2008 – NYU Law Magazine https://blogs.law.nyu.edu/magazine The magazine for NYU School of Law Fri, 30 Sep 2011 20:56:28 +0000 en-US hourly 1 https://wordpress.org/?v=6.5.3 Introducing Kenji Yoshino https://blogs.law.nyu.edu/magazine/2008/kenji-yoshino/ Mon, 26 Sep 2011 18:54:14 +0000 http://blogs.law.nyu.edu/magazine/?p=1036 When Kenji Yoshino started teaching at Yale Law School, he recalls a well-meaning colleague who offered him this advice: “You’ll have an easier chance at getting tenure if you’re a homosexual professional than if you’re a professional homosexual.” In other words, it was okay to be gay; just don’t flaunt it.

That counsel, which Yoshino eventually rejected, helped inspire his award-winning work. Covering: The Hidden Assault On Our Civil Rights (Random House, 2006) is a memoir that blends his personal identity struggles as a gay, Japanese American with legal arguments in order to question whether assimilation is always beneficial. “We have a deep-seated belief as Americans that we all should melt into the pot,” says Yoshino, a visiting professor for two years who joined NYU Law in July. “But if the demand for conformity is itself illegitimate, then assimilation is a symptom of discrimination rather than an escape from it.”

In Covering, Yoshino discusses three stages of coming out: “conversion,” “passing,” and “covering.” The latter two terms are adopted from the work of sociologist Erving Goffman. Conversion is the period in which a gay individual longs to become straight. Passing is the phase in which a gay individual has accepted his homosexuality, but hides it from society. And covering is a more subtle demand for assimilation, in which the individual is openly gay but feels pressured not to “flaunt.” Covering is as much an assault on a gay individual’s civil rights as the 1981 case in which an African-American woman was fired by American Airlines for wearing her hair in cornrows, Yoshino says. “His work gave us new categories for thinking about the types of discrimination that are relatively invisible to most people,” says David Golove, Hiller Family Foundation Professor of Law. “He’s had a major impact within constitutional and discrimination law.” In fact, Supreme Court Justice John Paul Stevens used Yoshino’s arguments, in part, to fashion a dissent from the Court’s 2000 majority ruling that the Boy Scouts of America could exclude gays. Yoshino also coauthored a key amicus brief in Lawrence v. Texas, the 2003 case that struck down sodomy statutes across the country. “He is a superb lawyer who has reshaped anti-discrimination law by making us understand how forcing people to ‘cover’ diminishes their authenticity and personhood,” says Yale Law School Dean Harold Hongju Koh.

Yoshino also discloses in his book his own identity struggles. As a first-generation American, Yoshino felt uncomfortable assimilating while growing up. His father, a professor at Harvard Business School, and his mother, a homemaker, raised Yoshino and his older sister in a suburb of Boston. Yoshino attended Phillips Exeter Academy, and he and his sister spent summers in Japan attending public school “to inhabit a Japanese body—to rise, to straighten, and to bow: to sit ramrod straight in my high collared uniform,” he writes.

His parents would tell Yoshino and his sister to be “100 percent American in America, and 100 percent Japanese in Japan.” He says his sister, who now lives in Tokyo, as do his parents, perfected these independent cultural identities in a way he never could. “I think in many ways my exposure to an extremely conformist culture in Japan fueled my understanding of assimilation long before I had any consciousness of being gay,” Yoshino explains.

Until he was a young adult, he says he was stuck in the “conversion” stage. After graduating summa cum laude with a degree in English literature from Harvard in 1991, he earned a Master of Science in management studies at Oxford in 1993, on a Rhodes Scholarship. While at Oxford, though, he says, “I routinely went to the college chapel and prayed to the god I didn’t believe in to be straight.” At 22, he came out to his parents, but when he attended Yale Law, he continued to “pass” as straight to classmates. By the time he received his J.D. in 1996, he was openly gay, yet he acceded to his colleague’s covering demands—to write about and teach nongay topics—until he couldn’t dissemble any longer.

He joined the Yale faculty after clerking for judge and former Yale Law School Dean Guido Calabresi of the U.S. Court of Appeals for the Second Circuit. (He earned tenure at Yale in 2003 and became the inaugural Guido Calabresi Professor of Law in 2006.) Also a deputy dean for intellectual life, he coordinated the non-curricular academic life of the law school, such as scheduling workshops and student fellowships.

Currently, Yoshino is working on an article called “The New Equal Protection,” in which he proposes shifting the legal paradigm from group-based equality to one that protects liberty for all. He argues that the samesex marriage debate, for instance, should be framed not as the right of gays to be equal to straights but as the right of all people to marry the person they love.

His English lit background continues to shine through Yoshino’s work. NYU University Professor Carol Gilligan, who cotaught a Shakespeare seminar with Yoshino, says: “You can’t read [Covering] without being stunned by the sheer poetry of his writing.” Drawing on his seminar with Gilligan, Yoshino is writing a book tentatively called Shakespeare’s Law, in which he pairs five sets of Shakespeare’s plays to show how the Bard argues both sides of fundamental questions of justice.

Yoshino, meanwhile, is eager to settle in at NYU. “It’s important for people at some point to get away from their teachers, in the same way that you break from your parents,” says Yoshino. “I came for the city, then I stayed for the school. I really fell in love with this institution.”

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Introducing Samuel Rascoff https://blogs.law.nyu.edu/magazine/2008/samuel-rascoff/ Mon, 26 Sep 2011 18:50:26 +0000 http://blogs.law.nyu.edu/magazine/?p=1031 Samuel Rascoff is probably the only badge-carrying member of the New York City Police Department to leave that gritty world for NYU Law. The director of the NYPD’s 25-person intelligence analysis unit for the last two years, he had the heady responsibility of assessing the terrorist threat to the city, on call 24/7 whenever a threat emerged.

A dedicated public servant who previously worked for Ambassador Paul Bremer in setting up a transitional government in Iraq, Rascoff nonetheless sees joining NYU in June as a professor and faculty codirector at the Center on Law and Security as a logical move. “I firmly believe that shaping the American response to terrorism and creating a new architecture for counter-terrorism law is as much an act of public service as providing day-to-day assessments of terrorist threats,” says Rascoff.

Rascoff’s specialty is national security law, with an emphasis on counter-terrorism law—a burgeoning field that examines the sources, allocation and limits of government authority in protecting its citizens from terrorist attacks. While elements of national security law are relatively well-established in the law school curriculum, counter-terrorism law is still in its infancy. “We see ourselves as a leader in this new area of law. Having him join our faculty will be important as we move forward in that project,” says Dean Richard Revesz, who first glimpsed Rascoff’s scholarly abilities when the two collaborated on a law review article about risk regulation in the fall of 2001. “Even as a recent law school graduate, he had the ability, maturity and creativity of a seasoned academic.”

One of three siblings, Rascoff was raised in New Rochelle by his dad, Joel, a retired kidney specialist, and his mom, Barbara, a homemaker and perennial volunteer. An independent thinker, fluent in Arabic and Hebrew, he specialized in Islamic studies at Harvard. During college, he spent one summer working on the Pentagon’s Middle East desk, another at the State Department. After graduating in 1996, he received a Marshall Scholarship to do a second bachelor’s degree at Oxford University where he studied philosophy, politics and economics. Viewing the legal profession as “the priesthood of American public servants,” he attended Yale Law, graduating in 2001.

Outgoing and charismatic, with flaming red hair and a flair for dramatic outfits, Rascoff always stood out, recalls college and law school buddy Professor Jedediah Purdy of Duke University. “He does orange and pink well, and can carry off a bow tie,” he says.

In spring 2003, in between clerkships that included a year with Supreme Court Justice David H. Souter, Rascoff assisted Ambassador Bremer in Baghdad. Sleeping with 25 other people on cots covered with mosquito netting in the auxiliary kitchen of Saddam Hussein’s Republican Palace, he spent his days meeting with Iraqi officials and crisscrossing the country, talking with everyday Iraqis. “Sam was one of a tiny number of advisors who spoke Arabic and understood the political context,” says Professor Noah Feldman of Harvard Law, who was in Baghdad with him.

One day Feldman, Rascoff and a couple of other advisors drove without an escort into the Shiite areas south of Baghdad to talk to Iraqi citizens. “A couple of weeks later, Muhammad Baqir al-Hakim was killed by a car bomb in the same spot where we had just stood,” recalls Feldman. Rascoff describes his time there succinctly: “I had a front row seat when consequential decisions were being made.”

After Rascoff spent two years practicing litigation at Wachtell, Lipton, Rosen & Katz, NYPD Commissioner Raymond Kelly recruited him to set up the intelligence analysis unit. “We relied on Sam Rascoff’s superb legal training, combined with his extraordinary knowledge and command of geopolitics, to create an intelligence analyst program that has earned worldwide acclaim,” says Kelly. “He was personally responsible for recruiting top notch talent into the NYPD and did so with remarkable success.” Much of what Rascoff did there remains confidential, but he is willing to say that his job ran the gamut, from monitoring cyberspace chat rooms to participating in operational activities.

Rascoff is currently working on an article entitled “National Security Federalism,” in which he argues that state and local entities should play a larger role in setting national security policy, especially with regard to counter-terrorism. “National security so far has been relatively impervious to analysis through the lens of federalism,” he says. “But with counter-terrorism figuring prominently in the security agenda, we’ve come to appreciate that local government agencies, such as police departments, will inevitably shoulder more responsibility in combating today’s threats.”

Those who know Rascoff predict he will make an easy adjustment to academia. “A lot of young associates are fairly invisible. That never happened with Sam. Everybody knew who he was,” says Meyer Koplow, executive partner at Wachtell, Lipton, Rosen & Katz, adding, “He’s going to make a great professor because he’s just so approachable.”

Rascoff and his wife Lauren, 29, a resident in obstetrics and gynecology, live in the city. They both frequent the opera, and occasionally Rascoff finds time to play golf. Rascoff, a cantor in his synagogue, also attends daily services and enjoys having coffee afterward with two congregants, one in his 70s; the other in his 80s. “I always hit it off with the older set,” he says.

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Introducing Mitchell Kane https://blogs.law.nyu.edu/magazine/2008/mitchell-kane/ Mon, 26 Sep 2011 18:48:21 +0000 http://blogs.law.nyu.edu/magazine/?p=1033 Even dutiful students tend to approach introductory tax law like they would a bitter medicine: hoping to get done with the distasteful task as fast as possible. But when students of then-Visiting Professor Mitchell Kane’s class last fall swallowed their first dose, they asked for more, following him after class to a conference room where he held court on the tax ramifications of stock options.

Kane sees this general enthusiasm for the subject as natural. “This is a body of law that tells you who’s going to pay for what. That goes to the core of what a lot of people care about,” he says.

Previously in private practice specializing in international tax law, Kane joins the faculty this fall from the University of Virginia School of Law, where he has taught since 2003. “He’s one of the best junior tax scholars in the country, and clearly the best in international tax, leaving aside a handful of people who are considerably more senior,” says Daniel Shaviro, Wayne Perry Professor of Taxation. “Mitchell is thus positioned to be an important leader in the field for decades to come, and I’m delighted that he’ll be here.”

Kane is best known for his 2004 piece, “Strategy and Cooperation in National Responses to International Tax Arbitrage,” published in the Emory Law Journal. International tax arbitrage refers to instances where taxpayers intentionally structure transactions to take advantage of variations in the tax laws across jurisdictions. The academic debate about such arbitrage had generally centered on the question of whether such tax planning activity is problematic. “My key contribution was to suggest that one could best understand arbitrage transactions not as planning opportunities for taxpayers, but rather as opportunities for governments, in their responses to the transactions, to behave strategically in the battle to attract global capital flows,” he says.

Recently, Kane has cultivated an interest in the role of tax policy in promoting capital flows to the developing world. In a working paper called “Bootstraps, Poverty Traps, and Poverty Pits: Tax Treaties as Novel Tools for Development Finance,” Kane proposes a financing technique that he says offers significant improvements over common sovereign debt arrangements. Typically, countries that attract foreign investors to build a plant or another business have the primary ability to tax any profits. These tax revenues are used to repay foreign creditors, as well as for other purposes. Rather than waiting for a payment from a country that might already be in debt, Kane proposes that developed nations negotiate treaties in which they transfer capital now in exchange for the primary right to tax income streams in the future. Critics contend “they’re trading back a piece of their sovereignty,” says Kane. But he argues, “It’s a sovereign decision to raise money more effectively. By world standards, our tax and compliance system is a pretty good machine.” So why not leave the taxing up to us?

Kane and his two siblings were raised in Norfolk, Virginia, by their parents Peter, 70, and Claudia, 64. An engineer by training, Peter now owns a family bar/restaurant; Claudia, who also owns a deli, was a food broker. A self-professed loner and nerd for most of his youth—in sixth grade he tackled Fyodor Dostoevsky’s The Brothers Karamazov—he came out of his shell in 11th grade when he joined the school’s golf team.

Kane entered Yale University interested in computer science, but soon became enamored with philosophy. By sophomore year, he was a philosophy major with a focus on the philosophy of law—having read Ronald Dworkin’s work—as well as the philosophy of criminal law.

Graduating from Yale in 1993, he enrolled in a joint degree program at the University of Virginia, earning his J.D. in 1996, and an M.A. in philosophy in 1997. That same year he started practice at the D.C. office of Covington & Burling, splitting his time between tax and litigation. Two weeks into his first litigation case, he was given boxes of documents to review. “After the first two boxes, I begged to be put full-time into the tax group,” he recalls, finding the mental gymnastics required to puzzle through the tax code far more compelling than “plowing through mounds of paper looking for a needle in a haystack.”

Out to lunch one day with his tax colleagues in 1999, he learned that his firm wanted to bring an associate to London. He raced back to his office to call his wife, Jessica. “We adored living abroad,” says Kane, whose practice morphed into international tax law during his three years in London.

In 2002, after Kane returned to the U.S., a mentor invited him to take a fellowship at the University of Virginia. He was offered a teaching position the following year. “I was 32 when I started, and the students didn’t look much younger than I did. It was incredibly intimidating,” recalls Kane, who spent two months preparing his first three lectures.

In addition to visiting in Fall 2007, Kane has attended NYU’s annual Colloquium on Tax Policy and Public Finance. “The energy of the place is incredible,” he says. “There’s something about NYU where I always feel like there’s 30 things going on that I want to be doing. That kind of richness of faculty dialogue is very appealing.” Aside from working with his tax colleagues, he hopes to rekindle his interest in philosophy by attending and presenting the Colloquium in Legal, Political and Social Philosophy, run by Professors Dworkin, Liam Murphy and Thomas Nagel.

Having been a visiting professor at several universities in the past two years, including Harvard and Columbia, Kane is eager to settle down with Jessica and their children: Olivia, five, and Simon, two. Kane, who inherited recipes from his Alsatian mother, does the cooking at home. “I’m the master of the one-pot, stick-to-your-ribs, French country recipes,” he says.

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Introducing Robert Howse https://blogs.law.nyu.edu/magazine/2008/robert-howse/ Mon, 26 Sep 2011 18:44:44 +0000 http://blogs.law.nyu.edu/magazine/?p=1029 Asked who was most influential in shaping his illustrious academic career, Professor Robert Howse ran down a list of people before answering with a “thing”—the typewriter.

Howse had difficulty reading and writing until about age nine, when he learned how to form words on a typewriter based on the spatial organization of the keyboard. “All of a sudden there was this great sense of liberation,” says Howse, who has since learned he is dyslexic. “The sense of empowerment from overcoming that kind of obstacle may have put me into overdrive.”

An understatement indeed.

Soon Howse was a voracious reader, tackling serious literature. Though he still suffers from aspects of dyslexia—he can’t drive a car—he now reads Plato in the original Greek (albeit slowly), writes extensively on 20th-century political philosophers Leo Strauss and Alexandre Kojeve, is an expert in international trade law, and has shaped public policy in issues ranging from human rights to global warming. “He’s a rare combination of somebody who knows international trade and investment law in detail, yet he’s got a broad-ranging and creative intellectual outlook,” says Richard Stewart, the John Edward Sexton Professor of Law.

Howse joined the faculty in June from the University of Michigan Law School, where he taught international law and legal and political philosophy. A full-time academic, he also has a high profile in public policy circles—he writes prolifically and has advised government agencies and international organizations, such as the Organisation for Economic Co-operation and Development, and the United Nations Office of the High Commissioner for Human Rights.

“Rob fully understands the policy and political context in which trade decisions are made, and this sets him apart from many academics in the international trade area,” says Susan Esserman, chair of the international department at D.C.-based Steptoe & Johnson and a former deputy U.S. trade representative. “He has a great eye for emerging issues in the field, and he is endlessly creative,” says Esserman, who has written with Howse for the Council on Foreign Relations’ Foreign Affairs magazine and The Financial Times.

He’s best known for cowriting The Regulation of International Trade (Routledge, 1995), a comprehensive look at the evolution of international trade theory and policy, which included analysis of the General Agreement on Tariffs and Trade and the World Trade Organization.

Currently, he’s juggling a number of projects. Having been the principal trade expert for the Renewable Energy and International Law Project (a consortium with Baker & McKenzie and Yale University), he recently attended the first high-level policy meeting exclusively focused on climate change and trade, organized by the Danish Ministry of Foreign Affairs. He is collaborating with Ruti Teitel, Ernst C. Stiefel Professor of Comparative Law at New York Law School, on a series of projects that analyze the debate on globalization in relation to the human rights revolution in international law. He’s writing a book tentatively called Rehearing the Case of Leo Strauss. In 2004, he self-published Mozart: A Novel, and he’s currently writing another piece of fiction.

Raised non-religious by parents of Protestant origin, mainly in a predominantly Orthodox Jewish neighborhood of Toronto, he became fascinated with philosophy. “I had a sense of wonderment about the different ways of leading our lives that came from this experience of otherness around me,” he says.

In 11th grade, after being removed from his history class for misbehavior, he was put into an independent study. “I used this chance to study the themes that interested me, including the religious versus the secular life,” he says. He came upon Strauss, one of many figures who influenced his career.

Howse entered the University of Toronto to study Straussian thought under the philosopher (and soon to be best-selling author) Allan Bloom. He graduated in 1980 with a B.A. in philosophy and political science. When Bloom left for the University of Chicago, Howse enrolled there, hoping to earn a master’s degree. But Howse, who was politically left-leaning, left Chicago disillusioned after a few disagreements with Bloom and his neoconservative followers.

In 1982, he joined the Canadian diplomatic service. “[There] I developed a fascination for law as a discourse of diplomacy in international politics,” says Howse. As a member of the Policy Planning Secretariat, Howse worked on then-Prime Minister Pierre Trudeau’s global peace initiative. And as the Canadian Cultural attaché in Belgrade, he promoted Canadian rock-and-roll while also working on the former Yugoslavia’s debt refinancing negotiations.

He returned to the University of Toronto, earning a law degree in 1989 and a master’s from Harvard in 1990. Howse started teaching at the University of Toronto, where he stayed until joining the University of Michigan Law School in 1999. He’s had a long-standing relationship with NYU, which Howse is ready to formalize. As his research has moved increasingly in the direction of foundational and conceptual questions in international law, “NYU has seemed the logical center,” he says, citing his interest in the history and theory of international law program. Moreover, his recent focus on climate change and trade is an excellent fit with the Global Administrative Law Project. On leave for the fall, he’ll teach international investment law and the history and theory of international law in the spring.

Howse is undergoing a divorce, and has no children. In keeping with his public policy positions, he leads a consciously responsible lifestyle—biking and walking whenever possible and buying organic. “I know from my research there are tradeoffs,” he says, “but overall, I think that the result is greener than otherwise.”

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Introducing John Ferejohn https://blogs.law.nyu.edu/magazine/2008/john-ferejohn/ Mon, 26 Sep 2011 18:40:33 +0000 http://blogs.law.nyu.edu/magazine/?p=1027 John Ferejohn can lecture on porkbarrel politics in the afternoon and whip up a dish of pork bellies with scallops that evening. A true Renaissance man who plays jazz saxophone, runs marathons, collects wines, travels extensively and experiment with molecular gastronomy—an avantgarde cuisine that uses chemical powders to create new textures such as liquid ravioli—Ferejohn has academic interests that also span a number of disciplines.

At Stanford University, his home since 1983, Ferejohn, Carolyn S. G. Munro Professor of Political Science, has chaired the department and taught in the philosophy department and the Graduate School of Business. Currently, he is a fellow at the Hoover Institution. A non-lawyer, he nonetheless has been teaching one semester at the NYU School of Law since 1993, and will join the faculty full-time in 2009. “He does everything,” says Lewis Kornhauser, Alfred B. Engelberg Professor of Law, with whom he coteaches the Colloquium on Law, Economics and Politics. “He has great curiosity, a penetrating mind, and can talk about anything that goes on in the Law School.”

Ferejohn is known for his work on voters and the responsiveness of their elected officials. He is also credited with being one of the founders of positive political thinking (PPT), a methodology that uses mathematical models, economics and game theory to analyze the workings of political institutions. “John is the great positive political theorist of his generation,” says Kenneth Shepsle, George D. Markham Professor of Government at Harvard University. “When he was starting out in the early 1970s, PPT was extremely novel. It was through a lot of John’s work that it became much more mainstream.”

Ferejohn was born on an Army base in Deming, New Mexico. His father, George, a high school dropout who once worked as a janitor at Columbia University, became a bombardier instructor in the U.S. Army Air Corps, then went on to attend Cornell University and Harvard Medical School. He died tragically in his sleep at age 33 when Ferejohn was just seven years old. His mother, Olga Collazo, married physicist Robert Bjork and moved the family to Santa Monica.

At age 12, Ferejohn started playing the clarinet, saxophone and flute. Within a few years, he was playing at jazz clubs, intending to be a jazz musician. He married his high-school sweetheart, Sally, now a retired elementary school teacher, and worked his way through San Fernando State College doing payroll accounting for an aerospace company. Realizing soon enough that playing the sax wouldn’t pay the bills, he focused on his schoolwork and was accepted at Stanford University.

During his first year at Stanford in 1968, he “discovered that it was possible to use deductive thinking to see how politicians do things. I got interested in exploring the elegant and simple idea that complex political institutions had a simple underlying logic.” He loaded up on mathematics and economics courses, and in 1972, he earned his Ph.D. in political science. In 1974, he published his first of five books, Pork Barrel Politics: Rivers and Harbors Legislation, 1947-1968 (Stanford University Press).

Both Pork Barrel Politics and his second book, The Personal Vote: Constituency Service and Electoral Independence (Harvard University Press, 1987), which he coauthored with Bruce Cain of the University of California, Berkeley and Morris Fiorina of Stanford, use PPT and game theory strategies, as well as statistical modeling, to look at issues such as how politicians build support and, conversely, how constituents control politicians. “The logic of majority rule says don’t be too hard to please,” or you’ll be left out of the majority, Ferejohn says. “You better find a way to prevent politicians from playing you off against others. So essentially, to control a politician, you need to come to some sort of agreement with other voters on a single evaluative criterion, such as the liberal or conservative dimension, and then not set so high a standard that the politician will simply ignore it.”

Currently, he’s coauthoring a book tentatively called Super Statutes, which challenges the belief that the fundamental rights enjoyed by Americans are protected by the Constitution. “Instead of doing constitutional law from the top down, we want to look at the real rights we have and rely on day to day, from the bottom up,” he says. Written with William Eskridge Jr., John A. Garver Professor of Jurisprudence at Yale Law School, and expanded from an earlier article, the book is due to be published by Yale University Press in 2009.

Just as he improvises jazz compositions, Ferejohn enjoys taking an “eclectic” approach to academics. In addition to using techniques of PPT, he looks forward to collaborating with NYU legal philosophers Thomas Nagel and Liam Murphy, among others. “Part of law—constitutional law in particular—is really an applied area of political and moral philosophy. And NYU is really strong in these areas,” says Ferejohn, who has taught political philosophy at both California Institute of Technology and Stanford. “The nice thing about applied as opposed to theoretical approaches to these topics is that one can see the conflicts in sharper relief, and political scientists have a congenital love for conflict.”

Joining NYU full-time will allow him to focus more on the philosophical approach to law. Plus, Ferejohn, who has three children and three grandchildren, will be able to explore Manhattan’s exciting music scene—and its mouthwatering culinary offerings. He also looks forward to performing in some of the downtown jazz clubs he’s played in the past. And who knows? He may even twist foie gras ribbons into bow ties in the kitchen of the city’s molecular-cooking mecca, wd~50.

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Supreme Citing https://blogs.law.nyu.edu/magazine/2008/supreme-citing/ Sun, 04 Sep 2011 18:03:07 +0000 http://blogs.law.nyu.edu/magazine/?p=2686 Brian L. Frye '05The NYU Journal of Law & Liberty is barely three years old, but already it—and one of its cofounders—has shot into the spotlight. A 2008 article by Brian L. Frye ’05, “The Peculiar Story of United States v. Miller,” was cited in U.S. Supreme Court Justice Antonin Scalia’s June majority opinion in District of Columbia v. Heller, which ruled Washington, D.C.’s ban on handguns unconstitutional.

“This is recognition of the highest order,” noted Barry Friedman, vice dean and Jacob D. Fuchsberg Professor of Law.

Frye first became interested in the 1939 Miller case, the Court’s last Second Amendment case, while doing research for Inez Milholland Professor of Civil Liberties Professor Burt Neuborne. “I realized that people had not done a lot of primary source research” on it, says Frye, who is now a Sullivan & Cromwell associate.

After graduating, Frye slotted his Miller case research into time left over from his federal and state court clerkships. “I was fortunate that NYU has a really fantastic legal history subdepartment, with professors like Bill Nelson and John Reid and Daniel Hulsebosch, all of whom were incredibly helpful,” says Frye.

In Justice Scalia’s opinion, he cited Frye’s article, saying that Justice John Paul Stevens’s dissent was incorrect in relying upon Miller because Miller “did not even purport to be a thorough examination of the Second Amendment.” Now Frye is working on his next article; combining his passion for law with his long-time fascination with film, it will describe how an avant-garde film affected Abe Fortas’s nomination for Chief Justice. “I just hope I can continue to produce scholarship that people find useful,” he says.

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Neuborne Takes Campaign Financing Reform to the Supreme Court https://blogs.law.nyu.edu/magazine/2008/neuborne-takes-campaign-financing-reform-to-the-supreme-court/ Sun, 04 Sep 2011 17:15:02 +0000 http://blogs.law.nyu.edu/magazine/?p=2713 Burt Neuborne is no mere observer of campaign finance issues. The founding legal director of the Brennan Center for Justice, he played an important role in the legal defense of the landmark McCain-Feingold campaign finance law. The 2002 law bans unlimited, “soft money” contributions to political parties and restricts political advertisements by unions, corporations and advocacy groups in the weeks leading up to elections.

In the mid-1990s, recalls Joshua Rosenkranz, then the director of the Brennan Center, Neuborne “had this instinct” that campaign finance reform would be the next hot development in election law. The center began developing ideas and positions, setting itself up as a kind of general counsel to the reform movement. A few years later, Rosenkranz was asked to join a small group of legal scholars who drafted what became the McCain-Feingold bill. He played the dominant role in writing the section on advocacy ads.

Neuborne remembers that as soon as the bill was introduced, it was attacked furiously from both the left and the right on First Amendment grounds. As the bill foundered, Senators John McCain and Russ Feingold had Neuborne hold a press conference to defend the measure. The strategy was: if Neuborne, a longtime, well-known fighter for the First Amendment and former legal director of the American Civil Liberties Union, would stake his reputation on the bill’s constitutionality, it’s got to have merit. Neuborne also rounded up 14 former ACLU executives to publicly support the measure as a means of neutralizing ACLU opposition. That maneuvering, he says, helped keep lawmakers on board, leading to passage.

When the law was challenged in court, the Brennan Center put together a team, led by Rosenkranz and including Neuborne and Brennan Senior Counsel Frederick A.O. Schwarz Jr., to defend the measure. Their assignment was specifically the section on electioneering. They commissioned studies on election ads and tracked campaign contributions from big donors to build the argument that the old law was corrupt, allowing phony issue ads to creep in that were really aimed at altering the outcome of the election.

Citing the gritty evidence of campaign finance end-runs and loopholes, the Supreme Court upheld the law in McConnell v. FEC in a 5-4 decision in December 2003. Says Neuborne, “The case was won not at the level of brilliant theoretical arguments, but what we did is build a record that made it impossible to overturn.” As for the law’s impact, he insists it’s been a total success in eliminating corporate money from political campaigns. In 2007, however, the Court seemed to gut the segment on electioneering by allowing certain ads from interest groups. The 5-4 decision in FEC v. Wisconsin Right to Life was seen as rebuke of McCain-Feingold.

Neuborne remains optimistic: “What I thought was a real defeat doesn’t appear to be playing out on the ground that way,” he says, explaining that the unions, corporations and advocacy groups the electioneering passages specifically targeted don’t seem to be using the Court’s decision as a loophole. “The truth is [the 2007 decision] is a useful safety valve that allows small groups that really are talking about issues to get an exemption and not have to worry about violating the Act,” Neuborne explains. But he cautions only time will tell whether this remains true.

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Singapore Graduates First Global LL.M. Class https://blogs.law.nyu.edu/magazine/2008/singapore-graduates-first-global-ll-m-class/ Sun, 04 Sep 2011 17:15:02 +0000 http://blogs.law.nyu.edu/magazine/?p=2659 The Law School’s Singapore Program marked a milestone, graduating its first class. Thirty-nine students from 21 countries across six continents graduated from the 10-month dual-degree program, earning an LL.M. in Law and the Global Economy from NYU and an LL.M. from the National University of Singapore (NUS).

Attending the March ceremony at Singapore’s Asian Civilizations Museum, Singapore Minister for Finance and Minister for Education Tharman Shanmugaratnam lauded the program for its “unique content and multinational composition.” U.S. Ambassador to Singapore Patricia L. Herbold, Singapore’s Chief Justice Chan Sek Keong, and Permanent Secretary to the Ministry of Law Chan Lai Fung also were guests.

One highlight was a speech by Wangui Kaniaru ’07 (LL.M. ’08) in which she quoted Sir Thomas Stamford Raffles, a British colonial administrator credited with founding the port city of Singapore: “It would be difficult to name a place on the face of the globe with brighter prospects or more present satisfaction.”

“In a world-embracing city,” Kaniaru noted, “we have experienced a world-embracing program, and the challenge and opportunity we have been given is to be world-embracing lawyers.”

The program grew out of a conversation in 2002 between University Professor and Joseph Straus Professor of Law Joseph Weiler, then-director of NYU’s Hauser Global Law School Program, and NUS Dean Tan Cheng Han. Demand for the program has been strong, with about 200 applicants each year. More than 50 students from 24 countries are due to graduate next year.

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European Central Bank President Discusses Downturn at Policy Forum https://blogs.law.nyu.edu/magazine/2008/european-central-bank-president-discusses-downturn-at-policy-forum/ Sun, 04 Sep 2011 17:15:02 +0000 http://blogs.law.nyu.edu/magazine/?p=2626 The last eighteen months have not been kind to the U.S. economy. The collapse of American subprime asset-backed securities have left housing numbers weak and financial institutions continuing asset write-downs; the economic future remains uncertain.

Prominent domestic and global policy makers who participated in the NYU School of Law’s second annual Global Economic Policy Forum (GEPF) on April 14 addressed the worldwide effects of the downturn. Jean-Claude Trichet, president of the European Central Bank, gave the keynote address with a decidedly international focus, expressing concern about wobbling global markets and emphasizing that only an immediate, global response could revive them.

The GEPF program, cochaired by Stuyvesant P. Comfort Professor of Law Geoffrey Miller, director of the Center for the Study of Central Banks, and Adjunct Professor Alan N. Rechtschaffen, was split into two sessions. In the first, participants discussed domestic policies, and, in the other, international responses to the ongoing turmoil in the U.S. economy and its reverberations in world financial markets. Domestic panel speakers included Donald Marron, senior economic adviser on the President’s Council of Economic Advisers; Tevi Troy, deputy secretary of the U.S. Department of Health and Human Services, and Kevin Warsh, member of the Board of Governors of the Federal Reserve System.

Warsh and Marron cited actions that the Federal Reserve and the Bush administration have taken to ameliorate volatile credit and financial markets and boost the sluggish U.S. economy. However, they said it would take time for these policies to become effective. For example, the Federal Reserve had cut interest rates by three and a quarter percentage points between September 2007 and May 2008, and it has offered banks hundreds of billions of dollars in liquidity to keep their credit flowing. The U.S. government passed a $150 billion fiscal stimulus plan in February, which provided tax incentives to encourage businesses to spend, as well as stimulus checks ranging from $300 to $1200 per household, mailed in late April. Marron said he expects these two moves to add 500,000 to 600,000 jobs to the economy, but not until the end of 2008. “People sometimes forget how quickly we’ve reacted, given some of the delays that are involved,” Marron said.

Most importantly, it will take time for the full impact of the Fed’s rate cuts to be felt, Marron said. Fed studies show that it takes a year after rate cuts are implemented for half of their effects to be felt in the economy. Therefore, he said, the Fed’s rate cuts from the past several months should make a noticeable difference in the economy during the second half of this year and the start of 2009. Though not back up to speed yet, credit markets have already shown “early, encouraging signs of repair,” Warsh asserted. “Our tools are incredibly powerful, but they don’t work overnight.”

In the immediate aftermath of the rate cuts, however, high oil and other commodity prices have made consumer prices higher, causing inflation concern in recent months. Until credit markets regain their stability, more financial shocks could take place in the near future as companies continue to write-down overvalued assets, Warsh said. Already, the collapse of the subprime mortgage market has caused about $245 billion in asset write-downs and related credit losses.

Of course, write-downs in the subprime housing and related credit markets have negatively affected more than just the U.S. economy and credit market. Global financial markets also face a “situation of high uncertainty,” said European Central Bank President Trichet in his keynote speech following the domestic policy session.

Trichet referred to the recommendations from the April 11 Group of Seven Nations Conference, which called for more industry oversight and transparency, saying that financial institutions should immediately disclose the extent of their losses. He also noted the need for continued cooperation among the world’s central banks, as well as greater regulatory oversight of the financial industry. “The present turbulences have, once more, demonstrated that opacity as regards markets, financial instruments and real situations of financial institutions is a recipe for catastrophe,” Trichet said.

Buoyed by an abundance of liquidity and profits, as well as the creation of increasingly sophisticated financial products, the beginnings of the current financial crisis began well before last August, when signs of U.S. mortgage related troubles began to show, Trichet said. At that time, market participants operated under the false assumption that asset prices would continue to climb indefinitely. “The much higher degree of contagion that followed stemmed from and was reinforced by [these] factors,” Trichet said.

Trichet commended U.S. Treasury Secretary Henry Paulson’s recent proposal to overhaul the American financial system’s structure, but said any solution to the current financial crisis must involve the commitment of many countries together. “The present turbulences are a global phenomenon,” Trichet said. “Only a global response can be effective.”

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Welters Named New Chair of Trustees https://blogs.law.nyu.edu/magazine/2008/welters-named-new-chair-of-trustees/ Sun, 04 Sep 2011 17:15:02 +0000 http://blogs.law.nyu.edu/magazine/?p=2628 Just three decades after becoming the first person in his family to graduate from college and pursue an advanced degree, Anthony Welters ’77 will become the new chair of the Law School’s Board of Trustees at its first meeting of the new academic year on October 3.

“I am honored to take the helm of this remarkable institution,” said Welters, who is currently vice chair and has been a board member since 1997. “I greatly appreciate the lessons that I have learned in leadership and philanthropy from Lester Pollack. I see this as a defining moment in the history of the Law School.” Moving forward, he said, NYU Law needs to make sure that financial barriers are not a factor in students’ attendance of or participation in the school.

Dean Richard Revesz said he is “thrilled” that Welters will assume the chairmanship. “Tony is one of our nation’s leading entrepreneurs and an inspirational philanthropist,” said Revesz, noting that Welters’s “extraordinary generosity and vision” are responsible for the AnBryce Scholarship, a 10-year-old NYU Law program that offers full scholarships and support to exceptional J.D. students who were severely economically disadvantaged and are the first in their families to pursue graduate studies. “Tony’s bold leadership of the Law School’s capital campaign will allow us to continue to set ambitious goals,” Revesz added.

Welters is executive vice president of UnitedHealth Group (UHG) in Washington, D.C., and president of UHG’s Public and Senior Markets Group, which includes the Ovations and AmeriChoice business units. Ovations is the largest U.S. company dedicated to meeting the health and well-being of people age 50 and older. Welters previously was president and chief executive officer of AmeriChoice Corporation, which he founded as Healthcare Management Alternatives in 1989 with $200,000 in seed money. Under his leadership, the company became a thriving enterprise and was acquired in 2002 by United Healthcare.

After graduating from NYU Law, Welters worked at the Securities and Exchange Commission, spent two years as the executive assistant to Senator Jacob Javits ’26 and then held various positions at the U.S. Department of Transportation.

In 1995, Welters, who grew up with three brothers in a one-room tenement in Harlem, and his wife, Beatrice, launched the AnBryce Foundation. The goal: to cultivate young minds from under-resourced and challenging environments for lives of personal and professional success. They first launched Camp Dogwood Summer Academy, a residential and educational program for needy youths. The AnBryce Scholarship followed in 1998. The Welters have contributed major gifts to the Law School of $11.5 million; this year, they committed an additional $7.5 million as a matching gift to complete the needed endowment of the AnBryce Scholarship. They also funded a chaired law professorship for a faculty mentor to oversee the academic components of the program, which reached its target of 10 students per J.D. class in 2007. Additionally, they have donated another $10 million to the NYU Partners Fund.

A vice chair of NYU Law’s trustee budget and finance committee, Welters also chairs the campaign steering committee and has been instrumental in helping NYU meet its goal of $400 million. In 2004, he received the Vanderbilt Award, the highest honor bestowed upon an NYU Law graduate.

A dedicated philanthropist, Welters is vice chair of the Morehouse School of Medicine’s board of directors. He serves on the boards of the Smithsonian Institution, the Horatio Alger Association of Distinguished Americans and the Healthcare Leadership Council. He has received the National Medical Fellowships Humanitarian Award, the Horatio Alger Award and the African American Chamber of Commerce Chairman’s Award.

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