2007 – NYU Law Magazine https://blogs.law.nyu.edu/magazine The magazine for NYU School of Law Tue, 31 Jan 2012 21:00:48 +0000 en-US hourly 1 https://wordpress.org/?v=6.5.3 Introducing Samuel Scheffler https://blogs.law.nyu.edu/magazine/2007/samuel-scheffler/ Mon, 26 Sep 2011 18:37:04 +0000 http://blogs.law.nyu.edu/magazine/?p=1025 Samuel Scheffler

The academic grilling—skewering,some might say—that marks the Law School’s Colloquium in Legal, Political and Social Philosophy has unnerved many an accomplished scholar. Yet when Samuel Scheffler opened his presentation last fall, he took the opportunity to take a playful jab at his colleagues instead.

Scheffler told the gathering he was glad Jeremy Waldron had joined professors Ronald Dworkin and Thomas Nagel in running the colloquium “because,” he said in his trademark deadpan style, “it wasn’t much of a challenge with just the two of them.”

Although Scheffler does not hold a law degree, his area of expertise—moral and political philosophy—overlaps with studies in jurisprudence, the theory and philosophy of law. When he arrives at NYU in 2008-09, he will divide his time between the philosophy department and the Law School, as he’s done at Berkeley since 1997. (He taught exclusively in Berkeley’s philosophy department from 1977 to 1997). There, he teaches the Workshop in Law, Philosophy and Political Theory, which he freely acknowledges as “a shameless ripoff of the colloquium.”

Reserved and unassuming, Scheffler, 55, is known not only for his wry wit—making him Berkeley’s most sought-after roast master—but for his lucid mind and relevant work. “He contributes to any discussion with a very pure and targeted statement,” says Nagel, who was Scheffler’s Ph.D. adviser at Princeton University 30 years ago.

Eric Rakowski, who coteaches the Berkeley workshop, adds that when Scheffler presents a summary of the presenter’s work, the visiting professors routinely ask him for a copy, noting, “It’s so beautiful, and it typically improves on the argument of the paper itself.”

Nagel calls Scheffler “one of the leading moral philosophers now writing. His work is about real, moral problems, not just abstract questions.” Adds onetime Berkeley professor Robert Post, now at Yale Law School, “Many philosophers write what they can get right. Sam writes about what matters.”

An ongoing theme of Scheffler’s current papers and his three books, The Rejection of Consequentialism (1982), Human Morality (1992) and Boundaries and Allegiances (2001), is the tension between ideas of universal justice and cosmopolitanism—the idea that all of humanity belongs to a single moral community—on the one hand, and a person’s particular loyalties and affiliations, such as family, nation and religion, on the other.

“I’ve spent a good deal of time investigating the reasons and responsibilities that arise from our development of personal projects and our participation in interpersonal relationships,” he says. “I have tried to explain the sources of these reasons and responsibilities, and to consider the extent to which they take priority over other proposed duties, such as the duty to promote the general welfare or to maximize the overall good.” In “Morality and Reasonable Partiality,” a paper he delivered at NYU in March, Scheffler argues that “up to a point, but only up to a point, we are not merely permitted but obligated to give the needs and interests of our intimates and associates priority over the needs and interests of others.”

Scheffler practices what he preaches. Berkeley colleague Sandy Kadish, a founder of that law school’s Jurisprudence and Social Policy Program (JSP), where Scheffler teaches his workshop, says he’s “a devoted citizen of the university community. He’s not the kind of fellow who says, ‘No, I’m too busy.’” Plus, “He doesn’t speak a lot at meetings, but when he does, people listen carefully.”

Scheffler has served as chair of Berkeley’s Department of Philosophy; has headed up the department’s personnel, admissions and placement committees; was active in the Law School Dean Search Committee; and served as an acting vice provost. While a faculty in residence at NYU last spring, Scheffler organized both the law and philosophy faculties to raise the profile of their course offerings and research opportunities.

He was brought up in the Boston area by his mother, Rosalind, a clinical psychologist, and father, Israel, a philosophy professor at Harvard University. A rebellious product of the 1960s, he received his first philosophical education as a teen arguing with his father. “My basic view was that whatever he said must be wrong,” Scheffler recalls. When Israel opposed the Vietnam War, Samuel took the opposite position—at least until the antiwar fervor swept him up. “Then I argued that my dad wasn’t far enough left,” he says. Through such father-son volleys, Scheffler says, “I was getting some sense of how you construct an argument and what resources there are for developing a position.”

Scheffler, who first got interested in politics and journalism in high school, entered Harvard to study political science. Much to his surprise, he found himself drifting toward philosophy, “where people were grappling with the most fundamental questions.” Upon completing his doctorate in philosophy, Scheffler landed a teaching job in Berkeley’s philosophy department, then joined the JSP program as well. He met his wife, Kathryn, when she worked at the university, and the two wed in 1983. They have two grown sons, Adam and Gabriel.

As for his move East, he says, “Berkeley is a wonderful place. I’ve loved being there.” But, he continues, “the central figures [in law and philosophy] are at NYU,” singling out professors Dworkin, Nagel, Waldron and Liam Murphy. “It’s a really extraordinary collection of people. Given the opportunity to join this group of people, anybody with my interests would have to have a very good reason not to do it.”

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Introducing Arthur R. Miller https://blogs.law.nyu.edu/magazine/2007/arthur-r-miller/ Mon, 26 Sep 2011 18:33:20 +0000 http://blogs.law.nyu.edu/magazine/?p=1023 Arthur R. Miller

During his 36 years at Harvard Law School, Professor Arthur Miller’s intimidating teaching style made him the stuff of legend. Students caught unprepared risked being ejected from class. Or, worse still, Miller would storm out himself. The story has it that, after seeing Miller deliver a blistering dressing-down to one student, Scott Turow based hard-as-nails law professor Rudolph Perini on him in One L.

“I demanded absolute preparation and I got it,” says Miller, who also commands respect with his signature three-piece suits worn with a red tie and pocket square. “Call it a dictatorship if you will, but my belief is that you never say ‘I’m unprepared’ to a judge or a senior partner.”

NYU Law students entering Miller’s first-year Procedure class (he will also teach Complex Litigation this spring) should expect to be put on the spot. “It’s a procedure course,” he says. “It isn’t a pablum course.” But, the 73-year-old admits, “I’ve mellowed.” In the five years he’s been a visiting professor here, he hasn’t stomped out of a single classroom. He even allows students to submit a note if extenuating circumstances prevent them from studying.

Miller, an expert in civil procedure, copyright law, privacy rights and complex litigation, keeps a toehold in practice, arguing in the appellate courts as well as the Supreme Court. He has also been a ubiquitous legal commentator on television. Among practitioners and judges, however, he is best-known for his multivolume Federal Practice and Procedure, which he coauthored with Charles Alan Wright.

“He is not only a superb legal scholar, a mesmerizing legal educator, and a great lawyer, he is also among that handful of people who can explore legal topics in a public forum in a manner that is vivid and captivating, respectful of the law, and respectful of the audience,” says NYU President John Sexton, who helped recruit Miller as a “University Professor,” which allows Miller to teach both in and outside the Law School. He is developing a seminar called Dialogues on Law, Society and the Future for the NYU School of Continuing and Professional Studies.

Miller was brought up an only child in a lower-middle-class Brooklyn neighborhood by his father, Murray, a struggling solo practitioner, and mother, Mary, a legal secretary. Discouraged from following in his dad’s footsteps, he entered the University of Rochester to study metallurgical engineering. That lasted eight days. “I fell asleep in calculus and fell off my chair. I was so embarrassed, I walked out of the room and changed my major.” An aptitude test steered him toward law, so after graduating a year early, Miller entered Harvard.

Given his tough-guy reputation, it’s ironic that Miller was himself a timid, insecure law student. “I used to hide so the professors wouldn’t call on me,” he says. Six percent—11 students—in his section could expect to fail. “I used to sit there,” he says, “trying to find 11 guys dumber than me.” That summer, while working as a waiter in the Catskills, he received his first-year grades. He came in fourth in a class of 535—and was invited into the Law Review. Miller called the registrar the very next day: “I thought they made a mistake.”

The next fall, civil procedure professor Benjamin Kaplan took him under his wing. Kaplan “cared if you learned,” Miller says. “Ben instilled in me not only an affection for civil procedure and copyright, but the possibility that academics was a real life.”

Graduating magna cum laude in 1958, Miller joined Cleary, Gottlieb, Steen & Hamilton in Manhattan, where he practiced for three years before accepting an offer from Columbia Law School to become associate director of its Project on International Procedure. There, he worked closely with Kaplan, who was then a reporter for the Advisory Committee on Civil Rules of the Judicial Conference—a position Miller would later hold—and went on to teach first-year procedure alongside the Honorable Jack Weinstein, a giant in the field.

Once Miller entered the classroom, he found a strong, authoritative voice he didn’t know he had. “I wound myself up like a top because I was so petrified,” he recalls. “I over prepared. Then I sort of exploded!” Miller taught at the University of Minnesota Law School and the University of Michigan Law School before returning to his alma mater, where he became Bruce Bromley Professor of Law.

One day he was teaching “the most dull, picayune stuff imaginable,” he says, when after class two men whom he assumed were alums approached him. They were ABC executives. Miller became the first law professor to appear regularly on television, hosting Miller’s Court—the TV show that pioneered making real-life lawyering accessible to a lay audience—from 1979 through 1987. The show created media buzz, and led to a 20-year stint as Good Morning America’s legal editor. He has also hosted a weekly show on Court TV, won an Emmy in 1984 for one of three Fred Friendly seminars he moderated for PBS’s 13-part series The Constitution: That Delicate Balance, and garnered three American Bar Association Gavel Awards for promoting public understanding of the law. “TV was a wonderful experience,” he says, despite channeling his energies away from becoming a judge—an early aspiration.

Miller had been toying with the idea of coming to NYU for two decades. His TV experience confirmed he was a New Yorker at heart. And as his Harvard colleagues retired or passed away, he became closer to the NYU School of Law faculty. Miller, three times divorced with one son and two grandchildren, bought a Chelsea townhouse two years ago, which he shares with Belle, his two-year-old Welsh Terrier. “When you stop being apprehensive about being the best you can be, that’s when you retire. I’m not ready just yet.”

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Introducing Troy McKenzie https://blogs.law.nyu.edu/magazine/2007/troy-mckenzie/ Mon, 26 Sep 2011 18:28:46 +0000 http://blogs.law.nyu.edu/magazine/?p=1021 In 1999, when Regis Philbin’s Who Wants to Be a Millionaire hit the airwaves, New York University Law Review students agreed that, should they ever land on the show, Troy McKenzie ’00 would be the first person they’d pick to be their “lifeline,” a friend they could call with an all-time stumper of a question. “He’s a walking Google,” says Carol Kaplan ’00, now an associate at Paul, Weiss, Rifkind, Wharton & Garrison in New York. Once, she, McKenzie and other friends were talking about a case involving the Pennsylvania Railroad, she recalls, and “Troy went off on a riff about different train manufacturers, different gauges of tracks, eras when trains were used—facts, figures and offbeat information.”

Those who know him say his encyclopedic knowledge of everything from kites to electronics, coupled with perfect comedic timing, will stand him in good stead in the classroom. “With a wonderfully placed bon mot,” Kaplan says, “he makes his friends convulse with laughter. That’s a great asset for a professor.”

McKenzie will teach civil procedure—in, perhaps, the same classroom where he was a first-year student exactly 10 years ago. “It makes you feel like you’ve accomplished something, stepping back into the same forum but on the other side of the table,” he says. But “it’s an odd feeling, a sense of familiarity and newness at the same time.”

McKenzie, 32, will become the fifth professor of the Law School who is 35 or under. Still a bit uncomfortable with such a grownup salutation, he laughs when he’s addressed as “professor.” But Kaplan is not alone in thinking that McKenzie is a natural for the job.

“What’s striking about Troy is, this is a guy with real presence, unusual presence for someone who’s just 32 years old,” says William Nelson, the Judge Edward Weinfeld Professor of Law, who teaches legal history. Nelson recalls McKenzie’s job talk before the Law School’s Academic Personnel Committee. “He was dropped in the middle of a lion’s den,” he says, “and was extremely good on his feet. Just as he can get up in front of faculty members and not fall apart, he’ll be able to get up in front of students and put them at ease.” And with McKenzie having left Debevoise & Plimpton in Manhattan, where he specialized in bankruptcy litigation for the past three years, NYU will gain another practitioner. “He knows the importance of procedure and substantive law and will bring that real-world understanding to his students,” says Helen Hershkoff, Joel S. and Anne B. Ehrenkranz Professor of Law.

McKenzie is currently at work on a paper, “Judicial Independence, Autonomy, and the Bankruptcy Courts,” which examines the role of bankruptcy judges in the federal court system. Unlike other federal judges, bankruptcy judges do not enjoy the protections of Article III of the Constitution—namely, life tenure and compensation that can’t be diminished—but nonetheless hear cases in federal courts. Supreme Court doctrine and scholarly literature justify that departure, saying that, while bankruptcy cases require judges who have technical expertise, these cases are unlikely to generate the political pressures other federal judges may come under. Plus, bankruptcy cases can be appealed to Article III judges.

McKenzie questions both points. “Bankruptcy may be a specialized process,” he says, but “bankruptcy cases can involve a broad range of subject matters, including multibillion-dollar tort and contract claims.” He also argues that in practice, bankruptcy cases generate few appeals. In his long-term work, he intends to examine other aspects of the bankruptcy process as well as class actions and complex litigation, which have close connections to the bankruptcy process.

McKenzie, a native of Jamaica, moved to the United States in 1980 with his family, settling in New Jersey. His dad, Delroy, 63, a chemist, works at a dairy processing plant. His mom, Monica, a librarian (now deceased) brought home “tons of obscure books,” McKenzie recalls, which sparked his diverse interests. “I’d go through a different hobby every week.” When he was eight, he spent the summer building kites. At ten, he says, “I very scientifically studied every plant in our garden and ended up growing a pound-and-a-half tomato. I cycled through lots of ideas quickly.”

In 1993, he entered Princeton University to study chemical engineering. Sometime in his sophomore year, his roommate “dragged” him to a campus lecture given by U.S. Supreme Court Justice Antonin Scalia. “I liked the give-and-take style of argument,” McKenzie says. He took some prelaw courses but enjoyed the small classes in his major, and stuck with engineering.

Upon graduation, he turned down an engineering job at Union Carbide, fearing his future might be too dull, and entered NYU School of Law. “I got a first-rate education and fell in love with the place,” says McKenzie, who received an award for most outstanding Law Review Note—a paper about sovereign immunity in bankruptcy. Active in the Black Allied Law Students Association, he says: “Though the numbers of black students weren’t huge, there was definitely a sense of comfort.” After he earned his J.D., he clerked for Judge Pierre Leval of the U.S. Court of Appeals for the Second Circuit and then for U.S. Supreme Court Justice John Paul Stevens during the course of two terms.

While taking a 2005-06 sabbatical as a Furman Academic Fellow, McKenzie says, “I realized that I liked being in an academic environment. I liked the luxury of being able to think about problems on an extended basis.” His return to NYU gives him the chance to do just that.

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Introducing Catherine Sharkey https://blogs.law.nyu.edu/magazine/2007/catherine-sharkey/ Mon, 26 Sep 2011 15:28:09 +0000 http://blogs.law.nyu.edu/magazine/?p=938 Catherine Sharkey

When Catherine Sharkey was a research fellow at Columbia Law School writing her first law review article, on the disconnect between the theoretical reasons for awarding punitive damages and the actual effect when they are granted, she sent a draft to mentors like her Yale law professor Judge Guido Calabresi of the U.S. Court of Appeals for the Second Circuit, for whom she had clerked, but also was brash enough to slip a copy to University of Chicago law professor Richard Epstein, whom she didn’t know but whose work on torts she particularly admired. Upon reading her draft, Epstein picked up the phone and called her. “We had a one-hour conversation that was a litany of everything wrong with my article,” says Sharkey. “He said, ‘You’re taking us to hell and you don’t even have a handbasket!’”

Despite his critique, Epstein was impressed. “I knew from the first conversation that this young professor would soon make it to the ranks of top legal scholars in any area in which she worked,” he recalls. “She was focused and determined, with an immense knowledge of the case law and a real commitment to intellectual rigor.”

Sharkey, 37, who comes to NYU from Columbia Law School, has gotten over the sting of her initial acquaintance with Epstein and now counts him among the impressive academics who inspire her with their passion for teaching and desire to apply their work to real issues; her own work, in turn, elicits high praise from them. Calabresi recalls telling Justice David Souter, who was interviewing Sharkey for a clerkship position, “A quite extraordinary thing has just happened: Cathy has drafted a short opinion from my chambers, and it is the first time I have taken an opinion of this sort and sent it in without changing a word.”

Sharkey’s scholarship and teaching focus on torts. She is forging new theories by using torts and products liability as a lens through which to examine the interplay between private law and public law. She is currently exploring the relationship between civil litigation and administrative regulation in the context of the pharmaceutical industry.

“Federalism in Action: FDA Regulatory Preemption in Pharmaceutical Cases in State Versus Federal Courts” is one of three upcoming law review articles that deal with federal preemption. In them, Sharkey analyzes whether courts and agencies work in tandem or at odds with each other when creating and enforcing regulations. If the U.S. Food and Drug Administration approves a pharmaceutical company’s drug, should that approval shield the company from future tort liability? “I find these areas particularly rich because of the questions of federalism that they inevitably implicate,” she says. Tort law operates at the state level, whereas agencies such as the FDA enforce federal statutes and regulations. “My aim,” she adds, “is to develop models of interaction between courts, agencies and Congress.”

There is a graceful push and pull to Sharkey’s scholarship and teaching that represents her love of theory and her devotion to practical problem-solving. This tension has played out in the evolution of her academic and professional career as well. Sharkey attended Yale as an undergraduate, where she first encountered economics in classes taught by renowned economists William Nordhaus and Nobel Prize-winner James Tobin. “I was mesmerized by the subject matter and how their research related to actual ongoing public policy issues,” Sharkey says. Reaching her senior year with more than enough credits—she would later graduate summa cum laude—Sharkey took off her first semester and pursued an independent study, an on-the-ground examination of the bail bond system in New Haven. She collected data from bail commission records and interviewed bail bondsmen, ultimately determining that the private sector, represented by bail bondsmen, mitigates racial discrimination in the public sphere, where courts set higher bail for black and Hispanic male detainees. She went on to win Yale’s prize for the best original economics thesis and found her work developed further by professors Ian Ayres and Joel Waldfogel in a 1994 Stanford Law Review article, “A Market Test for Race Discrimination in Bail Setting.”

Fast-talking and energetic, Sharkey was also an All-American goalie for the Yale women’s lacrosse team, becoming captain and most-valuable player as well as one of ten finalists for the NCAA Woman of the Year in 1992. While she didn’t win the latter designation, she was granted a Rhodes Scholarship at Oxford, where she pursued a master’s in economics. But the practical side of her won out: “Economics was theoretical,” says Sharkey; “in law I saw the problem-solving. I was influenced by pioneers like Richard Posner who were taking economic analysis and applying it to legal quandaries.” Professor Noah Feldman, now on the faculty of Harvard Law School, says of Sharkey, his friend since they both clerked for Justice Souter, “It’s rare to master the abstract theory and then match it up with the way things actually happen in the real world; Cathy does it in a smooth, seamless way.” He adds, “She has the whole academic package.”

Sharkey grew up in Baltimore, the third of four children. Her mother is a professor of management science at Loyola College. Her father was a commercial litigation attorney at a Baltimore firm, and is now an administrative law judge in Washington, D.C. “I thought I’d charted my own path,” she says. “But I think there were subtle influences.” She will have a chance to see whether law is destiny for the next generation, too, though she and her partner, Ina Bort, a partner at Kornstein Veisz Wexler & Pollard who practices commercial and matrimonial litigation, are doing their best to remain neutral. The couple have an eight-month-old son, Caleb. Recently, friends gave Caleb a T-shirt that reads, “Future Lawyer.” He hasn’t worn it yet.

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Craig Winters https://blogs.law.nyu.edu/magazine/2007/craig-winters/ Thu, 15 Sep 2011 15:32:24 +0000 http://blogs.law.nyu.edu/magazine/?p=2744 Craig Winters '07The discovery of an incriminating email changed the course of Craig Winters’s legal career.

Probing potential abuses in the insurance industry for then-New York State Attorney General Eliot Spitzer, Winters, a summer intern, came across the smoking gun: an email from an employee of insurance broker Marsh & McLennan providing evidence of bid-rigging. That eventually led Spitzer to file a civil complaint against Marsh in October 2004, and to clean up the insurance industry. It also gave Winters a jumpstart on another career: writing.

That winter break he started work on a book, tentatively titled The Spitzer Effect, which would examine the AG’s impact on the mutual-fund and insurance industries. Winters, whose interest is market regulation, assisted in Spitzer’s earlier investigation into the mutual-fund business. In February 2005, he received an initial book offer that was too low to pay his credit card debt. Financially strapped—he juggled academic jobs and house-sat while working for Spitzer—Winters believed in his book enough to aggressively court a top literary agent, and, by September, he had signed a handsome two-book deal (the second book deals with the impact of excessive executive compensation) with Knopf. Winters took off that fall semester to research the book (due out by January 2008), but was never far from campus. His bylines continued to appear in the Law School’s student newspaper, the Commentator.

In September, he and his girlfriend, Katie Roberson-Young ’06, plan to move to Miami, where he’ll take a year to finish his books before looking for work as an assistant district attorney. Although Winters’s long-term career plans are to investigate and prosecute white-collar crime as a D.A., he will keep his pencils sharp—just in case: “Writing is as fulfilling [as law] and allows me to enter and exit the legal profession.”

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Katrina James https://blogs.law.nyu.edu/magazine/2007/katrina-james/ Thu, 15 Sep 2011 15:31:24 +0000 http://blogs.law.nyu.edu/magazine/?p=2746 Katrina James '07Katrina James has worn many hats—even a baker’s cap. James, who learned pastry-making as an undergrad at Cornell, is bi-racial, black and white; and bi-national, born in England. When it comes to trying on careers, she embraces the Sturm und Drang with aplomb.

In college she had visions of being a public defender, but after interning at a child welfare agency in Harlem, James realized that her clients needed counseling more than reduced sentences. Putting law school on hold, she earned an M.S.W. at NYU.

Later feeling burned out by social work, James went into admissions and recruiting, first at Fordham and then at NYU’s Wagner Graduate School of Public Service, and noticed a pattern: Candidates from disadvantaged backgrounds—regardless of ambition— often didn’t have the requisite qualifications. Rejecting one such student, she recalls: “I was heartbroken because I knew he could be a great practitioner.” She, too, could have missed opportunities if not for the rigorous British schooling that placed her in accelerated classes. The comparison made James realize that her original plan, law school, would better equip her to offset these imbalances in our society.

James began at NYU thinking that “the next Brown v. Board of Education is coming, and I want to be a part of it.” She’s active in the Black Allied Law Students Association and the Coalition for Legal Recruiting, which promotes faculty diversity.

Next she’ll work in Manhattan as an associate at Clifford, Chance, a firm she chose for its securities litigation work, and volunteer as an admissions officer at TruePotential, the LSAT prep course for low-income students started at the Law School: “I might not use all of the nonprofit skills that I have right away, but I’ll be prepared for the day when I move on to do other things…whatever I decide to do.”

We’ll add more pegs to the hat rack.

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Ben Gauntlett https://blogs.law.nyu.edu/magazine/2007/ben-gauntlett/ Thu, 15 Sep 2011 15:30:24 +0000 http://blogs.law.nyu.edu/magazine/?p=2749 Ben Gauntlett '07Hauser scholar Ben Gauntlett rarely cracked open a textbook in high school. The six-foot-tall Aussie was a jock all the way, playing cricket, rugby and athletics—the down-under equivalent to track and field. In 1995, his sporting days came to an abrupt end when he suffered a broken neck during a rugby match in his hometown of Perth, leaving him a quadriplegic with limited movement in his arms, hands and upper body. Recovering in the hospital, Gauntlett set aside darker thoughts: “You think you’re badly off, then you see someone on a ventilator, or a guy who gets just one visitor a year,” he recalls. “You realize how lucky you truly are.”

But determination, not luck, drove Gauntlett’s future successes. Turning to academics, he finished two years of school in one. He entered the University of Western Australia initially to study medicine, but switched to law because “law is more dependent on intellect than physicality,” he says. Traveling with his prize-winning moot court team gave him the confidence to undertake arduous trips abroad. Graduating in 2002 with dual bachelor’s—law and commerce—he went to Oxford on a Rhodes Scholarship, then on to NYU for his LL.M. in trade regulation.

He lives alone, cooks for himself and pushes his nonmotorized wheelchair. He’s assigned a notetaker, and friends help him navigate the streets in a pinch, although he was homebound after snowstorms: “It’s too bad your mates don’t have a spare bulldozer on them to help you out in the snow.”

Gauntlett is helping write a brochure for NYU law students with disabilities. “It’s one of those evolving things where people with disabilities stand on the shoulders of others,” he says. “The next person will have it easier.” He will return to Oxford to finish his doctorate in competition law, with an eye toward practicing law back in his native Australia.

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A Justice for All https://blogs.law.nyu.edu/magazine/2007/a-justice-for-all/ Thu, 15 Sep 2011 15:29:26 +0000 http://blogs.law.nyu.edu/magazine/?p=2742 When he was a first-year student, Annual Survey editor Eric Feder ’07 read Breyer’s dissent in U.S. v. Morrison— that Congress, not the judiciary, determines the balance between state and federal laws in relation to the Commerce Clause—and was struck by the idea that the law must reflect reality and that courts need to adjudicate in step with that reality. “I remember scrawling in all caps, in the margin next to that passage, ‘THANK YOU!’” Feder said.

Breyer’s practical perspective on democracy—that government is connected to the citizens it serves, and that people have a responsibility to work together to affect their communities—was repeatedly invoked by the five legal luminaries who spoke in tribute as the 2007 Annual Survey was dedicated to him.

Echoing Feder’s enthusiasm for Breyer’s writing, Judge Robert Katzmann of the U.S. Court of Appeals for the Second Circuit noted how Breyer’s opinions, plainspoken and free from footnotes, are tools of democracy, enabling anyone to read and understand his judicial decisions.

But aside from Breyer’s contribution to the law from the highest court, several speakers focused on his earlier work. “You may think that the greatest job that Justice Breyer ever assumed…was as associate justice of the Supreme Court,” said Kenneth Feinberg ’70, former special master of the federal September 11th Victim Compensation Fund. “You are incorrect.” He argued that Breyer’s talent for getting political opponents to compromise when he served as special counsel to the Senate Judiciary Committee in 1974–75 was his finest contribution to the democratic process. A prime example was how Senators Edward Kennedy and Strom Thurmond compromised on judicial appointments. “‘You can have Mississippi if we can have Massachusetts.’ ‘You can have a district judge in California if we can have one in Alabama.’ It worked,” said Feinberg, whose own credentials as a mediator are superlative. “Today, when you meet senators who were around back then… they say, ‘Remember those days when the Senate was more bipartisan?’” Kate Adams, Breyer’s former clerk from the U.S. Court of Appeals for the First Circuit who is now vice president and special counsel of Honeywell Specialty Materials, later added, “Perhaps through his constitutional pragmatism, judging each case one at a time through the lens of active liberty, Justice Breyer can do the same for our Court and our Constitution.”

Kathleen Sullivan, former dean of Stanford Law School, who knows Breyer from their days as Harvard Law professors, and Richard Stewart, John Edward Sexton Professor of Law, who worked with Breyer on the casebook Administrative Law and Regulatory Policy: Problems, Text and Cases, remarked that Breyer’s contributions in the public service have been successful because he nails down what really matters. Sullivan described how Breyer approached his work with the judiciary committee with the goal of determining “what they should do that day for the country.” And Stewart recalled Breyer’s 14 years in the First Circuit where he most notably influenced sentencing guidelines, an issue that remains among the most important to the judicial system today. “[Breyer’s] initiatives have not won universal applause,” Stewart remarked, “but these innovations, warts and all, have stood the test of time.”

The same thoughtfulness Breyer demonstrates when serving the people in a legal capacity permeates his nonlegal endeavors. As chief judge of the First Circuit, he recognized that lawyers were constantly getting stuck in malfunctioning elevators in the old Boston courthouse, causing them to miss appearances. Breyer became actively involved in redesigning the new John Joseph Moakley Courthouse, which opened in 1999, from poring over blueprints to getting cost estimates from bricklayers. “He rolled up his sleeves to renovate that courthouse,” recalled Adams. And the building on the Charles River even reflects Breyer’s practical outlook. Ever mindful of the people, Sullivan said, “He built such a courthouse with great success, with great public spaces where the people would have the best views of Boston Harbor.”

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Life Lessons of the Chief Judge https://blogs.law.nyu.edu/magazine/2007/life-lessons-of-the-chief-judge/ Thu, 15 Sep 2011 15:28:40 +0000 http://blogs.law.nyu.edu/magazine/?p=2761 Judith Kaye '62When our fabulous dean invited me to deliver the keynote address, he said it would allow me to give “a retrospective of over two decades” of my career on the bench. Making full use of chief judge’s prerogative, I’ve gone back even farther to share six of my life lessons.

My parents, immigrants from Eastern Europe, were first farmers and later shopkeepers in Monticello, New York, where I was born. I attended a one-room schoolhouse. Whatever image you may have about one-room schoolhouses, I skipped two grades when I transferred to public school. I attended Barnard College at age 15. You cannot imagine the enormity of the adjustment from Monticello to Manhattan. I remember the inkblot test they gave entering Barnard freshmen. I saw a rooster. The person next to me wrote “Dante’s Inferno.”

The single luckiest thing that happened to me at Barnard, maybe in my entire life, is that I came down with the mumps and had to miss my first exams. But for the mumps, I likely would have flunked everything and been back in Monticello for good.

Lesson Number 1: A little adversity sometimes can be a blessing.

In high school, I made the decision to be a journalist. I majored in Latin American studies at Barnard and saw myself as a journalist making and shaping world opinion in the capitals of Latin America.

After innumerable rejections, I found a job reporting weddings, church socials and women’s club meetings. Not the stuff of Pulitzer Prizes. Before long, I began to rethink my life and in desperation enrolled at the Law School at night with a day job editing copy for a feature syndicate. My sole ambition was to get off the social page, and law school seemed a sure-fire way in the 1960s for a woman to be taken seriously in the male-dominated profession of journalism.

Lesson Number 2: Every now and then it’s good to reconsider the life-course you’re on.

With a demanding daytime job, for me night law school was hardly a breeze. My assigned seat in Civil Procedure happened to be next to the class genius, a particularly brilliant engineer. When the grades came back on Delmar Karlen’s mid-year exam, my engineer friend and I were both shocked: My grade was at the top of the class, his at the bottom. He had written flawlessly about the law of contracts, which was the context of the exam hypothetical. My response was about the credibility of witnesses.

Lesson Number 3: Before you go spouting off on a subject, first be sure you know what the topic of the discussion is.

It was near-impossible to find a law-firm job. “Our quota of women is filled” was a common response—meaning, they had a woman, a quota, or both. Naturally, I aimed for one of the completely impenetrable Wall Street firms. My wonderful classmate Roberta Karmel ’62 asked me, “Judy, why are you doing this? They don’t want us!”

After scores of rejections, I was hired by the venerable firm of Sullivan & Cromwell—the only female in its litigation department. Departmental meetings began, “Gentlemen and Judy.” Why on earth Sullivan hired me is one of the great mysteries, and great joys, of my life.

Lesson Number 4—mine and Yogi Berra’s: When you reach a fork in the road, take it. It’s no time to pause for reflection, or be timid, or ask too many questions, or study the odds. Just go for it!

I have now marked 23-plus years as a judge of New York State’s highest court, 14 of those as chief judge. Let me assure you, nothing comes close to the privilege of being chief judge.

One of the most important reforms to our court system during my tenure has been jury reform. My official reason for focusing on the jury system is that it is a singular opportunity to show the public that our justice system works well. We call more than 650,000 potential jurors every year. That’s a lot of opportunity to win public trust and confidence. My unofficial reason is that years ago my NYU Law School graduate daughter Luisa ’91 called me during a break from jury service to say: “Mom, this is a great place to meet guys.” Immediately I resolved to expand the array.

We began the process with a commission of lawyers, judges and members of the public, who within six months handed me a terrific blueprint for reform. Indeed, the commission process has been a hallmark of my years as chief judge—an extraordinary route to effective reform throughout our court system.

Lesson Number 5 echoes Margaret Mead: “Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has.”

As a quick example of profound change affecting the courts, consider the drug epidemic and its impact on our criminal-court and family-court dockets. Probably threequarters or more of our criminal cases are drug-driven, many of them low-level offenders committing nonviolent crimes again and again simply to support a drug habit. Or consider the huge child-neglect and abuse dockets and record numbers of children being removed from their homes to enter foster-care limbo. There was a public outcry: “Do something.”

I’m proud to say we have done a lot. Today in New York State we have 152 Drug Courts, offering rehabilitation instead of jail; we have Family Drug Courts to speed rehabilitation and avoid the need to terminate parental rights, and Juvenile Drug Courts for vulnerable teenagers. We have Integrated Domestic Violence Courts throughout the state focused on victim safety and offender accountability; we have Mental Health Courts to reroute people in need of treatment from prison; we have Community Courts, Reentry Courts and many more specialty courts, and, best of all, we have a Center for Court Innovation—a research and development arm to help us think through these new approaches to delivering justice.

Are those without controversy? Of course not. Nothing worthwhile in life is. We are sensitive to the criticisms when they are valid. But we also have tremendous antidotes: the thanks of people who have been served by these courts and have been able to turn their lives from the downward spiral they were on; the enthusiasm of our judges who say, “This is what I became a judge to do,” and nationwide and worldwide interest in replicating our courts.

Lesson Number 6, the words of the late South African lawyer, soldier and statesman General Jan Christian Smuts: “When enlisted in a good cause, never surrender, for you can never tell what morning reinforcements… will come marching over the hilltop.”

All 2007 Features

All of 2007 Alumni Almanac

2007 Home

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A Chat with Rita Hauser https://blogs.law.nyu.edu/magazine/2007/a-chat-with-rita-hauser/ Thu, 15 Sep 2011 15:26:41 +0000 http://blogs.law.nyu.edu/magazine/?p=2774 You are a prominent New York Republican, as was your father. He was very active in the party and close to Governors Dewey and Rockefeller. People ask me, “Why are you Republican?” I tell them New York was different when I was coming of age. I am a Rockefeller Republican.

Did he encourage your interest in politics? He thought women should be schoolteachers.

So, were you a rebellious child? I wouldn’t call it rebellious, but I had a very strong personality. I still do. If there was something I wanted, I marshaled the arguments and proceeded to figure out how to get it. I never gave up—persistence!

How did you develop your international focus? My forte has always been languages. I studied Latin, French, German and Italian, and was particularly interested in the French Revolution. I didn’t know people had the power to change things like that. When I earned my law degree in the U.S., I went to France for a law degree in order to practice in both places. Most big law firms didn’t hire women, and if they did, they put us in estates and trusts. My friends Ruth Bader Ginsburg and Sandra Day O’Connor had similar experiences. I was even more peculiar because I wanted to do international work, which meant travel. I remember one senior fuddy-duddy at a major law firm telling me, “Women can’t travel alone.” I’m not talking about prehistoric times, either.

Do you think that a cross-cultural legal education is essential for law students? We have a global economy, and lawyers represent corporations that are international in nature. We conceived of the Hauser Scholars Program to be a sort of Rhodes Scholarship for lawyers. International students, already experts in their fields, receive an LL.M., while our students are exposed to people from other systems. The faculty and students in the Singapore dual-degree program come from places like India, China, Australia and Canada.

You served on the President’s Foreign Intelligence Advisory Board under Brent Scowcroft from 2001 to 2004. What do you think is a plausible outcome from our intervention in Iraq? I see no plausible end since we are in the middle of a civil war. I never supported the war and I urged that on everybody, from the president down. I subscribe to the view that we should withdraw combat troops from the major cities to just across the borders. The Sunni and Shia will have to fight it out and reach a political accommodation. I don’t see any point to further U.S. engagement. The underlying political issues are not being addressed and we will have more casualties.

In 2001, your name was in the hopper for U.S. ambassador to the U.N. Do you ever wonder how things might be different? I would have resigned over the Iraq war. We are the most powerful player in the U.N., and when something is important to our national interests, we have to get it by bringing along other nations. That means compromise. We shouldn’t just expect others to vote with us, which is what happened with the second resolution for the Iraq war. We were twisting arms and bribing nations and it didn’t work.

You and your husband are both very busy people. How do you spend your free time? We have two great loves. The first is hiking. In New York, we walk everywhere. The other is music. I am on the Lincoln Center board, and was on the N.Y. Philharmonic board for decades.

Who is harder to deal with, artists or politicians? The common denominator is that they both have very large egos. My father taught me that when successful politicians look in the mirror, they say, “Me, me, me!” If you don’t believe in “me, me, me,” then you don’t have the juice to be a politician.

What is the best lesson you taught your own children? That everybody slips on a banana peel sooner or later. How you get up, brush off your behind and get on with things is the great test in life. Also, if you have offended anyone, apologize. You may find they’ll be there when you’ve slipped.

Have you given that same advice to politicians? Yes. But politicians rarely apologize.

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