Dean, whose new book, Conservatives Without Conscience, was published in July 2006, and whose bona fides on the topic of executive overreaching are impeccable, said, “After Watergate, I thought the imperial presidency had made its way into the history books.” His experiences as counsel for the besmirched Nixon administration provided a sobering backdrop for the day’s discussions. “Today,” he said, “the lesson of Watergate is, ‘Don’t get caught, and if you do, tough it out and say you’ve got the power.’” He talked about the bad old days in the Nixon White House—recalling being ordered to arrange a punitive tax audit for the Scanlon Monthly, which had accused then-Vice President Spiro Agnew of attempting to repeal the Bill of Rights and to cancel the 1972 elections. He also cited Jack Caulfield’s quashed plot to firebomb the Brookings Institution in retaliation for its criticism of the Vietnam War. While these abuses of power were extreme, he then described Executive Order 13233, which annulled a 1978 law that turns presidential records over to the public 12 years after an executive’s departure. President Bush signed the order within his first year of office—just weeks after 9/11. The level of secrecy of this administration, Dean warned, has “reached a startling stage.”

The rest of the day was devoted to mostly polite but sometimes heated conversations moderated by the faculty codirectors of the center, Professors Noah Feldman, David Golove, Stephen Holmes and Richard Pildes. The framers of the constitution had not predicted political parties, said Pildes, and the idea of checks and balances presumes Congress’s desire to fully participate in governing as well as oversight. Sidney Blumenthal, former adviser to President Clinton, agreed that partisan abuse is “political in character, fundamentally.” But Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit, and Viet Dinh, a former U.S. assistant attorney general for legal policy from 2001 to 2003, disagreed. “Congress is inadequate to deal with security and dispatch in matters of national security,” said Dinh. Laws passed by Congress “encourage the President to claim and exercise inherent powers,” insisted Posner, particularly in light of new threats to the U.S.

Former Nebraska senator, and now president of the New School, Bob Kerrey offered harsher criticism of Congress. The War Powers Resolution, Kerrey said, did not provide carte blanche to any president to challenge an abstract terrorist threat. Congress was explicitly to blame, concurred Michael Vatis, a lawyer at Steptoe & Johnson in Washington, D.C., for allowing the executive branch to waylay civil liberties by authorizing clandestine wiretaps on U.S. citizens and indefinitely detaining enemy combatants. If the president is allowed to take power, Vatis said, then he’ll take it. Patrick Philbin, former associate deputy attorney general at the Department of Justice, countered that the war on terror “is a very different war, but a war nonetheless” and the President must be allowed to act.

Donna Newman, the New York City criminal defense attorney assigned in 2002 to represent Jose Padilla, a U.S. citizen deemed an enemy combatant, said that she was dumbfounded by the disregard for due process where her client was concerned. The President has constructed an “atmosphere of fear” as a basis for grabbing power. “It’s a fear of liberty, not terrorism,” she said, “to somehow say that freedom is what makes us vulnerable.”

“We wowed them on Fifth Avenue tonight,” said Eileen FitzGerald Sudler ’74, chair of the Dean’s Strategic Council and member of the Campaign Steering Committee, as she and committee comember Kenneth Raisler ’76 introduced the specifics of the campaign. Marking the end of the campaign’s silent fund-raising phase, during which some $165 million was raised, the gala ushered in the public phase by identifying the Law School’s plans for expanding student aid and supporting numerous faculty projects. The money raised—more than $200 million by last spring—will fund scholarships for both J.D. and LL.M. candidates, and help endow the school’s distinctive Loan Repayment Assistance Program and summer public interest grants, allowing students to explore and then pursue highly competitive yet low-paying jobs that contribute to the greater good. Campaign funds will also be used to hire new faculty, increase the number of chaired professorships and support the work of the Law School’s faculty-run centers and institutes. Finally, the campaign aims to increase alumni participation and to double the size of annual cash gifts.

“In a remarkably short span of time, NYU School of Law has moved into the small handful of schools at the very top tier of legal education,” said Dean Richard Revesz. “We have achieved this great success by pursuing a distinctive path in legal education. The campaign will ensure that we continue on this steep trajectory.”

The founder of the progressive AnBryce Scholarship and the campaign’s chair, Trustee Anthony Welters ’77, spoke about the sense of pride and elation that accompanies supporting education. “There is nothing more fulfilling than touching someone’s life,” Welters said as he introduced a film that conveyed how NYU impacts the lives of those who study and work here, and so many others who are part of the Law School community. Sudler and Raisler took the stage at the end of the evening to give the assembled alumni something they hadn’t had in some time—a homework assignment. Their task: to reconnect with an old classmate and tell that graduate about all that is happening at their alma mater. If those personal ties are reestablished, promised Raisler, opportunity, community and leadership will continue to thrive on Washington Square.

During the dedication ceremony, hosted by Annual Survey editor-in-chief Malachi Boyuls ’06, Dworkin’s colleagues—University Professor Thomas Nagel; Judge Posner; Professor Lawrence Sager, who has since become dean of the University of Texas School of Law; Professor Thomas Scanlon of Harvard University; Lord Hoffmann of the House of Lords; Robert B. Silvers, coeditor of the New York Review of Books; and then-Columbia, now-NYU University Professor Jeremy Waldron—reminisced about “Ronnie’s” long and illustrious career. The portrait that emerged was of a man as intellectually relentless as he is charming. “He is a person single-handedly swimming against the tide to keep up and raise the standards of our collective political life,” commented Scanlon.

One of the ways Dworkin, who is also the Jeremy Bentham Professor of Law and Philosophy at University College in London, has challenged the intellectual community is by creating the ground-breaking Colloquium in Legal, Political and Social Philosophy, which he has run since 1987 with Nagel. Sager described it as a rare, sometimes masochistic opportunity for scholarly assistance. He recalled one academic who, after a take-no-prisoners analysis, responded to the colloquium’s attentions by turning his back and crouching in a fetal position. “Ronald has a dogged insistence to get to the bottom of things,” Nagel said. “His is a ruthlessness of ideas.”

There has been pain, but also gain. “I believe that everything that I have written bears the improving mark of those rigorous sessions, and if there is an ounce of egalitarian good sense in my book on property and my subsequent writings, it is Ronald Dworkin’s responsibility,” says Dworkin’s former student Waldron, a frequent colloquium visitor, who will coteach the series this year, his first as an NYU professor.

For his part, Nagel confessed that he learned something new about Dworkin when he read the Law School cover story about his old friend last fall. After his federal appeals court clerkship with Judge Learned Hand, Dworkin opted to work for Sullivan & Cromwell rather than clerk for Supreme Court Justice Felix Frankfurter. Nagel imagined an alternate reality, in which Dworkin had pursued a different path. “I’d like to thank Sullivan & Cromwell,” said Nagel, getting a big laugh, “for enriching our philosophical lives and for giving me the friend and colleague with whom it has been such a joy to work.”

Hoffmann was equally appreciative of Dworkin’s contributions. He described how Law’s Empire (Harvard University Press, 1986), Dworkin’s masterwork on the judgment of particularly difficult cases, “offered the best explanation for what I was trying to do.” Dworkin’s latest book, Justice in Robes, breaks new ground and deals with the balance between judges’ personal morality and their legal reasoning.

Silvers, Dworkin’s longtime editor at the New York Review of Books, needed only to list some of the most impressive of Dworkin’s 57 articles—“The Jurisprudence of Nixon,” “Women and Pornography” and “The Threat to Patriotism”—from the past 38 years to show how the works provide a “skeletal history of the times.”

The audience chuckled when Posner, whose relationship with Dworkin has been characterized by what he called “antagonism and antipathy,” said, “To be an invited skunk at a garden party is an unusual experience; one that argues generosity on Professor Dworkin’s part, or perhaps a spirit of mischief on the part of the editors.”

“The editors have shown great wisdom in choosing Dworkin,” noted Dean Richard Revesz. “I was so pleased when they asked, ‘Do you think this would be okay?’ I thought, this is more than just okay, this is great!”

The program offers a specialization in justice and human rights. Will that be a challenge in a country known to be strict? Yes, but I don’t think it will be a danger. One of the things we’re hoping will come out of this is a twoway conversation—that Singaporeans and other people in this program learn something from the Americans and the faculty who go over there, and that it’s just as conceivable that we learn something from them.

You’ve been critical of the secretary-general and the United Nations, but honestly, is the U.N. just an unattainable ideal? The real problem is mismatched expectations. Is the U.N. an organization that does things or is it a diplomatic conference where member states get together and agree or disagree on shared policies? The answer is, of course, that it’s both. But the confusion between those functions leads to disappointment. The U.N. can never be everything to everyone. To quote former Secretary-General Dag Hammarskjöld, the U.N. was not created in order to bring us to heaven, but to save us from hell.

What will you miss most about New York? The multicultural lifestyle, the people who are passing through town and the fact that for my line of work, the U.N. is right around the corner. There’s also Broadway, restaurants and so on. But with a one and a half year old child, my wife and I realized that we don’t actually do many of these things. We’ll miss the theory rather than the practice.

Your wife, Ming Tan, is Singaporean. How did you meet? We met getting our Ph.D.s at Oxford, then she moved to Singapore and I moved to New York via Yugoslavia. While I was doing research on East Timor, my thenboss allowed me to route each of my trips through Singapore with a week of leave. I eventually persuaded Ming to marry me and move to New York.

What will she do after your move? She runs a corporate foundation where her boss is Singaporean. She will move jobs within the organization and be based out of Singapore, so it works very well.

Are you and Ming looking forward to raising a child in Singapore? We’re raising him to be bilingual in English and Chinese. That’s going to be even easier in Singapore. In particular, having a family network will be useful. We’ll have grandparents who are keen on spoiling our child rotten.

Who spoils children worse, Australian or Singaporean grandparents? In terms of toys, he’s in a bidding war between both sets at the moment. The difference is best summarized not by grandparents, but by people you meet on the street. Our son was born very large and he’s got a nice healthy belly. In Australia, people will be amused and rub his belly and call him a little Buddha. In Singapore, old people will pass us on the street and say, he’s not eating enough.

In 2005, the Melbourne newspaper The Age listed you as one of “50 Australians Who Matter” along with Germaine Greer, Rupert Murdoch and Dame Edna. Are you mobbed by adoring fans when you go home? Mercifully, no. It was an enormous compliment, not least because of the category I was included in, “Stirrers,” a wonderfully Australian slang term meaning those who challenge authority or speak truth to power.

You are aware that Hugh Jackman was just a runner-up? I’ll now think twice about sending a copy to my mother.

What do you like to do when you’re not thinking about peacekeeping and nation-building? I enjoy playing with my son, teaching him new words and how to walk, things like that. I run, travel, read. I write. When I was at Oxford, I wrote a play.

What’s it about? It’s about 50 minutes long.

Arthur Miller (AM)

Let me start by asking the practitioners in the room whether they see any difference yet?

Steven Bennett ’84 (SB), Partner, Jones Day: It’s too early to tell. But the problem of forum shopping and a concentration of nationwide class actions in certain state courts may be ameliorated.

AM: Evan, do you predict a diminution in the number of class actions being instituted?

Evan Chesler (EC) ’75, Deputy Presiding Partner, Cravath, Swain & Moore: I believe it will have little or no effect because there are a lot of smart plaintiff lawyers who will not be deterred. While it may affect venue, it will not affect volume.

Mel Weiss (MW) ’59, Senior and Founding Partner, Milberg Weiss Bershad & Schulman: As a lot of other tort reform efforts have proven, there may be unintended consequences that may be more favorable to the plaintiff.

The truth is that there’s more tort reform that’s been effectuated at the state court level than at the federal court level. If you look at the statistics of Southern Illinois, you’ll see very few actions that were certified as class actions. States like Mississippi and Texas have become very conservative. I still have trust and confidence that when federal judges see wrongdoing that affects adversely a lot of people, they are going to find ways to give them remedies.

AM: You’re optimistic, whereas some viewed this as legislative work of the devil.

MW: I know, but the Private Securities Litigation Reform Amendment (PSLRA)* was also viewed as something that would benefit the corporate community and it turned out to be just the opposite.

AM: How about the academics? What does the rarified air say about this statute?

Linda Silberman (LS), Martin Lipton Professor of Law: I would have expected a movement toward more localized state class actions. I also think you probably are going to see an effect on coupon settlements*.

AM: Why are you laughing, Mel?

MW: That’s humorous because I have seen very few coupon settlements in my career. They are usually urged by the defendants, not by the plaintiffs. So now you’ve given us an excuse to say to hell with your coupons, we just want your cash.

Oscar Chase (OC), Russell D. Niles Professor of Law: Now I’m laughing because it seems that every class of which I am a member—and I seem to get them every three months—offers me some kind of a coupon. In the consumer fraud area, it seems to endure.

AM: Maybe it’s the cheap products you buy, Oscar.

MW: But the coupons may have real value and now, through the Internet, you can trade them.

OC: I will sell you some very cheap.

Geoffrey Miller (GM), Stuyvesant P. Comfort Professor of Law: I want to say a word in favor of coupon settlements because I’ve heard them denigrated here and elsewhere. They are not always bad. Some cash settlements are bad, too. Coupon settlements can be beneficial to the class in consumer products cases because they basically save the difference between the wholesale and the retail price, and that value can be shared by the defendant and the plaintiff. Even CAFA didn’t repudiate coupon settlements. So let’s not throw out the baby with the bath water.

AM: What of the argument that all CAFA is, is a jurisdictional statute? It doesn’t authorize the creation of a uniform body of federal common law for, say, consumer fraud or products liability. Because if it did—young Burt, you’re the con law specialist at the table—is that as big an insult to federalism as you can think of?

Burt Neuborne (BN), Inez Milholland Professor of Civil Liberties: Of course it’s an insult to federalism. The Bill of Rights is an insult to federalism. It means that you have a single national law providing for minimum political rights all over the country. But when you consolidate large numbers of claims before a single federal judge in a single proceeding, you set off a process of the unification of law that could take lots of different forms. It could mean experimenting with federal common law, which really would have constitutional considerations, but it probably would mean looking at the various state laws and magically finding how they all come out the same way because federal judges will be viewing it under a lens toward uniformity instead of difference.

Samuel Issacharoff (SI), Bonnie and Richard Reiss Professor of Constitutional Law: CAFA is an invitation to take national market cases into federal court and nationalize them. That’s the rationale behind the statute. We’re going to see class action practitioners move further and further away from the old idea that they are simply trial lawyers in a different setting and into the world where they are sophisticated, complex litigators who go to trial infrequently and become increasingly comfortable with the practices of multi-district ligitations (MDLs)* and federal courts.

GM: The assumption the business interests had when they promoted CAFA—that the federal forum would be better for them than the state forum—isn’t justified by the actual facts. Ted Eisenberg at Cornell and I actually did the research. We found that the attorney’s fees in federal court, if anything, were higher than attorney’s fees in class actions in state courts. So the idea that plaintiff’s attorneys are going to suffer by going to federal court just isn’t true.

LS: On the applicable law point: Of course, one of the reasons for CAFA was some sense that the state courts were certifying these broad national class actions in circumstances where they shouldn’t be certified. Certainly one purpose politically was to think that the federal judges would take a more objective and less parochial approach to those kinds of class actions. To the extent that you have consumer cases that involve the laws of different states, it may turn out that this is an inappropriate situation to have a nationwide class. Because different laws are applying doesn’t mean absolutely that you can’t certify, but if you look at the set of cases, the differences in applicable law have led in many cases to noncertification.

MW: How about the rebirth of subclasses? What Burt was saying before is that judges will try to find ways to harmonize different groups of state approaches and create subclasses. So you still have a coordination of the discovery and the efficiencies that class actions provide. But I just want to remind all of you that Rule 23* wasn’t intended to be a one-way street. It also provided for the defendant an ability to take its misery and be rid of it in one package rather than have to fight hand-to-hand combat with each member of the class.

SB: That’s a very realistic point. The law by itself doesn’t do anything about establishing federal common law, but it may in fact encourage courts to look at circumstances where there are conflicting issues and try to figure out practical solutions.

Helen Hershkoff (HH), Joel S. and Anne B. Ehrenkranz Professor of Law: Academics often say that procedure is a seamless web, meaning in this context that it is impossible to understand CAFA without looking at other procedural developments, in particular those having to do with limitations on implying remedies as a matter of common law for statutory violations. When we look at CAFA, we can’t just look at it as a jurisdictional statute. One has to locate it in the broader context and see it as a part of a broader shift in constitutional law and approaches to federalism.

AM: Helen, you have a great deal of experience in public interest litigation. Are you depressed about CAFA?

HH: Well, on the one hand, it’s interesting that CAFA carves out an exception for class actions that have state governmental entities as the defendant. On the other hand, now that we’ve got the Supreme Court saying that removal of state law cases to the federal court counts as a waiver of the states’ 11th Amendment immunity, it’s not quite clear why we need that provision in the Federal Rules of Civil Procedure. We live in a period of privatization and deregulation. Yet CAFA invites state government to the table to discuss settlement. To me, that procedure offers one of the most interesting developments in the new class action statute.

MW: Do you consider that a good thing or a bad thing?

HH: That depends on your view of national government and on the standards that the court will use to approve settlement.

MW: You’re talking about the government as if it’s one government, but under CAFA you have to give notice to a lot of governments. This is a very destructive influence over the resolution of complex matters.

EC: We should draw a distinction here between substantive law and procedure in the context of CAFA. Some of the most difficult and challenging class-action litigations I have handled have been situations where there have been multiple state court actions and you’re trying on the defense side to get them all into the federal system. Not necessarily because it’s a more favorable body of law, but because it is a much better context in which to defend a defendant who is facing a multifront war in many different jurisdictions on many different time tables. From a procedural perspective to the extent that this results in more litigation going through the MDL process and the federal process, it is potentially a benefit from a defense perspective. On the substantive side, we still have profound conflicts among the circuits about things like loss causation. I don’t think we’re in any jeopardy of having a single federal jurisprudence of classaction litigation as a result of this statute.

AM: Some might not think it’s jeopardy to move toward a single body. In fact, I’ve heard Sam say that Erie v. Tompkins should be overruled. That, of course, would put those of us who are academics out of work. What else is there to teach? Sam, does Evan make sense?

SI: Evan makes a great deal of sense. First of all, it’s clear that a lot of what we do, even in the world of common law, is try to figure out what the value is of a claim. We then look to the court system to facilitate the resolution of those claims as efficiently as possible. When you have an undifferentiated product put out on a national market and who it happens to hurt is just a matter of happenstance of where the consumer was at a particular time, there’s a tremendous systemic push toward getting that resolved once and for all.

I disagree a little bit with Evan on the very good point that Helen made. The move toward consolidation of where these cases should be heard goes hand in hand with the increasing move toward the consolidation of the law that should govern national market conduct. But you can’t look at the expansion of federal forum—not just in CAFA, but also in a case like Grable [Grable & Sons Metal Prods., Inc. v. Darue Eng’g & Mfg.] that just came down—without also looking at the substantive areas like preemption where you get increasingly heavy-handed claims that the federal government standards should preempt state law. So you are seeing consolidation on both the procedural forum side and the substantive side.

AM: I did a complex litigation study 10 years ago in which it was anathema to think of a provision that didn’t presuppose full adjudication on the merits. You get the feeling that people today are saying: Gee, it’s all about workout*.

SI: Well, let’s look at the reality of what goes on in the courts. One of the most disappointing decisions for somebody that teaches to first years is Justice David Souter’s decision in Ortiz v. Fibreboard. I take strong issue with the way Justice Souter begins the opinion, which is to say, this is a departure from the one-by-one adjudication that we perceive to be the norm. Typically in America, says Justice Souter, you have one plaintiff, one defendant; each one has one lawyer. That’s an absurd characterization of our legal system. Typically what we have in the U.S. is a complex web that includes bankruptcy, private aggregations and class actions. If you don’t deal with all of that then you’re just missing the picture of how law is practiced in this country.

AM: With deference to Justice Souter, whose entire life was New Hampshire, where life is a little different than in the big city, the vast majority of litigation today, I suspect, is still one-on-one. So are we in the process of creating a different structure—call it aggregation, call it the class action?

OC: Justice Souter’s point goes to the privarealm of myth and concept of the legitimacy of courts. It’s what people want to believe about what courts do. And it’s not a bad thing for the courts to claim their legitimacy by this notion that we serve people one-onone. Why is that? Because unlike the U.S. Congress, which can punt on asbestos, the courts have to hear the case in some way and have to find a way to resolve it.

SB: Lingering underneath this is the real divergence in interests in class action litigation, and that’s compensation on the one hand and public interest or deterrence on the other. The Souter model of one-on-one is purely the compensation model. And it’s clear that there is some public interest element written into the rules themselves, which is part of the whole reform process looking at how you select plaintiffs in the case of private securities litigation.

GM: We are on the verge of a revolutionary change in how we conceive of this type of litigation. We talked about rejecting Erie. We talked about moving from one-onone adjudication to the idea of workout being the model. Actually, those things are already happening. If you look at federal court cases involving state law or even state law involving the law of several different states, they are rejecting Erie and are applying a single nationwide common law. They may not say that’s what they are doing, but that is in fact what they are doing.

LS: That takes us back to the underlying question of the class action itself, because the very mechanism of the class action allows much of this litigation to be brought. At the end of the day, there’s a really serious question about whether some of this litigation should be brought at all. If one looks, at least comparatively, we’re one of the few countries that has this kind of class action. Other countries give much greater control to either public authorities or to a sign-on registry for a group litigation.

HH: I agree with Geoff that we are in the middle of a major sea change. Linda is pointing the way to which we might be headed. Litigation has become increasingly a matter of administration. Linda raises the question, although implicitly, whether this administrative function ought to be under the domain of courts. Outside the U.S., bureaucracy assumes these functions. This development raises the fundamental political question that’s posed by Oscar’s ideal: how far do we want to depart from the individual ethos of the U.S. legal system?

EC: From the perspective of a trial lawyer, one thing that is underestimated in that analysis is the prospect that a dispute will actually end up in a courtroom. If you hand this over to bureaucrats and you begin with the assumption that it will never be resolved in a courtroom—talk about unintended consequences that Mel started with. You fundamentally change the dynamic and not necessarily for the better.

BN: In Europe, when you have a social problem, the government will deal with it. And as Evan points out, that takes away the incentive from both sides to really seriously settle. You have a system in Europe that essentially tilts towards corporate power. But what we would do here is something very different. We’d say, let’s decentralize. Let’s see if we can privatize the enforcement process. The real analogy is not to administrative, it’s to letters of marque*. Letters of marque once meant we had a private navy. And what we did is we simply licensed people to sail up and down the coast, take prizes, bring the prizes into a prize court, have the prize court determine the appropriate compensation. The profit mode created incentive for a very effective navy. Well, we don’t want to spend the money, and probably shouldn’t, on a huge administrative mechanism to enforce the laws that we have in the country. So we’ve decentralized it. And modern class action lawyers are the contemporary equivalent of privateers. They enforce the law based on a profit motive. What we’re talking about now is what the prize court should look like in terms of determining the ultimate compensation.

SI: Trials are tremendously important, but the problem is that right now in big cases, we have pseudo-trials—class certification of Daubert hearings*, for example— that increasingly run to be multiweek affairs. These procedural hearings take on a character of fighting the merits by proxy. One of the things that we are trying to figure out in the American Law Institute Aggregate Litigation Project is whether we can parcel out the components where Mel and Evan really have a difference and see if we can try them without having to try the whole thing at once and without having to have all the damages laid on. The hope is that the parties can then negotiate on the basis of the merits, but instead of calling it a Daubert hearing you’ll call it a trial on an issue.

EC: This is not a phenomenon unique to class actions. There is a lot of attention these days on the vanishing trial. It is almost impossible to get a civil case though the federal system or most state courts to trial.

AM: The whole management dynamic works against trial. A chief judge of a distinguished urban federal court said to me, “If any case on my docket reaches trial, I have failed.”

EC: The ultimate plenary trial on the merits is a very rare phenomenon. The difference here is, to go back to the Souter concept, when class actions are involved, what our system has done is to impose an entire additional level of policy-driven judicial oversight. Two private parties can go off, their lawyers can have a drink in a bar and it’s over. You do not have to publish a notice in the Wall Street Journal, you do not have to have a fairness hearing, you do not have the court decide what the plaintiff’s legal fees should or should not be. It is not subject to that level of public scrutiny.

MW: It’s very dangerous for both sides to let the government get into the act. Defendants will rue it in very short order. When the Carter administration recommended that you didn’t even need a client to start a class action—a lawyer could bring the action—nobody wanted that. I hope that CAFA doesn’t lead to a morass of engagement by state A.G.s, insurance commissioners—we can’t even get coordination in a lot of states between different regulatory arms of the state.

GM: Burt, did your historical research show whether in letters of marque cases the privateer got paid on a percentage basis or on a loadstar basis?

BN: Traditional rule in admiralty was always a percentage.

GM: That’s very important to think about. We’ve been talking about the idea that it’s good to privatize mass dispute resolution in the U.S. through the judicial system, but at the same time they never get to trial, so we have sort of a paradox. Does this suggest that we ought to have arbitration as an answer? What about class action arbitration?

MW: It depends on what kind of procedural protection you put around it. The idea of walking into an arbitration without discovery with an arbitrator that you really don’t know and you know it’s the end of the line—there’s no appellate court that’s really going to do anything about it—is a very scary prospect.

SB: The evidence about the efficiency of arbitration is quite mixed. Theoretically, it’s very possible that an effective arbitration system as the backend of a class action actually might encourage more courts to certify class actions: if they knew that at the end of the day, we can resolve a major issue in the case through conventional trial of class-related issues, and then when we get to the individual compensation questions, that difficulty can be handled later through arbitration—it might actually be a good thing for plaintiffs.

MW: We are doing it now in the KPMGSidley Austin settlement where we have a procedure for the special masters to resolve certain compensation issues after the approval. We did it in virtually every one of the life insurance marketing fraud cases. And I would say at least 30 major cases were resolved that way that would have been impossible without using that methodology.

SB: The real question then is whether you need to do anything to the rules in order to make clear that courts have that opportunity available to them, or, whether it’s already there. What I am talking about is a court saying at the outset, I’m not certifying this thing unless there is a process at the end of the case that will efficiently resolve the claims to compensation.

SI: We’ve had that for a long time in some areas of class actions. The B1 cases, which are the modern prize cases, in effect, have had that built in because of compelled participation. The pre-1991 Title VII cases had that because they had Phase 1, which was a liability trial done by the judge, and then Phase 2, which was handed over to a special master to adjudicate. The area that we’ve had trouble was in the tort-like cases. Here it is unclear, for the reasons that you’ve identified, Steve, what weight to give to the two components: the public regarding component and the private compensatory component. One of the difficulties we are having in the class action law now is that post-1991, we’ve basically turned employment cases into tort cases and so now all of a sudden we have a great deal of difficulty figuring out how to handle even the routine Title VII employment disparate impact case.

BN: Taking my privateer theory a little bit further, class actions are really an entrepreneurial- driven phenomenon, where what we’ve done is delegated to a series of private law enforcement officials, called plaintiffs’ lawyers, the responsibility of organizing the enforcement of law in these areas, using the individual plaintiff as a symbolic entry into the courthouse. The notion that this individual plaintiff runs the case never was true. So, at some point we’re going to have to confront the notion that the lawyers run these cases. And how we then work out the mechanisms is the very next step in class action laws.

MW: Let me just take issue with the overbroad statement that my good friend made. The PSLRA has introduced institutional investors as lead plaintiffs and class reps, and they are really taking a hands-on role in managing the lawyers in the case. The recoveries have become much bigger as a result. But it’s manifestly unfair for a class rep to be the standard bearer for the judgment of the jury as to whether the whole class should recover. I have seen too many situations where the class rep turned out to be a blah. I just had a mock trial where I watched the deliberations of a mock jury; they put so much emphasis on the class rep’s testimony, even if it really had nothing to do with the merits of the case, that it unduly prejudiced the rights of the absent class members.

HH: A minute ago Sam put employment on the table. But employment cases raise a different issue for this group—namely that certain industries are allowed to privatize procedure and opt out of the class action mechanism. In other words, corporations use private contracts that require workers to waive their class action rights. We’ve emphasized a number of important benefits that come from class actions—that they deter wrongdoing, create accountability mechanisms and compensate victims of wrongdoing. What does this group think about allowing certain industries simply to opt out of the class action mechanism entirely? How will that affect corporate practices in the long run?

SI: We talk about class actions trans-substantively, but in fact we have different areas of law that are covered here. Securities cases make up about half the class actions in federal courts. Securities, after the PSLRA, have real clients with real interests, and we’ve succeeded in turning them much more into old-fashioned representative litigation—that is, you now have one defendant and one institutional player on the other side and they basically are litigating against each other and everybody gets brought along in their wake.

In the areas where you don’t have an institutional actor who can emerge, the arbitration issue has become the critical enforcement question. In a significant case out of the California Supreme Court last summer, the Discover Bank case [Discover Bank v. Superior Court], the court said that if the effect of the arbitration is for practical purposes to deny any realistic enforcement mechanism—which it would be in a consumer small value case—the court would disallow compelled individual arbitration as contrary to public policy. This is a big issue in the courts right now.

OC: Helen does us all a favor by bringing this up because it does put the class action issue and the arbitration issue into a broader social context. It’s not only labor cases, it’s also consumer cases. We’ve all gotten notices from American Express telling us that we have to arbitrate and we can’t have class actions. But you can’t separate that out from such apparently unrelated events as the drop in the number of people in organized labor to about 13 percent of the working population. Or, that while laborer wages have stagnated in the last 15 or 20 years, CEO compensation has gone up 1,000 percent. This is part of the continuing marginalization of a certain class of society and in the end we are going to rue it. I wonder if that California case will survive some kind of review under the Federal Arbitration Act by the Supreme Court. Who controls the Supreme Court in the end is going to be as important as the way we draft these rules.

SB: Actually, that points to a much wider question, at least in the arbitration area. It’s not really limited to employment. The Supreme Court has been saying ever since the ’60s: Yes, you can arbitrate RICO, antitrust, securities law—but on the assumption that rights are being vindicated. The Green Tree [Green Tree Financial Corp. v. Bazzle] case a couple of years ago addressed the question: Would that mean arbitration without class action doesn’t permit effective enforcement of rights? The court kind of punted on that subject. But that’s a live issue outside the area of employment.

BN: The real issue is how level we want the playing field to be between relatively weak individuals who are confronting very strong institutions and who claim that the institutions have treated them shabbily. If you force the individuals to confront the institutions on a single member basis either through traditional Souter one-on-one litigation or, even worse, on the one-on-one actions of an arbitrator, you’re going to have a situation where the institution always has a huge advantage. If I had to debate with Linda the relative difference between the way Continental courts treat this and the way the U.S. treats this, Continental courts continue to force individuals to confront large aggregations of power on their own. The U.S. has worked out a mechanism where individuals can aggregate into classes. And by aggregating their power, they can confront large institutions with some relative degree of power. Are we going to dissolve those social institutions and send individuals back to having to confront large institutions of power on their own?

LS: I don’t disagree with you, Burt. On the other hand, it really does go to the fundamental political question of whether these issues are to be decided by courts or by other branches of government.

AM: Burt, that was a subtle paean for the national class action. Don’t you get the feeling you’re on the deck of the Titanic right now?

BN: First of all, no one has ever accused me of being subtle. Yes, I’m on the deck of something, but no, I don’t think it’s sinking. The truth is, there’s a huge discussion about the role of courts, how one assures there isn’t unfair profiteering or unfair treatment of weak class members. Obviously if you are going to build a machine like this, the machine requires some degree of policing. Rule 23 goes a very long way to providing that. But the notion of throwing the machine away and substituting individualized litigation or some form of arbitration strikes me as an absolute surrender of any chance of some sort of equality between the large numbers of individuals that confront the small number of powerful institutions in the society.

AM: What about throwing the machine away and substituting statewide class actions?

BN: Well, we would have to talk about the relative loss of efficiency in moving to 15 or 20 litigations instead of one significant one. I have a hunch that will cost both plaintiffs and defendants money.

SI: An example is the Bridgestone/Firestone case [In re Bridgestone/Firestone, Inc.] where a national class action was certified in federal court through an MDL in Indiana. It goes up to the Seventh Circuit. Judge Frank Easterbrook writes a very powerful, thoughtful opinion about how this is an invitation to the central planner model and this can’t go forward as a national class action, so the plaintiffs lick their wounds and go running off into 50 state courts. And then Bridgestone/Firestone complains: We’re getting slaughtered by the transaction costs of being in 50 different jurisdictions. They settle the case on a national classaction basis in a state court in Beaumont, Texas. So tell me what the gain was in terms of the integrity of the system at that point.

AM: All right, one anecdote for you, none for me. Just as a philosophical question: Should New Jersey have a nationwide Vioxx class action? I’m referring to the third-partypayer case that was just affirmed by the intermediate appellate court.

SI: If the question is, should Merck be accountable to the laws of New Jersey for its nationwide conduct, I have no problem with that whatsoever.

AM: Do you think judges would? I mean, this 50-state law issue has become the sword in the back of the plaintiff’s head.

SI: We have to distinguish between where the battle lines are now and what the points of principle are. It is true that in all big class actions right now, everybody knows the drill. You fight over manageability and superiority. The way you do that is by the plaintiff saying, “We have 50 laws, but they’re all the same. We have many facts but they are all the same because at the end of the day the question is, are we all human beings or not?” If you can answer that question common to everybody, then you should certify. And then the defendants will come back and say, “Oh, no, we have 50 laws and they are so complicated and so different. If you went from New York to New Jersey you wouldn’t even recognize the legal system.” And then it’s not that we’re all human beings. Some of us were born on Monday, some on Wednesday, there’s no commonality at all. So this is the game we play. My view is, if it’s national conduct, undifferentiated, let’s deal with it one time and for all as a national case.

MW: The verdict against Vioxx didn’t only cover the personal injury aspect of the harm, but there were also consumer fraud issues that were given to the jury in their questionnaire. And the jury awarded even the person who wasn’t given any money for the personal injury part, money for the consumer fraud part. Is that going to be collateral estoppel against Merck with respect to the third-partypayer cases or consumer fraud class action?

AM: It’s a wonderful law school exam question. Also, it takes you back to the possibility of going to a test-case model where you may have a class action based in a state. If you do generate collateral estoppel, that certainly shortens the transaction cost for succeeding.

SB: That’s right in theory at least, so long as state courts are willing to play some role in coordinating. If you know that in New Jersey there are 10 other cases out there and you have a way of taking account of which one filed first, which one is in the most appropriate position to go forward, there’s no reason why a state court couldn’t host a national class action and do just as fine a job as federal court. I don’t suffer from the myth that every state court judge is incapable of figuring out what the law in some other state is.

LS: No, but I want to say a word in favor of federalism and the role of state laws. We do have state laws and there are differences in them. The notion that these should all be disregarded in the name of a national market seems to be wrong, unless Congress actually takes the step and decides we want these things regulated by federal law. That doesn’t mean that you can’t have a national class action if you can use, as Mel said before, subclasses. But it’s a mistake to think, yes, there are three groups and it’s now automatically a manageable class action. As for issue preclusion, you don’t get issue preclusion if the underlying laws are different and there’s a legal issue to be determined. Obviously if it’s a factual issue you might well have nonmutual preclusion in some of these cases.

SI: The issue preclusion point is a fascinating one that is rarely addressed. If we take issue preclusion seriously, it is classwide litigation without the Rule 23 protections. There’s a lot of pressure toward issue preclusion right now because everybody wants the efficiency. There’s an interesting opinion by former Judge Robert Parker of the Fifth Circuit called In re Chevron in which he says: If you want issue preclusion, you have to try a statistically robust sample and you have to make sure the sampling mechanism is proper.

AM: Judge Richard Posner’s opinion in Rhone-Poulenc Rorer [In re Rhone- Poulenc Rorer Pharmaceuticals Inc.] is in the same philosophical vein— that you shouldn’t allow an industry to swing on one jury verdict.

EC: There is one other respect in which issue preclusion is not just Rule 23 class action without Rule 23. From the perspective of trying the cases, when you are dealing with issue preclusion you have to win every time and you only have to lose once. In a class action situation, it may be that there’s only one trial, but you only have to win once. And that’s a fundamental difference.

LS: But, Evan, to pick up on Arthur’s point, the notion that you’re going to have a single jury that’s going to decide a critical issue in this national class action and have the potential viability, as Posner put it, of this company turn on a single jury verdict— it’s one of the problems with the notion of having a single nationwide trial and that’s why, at the end of the day, he resists a national class. With respect to issue preclusion, that’s why we don’t use nonmutual issue preclusion in these cases where there are multiple suits and potentially inconsistent findings.

EC: I’m not necessarily advocating one over the other. What I’m saying is that they are two very different models. It may well be a far more dangerous, treacherous path to put all of the eggs of the resolution in one basket and try the case once. I’m just saying it’s not so easy to compare them as either/or substitutes for one another because there is this entire other dimension of having to resolve the disputes in 5,000 cases versus one case.

MW: It depends on what forum you’re in. If you’re in an MDL forum and the judge is coordinating a lot of individual cases, there are decisions made along the line by both sides that give more procedural protection that you are picking the right case or cases to test the waters with it. Let me just show you an example. I just coined a new phrase for the IPO cases that I have: a mass of class actions. We have 310 separate class actions, each with its own lead plaintiff, arising out of similar conduct, taking place during the same period, that we allege to be industrywide. As a result of judicial economy we have 310 separate class actions in one forum. Who’s at the front of the line for adjudication and who’s at the back? And how do you settle with defendants fairly to take into account this alignment that was sort of forced upon us for judicial economy purposes? These are very challenging jurisprudential issues that are both procedural and substantive in nature. I think the courts are probably the best forums to deal with it.

OC: But are they? When you talk about massive class actions, nothing is more massive than the asbestos scenario in terms of the number of people harmed, the number of cases and so forth. Justice Helen Freedman in New York County has something like 10,000 cases in front of her. These cases will never be tried. Do we need a new procedural vehicle? Is there some way that these people who have suffered real harm and deserve compensation can get it in the legal system that we have?

SI: We have section 524(g) of the bankruptcy code, which says, bring the asbestos cases into bankruptcy court. Judge Anthony Scirica in the In re: Combustion Engineering case in the Third Circuit writes an opinion in bankruptcy that, if one did not know it was a bankruptcy case, would pass for a Rule 23 decision. Okay, you want to kick it out of bankruptcy, we go back to the model where you have a private claims resolution facility set up by the defendants and the consolidation of all these cases in the hands of private lawyers, something that is completely nontransparent. These are serious problems, but it is institutionally irresponsible for the courts to throw up their hands and say: Oh no, this is not the Johnny-punched-Freddy case that we would like to have in our courts.

HH: You say that Oscar’s approach would be nontransparent, Sam, but of course that’s only because we’ve designed the administrative remedy in a nontransparent way. We can use our creativity and imagination to create and establish new forms of administrative procedures that could be more transparent and would deal with some of the problems we currently face.

SI: As long as the political branches are not willing to step up to the plate. Look, we have not gotten asbestos reform for good reasons and for bad reasons. We got black lung reform and it turned out to be a way of passing the liabilities from the private entities to the taxpayers. Maybe we should do that with asbestos also, just say okay, just have public liability.

SB: Just to add to Helen’s point on transparency, you don’t have to view the arbitration system, just because it has traditions associated with it, as incapable of change. For example, the National Association of Securities Dealers just recently came out with a rule that essentially says that we are going to require arbitrators to issue opinions that explain what they are doing. That’s entirely within the power of those who are creating these systems.

OC: We haven’t talked about the 9/11 settlement forum and Ken Feinberg’s work, but it seems to me that was an imaginative, fairly transparent system and if you compare the World Trade Center bombing in 1993, which I believe has still not come to final resolution, with the handling of the 9/11 disasters, people have been paid.

SI: Because we are not taking money from a defendant to pay for it. Any time that we want to take public money and distribute it generously, we can figure out the procedures, but I’m not sure how much we can generalize from that.

HH: We haven’t focused on litigant satisfaction. How do the consumers of justice in the U.S. feel about the legal system? It’s not clear to me that litigants in large class actions, or even in small individual one-on-one cases, feel either a sense of consumer satisfaction or—more important—a sense of citizen satisfaction— of trust and security— that a democracy should encourage

SB: We actually have available to us readily at hand and widely used, a system to permit much more communication and participation, and that is the Internet. It is theoretically possible to have some sort of mandatory information communication system that says that if you’re going to have a class action, we’re going to put every darn document up on some Web site with somebody explaining what’s going on, with a blogging system to allow people to comment on it.

SI: Courts are doing that. That’s becoming a routine part of the order and it’s really changing the world in two ways. One is that clients now are in chat rooms among themselves and they are talking about the lawyers, the settlement, what other lawyers are offering them, and so it’s empowering clients. The other is that it’s transformed the way in which you do business. I was heavily involved with the fen-phen litigation. And when we settled on a national basis, we had to notify a class of six million people. There was no way of finding them because many got prescriptions from doctors in fly-bynight clinics. We did a national ad campaign that said: Here are the forms, download them off this Web site. We had 1.3 million hits and close to a million downloads in a one-week period.

AM: Mel, the Holocaust cases, which you are deeply involved in, as was Burt, was the class that never could have been certified. You know it, Burt knows it. What was that all about?

MW: We had an opportunity to raise an issue that hasn’t been dealt with in 50 years. An analysis was made of the treaties that had been entered into that gave us a ray of hope. It is obvious to all of us that we might have problems covering all the victims, but we used the lawsuits as a mechanism to get the attention of governments and we were able to integrate their help into the litigation process. We settled the Swiss bank case as a class action; whereas in the German slave labor cases, we used an executive order approach rather than a class resolution. But the resolution was basically the same. During the deliberations, which took place in the state departments of Germany and the U.S., we included a lot more people into the resolution than really had an ability to get their claims adjudicated because the companies that they had worked for were no longer in business. Money was being put up by governments as well as companies to try to remedy the situation. At the end there was a recognition that without the lawyers, and without the ability to spark the resolution through litigation, there would have been no recoveries.

AM: An interesting illustration of the use of litigation for political, social and emotional objectives. Thank you all.

But Gordon also laughs at some of the cases discussed that at the time seemed so complex. If someone is served a summons on an airplane, for instance, what is the jurisdiction for purposes of being sued? How quaint that seems today. Now, the Internet, technology and globalization have made a mishmash of the idea of jurisdiction. “You can solicit via a BlackBerry,” Gordon says. “You can solicit via the Internet. Somebody can click on a Web site that you’ve created and thus, you can expect that someone in Ohio will see it and want to do business with you.” Where do you go in a dispute? And then of course there are discovery issues, such as email, and electronic intellectual property disputes that weren’t contemplated when Gordon was a student. What to do about a Greenwich, Connecticut, hedge fund whose failed assets are overseas, or a U.S.-based corporation that is accused of despoiling the environment abroad, or a U.S. citizen accused of being an enemy combatant and held at an American military base in a foreign country? No wonder some might yearn for the days of the airline case.

And yet, as the Law School faculty preaches, the basic civil procedure doctrines are the same. Pennoyer v. Neff, which set physical presence as the guiding factor in jurisdiction, still matters as a starting point. Whether a plaintiff has a right to a jury trial matters. How plaintiffs can aggregate their claims through a class action matters. The key to civil procedure, suggests Professor Samuel Issacharoff, is to think of it as a chess game with an expanding universe of choices—any of which can make or break your case. “A good player always considers the implications many moves down the road,” he says. “And a weak player sees only the immediate issue. In this way, what students are being trained for is very similar to how you train chess players.”

That description largely captures the mission of the civil procedure core faculty at the Law School, a group of professors regarded as the strongest in the nation. While teaching the doctrine to first-year law students, professors—from Oscar Chase to Helen Hershkoff, from Samuel Issacharoff to Burt Neuborne, and from Geoffrey Miller to Linda Silberman—are preparing their students to use this basic subject in a rapidly changing world. In addition to teaching, the professors have also participated in some of the most significant cases or projects in civil procedure recently, including Neuborne, who won an historic settlement in the cases of Holocaust survivors suing Swiss banks; Silberman, as part of a U.S. State Department delegation involved in the negotiation of an international treaty on jurisdiction and judgments for transnational custody disputes; and Miller, who is teasing out statistics that measure the efficiency of class action suits and arbitration.

Furthermore, several professors, including Rochelle Dreyfuss, Samuel Estreicher, Barry Friedman, Andreas Lowenfeld and Nancy Morawetz, teach clinics, seminars and upper-level courses that deepen the students’ understanding of the subject and push the boundaries of civil procedure. To cite a few examples: Dreyfuss is working on jurisdictional issues in intellectual property law; Estreicher is one of the leading supporters of arbitration in employment disputes; and Morawetz is breaking new ground in applying the rules of habeas corpus to immigration rights cases.

“The NYU civil procedure faculty is a magnificent group,” says Arthur R. Miller, a legendary Harvard Law School civil procedure professor himself who has firsthand knowledge of the faculty as a long-time visiting professor at the NYU School of Law. “Collectively, they probably have about 150 years of classroom experience in the field and subspecialties in complex, transnational, constitutional, civil rights and commercial litigation as well as empirical work on the subject,” he says. “In my opinion, it’s the best group in the law teaching business.”

Harvard Law School Professor of Law Emeritus David Shapiro, an “icon in federal courts jurisprudence” who has also visited the NYU School of Law several times, drills down even further: “Burt teaches from the perspective of an experienced litigator. Sam Estreicher is primarily involved in labor and employment law. Rochelle Dreyfuss is involved in technology. Silberman’s perspective is within an increasingly international sphere and Sam Issacharoff’s is primarily class actions and aggregate litigation.” Says Neuborne, “There isn’t any place—any place—that comes close to NYU.”

Setting Up the Board

John Sexton, dean of the Law School from 1988 to 2002 and now the president of NYU, likes to tell the story of how he got hooked on civil procedure. When he was a 1L at Harvard in the ’70s, he took a civil procedure class with Arthur Miller. Miller (no relation to NYU colleague Geoffrey Miller) put Sexton on the spot for the entire class—just like Estreicher has done with his students—including some heated exchanges. Miller later said he “never enjoyed a class this much.” Sexton felt the same way, and later taught Civil Procedure for 20 years beginning in 1981.

“To me, Procedure is the most wonderful law school course to teach,” Sexton says. “First, you’re getting the students when they are just beginning to think seriously about law. Second, the subject matter of the course itself—which they suspect as they enter is going to bore them—actually deals with some of the most fundamental issues that they will face as they begin to think about law as an institution.”

Sexton isn’t the only one to have come under Arthur Miller’s spell. Miller, who first taught Civil Procedure at the University of Michigan Law School and then for the past 25 years at Harvard, is known by every lawyer in the country for coauthoring the leading multivolume treatise on civil procedure, Federal Practice and Procedure, which was first published in 1969 and to which he continues to contribute. Every law student knows him for coauthoring one of the leading civil procedure casebooks, and for his study guides for civil procedure exams and the bar exam. He is familiar to a general audience, too, for moderating the Fred Friendly roundtables on PBS for many years.

Indeed, Miller can count more than one member of NYU’s first-class civil procedure faculty among his former students. Linda Silberman, the Martin Lipton Professor of Law, is a former student of Miller’s from Michigan. She started teaching at the NYU School of Law in 1971.

Silberman now stands as one of the most senior members of the civil procedure faculty. Of the current crop, only Andreas Lowenfeld, who arrived in 1967, has been teaching civil procedure longer. Silberman was followed by Neuborne, who started as a full-time professor in 1974, and then by Estreicher in 1978, Chase in 1980 and Dreyfuss in 1983. Jump ahead to 1995 and the arrival of Geoffrey Miller, wooed from the University of Chicago Law School, and Hershkoff, who was in the legal trenches for almost 20 years. Just last year came the latest big catch: Samuel Issacharoff, recruited from Columbia Law School. As it happens, this is a pretty collegial bunch. Starting in the spring of 2005, the professors began meeting on Tuesdays for lunch in the faculty library. The impetus was to take advantage of the presence of Arthur Miller and David Shapiro, both visiting that term from Harvard. There was no schedule, no pressure from the dean to meet—just an impromptu, bring-a-sandwich lunch gathering that has turned into a semiregular Tuesday event. “It’s an occasion when law nerds can talk to each other without risking public humiliation,” Issacharoff says drily. Indeed, the topics have included the “broader implications of Rooker-Feldman doctrine—a subject so obscure that it is not clear that it exists,” says Issacharoff, joking. (As a refresher, that’s the doctrine that concerns when federal courts may revisit the judgments of state courts.) Other topics include class actions and the scope of federal authority in doctrines such as federal preemption. “At some level of abstraction they’re all interesting,” he says, laughing. “At the level of detail they’re discussed, they would drive anyone to drink.”

Opening Moves

Like many law schools, NYU’s has evolved in the past four decades from professional, practically oriented teaching to a more academic, theoretical program—“much more like a graduate school model,” says Silberman. Faculty usually take one or the other view of what a law school should be. But ask the civil procedure faculty today about the practical versus theoretical issue, and the answer is fairly uniform. “If you don’t successfully learn the theory, you can’t provide the rule in a practical way,” says Oscar Chase. Helen Hershkoff sees in civil procedure “a convergence of theory and practice.” Indeed, Silberman’s casebook, coedited with two of her former students who are now procedure professors themselves—Allan Stein ’78 at Rutgers University and Tobias Wolff of the University of California, Davis—is entitled Civil Procedure: Theory and Practice.

While each teacher approaches the subject differently, their courses generally cover several areas. By the end of the semester, the professors want their students to grasp the basics of civil procedure, such as subject matter jurisdiction (the basis for the court to hear the case), personal jurisdiction (whether a court can require a person to appear before it) and the Erie Doctrine, which says that one must apply state law when a federal court has diversity jurisdiction (with parties from different states).

Professors cover other procedural aspects of civil litigation, depending on their particular interests. Some professors spend time with the Federal Rules of Civil Procedure, examining, say, summary judgment and dismissal, and joinder (which allows a party to combine multiple claims in one lawsuit) or class actions. Other professors spend time on questions of finality, which refers to the binding effect of judgments. Many cover all of these topics.

But beyond picking and choosing which procedural devices they want to include, professors also use the five hours a week that students are in their classes to impart different philosophical approaches to the law.

Samuel Issacharoff and Geoffrey Miller, for example, are proponents of law and economics—an influential perspective in the academy. Issacharoff, the Bonnie and Richard Reiss Professor of Constitutional Law, is regularly retained as a consultant or an expert in mass aggregate litigations and class actions, such as for the diet drug fen-phen (which caused dangerous side effects affecting the heart) and tobacco, and is deeply involved in the dispute over political gerrymandering. Miller, the Stuyvesant P. Comfort Professor of Law, also directs NYU’s Center for the Study of Central Banks. In integrating economics into civil procedure, they emphasize that the system cannot treat every litigant equally; that time, money and manpower must be allocated judiciously; and that different cases merit different levels of attention.

“There’s a finite amount that you want to invest in any potential piece of litigation, and that means that you have to judge how much fairness we need, given the resources we are putting in,” says Issacharoff. “So if somebody is sitting on death row, we as a society throw a lot of resources at that. We allow habeas challenges, we allow a second round of appeals, we allow for a broad series of legal protections. Whereas, if somebody has a simple contract dispute with somebody else, the parties have an important interest in getting it done and getting it done cheaply, and getting it done commensurate to what’s at stake.”

He teaches a case involving the city of Chicago’s policy of giving parking ticket violators limited trials and no appeals. A suit was filed claiming infringement of due process rights. But an opinion by Judge Richard Posner soundly rejected that notion. Recounts Issacharoff: “He says, ‘No. You get only as much process as what is justified by what’s at stake here. These are $50 tickets.’ We can’t put a policeman as a witness on the stand every time there is a parking ticket dispute,” Issacharoff adds, invokingPosner’s reasoning.

Geoffrey Miller has adopted a sophisticated empirical approach to civil procedure, undertaking extensive studies of attorney fees in class actions and state court decisions, for example. He is one of the leading proponents of empirical analysis of legal issues, which has recently seen a dramatic growth in popularity, despite being around since the 1970s and ’80s. The legal community is embracing the empirical approach, he says, because “if it’s done right it doesn’t attempt to argue for or against any moral or social objective, but to figure out how the law functions in practice—what its consequences really are. [Empiricism accomplishes this] without being speculative but by actually counting and observing.”

Two years ago, he coauthored a study that concluded that the average price of settling class action lawsuits and the average fee paid to lawyers who bring them had held steady for a decade, even though companies say the suits are increasing business costs, hurting the economy and enriching lawyers. The controversial issue was central to the heated debate over whether to place limits on class action lawsuits, as urged by Republican legislators and President George W. Bush.

The study reveals that, from 1993 through 2002, “contrary to popular belief, we find no robust evidence that either recoveries for plaintiffs or fees for their attorneys as a percentage of the class recovery increased.’’ The average settlement over the 10-year period was $100 million in inflation-adjusted 2002 dollars, according to the study. Average settlements were as low as $25 million in 1996 and as high as $274 million in 2000—a result of four settlements that year for more than $1 billion each. “The mean client recovery has not noticeably increased over the last decade,” Miller wrote with Theodore Eisenberg, a law professor at Cornell.

Another area he’s studying is alternative dispute resolution. Popular literature touts the supposed advantages of arbitration and mediation (faster, more flexible), so one would assume every party would always opt to resolve their disputes that way. Yet in analyzing 2,000 major commercial contracts, Miller and Eisenberg found that companies rarely opt out of litigation, even though they have the ability to do so. “It doesn’t say arbitration is bad, but there are questions that can usefully be looked at—why don’t they choose arbitration when they have reason to do so?” asks Miller. He cautions that his empirical approach doesn’t answer the normative questions. “But,” he says, “if you do normative analysis without data, you’re basically whistling in the dark.” Burt Neuborne and Helen Hershkoff are veterans of civil rights litigation, and often introduce that perspective to teach their civ pro courses. “You can’t do effective law reform work unless you are a master at procedure,” says Neuborne, the Inez Milholland Professor of Civil Liberties and a self-described procedural wonk. “The odds of winning a law reform case are so small, and the odds of actually moving the society through litigation are so long, that it’s almost criminal to add to the odds by falling through a procedural trap. You have to close the procedural trapdoors, or else civil rights litigation becomes an inefficient use of social resources.” Little wonder, then, that his former American Civil Liberties Union colleagues liked to call him “the plumber,” the go-to guy who specialized in procedural issues like jurisdictional standing and mootness—things that could hold up a case.

Neuborne has been involved in such hot-button cases as flag burning, the Pentagon Papers and the constitutionality of the Vietnam War, and continues to litigate cases himself and through the Law School’s Brennan Center for Justice, which he helped found and for which he serves as legal director. “The practice is important to my teaching,” he says. “I wouldn’t be the teacher I am if it wasn’t for the practice.”

In teaching class actions during first-year Procedure, Neuborne has recently used the case he filed to obtain reparations on behalf of Holocaust victims. In July 2000, a federal judge gave final approval to a $1.25 billion accord to settle claims of Holocaust survivors who had sued a group of Swiss banks they said had hoarded and concealed assets deposited in World War II and accepted profits of slave labor illegally obtained by the Nazis. One of the critical issues was jurisdiction. “How is it that a lawsuit can be brought in the U.S. about activities that took place 60 years ago, far far away in a different galaxy?” he says he asks his students. “How is it that a court in Brooklyn is handling these cases—other than divine justice? How is it that a federal court has jurisdiction over the Swiss banks?”

The answer is a whole lesson in what Neuborne calls “probably the most important jurisdictional issue” now. In short, if the Swiss banks want to be world-class banks, they must maintain a major presence in the United States, which creates in personam jurisdiction. “The moment Credit Suisse acquired First Boston,” says Neuborne the lawyer, “I had them.” But as a professor, Neuborne probes this question further with his students. “The question is, should I have them? And that then allows me to teach what is an ordinarily arcane subject that puts students to sleep.”

Andrew Celli Jr. ’90, former chief of the Civil Rights Bureau in the Office of the New York State Attorney General Eliot Spitzer and now a partner at Emery Celli Brinckerhoff & Abady, a New York law firm, will attest to the stimulating effect of Neuborne’s personal anecdotes and “enormously creative procedural mind.” “Burt’s stories about cases such as stopping the bombing in Cambodia violated all expectations [about Civil Procedure as a course] because it wasn’t about memorization,” says Celli. “It was about understanding the power relationships behind the rules.”

Hershkoff, like Neuborne, became a professor after working at the ACLU, where she was an associate legal director for eight years. The year she left practice to join NYU, New York magazine included her on its annual list of the most important civil rights lawyers in the city. Her lawsuits tended to be large institutional reform cases involving the rights of groups as diverse as the mentally retarded, public school students, homeless families and union dissidents.

Hershkoff, the Joel S. and Anne B. Ehrenkranz Professor of Law, now serves as a codirector of the Arthur Garfield Hays Civil Liberties Program at the Law School, with colleagues Norman Dorsen and Sylvia Law, and has joined Arthur Miller, John Sexton, and Jack H. Friedenthal of George Washington University as a coauthor on their civil procedure casebook. Her scholarship focuses on the role of law and courts in supporting social change, and she has published extensively on state courts and the enforcement of state constitutional rights. She also works with organizations like the Ford Foundation and the World Bank on projects using law and litigation to reduce inequality. Not surprisingly, Hershkoff’s teaching emphasizes the importance of civil procedure to democratic values. “Process forms an essential part of the rule of law,” she explains. Benjamin Wizner ’00, now a staff attorney in the ACLU’s national office in New York, recalls that Hershkoff always came back to a central theme: Is it fair? What’s the standard to determine what is fair? And what are the countervailing social values? This set of questions has dominated Wizner’s work, which has involved visiting Cuba to observe military proceedings at Guantánamo Bay, Cuba. Procedure dominates other aspects of Wizner’s civil liberties practice as well. For example, Wizner confronted a jurisdictional issue in a case against the government involving the rendition of a German citizen, Khaled El-Masri. The ACLU wanted to sue the then-director of the Central Intelligence Agency, George Tenet, and three private aviation companies on El- Masri’s behalf, but where? “The companies are all over the country. George Tenet lives in Maryland. The CIA is in Virginia,” Wizner recalls. He ended up suing in Virginia’s Eastern District because the CIA made what the ACLU alleged was an illegal agreement with the aviation companies, which did business in the CIA’s venue. Unfortunately for Wizner’s client, the court dismissed the case last May over concerns that public proceedings would jeopardize state secrets.

King of Torts: Mass Harm Cases

Just as the nation is divided over the efficacy of class suits to address mass harms (such as a bad drug or a defective consumer product or even stock adversely affected by corporate wrongdoing), so are NYU’s law professors. “The biggest puzzle in American procedure today is how do we deal with mass torts or other mass victims,” Oscar Chase says, “and we haven’t really worked out a satisfactory solution.”

Arthur Miller finds himself on opposite sides from his protégée Linda Silberman on the subject of class actions. “Curiously, Linda and I—as much as we love each other and have known each other for 30, close to 40 years—have diametrically opposed views about class actions,” he says. “I am a great fan of them; she finds them to be the work of the devil.”

Silberman argues that if the court is going to aggregate plaintiffs’ actions from all over the country, the court must take into account the state law that should apply for each plaintiff. She contends that the convenient aggregation of all mass claims is not what is intended by class action rules. “The class action was designed for cases in which aggregation would not be too complicated. And if, in fact, it is too complicated, it’s probably not the right device,” she says. Besides, Silberman adds, if change is desired, Congress could adopt statutes to address the procedures for dealing with specific mass torts, such as a national consumer law to address products liability.

Silberman has been retained in recent class action litigations as an expert on this issue. In one case, plaintiffs claimed economic losses for property damage caused by defects in personal computers. Silberman addressed questions about which remedies the plaintiffs had in different states. Courts held that in almost all the cases, the law of the plaintiff’s home state had to apply, which rendered the class unmanageable.

Miller and Silberman do have some common ground, however. “We both agree completely that the globalization of a class action, in something like pedophilia and the priest abuse cases, is an absolutely perfect utilization of the class action because it gives voice to a group of people who have no voice,” Miller says. “It provided a vehicle to enable them to come forward without ever being disclosed.”

Issacharoff says that, regardless of the diverging viewpoints on class actions, they’re here to stay—and rightly so. He is currently the chief reporter for the American Law Institute (ALI) project Principles on the Law of Aggregate Litigation, for which he is examining ways to handle common issues in mass torts and other cases such as contract or common law claims. Harms that occur on a mass scale, similarly affecting so many people, require novel court procedures to resolve the claims efficiently but fairly. The project will examine the viability of complex alternatives, such as forcing claims into one mass proceeding; allowing for extraordinary procedures, such as interlocutory appeals; and even denying to some litigants the right to proceed on their own. “This is an area fraught with difficulties, not the least of which is the due process concern for the rights of individuals,” Issacharoff says. But he acknowledges that certain types of class actions are more problematic than others—for example, cases that address individual injuries that are not standardized, such as physical maladies related to asbestos or fen-phen. The procedure is better designed for cases involving mass economic harms, such as consumer fraud, securities and antitrust issues, he says. (For more insight into the debate over how best to litigate mass harm cases, please see “Heads of the Class” on page 36.)

The Global Gambit

Global jurisdictional issues have moved to the forefront of controversy as the world shrinks and business is increasingly conducted internationally. Yet the court system we have come to take for granted appears quite alien to people in other countries. Essential elements like the civil jury, pretrial discovery and experts chosen by the parties rather than appointed by the court are all unique to the American system, which in some cultures is still viewed with suspicion.

“You talk to lawyers in other parts of the world and they think we’re nuts because we have juries in civil cases and because we have wide-open discovery—which they fear as if it were the Antichrist—and because we have reasonably broad jurisdictional notions,” says Arthur Miller. He points out, however, that here and there other nations are thinking about incorporating one or more of these elements. “China is studying the class action,” Miller says. “You find other nations thinking about the class action simply out of recognition of the growing frequency of injurious mass phenomena. You find some nations thinking about instituting civil jury trial. Isn’t that crazy?”

To give students more foreign perspective, the Law School added a course on Comparative Civil Procedure—taught regularly, though not every year—usually with a professor visiting the NYU School of Law from Europe or Asia through the Hauser Global Law School Program. The global program was founded by then-Dean Sexton and Norman Dorsen, the Frederick I. and Grace A. Stokes Professor of Law and a member of the Council on Foreign Relations. Dorsen served as the Hauser Global Law School Program’s founding faculty director.

“Norman encouraged faculty to introduce transnational and comparative themes into the first-year curriculum,” Hershkoff says of Dorsen. “With his support, Oscar Chase, Rochelle Dreyfuss and I took early steps to collect resources in this field. And of course Oscar and Linda cotaught a course on Comparative Civil Procedure.” Chase, Hershkoff and Silberman have since participated in workshops and conferences sponsored by the American Assocation of Law Schools on how the first-year Civil Procedure curriculum can “go global.” “Students are surprised to learn that procedural systems differ from country to country,” Hershkoff explains. “For example, elsewhere in the world, only a government official can serve a summons—indeed, it’s a crime in some countries for a private individual to do this.”

The large number of foreign students at NYU has added yet another dimension, bringing the firsthand experience of different cultures into the classroom. Andreas Lowenfeld, the Herbert and Rose Rubin Professor of International Law, is one of the giants in the field of comparative civil procedure. Lowenfeld is frequently an arbitrator in international disputes, public and private. He has argued before the U.S. Supreme Court, the Iran-U.S. Claims Tribunal and the International Court of Justice. Before coming to NYU, he served as deputy legal adviser of the U.S. Department of State. And he is the author of a pioneering casebook on international litigation and arbitration, which was revised just this year. In 2001, he and Silberman convened a conference on the proposed Hague Convention on Jurisdiction and Judgments, which brought together some of today’s most knowledgeable theorists and practitioners on international jurisdictional issues. The two professors have edited a book based on the proceedings.

Lowenfeld and Silberman also coteach a seminar on international litigation and arbitration. Lowenfeld says they try to have half the students in their International Litigation course be foreign-trained to generate crosscultural understanding as they write briefs and argue together. Lowenfeld also says taking civil procedure out of the national context offers students an opportunity to further their understanding of it. “If you like procedure, you’ll love international litigation,” he says. “The issues are not settled—they’re open, they’re at the frontier. We take real cases and we have the students argue them.” In fact, last year the course focused on six cases that were subsequently heard by the U.S. Supreme Court.

Silberman and Lowenfeld were coreporters for the ALI on the project Recognition and Enforcement of Foreign Judgments: Analysis and Proposed Federal Statute. The project, recently adopted by the general assembly of the ALI, proposed a federal statute that would provide uniformity throughout the United States in the recognition and enforcement of judgments issued by courts in foreign countries. States currently have different laws on the subject, creating the potential for diverse outcomes based on identical facts. Lowenfeld gives an example: Suppose an American tourist from Pennsylvania is in a car accident overseas. She is sued in that country and a judgment for damages is entered against her. Pennsylvania will not enforce the judgment according to its laws, but the tourist also has a bank account in New York, which will enforce the judgment. “It makes no sense to have different laws because enforcement of judgments is an aspect of international relations, and, therefore, is a suitable subject for legislation by Congress,” says Lowenfeld.

Oscar Chase, the Russell D. Niles Professor of Law, has become something of a guru on comparative procedure. His paper, “American ‘Exceptionalism’ and Comparative Civil Procedure” (in the American Journal of Comparative Law in 2002, and also translated and published in a Russian and a Brazilian law journal), argues that our civil procedure is very unusual compared to the rest of the world’s—and that we’ve resisted borrowing. Using juries in civil cases, for example, is unique to America, he says, and “strikes the Europeans as bizarre.”

Chase has also been involved in what he describes as contextualizing dispute resolution. His recent book—Law, Culture, and Ritual: Disputing Systems in Cross- Cultural Context—deals with comparative law in other modern societies as well as in small-scale tribal groups, and argues that their codes are resonant with the cultures in which they operate. African communities that use oracles to try disputes make sense if you study the culture of those communities. Similarly, civil juries make sense in America because of our commitment to populism and democracy. “The idea is that there is a relationship between how societies structure their disputing systems and their underlying culture, and that you can’t really understand your own system and its relation to the society where you find it unless you go outside of it,” Chase says.

One effective way of going outside the American system is by inviting foreign perspectives in. To that end, Chase, Hershkoff and Silberman are coediting a book of readings on comparative civil procedure with three scholars who have each been members of the Hauser Global Law School Program visiting faculty: Yasuhei Taniguchi, a professor of law at Tokyo Keizai University and a member and former chairman of the World Trade Organization Appellate Body; Adrian Zuckerman, a fellow at University College, Oxford; and Vincenzo Varano, a professor and former dean at the University of Florence School of Law.

Knight Moves

Rochelle Dreyfuss and Samuel Estreicher had taught the first-year Civil Procedure course for dozens of years combined before redirecting their energies to building up the Law School’s offerings in other fields of interest—namely, intellectual property and labor and employment law, respectively. But both professors never really left civil procedure behind and have made notable contributions to the legal scholarship.

Intellectual property has undergone more wrenching change, thanks to globalization and technology, than perhaps any other procedural area. The law in this area has grown extremely complex, especially as domestic copyrights, trademarks and patents make up a large portion of our economy. It also poses vexing problems when copyrights and trademarks come in conflict with privacy rights and the First Amendment. Dreyfuss has been at the center of the cross section between intellectual property and civil procedure since she started as an assistant professor of law at NYU in 1983. She is now the Pauline Newman Professor of Law, and has published on subjects like the impact of intellectual property laws in science, trade secrets, privacy rights and business method patenting. She recently coedited a book, Intellectual Property Stories, with Jane Ginsburg of the Columbia University School of Law. She edits a casebook in international property law that has to be updated every year because of constant changes.

Dreyfuss is currently one of three coreporters of Intellectual Property: Principles Governing Jurisdiction, Choice of Law and Judgments in Transnational Disputes, a project for the American Law Institute. She, Ginsburg and François Dessemontet of the Center for Enterprise Law at the University of Lausanne are developing uniform guidelines to address the conflicting results arising in international copyright, trademark and patent disputes as the Internet makes worldwide distribution instantaneous. “If there is copyright infringement, there is copyright infringement all over the world. The question is, how does the copyright holder adjudicate those cases? Do you have to litigate in the United States over the people who downloaded it in the United States, and then litigate in France over the people who downloaded in France, and then litigate in Japan, etcetera?” It’s not great for users, either, because they might be sued multiple times by copyright, patent or trademark holders.

Her research for the ALI addresses when it’s appropriate to assert jurisdiction internationally and how to enforce judgments issued in one country against a violator elsewhere— if France issues a judgment against Yahoo (which happened), is that judgment enforceable in the United States? Dreyfuss also wants to introduce the principle that one suit can resolve claims all over the world. You can sue in the United States, for instance, asserting all worldwide claims—but once you’ve lost, you’re finished.

Samuel Estreicher, the Dwight D. Opperman Professor of Law and the director of the Center for Labor and Employment Law, joined the faculty after working as a union-side labor lawyer. In addition to serving as of counsel to Jones Day, he is currently the chief reporter of the ALI project Restatement of Employment Law with reporters Stewart Schwab, dean of the Cornell University Law School and Boston University School of Law Professor Michael Harper. The project is looking at nonstatutory employment law regarding issues such as the interpretation of employment contracts, noncompete clauses, privacy in the workplace and discharge of employees for violation of public policy.

Estreicher is also one of the nation’s leading experts on alternative dispute resolution and an outspoken supporter of arbitration in employment disputes. Although he doesn’t take a strict law and economics stance on conflict resolution, he repeatedly hits on the theme of middle- and lower-class access to relief. “There are two kinds of claims,” Estreicher says. “Cadillacs and rickshaws.” Cadillacs are high-stakes claims that attract lawyers and are well handled by the courts. Routine, or rickshaw, claims are low-stakes and therefore “are the orphans of the law.” “Nobody wants them, neither private lawyers nor public interest organizations,” Estreicher says. “The big challenge for the U.S. civil procedure system is to create a lower-cost process that transforms rickshaws into Saturns so people with average income and education can have a mode of redress.”

Advancing Positions

A number of upper-level courses build on the foundation laid in the first-year Civil Procedure class. Barry Friedman, the Jacob D. Fuchsberg Professor of Law, teaches one of the more significant upper-level procedure courses, Federal Jurisdiction. In it, he explores the relationship between federal and state courts, and federal courts and other branches of the federal government. “The basic Procedure course introduces students to basic issues—notice, fairness and impartial judges, for example. I’m trying to introduce them to more complex issues.”

And also to more complex strategizing. Friedman’s course “is about how to get into federal court and how to stay there—or how to avoid being there if you don’t want to be there.” States named as defendants in cases challenging the constitutionality of state law, for example, would usually prefer to have the state court resolve the question. The preference for state or federal courts may change with the times and with the politics of the era, Friedman says, pointing out that there was a time when state courts were more sympathetic to gay rights than federal courts. “People will play to one court system or another for advantage,” he says.

Friedman, Hershkoff and Neuborne—the latter two teach the upper-level Federal Courts in addition to the first-year Procedure class—all look to the Guantánamo Bay cases as ripe examples for teaching the role of the judiciary in our tripartite government. For example, they cite efforts by Congress and the White House to eliminate Supreme Court jurisdiction over proceedings filed by detainees, and the question of whether you can eliminate habeas corpus review over proceedings filed by Guantánamo detainees. “These are perfect ways to teach the relationship between the judiciary and the executive branch, about the legislature,” says Neuborne. “This is an excellent way to talk about the essential function of the judiciary.”

Another perspective on federal courts comes from Estreicher. Two of his upperlevel classes, The Appellate and Legislative Advocacy Workshop: The Labor and Employment Docket, and Supreme Court Advocacy, give students “intense skill development,” Estreicher says. In both of the seminars (he coteaches the appellate workshop with Laurence Gold, former general counsel of labor federation AFL-CIO and now of counsel to labor law firm Bredhoff & Kaiser in Washington, D.C., and the Supreme Court seminar with Meir Feder, a partner in the issues and appeals group at Jones Day and a former assistant U.S. attorney), students study cases that are pending before the Supreme Court. They write briefs, argue a side and decide the cases. “Civil procedure is about understanding the context in which a decision arises,” says Estreicher. “Did the case come from a motion to dismiss? A summary judgment motion? That’s a major part of a lawyer’s arsenal when he gets a case on appeal.”

Practice, Practice

Students get to apply the rules of civil procedure and see how their actions can affect lives when taking part in some of the Law School’s clinics, including the Civil Legal Services Clinic, taught by Clinical Professor of Law Paula Galowitz; the Civil Rights Clinic, taught by Clinical Professor of Law Claudia Angelos; the Employment and Housing Discrimination Clinic, taught by Clinical Professor of Law Laura Sager; and the Children’s Rights Clinic, taught by Fiorello LaGuardia Professor of Clinical Law Martin Guggenheim ’71. Guggenheim was recently recognized with the Livingston Hall Award from the American Bar Association’s Juvenile Justice Section for his years of practice in the area of juvenile delinquency. He also published What’s Wrong with Children’s Rights, a book-length examinationof the quarter-century emergence of children’s rights and its impact on families and society.

One of the most contentious political topics in the nation these days is immigrants’ rights. Nancy Morawetz, professor of clinical law, shares a real-life perspective on civil procedure with her students in the Immigrant Rights Clinic that she coteaches with Research Scholar Mayra Peters-Quintero ’99. Students have the opportunity to appear in several forums (such as immigration court or district court), advocating on behalf of immigrants in deportation matters, including three cases before the U.S. Court of Appeals for the Second Circuit during the 2004 academic year in which the students made creative arguments in habeas corpus. Students also work on wage and hour cases and nonlitigation matters, such as legislative issues and grassroots campaigns. The idea is to reinforce what’s learned in the classrooms through actual practice. “A lot of what we are doing is trying to teach students to think strategically,” she says. “We try to teach that the kind of choices you make will affect the way the whole case is seen by the other side, is seen by the court and will affect your ability to ultimately achieve what you do and don’t want to achieve for your client.”

Morawetz, a former class action litigator, joined the NYU School of Law faculty in 1987. She assisted with preparation of an amicus brief on behalf of Jose Padilla, respondent in Rumsfeld v. Padilla, filed by the Public Defender Service for the District of Columbia. Padilla is a U.S. citizen that has been declared an enemy combatant. Morawetz developed an interest in the jurisdictional reach of habeas, which she examined in Padilla, after reading a former student’s paper on similar issues. Morawetz specifically researched whether the government, by unilaterally moving someone from one part of the country to another, could choose the court in which the case would be litigated. The Supreme Court essentially ruled that it could.

The End Game

Law schools used to dedicate a full year to Contracts, Torts, Property and Civil Procedure. But as more subjects have been added to the curriculum—such as employment law, entertainment law and securities law, as well as interdisciplinary courses involving economics, philosophy and anthropology—top-tier law schools have reduced the first-year courses to one semester, including Civil Procedure. This has been quite controversial. Many professors believe that first-year law students take until around March to begin making sense of what they are learning. That is especially the case for Civil Procedure, which was cut back to one semester at the Law School in 2002.

Some faculty see the “semesterization” of first-year courses as emblematic of a larger shift by leading law schools away from their original vocational function of training law students to be lawyers. Instead, law schools are following the graduate school model, which is more academic and theoretical. “When I was in law school— and for most of my teaching career—a law school was thought to be a professional school, designed to prepare people for a professional life, with emphasis on the development of skills that reflected what lawyers did,” says Arthur Miller. “These days, law schools do not have the same professional orientation that they once had.”

Some professors at the NYU School of Law have had a tough time seeing the course truncated. Silberman initially refused to teach the shortened course for the first time in her 35 years at the school. (She also has taught or cotaught courses in conflicts of laws, comparative procedure and international litigation, and coteaches a class in international commercial arbitration.) She acknowledges that almost every other elite law school has reduced Civil Procedure to one semester, but still argued forcefully against it. “I gave a big speech to the faculty how this ought not to be done,” she says.

After a three-year hiatus from Civil Procedure, Silberman returned to the fold in the 2005-06 academic year. She says she did so because she successfully insisted that her students meet four instead of three sessions per week—without adding to the requisite five weekly course hours—to give the students more time to absorb the material. But she also clearly loved teaching the course too much to stay away. “At the end of the day, I’m really most interested in craft. How do you make an argument? What’s the best argument? What does the defendant say?” she says. “I’m really focused very heavily on students getting the tools that they need to move on to be a lawyer.”

That dedication—to the students, and to learning in general—is at the heart of what makes the NYU School of Law such an exemplar of the teaching of civil procedure. Given their many years of experience, the Law School’s civil procedure professors could be expected to have grown somewhat jaded about teaching a foundation course over and over again. Yet they talk about civil procedure with the enthusiasm of the newly initiated. Indeed, at the end of each year, Burt Neuborne burns his class notes to force himself to start fresh the following fall. “The only way I can be sure that I’ll prepare again the next year is to be naked when I go in there and have to do it,” he continues. “It’s more work, but it’s the joy of this life. Teaching law and teaching at NYU is just an unbelievably privileged existence.” ■

—Robin Pogrebin is a staff reporter for the New York Times. Edward Klaris is vice president, editorial assets & rights at Condé Nast Publications and an adjunct professor at Columbia Law School. Suzanne Barlyn is a freelance reporter and nonpracticing lawyer who received her J.D. from Washington College of Law, The American University. Larry Reibstein is an assistant managing editor of Forbes.

—Since this article was published in September 2006, Arthur Miller, who was quoted in the story as a longtime visiting professor, and Troy McKenzie ’00 have joined the NYU Law faculty.

With his oval-rimmed glasses, dark suit and trim moustache, ElBaradei, who earned an LL.M. in 1971 and a J.S.D. in international law from NYU in 1974, has the scholarly-yet-stylish look of someone you might meet browsing off the Ring in one of Vienna’s art galleries or antiquariate. Spot him on the street in his overcoat and white scarf, and he is the picture of urbanity. It’s easy to imagine him descending the steps from the former Hapsburg capital’s renowned Oper into a snowy Viennese night. It’s a bit harder to imagine him hectoring and cajoling Iran’s theocrats into permitting more intrusive inspections of their facilities—or trying to fend off the demands of the United States and its European allies to escalate the matter by bringing their complaints to the United Nations Security Council. But that is precisely what has been occupying his time lately. And as he knows well, the stakes could hardly be higher: At issue is not only the question of war and peace between America and Iran but also the future of the global nuclear nonproliferation regime. Indeed, the viability of the current system of multilateral organizations that mediate among almost 200 nations and attend to the most challenging problems of the age hangs in the balance.

In early June, the ElBaradei view about how to deal with Iran received support from an unexpected quarter: the administration of President George W. Bush. In a rare reversal of a long-held policy, Bush okayed a new U.S.–European initiative that extended the promise to Iran of direct negotiations with the United States and a package of concessions if Tehran would cease its uranium-enrichment program, which Washington and some of its allies believe is aimed at giving Iran a nuclear weapon. (Until the spring of 2005, when it began to back a European effort, Washington had maintained that offering carrots of any kind would be a reward for bad behavior.) For ElBaradei, this turn of events came as welcome news and something of a vindication. “It is absolutely the right decision, and I’ve been saying that for more than two years,” he says. “The new initiative is quite good…. [It] has a lot of meat, which offers the option of normalizing with Europe and the U.S. and could have major implications for security in the Middle East. It is a few years overdue.”

Even so, the success of the new proposal is far from guaranteed. In early July, Iran had declined to respond to the initiative, saying it would not have an answer until late August, angering the Western leaders who demanded action sooner. Many observers have taken such behavior as another indication that the Iranian government is determined to stall and postpone any talks until it has improved the enrichment process and even produced fissile material for weapons. After Tehran announced that there would be no quick reply forthcoming, Russia and China expressed their growing displeasure with Tehran’s foot-dragging by joining the U.S. and Europe in agreeing to seek a U.N. Security Council resolution ordering Iran to freeze some nuclear activities—or face sanctions. On July 31, against the backdrop of new hostilities between Hezbollah and Israel, the Security Council pushed again for some sign of cooperation, calling for Iran to cease its enrichment work by September. This elicited a defiant response from Tehran, which threatened to expand its nuclear program and perhaps cut off oil exports. ElBaradei’s belief in the necessity of diplomacy, though, is unshakeable. “There is no other way,” he argues. While ElBaradei understands that diplomacy can fail, he remains hopeful that the parties will negotiate, even if only because his experience on that score has been searing. “If I look at Iraq as an alternative, all I can say is we definitely should have a better system to settle our differences,” he observes. “If I read the figures that 120,000 civilians have died in the Iraq conflict, aside from the hundreds of thousands who died because of the ‘dumb sanctions’”—he shakes his head and concludes—“we clearly have a lot to learn about how to live in a so-called civilized society.”

The crisis ElBaradei is trying to manage has long been dreaded. In 1963, President John F. Kennedy warned that as many as 25 nations might acquire nuclear weapons by the 1970s. That nightmare scenario never materialized. In fact, for a time, the global nonproliferation effort could count more successes than failures. A passel of countries, including Argentina, Brazil, South Africa, Libya, South Korea and Taiwan, have pursued nuclear weapons programs and then thought better of it. After the collapse of the Soviet Union, the nuclear-armed states that emerged from the wreckage—Ukraine, Kazakhstan and Belarus—agreed to turn over to Russia the weapons left in their territory. Beyond the countries whose possession of the bomb is recognized by international law in the form of the Nuclear Non-Proliferation Treaty of 1970 (NPT)—the United States, Russia (as the successor state to the Soviet Union), China, Britain and France—only India, Pakistan and Israel have developed nuclear weapons in the 40-plus years following Kennedy’s prophecy.

In recent years, however, the successes have slowed to a trickle, and the danger of a cascade of nuclearizing countries appears more imminent than ever. The biggest gun of all pointed at the nonproliferation regime may well be Iran. For almost two decades, the Islamic Republic’s effort to develop nuclear energy has raised concerns in the West, where policymakers have long asked why a country afloat in oil needs to build reactors. The fears were confirmed when an Iranian dissident group announced in August 2002 that Iran was building two secret nuclear facilities, one for enriching uranium and another for making heavy water, which would be used for producing plutonium. An IAEA investigation confirmed that Iran had been conducting clandestine activities, and thereafter began several rounds of high-level diplomacy, led by Britain, France and Germany (the “EU-3”), while ElBaradei worked at the IAEA to persuade Iran to give up the program.

What has made the confrontation so vexing is the loophole at the heart of the existing nonproliferation language: Uranium enrichment is not illegal per se under the NPT. Signatories, such as Iran, are permitted to have, in technical parlance, the nuclear fuel cycle for the purpose of energy generation. The uranium used in reactors needs to be enriched until the level of the fissile isotope, U-235, is about 4 percent. The problem is that the same technology can be used to make weapons-grade (roughly 90 percent U-235) uranium.

As one Western diplomat who is involved in the politicking over Iran and, like most officials, will speak only on the condition of anonymity, explains, “What worries us is not diversion from a safeguarded plant but mastering the techniques at a safeguarded plant that leads to the creation of a clandestine plant.” Despite what the NPT says, as this diplomat puts it, “Good sense and legal obligation are in conflict.”

What ultimately makes the issue so freighted is the widely held belief that Iran represents a tipping point. North Korea’s acquisition of a nuclear capability set off loud alarms beginning in the 1990s, but the consequences of its breakthrough were seen as limited compared with what might happen if Iran builds a nuclear arsenal. The reason is that North Korea is seen as a deadend regime with few ambitions beyond its own survival.

Iranian acquisition of nuclear weapons, on the other hand, would send shock waves through one of the world’s most economically vital and politically volatile regions. Imagine the Balkans around 1914, the global powder keg—only now the gunpowder has been replaced by highly enriched uranium and plutonium—and you have an idea of one potential outcome of the Iran crisis. Imagine another American military intervention in the Persian Gulf on the heels of the debacle in Iraq (even though most strategists speak of a sustained air campaign and not the commitment of ground forces) with the attendant upheaval in the area and throughout the Muslim world, and you have another. Mohamed ElBaradei has plenty to worry about.

Professor Thomas Franck, front row, fourth from the left, in 1972, with international fellows including Mohamed Elbaradei, in the far right corner, and Antoine van Dongen, front row, second from the left.

With so much riding on his work, it’s remarkable how little attention ElBaradei has received. Scan Nexis and you will find no full-scale profiles of him in English—indeed, there are few that are more in-depth than the short one on the IAEA Web site. But then he is somewhat unusual as a public figure. Animated and voluble in conversation, but averse to the spotlight, ElBaradei is a man who would prefer to be at home in the evenings plowing through piles of work in the company of his wife, Aida—who must have been Vienna’s most elegant kindergarten teacher until her recent retirement—instead of taking part in the never-ending roundelay of Viennese diplomatic receptions. His aides seem used to defending him against the charge that he is aloof. “People sometimes think he’s arrogant,” says Tariq Rauf, a senior IAEA adviser and member of the ElBaradei kitchen cabinet, “but it’s more that he’s shy. He’s actually a very warm person.”

He is a genuinely devoted family man—a fact universally cited by critics and friends alike—who delights in spending time with his daughter, Laila, who is a lawyer in London, and his son, Mostafa, who works in that same city as a production engineer at CNN. Although ElBaradei travels relentlessly, he sees the two of them frequently, and they are always in touch. “We speak almost every day or every other day,” Laila says. “He’s learned how to text message, and he sends me great one-liners. He has a great sense of humor and I’ve always been sorry he didn’t have a job where he could use his sense of humor.” Through one crisis after another, family has been ElBaradei’s refuge. Laila recounts, “No matter how busy my dad is, he always finds time for the boring minutiae in my life. I’m getting married in September and he’s interested in what color the flowers should be and whether we should have a band or a D.J.”

The absence of press coverage may also have something to do with the instinctive belief by many in the media that an international civil servant untainted by scandal who is devoting his efforts to nuclear disarmament must be a saint of sorts. The suspicion, therefore, as George Orwell wrote about Mahatma Gandhi, is that ElBaradei would evoke “aesthetic distaste” in person. But ElBaradei is not a saint. He is a likable, worldly man who is anything but austere.

Mohamed ElBaradei was born on June 17, 1942, in Cairo—a dangerous time and place. Although Egypt was nominally independent, it still was dominated by Britain and, at that moment, Nazi troops under General Erwin Rommel were menacing from the west. The First Battle of El Alamein occurred just a few weeks after ElBaradei’s birth, halting the German advance into Egypt outside of Alexandria. He came of age in the era of Gamal Abdel Nasser, the Egyptian leader who cut the cord with Britain—a charismatic champion of anticolonialism, Pan-Arabism and the rights of the developing world.

ElBaradei comes from a family dominated by lawyers. Among the most distinguished were his maternal grandfather, Ali Haider Hegazi, who sat on Egypt’s Supreme Court, and his father, Mostafa ElBaradei, who rose to become president of the Egyptian Bar Association. ElBaradei enjoyed a youth of privilege in the clubs of Cairo and vacation homes of Alexandria, where the wealthiest Cairenes had their retreats. Yet even his father ran afoul of Nasser in 1961 by calling for democracy and a free press. The elder ElBaradei was harassed for his opinions, though he was later rehabilitated and recognized as a major figure of his era.

ElBaradei graduated from the University of Cairo in 1962 with a degree in law and joined the Egyptian foreign service, for which he was posted to the U.N. mission in New York. There he took advantage of a part-time master’s program that the NYU School of Law offered and studied under Professor Thomas Franck, now the Murry and Ida Becker Professor of Law Emeritus. Eventually, during the early 1970s, he took leave from his job to work for his J.S.D. in international law.

Franck, who is still close to his former student, remembers him as being “very much as he is today…cautious, levelheaded, sound, consciously unexciting—above all, sensible, moderate.” Anti-Zionism, of course, was a core tenet of Nasserism, and while ElBaradei was in New York, Egypt and Israel fought two wars. Still, the young Egyptian wasn’t a prisoner either to national sentiment or to his profession as an Arab diplomat. As Franck recalls, “His view was not your basic view of Israel. He pretty well knew the fact that Israel existed and that was not going to change. He was for finding some modus vivendi. He was always far more than an Egyptian studying in the United States, and he never presented the case like an Egyptian official.” A fellow student from ElBaradei’s early days in New York and now a lifelong friend, Antoine van Dongen (M.C.J. ’71, LL.M. ’72) recalls that the future IAEA director general “could be totally frolicky and asinine, as we all could be, and then be totally serious in debate and hold his own in conversation.” Van Dongen, who is the Netherlands’ ambassador to Sweden, also saw a trait in ElBaradei that has become a hallmark of his career: “If he thought he was right, then he really thought he was right.”

If ElBaradei’s temperament was already formed by the time he reached New York City, he still had a powerful desire to broaden his horizons. The 15 years he spent (with some interruptions) in the city were what he calls “really the formative years.” He bought a subscription to the opera, taught himself about modern art—for which he retains a
passion—and became a diehard fan of both the Yankees and the Knicks. Just the thought of that period puts a charge in his voice. “I still vividly remember watching at the dorm when the Knicks won the 1973 world championship…Earl the Pearl [Monroe], [Walt] Frazier and Dave DeBusschere!” he exclaims before a tone of wistful exasperation creeps in, one known to Knicks fans everywhere who have been waiting for a repeat of that miracle. “And I have been following them from abroad for the last 33 years.”

Longtime friends and close aides testify to the deep imprint that New York made. His speechwriter, an American, Laban Coblentz, observes that to this day ElBaradei “peppers his speech with Americanisms like ‘step up to the plate’ and ‘full-court press.’” New York did more than give ElBaradei a new set of interests, though. “This was the time of the counterculture,” he recalls, “and the Village was really the hub of everything that was happening.” Although cosmopolitan by Egyptian standards, ElBaradei was confronted with a variety that was overwhelming and exhilarating. “New York,” he says he came to recognize, “is this microcosm of the world; it is the melting pot of every nationality of every race. You realize that we are one human family. I came to realize that living in New York.”

After he finished his doctorate, ElBaradei was posted by the Egyptian foreign service to its mission in Geneva, where he continued to work on the multilateral issues handled by the various U.N. agencies there. From 1974 to 1978, he served as a special assistant to Egyptian Foreign Minister Ismail Fahmy and subsequently worked with Boutros Boutros-Ghali, who later became U.N. secretary-general. In 1980, the connection ElBaradei had forged with NYU and, in particular, with Thomas Franck proved fortuitous for the rising diplomat. The U.N. asked Franck to lead its Institute for Training and Research (UNITAR), an agency that, despite its name, undertook internal audits and evaluations of U.N. programs. Franck made a condition of his hiring that he be able to bring along ElBaradei, and with that the Egyptian returned to New York and joined the international civil service. During this period, between 1981 and 1987, he was also an adjunct professor at the NYU School of Law. He eventually came to the attention of Hans Blix, then the new director general of the IAEA, who hired ElBaradei to open the Vienna-based organization’s office in New York in 1984. At the IAEA, he flourished, moving to headquarters as chief of the legal division in 1987. He later became head of external relations—essentially the agency’s foreign minister—responsible for overseeing contact with the 100 or so member nations.

ElBaradei’s ascent to the top job at the IAEA provides one of the more comic episodes in the often-delicate apportionment of desirable spots in the international civil service, though none of the missteps was his. In the mid-1990s, it became clear that Blix, a legendary leader of the IAEA, would step down after the completion of his fourth term, and, unusually, no country stepped forward with a strong nominee.

Washington’s ambassador to the IAEA at that time was John Ritch, a highly regarded envoy who decided that it was unwise to leave the succession to chance. As he recalls the story, Ritch, now director general of the World Nuclear Association, which promotes the peaceful use of nuclear energy, felt at the time that the opening at the top provided an opportunity to put a capable man in the job and send a valuable message of goodwill to the developing world. The IAEA had been run by Swedes for 36 of its 40 years (the first director, who served a single term, was former U.S. Congressman Sterling Cole). Ritch, who was a friend of ElBaradei’s, recalls, “Mohamed combined affability, experience and a Western orientation with a high sensensitivity to the developing world’s perspective.” He was, in Ritch’s view, the complete package because, he says, “there is always a chasm between developing countries and developed countries, with the former putting a lot more emphasis on receiving assistance and the latter wanting to focus on nonproliferation issues. ElBaradei, with his nonproliferation credentials and Western perspective, seemed a good person to bridge the gap.”

At this point, behind-the-scenes diplomacy turned into a high-level game of telephone. Word reached Cairo that an Egyptian could become director general, and President Hosni Mubarak decided to nominate a personal favorite of his, Mohamed Shaker, who would later serve as Egyptian ambassador to the U.K.

Shaker, however, was viewed as exactly the kind of person the U.S. did not want—a contentious proponent of Third World causes who, it was felt, would not provide the necessary leadership. In Washington, he became known as the “other Mohamed,” and a delicate dance ensued to persuade Cairo that an Egyptian could indeed become the IAEA’s director general, just not the one the Egyptian president wanted. The board of the IAEA held an informal vote, Shaker was turned down and ElBaradei was elected. “Nonetheless, handing this job to an Egyptian was a big step. Had Mohamed not been in Vienna, had he not had the support of the American ambassador and a totally Western persona, he never would have been considered,” says Ritch. For all that made him appealing to the U.S., however, ElBaradei has been nobody’s puppet, and his independence has at times made him the target of sharp American criticism.

The role of the organization ElBaradei inherited has shifted considerably during its existence. The IAEA grew out of the Atoms for Peace initiative that President Dwight D. Eisenhower unveiled at the U.N. in 1953. The core idea was that the power of the atom offered fabulous promise in terms of cheap energy, and the U.S. and others who had the technology would share it with those who wanted it, provided they forswore the development of atomic weapons. The IAEA, which was born four years later, was envisioned as the agency that would regulate this bargain.

As time went on, however, the agency’s role as middleman in the transfer of peaceful nuclear technology did not develop as quickly as its role as global nuclear cop, which was enshrined in the Nuclear Non-Proliferation Treaty. The treaty provided that the IAEA could inspect a signatory’s nuclear facilities, but only those the signatory declared, leaving open the possibility of clandestine facilities. The inadequacy of that arrangement became clear after the 1991 Gulf War, when it was revealed that Saddam Hussein’s nuclear program had been alarmingly close to giving him the bomb he coveted.

In the years since, the IAEA has added an “additional protocol” to its earlier safeguards agreements that gives the organization’s inspectors enhanced access to nuclear facilities. Thus far, 107 countries have signed the protocol, but only 74 have ratified it. (In late 2005, after the IAEA rebuked Iran for not cooperating sufficiently with inspections, Tehran announced that it would no longer act as if bound by the protocol, which it had signed but not ratified.) Efforts to strengthen the nonproliferation regime also failed at the latest five-year review conference of the NPT, which was held in New York in May 2005.

If events have conspired to make the nonproliferation regime look more like a leaky and possibly sinking ship, ElBaradei, like his predecessor Blix, has done an exceptional job of keeping the pumps operating and the vessel afloat. Part of his success has been the result of his passionate belief in multilateral institutions and their ability to deliver fairness in international politics. He explains, “The whole concept of multilateral institutions is that you sit together and cut a deal that is fair and equitable to everybody…. You never get your way 100 percent and I don’t think in any area now any one country can get 100 percent…. One-hundred-percent security for one country is 100 percent insecurity for another, so you just can’t have it.” In this regard, ElBaradei is a descendant of the dedicated international civil servants who worked in the heroic age of the U.N., such as Ralph Bunche and the director general’s own hero, Dag Hammarskjöld. One American who has long had dealings with ElBaradei sums it up by saying, “He sees himself more as a representative of the nonproliferation regime and international diplomacy.”

Passion and high-mindedness, of course, are only part of the equation. Another key has been maintaining the agency’s reputation. According to David Waller, deputy director of the IAEA, who is the highest-ranking American at the agency and was put forward for his position by President George H.W. Bush after serving in the Reagan administration, ElBaradei “believes credibility is the lifeblood of this organization, and when we lose that, we’re finished.”

He has preserved that credibility in several ways. The first is by running an organization whose ethical standards have never been challenged. While the rest of the U.N. system has weathered a series of debilitating crises, including the corruption of the Oil-for-Food program in Iraq, the IAEA has been scandal-free and is regarded as the
jewel in the crown of the network of international organizations. Another is by upholding the original vision at the heart of the NPT. That is, he has continued to call for those NPT signatories that have nuclear weapons to adhere to the treaty’s “bargain,” which requires them to reduce their arsenals and pursue the abolition of nuclear weapons, and in return, states that do not possess the weapons already, don’t develop them.

Although the political elites of the nuclear powers have long rolled their collective eyes at this quid pro quo, ElBaradei has never tired of invoking it and prodding the countries that pay much of his agency’s budget—and provide it with a large amount of the intelligence that is essential to its work—to do their bit. At times he has voiced this in an acid tone, likening the nuclear weapons states to those who “continue to dangle a cigarette from their mouth and tell everybody else not to smoke.” In particular, recent moves in the United States to develop a new generation of nuclear warheads have elicited his outrage. “How can the U.S., on the one hand, say every country should give up their nuclear weapons and on the other develop these bunker-buster mininukes?” he asks.

Finally, ElBaradei has maintained the standing of the IAEA by refusing to bend before the powerful—or to shy away from telling them unwelcome truths, as he did during the run-up to the Iraq war. This characteristic of the IAEA director general only became visible midway through his tenure, after the Bush administration began. So far as the Clinton administration was concerned, dealings with ElBaradei were smooth, according to Gary Samore, who served as senior director for nonproliferation on the National Security Council. One continuing concern was Iraq’s nuclearweapons program, which the IAEA inspectors believed had been fully dismantled before they were thrown out of the country in 1998. “We were pretty confident that Iraq’s nuclear program had been accounted for,” Samore explains. “The only issue was the IAEA wanting to declare that the file was closed, and they wanted to shift to longterm monitoring. We didn’t want them to do that because it would add to pressure to lift sanctions.” With inspectors unable to regain entry into Iraq, the issue of keeping the “nuclear file” open was not a very contentious one.

Given his history as an American favorite, what came later in ElBaradei’s dealings with the remaining superpower was surprising and bitter. The turning point came after the attacks of September 11 and the Bush administration’s decision to end the regime of Saddam Hussein. As he sought to build public support in 2002–03 for an invasion, President George W. Bush told the nation about aluminum tubes that Hussein was procuring for use in the centrifuges used for enriching uranium and about Baghdad’s effort to buy uranium in Niger. Vice President Dick Cheney declared his “absolute certainty” that Saddam was reconstituting his nuclear program and working to build a bomb.

An ambassador, the 17th-century English diplomat Henry Wotton famously declared, is an honest man sent abroad to lie for the good of his country. The task of a senior international civil servant is worse: He or she must tell the truth to powerful leaders for the good of an anonymous international community, and in doing so, persuade them to reconsider their actions without so angering them that they turn vengeful. After the tense diplomacy of late 2002, Hussein allowed teams of U.N. and IAEA inspectors to return to Iraq to search for signs of chemical, biological and nuclear weapons. As everyone remembers, the inspectors found nothing to change the IAEA’s conclusion that Iraq had no nuclear-weapons program. On March 7, 2003, ElBaradei reported in sober terms to the U.N. Security Council that on the basis of inspections at 141 suspected sites, there was “no evidence or plausible indication of the revival of a nuclear-weapon program in Iraq.” In addition, IAEA researchers argued—as many within the U.S. intelligence community did secretly as well—that the aluminum tubes were for conventional battlefield rocket production. IAEA personnel also established that the documents that purported to show that Iraq was seeking to buy uranium in Niger were forgeries.

None of this endeared Mohamed ElBaradei to the Bush team. Secretary of State Colin Powell, who had staked his reputation a month earlier on charges of Iraqi subterfuge, responded to the director general’s remarks by saying, “I also listened to Dr. ElBaradei’s report with great interest. As we all know, in 1991 the International Atomic Energy Agency was just days away from determining that Iraq did not have a nuclear program. We soon found out otherwise.”

The remark was true but not exactly on point, since pre–Gulf War inspections were performed the traditional way—under Iraqi rules. Because of the U.N. resolution under which the 2003 inspections were conducted, inspectors had universal access and Iraqi compliance was required to fulfill the terms set by the Security Council. Nonetheless, Cheney announced on television that the IAEA had “consistently underestimated or missed what it was Saddam Hussein was doing,” though he adduced no proof for his point, adding, “I don’t have any reason to believe they’re any more valid this time than they’ve been in the past.” As one IAEA insider recalls, ElBaradei, going every bit of the way to persuade the decision-makers in Washington to rethink matters, met in 2003 with Bush, Cheney and Defense Secretary Donald Rumsfeld. This individual describes that meeting as an empty ritual. “You could tell that they were wondering why they were wasting their time with him,” he says. ElBaradei later termed the outbreak of war in Iraq on March 20, 2003, “the saddest day of my life.”

What is striking about ElBaradei’s performance during this episode is the extraordinary composure he showed throughout. It was the ultimate nightmare scenario for the leader of an international agency: to be pitted against his main funder, the most powerful country on the planet and the one whose support is most vital to his group’s work. Although people around him confess those were dark days, “during the period of pressure, he never wavered, just did his business,” says one diplomat who watched him closely. T.P. Sreenivasan, then India’s ambassador to the IAEA and Austria, said that ElBaradei fully recognized what he was up against. “He was agonizing over it, because he didn’t want a war,” says Sreenivasan. “He didn’t want to provoke the Americans, but at the same time he was very precise and very clear.”

As with many individuals with powerful convictions, it is not easy to say where they draw their strength. “What makes him tick?” repeats his son, Mostafa, in response to a question. “It’s almost as much a mystery to me…. A lot of it comes from his father and his upbringing. My grandfather was a very moral man. From what I’ve been told, speaking out in the time of oppression in Egypt for democracy and freedom, I expect some of [my father’s] strength comes from that and from our family. He has his set of beliefs and his value system, and he is not swayed either way.” ElBaradei’s old friend Antoine van Dongen agrees: “He has an inner strength that he hardly needs to flaunt because people know it is there.” ElBaradei himself feels that the ordeal emboldened him. He says, “If you are a sole individual, and you’re up against the sole superpower, and you can come out on the winning side…it gave me a lot of credibility afterward. I was one of the few—and I don’t like to say it—who got it right on Iraq. It shows that you really have to stick to the facts.”

That extra toughness was valuable, too, because being right about Iraq was not the solution to ElBaradei’s problems with the Bush administration. With ElBaradei’s second term coming to an end in early 2005, U.S. officials began seeking a way to prevent him from winning a third. John R. Bolton, the hard-charging conservative who served as Under Secretary of State for Arms Control and International Security and was later given a recess appointment as U.S. ambassador to the U.N., made denying ElBaradei a third term a personal mission. According to Lawrence Wilkerson, who served as chief of staff to Secretary of State Colin Powell, Bolton was “going out of his way to bad-mouth him, to make sure that everybody knew that the maximum power of the United States would be brought to bear against them if he were brought back in.”

Since the campaign to remove ElBaradei was conducted behind the curtains of diplomacy, it is not clear how much the effort was motivated by anger at the role he had played in the run-up to the Iraq war and how much by the belief that he was “soft on Iran,” as one U.S. official put it. The attempt has also been widely depicted as a solo one, but diplomats from other Western countries concede that there was broader interest in finding a new leader for the agency—and some believe a coalition might have been assembled to block ElBaradei’s reelection. According to one non-American Western diplomat who declined to be identified, there have been fairly widespread qualms about ElBaradei’s leadership: “Our frustrations with him have centered on the fact that he has never had much sympathy for halting work on enrichment and reprocessing in Iran, despite all the information the inspectors have brought to light.”

It was, nonetheless, the U.S. treatment of ElBaradei that filled the headlines. According to press reports, IAEA officials complained of a cut in the flow of intelligence from the U.S., which is essential for the IAEA’s work. In December 2004, the Washington Post reported that U.S. intelligence agents had been tapping ElBaradei’s calls, possibly in the hope of finding indications that he was trying to help Iran avoid a confrontation over its nuclear program. The leak about the surveillance may well have come from one of any number of career U.S. government officials who were appalled that the U.S. would seek to oust ElBaradei.

Whether the eavesdropping produced anything useful or not, once the story became public, the coalition-building collapsed. For a time, Powell claimed that Washington was motivated by its belief in the “Geneva Rule,” a general agreement by major donors to international organizations that two terms for leaders of those institutions was enough. But even Powell admitted that the rule was not uniformly observed; in fact, at the IAEA Hans Blix served four terms, and his predecessor, Sigvard Eklund, served five.

So the argument made no headway, nor did the U.S. effort to persuade a leading Australian diplomat to take the job, or to find a suitable South Korean or Brazilian. (Questions have been raised about both countries’ intentions regarding their nuclear programs, making their candidates untenable.) No other country ever publicly owned up to sharing America’s concerns, and ElBaradei was reelected to his third term in June 2005. Fortified by his vindication on the issue of Iraq’s nuclear efforts, the director general was unfazed. “I was in a win-win situation,” he says. “If I get reelected, that is an affirmation of the international community. And if not, I will have the silent majority of the world understanding that this was the result of a conflict with a superpower…and I would be going out a hero in the eyes of the people.” As his son, Mostafa, puts it, in the last few years, Mohamed ElBaradei “has had crises on his hands, but he has grown more confident as he has gone along.”

Professional survival is one thing; global acclaim is another. The latter came ElBaradei’s way four months after his reelection, when he was sitting at home one morning watching CNN with his wife and heard his name pronounced by someone speaking Norwegian. (The shock was so great, says Aida ElBaradei, “I can understand that people can have heart attacks from joy.”) The chairman of the Norwegian Nobel Committee, Ole Danbolt Mjøs, had tried to call ElBaradei at his office but to no avail, so the announcement was made without informing the winner. There had been plenty of buzz about ElBaradei and the IAEA being in contention again for the prize (they had reportedly come close the year before). But not having heard anything, he had assumed it had gone to someone else.

ElBaradei may have been shocked, but the Nobel Committee’s decision to give the prize jointly to the IAEA and its leader was not exactly surprising. It has been awarded eight times to officials of agencies within the U.N. system and at least half a dozen times to proponents of nuclear disarmament. As individuals and institutions, these two groups have been particularly attractive to a committee charged with carrying out the wishes of Alfred Nobel, the 19th-century inventor of dynamite, who said he wanted his legacy awarded to those who had achieved great strides toward the “abolition or reduction of standing armies.”

What seems to have particularly attracted the Norwegians was how honoring the IAEA and its leader would lend support to the international system, and in their announcement they said explicitly that at a time of a growing nuclear threat, the “Nobel Committee wishes to underline that this threat must be met through the broadest possible international cooperation. This principle finds its clearest expression today in the work of the IAEA and its director general.” ElBaradei was singled out as “an unafraid advocate” of the nonproliferation regime.

Though Mjøs denied that the award was “a kick in the shin of any nation, any leader,” the language suggested that ElBaradei’s recent run-ins with the U.S. government were very much on the minds of the committee members. The award followed the 2002 prize to former President Jimmy Carter, who had been outspoken in his opposition to the war in Iraq, and the 2005 prize in literature to British playwright Harold Pinter, a vitriolic critic of American foreign policy.

Ever the diplomat, ElBaradei insisted that the world’s preeminent award not be seen as a reproach. “I don’t see it as a critique of the U.S.,” he said at the time. “We had disagreement before the Iraq war, honest disagreement. We could have been wrong, they could have been right.” Instead, he said, the prize should be seen as “a message: Hey, guys, you need to get your act together, you need to work together in multinational institutions.” In the time between the campaign to unseat ElBaradei and the announcement of the Nobel, the dramatis personae had changed in Washington. From the State Department, both Secretary of State Condoleezza Rice and Under Secretary for Political Affairs R. Nicholas Burns congratulated the director general.

Not everyone was so laudatory, however, and the reactions to the prize say something about the impossibility of satisfying everyone while running an agency that deals with things nuclear. Mike Townsley, a spokesman for the environmentalist group Greenpeace International, which strongly opposes nuclear power, commented that ElBaradei was trapped by the agency’s “contradictory role, as nuclear policeman and nuclear salesman.”

John Ritch disagrees. “The IAEA will always be subject to ideological criticism for even existing. But it could hardly be more unlike a salesman. Indeed, a valid criticism would be that the agency has not fully embraced the urgent necessity of promoting the peaceful uses of nuclear energy. The IAEA should be leading the way.”

During the Nobel festivities in Oslo, ElBaradei enjoyed his share of adulation. “Endured” might be a better way to put it, though, as he was thrust into a spotlight that all but overwhelmed him. One of the events involved a concert in his honor, and he came onstage to deliver a short off-the-cuff speech. The audience gave him a prolonged round of applause before he started, and when ElBaradei finished speaking, he received another resounding ovation from the 4,000-member audience. After a few seconds of clapping, he turned to walk off—only to be pulled back on stage by actresses Julianne Moore and Salma Hayek.

The prize ceremony also afforded the winner the platform of a lifetime, and for that ElBaradei overcame his shyness. Although even close friends consider him an uneven speaker, he delivered a remarkable piece of oratory, spelling out his understanding of the myriad interconnections among some of the ills that plague the world, from ground-level poverty to weapons of mass destruction. The connections, he continued, can easily be traced to the most fundamental inequities: “In the real world, this imbalance in living conditions inevitably leads to inequality of opportunity and, in many cases, loss of hope. And what is worse, all too often the plight of the poor is compounded by and results in human-rights abuses, a lack of good governance and a deep sense of injustice. This combination naturally creates a most fertile breeding ground for civil wars, organized crime and extremism in its different forms.”

“It’s not just poverty per se, it’s the sense of humiliation and injustice. When somebody feels humiliated, they just go bananas, and that is what happens,” ElBaradei observes while talking about the sociology ofconflict in his Vienna office. Like many analysts of radical Islamist violence, ElBaradei believes that the rise of the new terrorism—and September 11 itself—has roots in a sense of civilizational humiliation. The commitment to alleviate suffering is one that he takes personally, too. The $1.3 million in Nobel prize money was divided equally between the IAEA and its director general. The agency donated its share of the award to a new fund for cancer treatment and childhood nutrition. ElBaradei gave his half of the prize to a group of Cairo orphanages with which his sister-in-law works.

The notion that we have our most fundamental priorities all wrong falls into the category of all-but-universally-accepted and is therefore something that few grown-ups, especially those in places of international responsibility, would think of advocating seriously. But ElBaradei has made it to the pinnacle of international service and does not tire of making that point—to the irritation of officials who believe that the interconnectedness of all things and the failures of the world order are not the IAEA director general’s business. “In the Nobel speech, he went well beyond his mandate,” grouses one senior American official. In the view of this diplomat—and more than a few others—ElBaradei’s job is to run an international organization with a technical mandate, one that requires that he present factual accounts of what different countries are doing with their nuclear facilities. Taking on the structure of global politics is something for national leaders and the secretary- general of the U.N.

The critics may have a point, but, Nobel in hand, ElBaradei is not shying away from the issue. The international community’s misallocation of resources between the tools of conflict resolution and those of war is a subject that he turns to in conversation repeatedly and in a tone that suggests he has neither illusions about the likelihood of broad change nor regret for voicing his dismay. “I think the whole budget of the entire U.N. system plus the other [multilateral] organizations is not more than, like, $5 billion. And against that you are talking $1 trillion on armaments…. When you look at the figures, it just shocks you,” he observes. Turning to another side of the equation, he says, “We also pay less than 10 percent of what we spend on armaments on development. Well, that comes back to haunt us in the form of extremist groups, in the form of disaffected people…. We look at the symptoms; we do not look at the big picture.”

The IAEA’s annual budget is $347 million (€273 million), and most of that goes to the agency’s inspections work. But to the extent he has been able, ElBaradei has pushed projects that address concerns at what might be called the bottom end of his great chain of human unhappiness. Using a variety of nuclear-related technologies, IAEA scientists are working on improving agricultural yields in developing nations, allowing for more efficient water use and working to bring advanced cancer therapy to nations that have little or none available.

A profound desire to avoid military conflict and a high-wire talent for redefining the boundaries of his job have been the hallmarks of ElBaradei’s tenure at the IAEA. Both of these qualities have been severely taxed by the continuing tensions over Iran, and how that plays out will likely provide the final verdict on his time in office. For a while, it looked as though there was reason for optimism that a full-blown crisis would be escaped. In October 2003 Iran forged an agreement to suspend its enrichment activities while negotiations were underway with the EU-3. But in August 2005, the country reneged and resumed efforts at a facility in Isfahan. Positions hardened after the election of extremist Mahmoud Ahmadinejad, who declared Iran’s absolute determination to continue doing what it was doing.

The failure of the negotiations soon put ElBaradei and the U.S. at loggerheads again. Under the IAEA charter, if the director general reports to his board of governors that a signatory is not living up to its treaty agreements and is found in violation by the IAEA board, that country is to be reported to the U.N. Security Council for further action. But in the eyes of the U.S. and its allies, ElBaradei was ducking his responsibility and working beyond his portfolio to keep the problem at the IAEA and prevent an escalation of tensions. As one Western diplomat, who acknowledges that he finds ElBaradei both an admirable and infuriating figure, puts it, “Once the suspension was no longer honored by Iran, we had another problem with him. He was trying to influence members not to take a direction that was provided for by IAEA statutes.”

ElBaradei did so, critics contend, by avoiding inevitable conclusions in his reports and through behind-the-scenes entreaties to officials from the various countries on the board to go slow on Iran. Repeatedly, the reports have documented an array of failures by Iran to comply with its treaty obligations, but ElBaradei has avoided declaring that Iran has a nuclear-weapons program, angering Washington and other Western capitals. “Some day, we’ll see the ‘director’s cuts’ of the reports,” says one American diplomat, whose opinion is shared by many, including some who are ardent critics of the Bush administration. “There is no question that they go through an editing process…. He’s not prepared to confront the Iranians as strongly as we are.”

It is the responsibility of the IAEA director general to oversee the production of reports for the organization’s board and the U.N., but in this case, his critics say, ElBaradei has used his stature to steer the process away from a confrontation with Iran—and that this is another instance of his mixing in the politics of the issue rather than confining himself to the technical issues with whose adjudication he is charged. Even ElBaradei’s former deputy, Pierre Goldschmidt, who oversaw many of the inspections, took a notably tougher stance after his 2005 retirement and urged the Security Council to get involved. “ElBaradei says that any judgment about Iran should be made on their intentions,” he told the Sunday Telegraph. “My view is that we should look at the indications, not the intentions, and then decide…. As things stand, we cannot prove that Iran has a military nuclear programme. But do you have indications that this is the case? This is the question I think everyone should now be asking.”

The same diplomat who criticized ElBaradei for seeking to persuade board members not to refer the issue of Iran to the U.N. believes that the director general is “a political animal and a diplomat, and he knows diplomacy is more fun than managing a large institution.” A further part of this critique is that ElBaradei has prevented the U.S. and its allies from putting all the necessary pressure to bear on Iran, and that his desire to prevent armed conflict is at odds with his technical duties. But ElBaradei rejects the contention that he is out of line. “I’ve heard that a lot in the past. I don’t hear it as much now. People said I was talking outside of the box and this is a technical organization. I think that is a fallacy,” he says. “Yes, this is a technical organization, but we work in a very politically charged environment, and you cannot separate the politics from the technical work we do.” Much of his job, he says, is to identify the various options available to the parties: “I don’t meddle in the politics, but I have to be aware of the political implications of what we do. And I feel I owe it to the member states to tell them how I see things from where I sit.” He adds, “I look at the big picture. I have to do verification, but I also have to see how the international community can use this for a peaceful resolution.”

Underlying his actions, his aides say, is a sense that moving the issue to the Security Council would be a fateful mistake that could lead ultimately to military action. Throughout the latest crisis, the U.S. has made clear that its objective is to obtain a resolution under Chapter VII of the U.N. Charter, which would make the issue one of a threat to peace. In principle, that could open the door for the U.S. and others taking it upon themselves to enforce the resolution in Iran militarily, as Washington argued it did in invading Iraq. The White House continues to call for a diplomatic solution, and no one close to the issue believes that military action would occur before a sustained effort to isolate and penalize Iran economically through sanctions. Ultimately, ElBaradei would lose the fight against referring Iran to the Security Council, but Russia and China have been reluctant to authorize sanctions, thus postponing a possible conflict. Still, those close to ElBaradei argue that he does not want to go that route, at least as long as IAEA inspectors can work in Iran. As his speechwriter, Coblentz, explains, ElBaradei “believes that confrontation is so counterproductive and that it will take so long to pick up the pieces that…diplomacy has to be the answer.”

For ElBaradei, it comes down to a matter of moral responsibility: “You can act as a bureaucrat in the negative sense and do your job and go home. Or you can realize that there is something you can do to make people safer and better off. And you do what you have to do.”

—Daniel Benjamin, coauthor of The Next Attack: The Failure of the War on Terror and a Strategy for Getting it Right, is a senior fellow in the International Security Program at the Center for Strategic and International Studies. He served on the National Security Council during the Clinton administration.

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