, 29. Stabile was a biology major in college and exp ected to study environmental law when he entered Cardozo. But he soon became fascinated with crimin al law. He h ad several internships in the field and became a memb er of the school’s trial team. “ Y learned how to try a case,” ou he say s. “Y felt free to experimen t because nobod y’s ou liberty was at stake.”

MacLeod participated in Cardozo’s Criminal Law Clinic but handled civil cases for several years after she graduated. A clerkship with a New York State Sup reme Court justice in B rooklyn reaw kened her interest in criminal a law When sh e and her h usband returned to Massachu. setts, sh e signed up with a prosecutor’s office. She h as worked there for eight years, spending mu ch of her time handling cases of d omestic violence. The job does not p ay Barry Sch e ck an d Lau rie M acL eod big-city wages— the current starting salary for a Franklin Cou nty p rosecutor is $ 35,000—but MacLeo d love s the work. She likes being involved in “the drama of peop le’s lives” and enjoys th e feeling o f “d oing good.” She treats every case very seriously and won’t go forward unless there is sufficient guilt to sup port a conviction. “ Th at’s an honorable p ositio n to be in,” she says. However she is , occasionally frustrated by skeptical judges and juries. Proving guilt beyond a reasonable doubt is “a very, very h igh hurdle.” Many prosecut ors eventu ally become d efense attorneys, but MacLeod says she would h ave a hard time defending people like the ones she has prosecuted. She recalls one case in which a husband viciously beat his wife wh ile their young child ren (8, 5, and 2) looked on. He hit her wit h a beer bott le and banged her head on the dashb oard of their car before throwing her and the k ids from the v hicle . “She couldn’t forgive h ere self because the kids saw it all happen,” MacLeod says. On the day of his schedu led trial, the h usban d bolted from the courtroom. By th e t ime he was apprehended, th e victim h ad moved to Florida, one witn ess had died, and ano ther could not be found. Still, MacLeod secured a conviction. “ I couldn ’t even t ell the victim how it tu rned out,” t he prosecutor says. “But I felt like I did right for her.” Defense attorney J OR GE SAN TOS ’89 says prosecutors have a tough job and he won’t criticize them. But he doesn’t think he could do the job eit her. , He sometimes imagines himself in the role of a prosecutor listening to a defense attorney argue for low or no bail. “I can see my self sayin g to the
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judge ‘you know, he’s right,’” he says. , Santos, the son of Cu ban immigrants who grew up in Queens, became interest ed in the law wh en he wandered into the co urthouse during th e Howard Beach bias murder trial. After a few years with Legal Aid, h e started a solo practice, sharin g space wit h a few other attorneys. He does cases in Manhattan and Brook ly n in add ition to Queens. Most of his clients are Hispanic. They range from serious drug dealers to businessmen harassed by the city’s quality-of-life campaign; he recent ly journey ed to Washington to participate in a federal death penalty case. Santos’s own p arents had a sm all clothing bu siness in t heir home and were som etimes bothered by police, he says. That s ealed his intention to become a lawyer and “to go up against the system.” Santos, 38, says he st ill is passionate about p eople’s right s, but he has become m ore realistic. His clients certainly have a pragm atic attitude. “They want to know how t hey can get off,” he says. Facing powerfu l prosecutors and judges, “you have to make concessions to get what you want,” Santos ad ds. ’97 showed up wearing sensible pumps for her first arraignment shift as a prosecutor in Manhattan night court . Before too long, however, pain was sho oting up her legs. By th e end of the evening, after eight hours on her feet , “I was d rap ed over the pod ium,” she says. W orkin g as an assistant district attorney in New Y rk o County has been a revelation for Chelmow. She discovered that the job can be very tirin g and that it is hard to sto p p eople from ly ing. Occasional discomfort n otwithstanding, Chelmow loves her job. She h as finished her initial th ree- year commitment but doesn’t have an y plans to take another job. Anyth ing else wou ld be too dull, sh e says. Chelmow 43, worked in the d ata processing depart, ment of an insurance company before going to law school. At Cardozo, sh e had an internship with the United States Att orney’s Office and participat ed in the School’s mediation clinic. Even as a young prosecutor Chelmow has a lot of , power and respo nsibility. She sometimes feels bad when her actio ns give somebod y a felony record. “But t hen I
M ARCY CHELM O W
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start thinking, Wait a minut e—I’m not the o ne who sold the d rugs.” All in all, she believes that “doing justice is a better goal than the defense attorneys’ go al of ‘getting my guy off.’ ” At first, D AN IEL M . FELBER ’83 wasn’t sure he wanted to go to law school. He worried that its formalistic, factdriven reasoning “tends to inhibit the creative process.” But th ere are compensations. Fo r one thing, Felber found , “Goliath can be slain in a court of law.” And Cardozo h elped t each him how to bring down the giants. One of t he “ Goliaths” slain by Felber and his partner Robert Balsam was the Chicago-b ased legal beh em oth Baker & McKenzie. After several very lean years, d uring which Felber and Balsam devoted most o f th eir resources to th e case, th ey convinced the st Division of ate Human Rights that the firm had fired Geoffrey F. Bowers ’82, a well-regard ed legal associate, because he had AIDS. Bowers died in 1987, shortly after testifying at administrative hearings, but th e state agency awarded his estate compensatory damages of $500,000. T he law firm eventu ally dropped its app eal after negotiating a confidential settlement with the Bowers family . A confidential settlement was also reached in t he Bowers family’s suit again st the creators o f Philadelphia, a hit movie starring Tom Hanks that resemb led Bowers’s real-life story. Felber honed h is advocacy skills under th e tutelage of Barry Scheck at Cardozo’s Criminal Law Clinic; he continued to work with th e Clinic for several y ears following his gradu ation. Today, he is th e litigatio n specialist in the four-lawyer “bout iqu e” firm of Balsam, Felb er & Goldfeld. His cases range from criminal to contract law, and he has started dabbling in personal injury law, which employs the same basic trial concepts as crim inal law. The only difference is that the winner in a criminal trial gets a not-guilty verd ict, whereas the winner in a personal-inju ry case gets a lot of money. Most of his clients still are “Davids” like Geoffrey Bowers; Felber frequently takes on megafirms that have virtually unlimited resources. His own resources ar e not unlimited , so he has to be pragm atic in the way he ap proaches cases. That only makes “the victory all the sweeter.” However, after 18 y ears of courtroom battles, Felber says that confrontation no longer holds the allure it o nce did, so he h as beco me more int erested in m ediation. What ever th e method, he says that it is an hon or and a privilege to defend people who se rights are threatened. The biggest Goliath of them all is the US Department of Justice. The government was Felber’s adversary when
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he was assigned to represent one of the con federates of Sheik Abd ul Rahm an, who was charged with conspiring t blow up public buildings. Felber, who had to leave the o case when h is client decided to co operate with the prosecu tion, says that “allegations were horrific,” bu t he never really believed in the conspiracy. Still, he found the atmosph ere of th e trial, with its grim prosecutors and tight security , to be somewhat intim idating. “I felt in many resp ects th at I was trying this case in some other count ry,” Felber says. T succeed, a defense lawy er like S TAC EY RIC HM AN ’91 o must be ready to go to trial. But an attorney’s work frequently is done far from the courtroom. Richman worked for a year to conv ince a prosecutor to red uce a misdemeanor charge against a client to a violation. A criminal conviction would have cost the man, a banker his , career. “That’s a great day ,” says Rich man. “T hat guy is very hap py, and I am very happy.” Richman, 34, also has repres ented more glamorous Stacey Rich man clients. After graduating from Cardozo, th e dau ghter of Bronx attorney Murray Richman wanted to go to a place “where nobod y knew me and I got treated like everybody else.” In Los Angeles, she worked as an entertainment lawyer, repres enting, among others clients, Jon V oight and Ivana Trump. But she loves New Y ork and always planned to com e back and work with h er father She recently was men. tioned in a New Y Post article about hot new attorneys ork . According to th e Po st, she and a colleague, St. J ohn’s Law School graduate Renee Hill (pictured abo ve), have handled high -profile cases involving the rap and hiphop artists Jay-Z, DMX, and Sh yne, th e alleged gunm an in the nightclub shoo ting that involv ed Sean “Puffy ” Combs. Her father was qu oted as say ing t hat t he two are “the Dream Team of the Future.” Stacey Richman jokes that “entertainers are often criminal and criminals are often entertainin g.” But she says th at each and every case, wh ether or not it involves a celebrity, is challenging because “ you get so involved with people’s lives.” Moreover, criminal law is one of the few fields in which you can still experience victory. “It’s v ery p owerful,” Richman says. Richman works with two other Cardozo graduates at her father’s office. Andrew M. Horn ’92 gets 75 percent of his business
CARDOZO LIFE

from criminal law cases. A lawyer can make more mon e writing contracts or shepherding mergers and y acquisitions, but to Horn, “it seemed more appealing to do something involved wit h people’s libert y.” Not to mention the visceral excitement trial wo rk produces. AD AM M . J AFFE ’97, who was a debater at Syracuse University, likes that excitem ent; he has done 12 trials since January 1998. “I’m not d efend ing my clients,” he says. “I’m defending th e right s.” Ho rn agrees that “gu ilt ir really isn’t the issu e at all.” He says t hat we have a good system because “it is tested every day.” Richman d oes not approve of crime either, bu t she says it is not her job to jud ge her clients. She says m any prosecutors, with th e ho lier-than-th ou attitu des, don’t ir see d efendants as individ uals and freq uently overcharge them. Once suspected criminals are in the correctional system, “ they are t reated like an imals,” Richman adds. For the solo practitioner trying to make a living, crim inal law involves a lot of hustle. Richman, who is frequently in court all day, often meets clients at nigh t. “Y mu st m eet clients when they are available,” she ou says. J affe is frustrat ed t hat some judges are openly critical of attorneys. “ They don’t understand that we are trying to build a business and the way we are treated in front of the client is very important.” A good defense attorney m ust be well prepared and pro-active. Winning is all in the details, Richman says. In one recent murder case, a witness insist ed he had seen one of Rich man’s client s fleeing t he scene. Furthermore, he said he had b een o nly 15 feet aw ay. She measured the area and fou nd th at he co uld no t have been closer than 300 feet. “Juries want to do a good job,” she says. “ They’re paying attention, so you ’d better be pay ing attention.” ’81 was to uring an upstate prison in the early 1980s when she encou ntered a closed and lo cked door “Y u don’t want to go in there,” . o h er guid e said. Th e room was being used to isolate prisoners with AIDS from ot he r inmates and prison staff members. Inside, Potler found emaciated men who were receiving little medical treatment; they had, in fact, been abandoned by the criminal justice system . “Nobody was really focusing on medical care in the way this population needed,” says Potler, who helped to change th at by researching and writ ing one of the first studies of AIDS in New York State prisons. Today, Potler, 47, uses her legal training to ad dress issues at the back end of the criminal justice system, focusing on what happens after the other lawyers have
C ATH Y POTLER
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done their work. “We live in such a punitive society,” she says. “All we hear about is locking people up and throwing away the key . Our public officials forget that p eople are coming out of prisons daily , often less prepared to t ke o n the hardsh ips of life t han before they were a locked u p.” Potler studied anthropology and archaeology in co llege. S he then got a job mon itoring police patrols in Philadelphia and New York , where she saw “all sorts of illegal activities.” T hat eye-opening e erience conxp vinced her to attend law schoo l. “I wanted to k now more about crimin al law and the US Const itution,” she says. After graduat ing from Cardozo, she was hired by Nassau County Legal Aid to fight sex discrimination at the county jail. Although she p articip ated in Cardozo’s Criminal Law Clinic and loved going into the courtroom, Potler turned t policy because litigation seemed to take so long. Bu t o law sch ool provided a jump start for her policy efforts. Moreover she fou nd that sh e could combine her legal , training with her ant hropology background to co nduct investigations. Potler worked fo r the not-for-profit Correctional Association of New Y ork for eight years, focusing on issues like the care of prisoners with AIDS, mental illness, an d ot her conditions. Sh e currently is the d eputy executive director o f th e New Y ork Board of Correction, a non-mayo ral cit y age ncy independ ent of the Department of Correctio ns that writes legal standards and monitors cond it ions at 15 city jails currently hold ing about 15,000 inm ates. One of Potler’s jo bs is to investigate all suicides and unusual deaths to identify problems that need to be corrected. The small agency, wh ich th e Giuliani administration unsuccessfully sough t to abolish a few years ago, recently determined that inmates were not receiving proper medical care under an HMO-type contract th at gave the healt h care provider a flat fee for each prisoner. Prodded by the Board, th e cit y eventu ally tightened its oversight. It soon will shift to a new jail health contract with a new vendor using a fee- fo r- services approach. “Until the city gets it righ t, it is difficult to walk away from this kind of work,” Potler says. Potler likes her work, and she is hopeful that officials even tually will conduct a serious p ublic debate abou t alternatives to incarceratio n and t he social conditions— such as p overt y, substance abuse, and mental illness— that produce crim e. For the mom ent, ho wever few peo, ple are aware of what goes on inside jails and prisons. “When I bring p eople into jails, it really changes their attitudes,” she says. “People don’t understand what deprivation of liberty means until they walk out and the s gates clang shu t behind them .”
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Derridaonthe

E

leven years ago, th e French deconstructionist philosopher Jacques Derrida participated in a conference at Cardozo o n “Deconstruction and t he Possibility of Just ice.” He delivered an add ress on “The Force of Law,” which was later published in th e Cardozo Law Review . Sin ce then, Derrida and Cardozo have maintained a relationship that has brought him back to Cardozo on an annual basis, a relationship that he has described as “precio us to me.” In October Derrida re, turned to Cardozo once again, t his time to lead a discu ssion on the d eath penalty. The event, which filled the largest of the Law Sch ool’s lectu re halls to capacity, was sponsored by the Jacob Burns Institute for Advanced Legal Studies as part of the annual Law and Humanism series sponsored wit h the New Schoo l University. Derrida described h is ongoing seminar on the death penalty, of which this appearan ce was a continuation, as focusing on several threads, includ ing th e cruelty of execution, the nature of sovereignty in relation to capital punishm en t, the death penalty in the Western philosop hical tradition, and t he world political trend tow ard the abolitio n of capital p unishment. Derrida graciously encouraged the audience to participate in th e discussion, reiterating that he conceived of the event as a seminar rather than a lect ure. The issue of cruelty was one of the first that Derrida introd uced, noting that the US Constitution bans cru el and unusual punish ments. Th e word cruel comes from the Latin word meaning bloo d, and Derrida argued that the word carries connotations of making another suffer for suffe ring’s sake, or eve taking pleasure in another’s n su ffering. Th e audience for the most p art did not pursue this p oint, and this was a lost opportunity . T he implica-

tions of Derrida’s observation run, fascinatingly, in two different d irections. Punishment is cust marily defined o as hard treatment imposed because of a violation of legal rules. If so, then does this mean that execution as a punishm ent is neve cruel, because it is not merely th e r imposition of suffering for its o wn sake? Or does it mean so meth ing entirely different? Capital punishment has been justified on the ground that it is cathartic for th e victim’s family. But is an execution for this reason really anything more than the infliction of suffering for suffering’s sak e? If so, then this reason cannot be a justification fo r punishment. Punishment is the infliction o f pain for good reasons. It may be that execution, being cru el, can never be a genu ine punishment. The issue of capital pu nishment in the Western philoso ph ical trad it ion received greater attent ion. Derrida began with the surprising but true observ ation that no philosopher in t he W estern tradition argues again st the death p e alty, while many o f the most prominent, n notably Immanuel Kant, advance argu ments in favor of it. Prof. Scott Shap iro picked up this point, suggest ing that the reason is the difficu lty in dist inguish ing logically between death and oth er pu nishments. Th e strongest arguments against th e death penalty are emotional o nes: Execu tions are unpleasant; they create anxiet y because we can never be certain of guilt; and execu tions are likely to be sough t and supp orted by m any people we do not respect. T hese are not the k ind of arguments that ph ilosophers make. Derrida concurred, and expanded the point to suggest that perhaps there is no p ure philoso phical argument against the d eath penalty. The question can be resolved o nly in p olitical d iscourse, n ot philoso phical discourse. In that case, the abolitio n of the death penalty in any given society is always a contingent
CARDOZO LIFE

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De athPe n a l ty

Kyron Huig ens Pro fessor of Law

thing. It might be brought back at any time, depending on the state of political consensus. Derrida also suggested the complexity of this political problem at several points. Prof. Peter Goodrich, who moderated the co nversat ion, observed t hat war is a manifestation o f the death penalty, and th at it may b e imp ossible to abolish the death penalty without first abolishing war. Derrida agreed. He noted that there is a hypocrisy in the abolition of cap it pu nishment in that it occurs al with in and is undertaken by a nation-state, while the nation-stat e p reserves itself b y killing external enemies. By doing so, it legitimates the idea o f killing enemies of the public— which wou ld seem to includ e the criminal. In his opening remarks, Derrida observed that it is imp ossible to separate political sovereign ty from the power over life and death. For this reason, th e Universal Declarat ion of Human Rights stat es exceptions to its ban on capital p unis hment . In ord er to maintain an essential aspect of its sovereignty, the state must reserve the right to impo se t he pen alty o f death, at least in exceptional cases. Pe rhap s for th ese reasons, Derrida n ot ed, the progr ess t hat has been achieved in th e abolition of capital punishment around the world h as come about as
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a resu lt of relations between sovereigns. T he European Commu nit y demands t he abolit ion of capital pu nishment as a condition of mem bership, a condition that play ed a role in France’s abolition of the penalty and one that might lead Turkey, which seeks membership in th e Communit y, to do so as well. Derrida described his own participation in the debate in these terms. Given that no knock- down philosophical argument exists, the most one can do is to mak e small contributions to buildin g political consensus. Derrida plans to continu e to do this, in books, essay s, and seminars such as this one. It is lik ely, on the evid ence of this event, that his contribu tion event ually will n ot be a s small one at all.

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El e ct i o n2000
IT WAS AN ELECTION THAT HAD INTRIGUE, HELD INTEREST, AND CAPTURED

the ima gination. Precedent-setting court cases were be ing decided as personalities surfaced and became h ousehold names a nd the brunt of late-night tele vision jokes. New words like “Votomatic” and “chad” became part of our everyday conversations, and the election process an d its photo-finish e ndin g se emed to grip the country. It provide d one of the most wonderful of civics an d legal lessons. For the first time, pe ople became fascina ted with the ins and outs of the e lectoral process and the laws that governed it. And who better to explain what was happening and make the process u ndersta ndable to us than a law professor? Be cause of the nature of the elec tion and th e daily—if not hourly—twists and tu rns it took during the five weeks of counting and recounting votes, legal con tests and arguments, appe als and more arguments, the media sought advice and information from legal pundits n ear ly 24 hours a da y. Beginnin g late in November through th e Su preme Cou rt’s fin al rulin g on December 12, Cardozo professors were quoted an d appe ared on te levision ever y day from 6 a.m. right th rough the 11 p.m. news. Even several days a fte r Gore’s concession, Prof. Monroe Price appeare d on a Sunday morning show to discuss, “Can George Bush le ad after this election process?” The following articles and letters, which were e dited for inclusion here, were amon g those that Cardozo professors wrote during th is historic al moment.

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A F I N E M O M E N T F O R F ED E R A LI S M
M A RC I A . H A M ILT O N

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US Supre me Court hears argu ments on Bush appeal that says Florida Supreme Court improperly extended the Nove mber 14 deadline for certification of vote.
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The US Supreme Court orders th e Florida Supreme Court to clarify its ruling on the extended certification da te.
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The Florida Supre me Court or ders an immedia te manual recount of all ballots in the state where no vote for presiden t was machine-r ecorded.
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On Bu sh appe al, US Su preme Court halts the manual c ou nting.
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Lawyers file briefs with the Supreme Court.
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he Supreme Court’s decision … is, at its heart , a tribu te to the political restraint of the just ices, and to their remarkable respect for t he role of th e states in our federal system. Ind eed , [the] decision was perhaps the finest moment of fed eralism yet reached in this country’s history. The justices stood at a crucial point in history, at th e ape o f their potential influence, with th e ability to grasp x the power to determine th e outcome of the election if they so chose. The media kept billing the Cou rt’s decis ion as though it were the end game; the po llsters kept asking abo ut it that way; and ind eed, if the Court had sim ply held that the manual recounts were invalid, an endgam e it would have been (checkmate: Bush). But the justices chose unanimously to take another path, and to follow their entrench ed rule of deferring to state supreme co urts on t he meaning of state law. Thus, they asked th e Florid a co urt—in a brief opinion and in moderate tones—to explain its decision to extend the deadline fo r certify ing the election, in th e context of the federal principles the Court laid out. Th e opinio n aimed to ens ure th at th e Flo rida Supreme Court acted wit hin its proper sp here, con sistent with constitution al federalism. At the same time, it also exemp lified the US Sup reme Court ’s acting within its p roper sph ere, consistent with co nstitutional federalism. It m ade clear that overreaching—on either th e state or th e federal level—w ould n ot, and sh ou ld not, occur.

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Appear on Findla w.com and CNN.com ed

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US Supreme Court hears arguments.
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D R I VE N B Y P O LI TI C S
PE T E R L U S H IN G PRO FE S SO R O F LA W

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Supreme Court overturns the Florida Supreme Cou rt. Florida House votes to app oint electors for Mr. Bush.
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Vice President Gore conc edes.
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T th e Editor: o If the United States S upreme Court justices vote along id eological lines based on their view of federalism , it is understandable and historically in accord with ho w justices perform their work. But fo r the five prevailing justices to be driven by po litics to the extent that they are willing to disavow the
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states’ rights ideology that their voting records reflect is disastrous to both the court and the country. Th e public can now justifiably view the United States Supreme Court, and especially its majority, as a political clubhouse. reprinted from T he New Y ork T imes

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A J U S T & W I S E A C TI O N : TW O S I M P LE P R I N C I P L ES O F TH E S UP R EM E C O UR T R U LI N G
J O H N O . M C G I N N IS PRO FE SS O R O F LA W

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h e Suprem e Court’s d ecision Tuesd ay [Dec. 12] will be read as long as our nation survives. In t he short term, it is sure to be the su bject of much abuse— but in th e long run we can hope th at it will be understood for what it is: a clearly reasoned judgment roo ted in fundamental law that was also an act of statesmanship of high order . Knowing th at t he y wou ld be attacke d as po litical partisans by undoubted partisans, particularly in t he press and the legal academy, the m ajority nevertheless followed the law and prevented a constitutional crisis. In a city where leaders o ften try to dodge accountability for major decisions, the justices acce pted responsibility in full recognition o f the consequences.

Commentator have already confused the pub lic by s suggest ing that the decision was com plex. In realit y, it rested on two simple and lucid propositions: First: The recount order by the Florida Supreme ed Court v iolated the Equal Prot ection Clause of the Constitution because it lacked any assurance that t wo physically identical ballots would be counted alike. Second: No constitutional recount could be finished by Dec. 12, the day the state court consistently read as the d rop -d ead date by which Florida law h ad contemplated resolving a presidential elect ion.… Fin ally, desp ite Justice Breyer’s claim that no ind ividual righ ts were involved in this case, individual rights were at its heart—the right of each voter to have h is or her vote count eq ually. What is the court for, if not to resolve questions of individ ual rights claims when th ey are presented by a candidate who had himself been hauled into court against his will? The alt ernative of judicial abnegation would not have served the country well. If the count had gone forward with co nstitutional infirmities, it wo uld have been subject to subsequent ch allenge in the courts. Florida legislators wou ld have named th eir own slate. Instead of starting January with a Congress read y to address national problems, we would have started with a constitutional imbroglio created by a count that seven justices believed unconstitution al. T he d ecision yesterday thus was not a reckless int ervention b y the court but a defensive act prot ecting polit ical stability. From Virgil’s Aeneid to Shakespeare’s Henry V , many of the great works of literature have focused

EDITO R’S NOTE:

Elec tion 2000 wa s not the first election tha t grippe d the public or whose outcome wa s disputed. The election of 1876 involved an Electora l College controversy tha t politica l c a rtoonist Thom as Na st illustra ted in the pa ges of Harper’s Weekly. The im a ges used here a re from the Rutherford B. Haye s versus Sa mue l J. Tilden election a nd r eflect som e of the pa ra llels with our m ost recent e lection including Florida pla ying a centra l r ole in the controversy, disputed election returns, and different winners of the Electoral College a nd the popular vote. When the election could not be ca lled a month after it took place, Mr. Na st pla ced himself at the center of his own ca r toon, pr epa ring his pencil for the wor k ahea d. The ca r toons a re published here courtesy of Har pWeek LLC, a nd a ll of those tha t were published in Harper’s We ekly dur ing the election of 1876 ca n be see on the Wor ld Wide Web at Ha r pWeek.com.
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on the burdens that leaders must assume. Good leaders must cast asid e many p ersonal considerations , particularly th e desire for un iversal affection, because p aradoxically t hat affection is often won at th e expense of the public’s well-being. When the part isan bitterness of this season has long been forgotten, th is decision may well be remembered as a just and wise action by leaders themselves worthy of celebration. rep rinted from the New Y rk Post o

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TH E U S ELE C TI O N S , S TA TE B Y S TA T E
E D W A RD A . Z E L IN S K Y PRO FE SS O R O F L A W

t gether the Texas and Orego n totals and call them a u nio fied “pop ular vote.” Or consider the differences in state laws concerning absentee ballots. Som e states effectively encourage such ballots; oth ers do not, relegating the absentee ballot to its traditional role of permit ting those un able to be p hy sically present at the polls to vote. Again, witho ut a un iform national standard for voting procedures, it is po ssible that the p opular vot e plu rality actually reflects one candidate doing disproportionat ely better in the states with m ore liberal ab sentee voting ru les. When … elections are as close as was this presidential contest, comp aring vote totals unde different state elecr toral p rocesses, if not quite comparing app les and oranges, is at least comp aring oranges and tangerines. Accord ingly, we shou ld not inv est great normative weight in the concept of the pop ular vote, as it does not represent a national total determined under u niform rules . Reprinted from T he J erusalem Post

t th e moment, it indeed app ears that Governor Bush will h ave a razo r-thin v ictory in the electoral college, while Vice President Gore carried the popular vote. However the implications of th is , discrepan cy are more problematic than …[some] suggest. On one level, the popular vot e is an undeniable mat hemat ical fact , derived by addin g together the votes each presidential candidate receives in each of the state contests. However on anot her level, the United States , does not have any national p opular vote since it actually has 51 separate elections, each cond ucted under its own rules. It is not clear whether th e combined results of these separate state elections produce th e same outcome as would a tru ly n ational cont est h eld under one set of uniform p rocedures. Consider, for example, the case of Oregon, which condu ct ed its entire election by mail ballot. The vote was narrowly divided between Go v ernor Bu sh and Vice President Gore, and h ad one of the highest participation rates in the United States. Suppose that Texas, a Bu sh st ronghold , h ad used the Orego n system. Would the Texas voter particip ation rat e have increased under the Oregon rules?… We don’t know… and can, at best , sp eculat e. But withou t th ose answers, it is questionable whether we can add

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VO TI N G R I G H TS , R U LE S , A N D EQ U A L P R O TE C TI O N
M O N RO E E . P RICE JO SE PH A N D S AD I E D AN CIG ER P RO FE S SO R O F LA W

or most people read ing the bombshell Supreme Court case of Bush v. Gore, what was extraordinary was its defining significance in ending the 2000 presidential election. My reactio n was more p e rsonal, alm ost nostalgic. It was about a little-remembered decision and it s lessons concerning co ntinuity , ju dicial tradition, and the taming and absorption of radical new doctrine. The almost forgotten case was Carrington v. Rash, decided by t he Court in 1965, and it in v lved an unusual o voting rights ru le from Texas. The Texas constitut ion had p roh ibited “any member of the Armed Forces of the Unit ed States” wh o moves h is home to Texas during the course of his m ilitary dut y

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“The decision ye s te rd ay thus was not a re c kless inte rve ntion by the co u rt but a defe n s i ve act pro te cting po l i t i cal stability.”
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—MCGINNIS

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“The Un i ted St ates does not have any national popular vo te s i n ce it actually has 51 separate elect i o n s, each co n d u cted under its own ru l e s.”
from ever voting in any election in that state “ so lon g as he or she is a mem ber of the Armed Forces.” The provision and its implem enting regulations were designed to protect Texans from being swam ped by military personnel at a base, particularly a base near a th inly po pulated town. The challenge to the Texas rule came to the Supreme Court wh en I was a law clerk to Justice Potter Stewart, and aft er argu ment and the conference of th e justices, the case was assigned to h im to write for an almost unanimous Court. Justice Stewart, in a brief and characteristically elegan t op inion, held the statute unconstitutional. The ground he used was similar to the one employed b y seven of the Court ’s justices in the historic Florida case. It was the Equal Protection Clause. It all seemed so simp le. But , as a law clerk researching t he questions, I had been amazed to discover that the Eq ual Protection Clause had nev been er invoked b y the Supreme Court—or hardly any other cou rt—in a similar circumstance, namely to hold unconstitutional state voting eligibility p rovisions. An d I wasn’t the o nly one to make this discovery. The august, formidable, learned J ustice John Harlan forcefully d issented. The fact that he was alone in dissent never detracted fro m his autho ritative, thundering judicial voice. “Anyone n ot familiar with the provisions
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—ZELINSKY

of the Fourteenth Amendment, the history of th at Amendment, and the decisions of the Court in this const itutional area, would gather from today’s opinion that it is an establish ed constitutional tenet that state laws governing the q ualifications of voters are subject to the limitat ions of the Equal Protection Clause. Y t e any dispassionate survey of t he past will reveal that th e present decision is the first to so hold.” As J ustice Harlan put it, commenting on the striking down of the Texas vo ting restrictions: “While I cannot express su rprise over today’s d ecis io n after th e reapportionment cases, which though bound to follow I continue to b elieve are constit utionally indefensible, I can and d o resp ectfu lly, b ut earnestly , record m y p rotest against this further extension of federal judicial power into th e political affairs of th e States.” Now, the descendants of Justice Harlan, in Bush v. Gore, have enunciated as unproblematic what he considered to be heresy. The justices of the per curiam decision in Bush v. Gore tried to hem in t he radical implications of the constitutional doctrine they were announcing. In a sentence that will be the subject of hu ndred s if not tho usands of cases and legislative inquiries, the Cou rt said, famously, that it was not deciding “wh ether local entities, in the exercise of their expertise, may develop d ifferent systems for
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“ Now, the desce n d a nts of Ju s t i ce Ha rl a n ,in Bush v.Go re, h ave enunciated as unpro b l e m atic what he co n s i d e red to be here s y.”
implementing elections Instead, much more narrowly, .” it was “p resented with a situation where a state court with the p ower to assure uniformity has ordered a statewide recount wit h minimal procedural safeguards.” But there is a relevant lesson in Carrington v. Rash and the reapportionment cases before it. Great and radical doctrine, broad understandings of justice, cannot be easily cabined. Whether th e Court stumbled, reached, o r consciously entered the world of m eticulous measuring of actual voting practices, the ou ter reaches of its d ecision-making can hardly be measured. The little case of Carrington v. Rash, then, has been forgot ten. But it is a d istan t ancestor of Bu sh v. Gore. Carrington newly emp owered a few th ou san d soldiers at bases in Texas. Bush v. Gore will change vot ing practices throughout the land.

—PRICE

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W H EN “ I N TE R P R ETATI O N ” BE CO M E S “CH A N G E ”
RI CH A R D H . W E IS BE RG WA LT ER FL O E RS H EI M E R PRO FE SS O R O F C O N ST IT UT I O N A L L A W

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n interesting ou tgrowth of ou r ongoing p olitical process this year is a debate about the way words wo rk . The pred ominating view still seems to be th at th e meaning of language is o bjective and can be grasped through an automatic res ponse by listeners or readers. So, for example, the Flo rida Sup reme Court needed only to read the State Legislature’s statutory language. Fro m t here to explaining what the legislators meant involved , in many people’s min ds, a process no more com plex than, s ay, a vot ing machine’s read ing of a ballot. This “ majority” view of the step from utterance to understanding was articulated by Joseph P. Klock, Jr., the secretary o f state’s attorney before Florida’s high court . “But J ustice Lewis,” he argued, “t here’s ju st so much b aggage th e word ‘interpretation’ can carry on its back before it b ecomes mo re of a change than it is an interpretation .” Capitalizing o n the US Supreme Co urt’s own skept icism about the way Florida’s jus tices were explaining the vot ing p rocedures o f th at state, Mr.

Klock seemed to b e stat ing the obv io us. A lawyer, especially, should know better. Many t imes in our history , the meaning of import word s has shiftant ed dramatically , and lawyers and jud ges are usually the respo nsible parties. About a century ago, for example, the phrase “eq ual protection” was interpreted to mean separate but equal. Did the Klocks of that era ever contemplate th e 180º shift in meanin g that finally o ccurred in Brown v. Board of Edu cation? When the Supreme Court decided that the Equal Protection Clause could not permit so -called “separate but equal” facilities, was it interpret ing th e clause or was it ch anging it? When the cu rrent conservative- leaning justices read the 10th and 1 1th Amendments to enhance States’ rights against individ uals attempting to sue under federal law, are they carry ing too mu ch linguist ic baggage or are th ey merely doing their job of interp reting? And wh at about th eir own election-closure interpretation of the Equal Protection Clause itself; was this extraordinary stretch regarding th e local standar ds for votecounting “interpretation” or “change”? Judges have the sober task of interpreting legislative (and sometimes constitu tio nal) language. T hose wh o accuse them of changing that language really mean that they do not agree with the interpretation. W should not e let these advocates degrade the work of judges by m isstating our comm on understanding of the way language works. And so the United States Supreme Court finally display ed its greatest cynicism in Bu sh v. Gore not so mu ch by playing politics as by d eliberately distorting the way ju dges work with wor s . d

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THE S UP R EM E C O U R T I N R EA L TI M E
M ICH A E L H E RZ PRO FE S SO R O F L AW

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he pos t-election legal proceed ings had their moments of hu mor. The oral argument in Bush v. Gore may have produced the most guffaw s as Josep h Klock stru ggled to correct ly identify th e Justices of t he Sup reme Court. But if one finds hum or in the absurd, the comic highpoint came 34 hours later
CARDOZO LIFE

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(34 h ours! ) when the Court released its decision and on air reporter s lud icrously attempted to u nderstand , synthesize, and exp lain 65 pages of jud icial exposition instantaneou sly . It was not for so me time that reporters had the chance to read and digest the o pinions and report what the Cou rt had actually d one. In Bush v. Gore, unfortu nately, the Court put itself in the role of the TV reporters wh o were fumbling in the dark rath er than those who cou ld read first and report later, in the clear light of d ay . The Court attempted the jud icial equ ivalent of instant aneousness, operating in real time. Th e fiasco that resulted will not cause the Cou rt irreparable harm (to use langu age with which the nat ion became familiar over th at weekend), but it is a reminder of the importance of th e Court keeping some distance from the disp utes it decides. T h e co nventional wisdom is th at the Court’s d ecis io n-making is en hanced by su ch d istance— not le ast, by a temporal dist ance, a time lag between the relevant event or legislative or judicial decision and the Cou rt’s review o f it. Normally, a Supreme Co urt case involves event s that occurred years ago, and legal issues t hat have percolat ed t hrough the lower courts. B ush v. Gore was just the opp osite, a mad dash . As a result, t he Justices were sho oting from the hip on extremely difficult legal issues that o ther jud ges had not considered. More imp ortant, by ru sh ing into the t hick o f things, t he Court d id much to further

the (well-found ed) sense that it had become a purely political actor. Not only was it ruling on a p olitical battle, it was a contemporaneous p articipan t. T he us ual insulation and distance had evapor ated. In The Least Dangerous Branch, the late Professor Alexander Bickel wrote of the courts’ advantage over the po litical branches in pursuing p rincip le rather than p olicy: [C]ourts have certain cap acit ies for de aling with matters of principle th at legislatures and executives do not possess. Judges have, or sh ould have, the leisure, the training, and the insulation to follow the ways of the scholar in pursu ing the end s of government…. Their insulation and the m arvelous mystery of time give courts the capacity to appeal to men’s bet ter natures, to call forth their aspirations, which may have be forgot ten in the moment’s h ue and cry. en This is what Justice Stone called the op portu nit y fo r ‘the sober second tho ugh t.’ Bickel’s account is both appealing and valid. It is also dismally inapplicable to the Court that decid ed Bush v. Gor which was part of t he h ue and cry. W ho knows e, what the election controversy will look like on sober second thought a year or two hence. T his much is clear now however: Bickel was right. T he Court is well served , s by proceeding in judicial rat her than real time.

“The Co u rt at te m p ted the judicial equiva l e nt of instant a n e o u s n e s s, o pe rating in real time.”
—HERZ
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FACULTYefs bri
Beebe

Stein Joins Faculty; Two Academics Visit for the Year
Prof. Edward Stein, who has a three-year appointment as associate p rofessor of law, comes to Cardozo with a distinguish ed background in acad emia. Before earning his law degree from Yale Law Scho ol, he studied philosophy at Massach usett s Institute of Techno logy and Williams College, where he earned a Ph.D. and B.A., respectively, receiving academic h ono rs from all three schools. Professor Stein said that he loved teaching and stud ying ph ilosophy, but in recent years h e has seen his interests shift to ethics and the law. He noted , “T he aud ience for some of my philosoph ical work was rath er small. I wanted to bring my intellectual ability to bear on issues that m ake a difference in p eople’s lives.” Professor Stein taught Fam ily Law in the fall. He said he tries to give the class a theoretical d isposition and an interdisciplinary character and asks his students to t hink deeply abou t such questions as: “What is a family in the eyes of th e law? W hat are parents’ duties? How do
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th ese questions app ly to a civil union between people of the same sex?” He remarked that his students like the t heoretical approach but also keep “th e ir eyes on the bottom line.” He noted many are doing internships and bring to the classroom their hands-on experiences, keeping t heory in check with real world concerns. In the spring term, he will teach Sexu al Orientation, Gend er and t he Law, as well as Evidence. He is a prolific author and h as written dozens of articles and three books—the most recen t is

Th e Mismeasure of Desire: Th e Science, T heory and Ethics of Sexu al Orien tation published by Oxford University Press in 199 He is 9. working on several art icles and has an idea percolating for a book on family law. He will b egin a one-year clerkship with Judge Dolores Sloviter, T hird Circuit Court

of Appeals, after which he will return t o Cardozo. Like Pro fessor Stein, Barton Beebe pursued other p ostgraduate stu dies b efore going to Y University to ale stu dy law. He earned a Ph.D. in English from Princeton University and a B.A. from the University of Ch icago, where he won prizes for h is essays in literary criticism. At Y le, he was senior a editor of Y Law Journal ale and articles editor of Y le a Journal of Law & the Humanities. He noted that while he was st udying literature, h is intellectual inquiry turned to the study
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Ed Zelinsky, who live s in Conne cticut, works at hom e, and com mutes to New York to te ach, is ta king on Ne w York State tax law. In a case before the New York Sta te Division of Tax Appeals, an adm inistrative law judge ruled that Zelinsky owes taxes on his incom e in both Connecticut and New York. Calling the doctrine “technologically obsolete i n an era of telecom muting,” Profe ssor Z elinsky is appealing the decision a nd will fight on the basis that under the Due P rocess and Com merce clauses of the Constitution, there should be a pportionm ent based on where the taxpa yer works. Ze linsky and his wife a re requesting a tax refund from Ne w York. Ne w York has a “source theory” of taxation, basing its claim to tax Zelinsky’ incom e on the fa ct tha t it cam e from a s New York em ployer. Connecticut bases its incom e taxation on whe re the income is e arne d, and gives a credit for incom e tax paid for work in a nother state. The ca se , for which Ze linsky is a ppea ring pro se, has e arne d a tremendous am ount of press atte ntion, especially in the legal trade publications in New York and Connecticut.

of law in the context of culture. Intellect ual p roperty, which is his field, was an obvious choice, he said, because of its concern with cultural property and it s embracing of high and low culture. Along with enjoying New Y ork, the intellectual prop erty capital of the world, he is also happy at Cardozo, where the IP faculty is open to different views and where no part icular bias dominates. In addition, h e said, “The students are h ighly motivated to study IP, because they see it all around them.” Professor Beebe, wh o is visiting Cardozo, has several project s in the wo rk s and
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is research ing the consumer as con cept in trademark law. He is especially enthusiastic ab out his plans to create with a colleague, Prof. James Boy le of Duke Law Scho ol, an intellectual prop erty textbook to be published on a CD- ROM. “T he CD will put the emphasis on problem sets rather than on cases. There will b e a lot of hypothetical questions.” Significantly , Professor Beebe intends to make the CD available at no cost. He said, “Our h ope is to release it under an ‘open source’ copyright scheme. Most of the informat ion in conventional casebook s is p ublic domain anyway. It may be an

experiment in seeing how much m ore influential ideas can be when they ’re given away for free.” Prof. Uriel Procaccia is visiting Cardozo from T he Hebrew University of Jerusalem, where he served
V rkuil e

for a nu mber of years as dean of the Faculty of Law. No stranger to Cardozo , h e first met members of the faculty in Israel during the Summ er Institute, and then was invited to teach a short course here on the Economics of Property Law. Th is term he taught Corporate Law and Corp orate Accounting. Professor Procaccia, the auth or of n umero us book s and law review art icles, has devoted many years to the task of crafting—from scratch— a brand -new corporate cod e for the State of Israel. It was finally adopt ed by the Knesset in 1999, the largest legislative project in the history of th e country in t he area of private and commercial law. The theoretical foundations of this project were laid down in his book Corporate Law: Policy and Reform, published in 1989. The original draft b ill underwent an extensive process of review by committees of experts, government regulators, and finally the Knesset, wh ere it was heavily lobbied by opposing factions repr sente ing industry, labor, profesBrickman

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sional associations, and regulatory agencies. “The final product,” ob serves Professor Procaccia, “differs in some important respects from the original proposal, but happily maintains its spirit and main regulatory philosophy.” He adds, “This lengthy exp erience was certainly a revealing lesson to me in the reality of the political process, and in what really makes le gislators and oth er interested parties tick.” Professor Procaccia, a graduate of Th e Hebrew University and the University of Pennsylvania, has extensive exp erience in representing hu ndred s of publicly traded corp orations, all m ajor Israeli banks, the government of Israel, the J ewish Agency, and organized labor. He also led a sustained struggle of the Kibbutz movement against the b anking industry in the largest civil disp ute in Israel’s legal history. His cu rrent research topics inclu de corpo rate law, uniform legislation, law and economics, and law and culture.

Faculty of Law, University College, London, and on “Constructive Agency in Executio n of Religious Divorce” at the 11th Bien nial Conference of the Jewish Law Association, held in the Netherlands. His article “T he Whiskey Brouhaha” was published in Tradition. Lester Brickm an was a panelist this fall o n “Current Ethical Issu es in Class Actions” at the ABA National Institut e. At Ethics 2000, held in New Orleans last sum mer, h e testified at th e ABA Commission on Evaluation of th e Rules of Professional Conduct, ju st after having been a panelist at a conference on Excessive Legal Fees, h eld by the Hud son Instit ute, US Chamber of Commerce, and the Federalist Society. Malvi na Halberstam moderated “Designation of Foreign Terrorist Organizations: The Impact o n Foreign Policy , International Law and Constitutional Law,” held at the New Y ork County Lawyers Association. The panel was coorganized by Felicia Gordon ’95.
Love

Halberstam

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ing professor at the University of Palermo and the University of Udine, both in Italy. Closer to h ome, she spoke on “T he Globalization of Legal Education” at th e Internatio nal Law and Trad e Group of th e Harvard Club of NY Her article . “Dialogues Between Coordinate Branches and Stories of their Failings” was p ublished by th e NYU Review of Law and Social Change. On Janu ary 25, the New Y ork Stat e Association of Criminal Defense Lawyers honored Barry Scheck and Peter Neufeld with their Hon. Thurgood Marshall Award for Outstanding Practitioner. In November , Professor Scheck made a presentation at the Judicial College, New Jersey’ s annual m andatory training conference for all state judges. He urged greater use of DNA evidence to prevent wrongful convictions. Pete r T illers was named editor of the new journal Law, Probability and Risk, to be published quarterly by Oxford University Press. The first issue is schedu led

for January 2002. He was also named senior research associate at Y Law ale School for 2001– 02. This fall, he spoke on the “Architecture of Reasoning about Factual Issues in Legal Proceedings” at the Peter Wall Institute for Advanced Stud ies in V ncouver. a Paul Verkuil is serving as chair of the ABA adv isory board on judicial independence.

BO O K S PA P E RS P A N E L S

Rabbi J. David Bleich spoke on “The Clergy Privilege and Conscientious Objection” at the Colloquium on Law and Religion,
Jacobson

P R O F E S S IO N A L H O N O RS

Toni Fine becam e a founding member and a m ember of the b oard of tru stees of the Global Ju stice Foundation, organized to develop and provide for the education and training of p ublicminded b usiness lawy ers and to encourage economic developm ent, internation al human rights, an d democratic accou ntability. In November, she was a visitW I N T ER 2001

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Kyron Hui gens spoke to the faculty of the University of Minnesota Law School and the Law Librarians of New England on the restructuring of th e penalty phase of deat h pen alty trials according to princip les drawn fro m the t heory of punishment. His article “Rethinking the Penalty Phase” was p ublished by the Arizona Sta te Law Journal. Weimar: A Jurisprudence of Crisis, edited by Arthur Jacobson and Bernhard Schlink, was p ublished by University of California Press. Lela Love participated in a panel o n “To War o r ADR? Choosing the Right Path in Matrimonial Disp utes” held this fall at the Association of th e Bar of the City of NY and at a workshop on “Training Mediators for the 21st Century” h eld at th e Society of Pro fessionals in Dispute Resolu tion International Conference. Monroe Price, who is spending a year at the Institute fo r Advanced Study in Princeton, NJ, gave two talk s t here t his fall: “ The Newness of New Technology” and “Toward a Foreign Policy o f Media Structures.” He also spoke on “Global Transform ations in Public Service T elevision” at a conference at New Y ork University . His boo k Television, The Public Sp here and National Identity, published in Hun garian in 1998, was published in Russian th is year by Moscow State University Press. His
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Programme in Comparative Med ia Law and Po licy was named UNES CO Chair in Communications Policy in the United Kingdom. Edward Ste in’s book The Mismeasure of Desire: The Science, Theory, an d Ethics of Sexual Orientation was the subject of a “sp ecial session” of the American Philosoph ical Association’s Eastern Division Conference held in New Y rk. o Professor Stein responded to the pan elists’ comm ents. Richard Weisberg has been involved in recent negotiations in Washington, DC, to resolve claims by victims of the Holocau st in Vichy, France, against various French banking and insuran ce organizations. Partisan Review recently called his book, Vichy Law and the Holocaust in France , a leading work abou t th e period. He was an invited guest at the Emory Univ re sity Law and Religion Progr am’s symposium on Holocaust denial and th e victory of Deb orah Lipstadt in the libel case against her in the Unit ed Kingdom.

A D J U N C T P R O F ES S O R S

Yassin El-Ayouty ’94 edited with Kevin J . Ford and Mark Davies Government Ethics and Law Enforcement: Towar Global Gu idelines, d which was published th is summer by Praeger. T he book has a prologue by NYC Mayor Rudolph Giu liani. Professor El-Ayouty directs Cardozo’s International Law Practicum.