In fact, Donovan has a long-standing relationship with the Furman Center, a joint research center of the Law School and the Robert F. Wagner Graduate School of Public Service. After serving as a deputy assistant secretary for HUD during the Clinton administration, Donovan was a Furman Center visiting fellow in 2001-02, studying ways to preserve federally assisted housing. Subsequently, as New York City Housing Preservation and Development commissioner, he relied on Furman Center research about the New York City real estate market to inform policy decisions. More recently, center co-director Ingrid Gould Ellen, associate professor of public policy and urban planning at the Wagner School, served during the Obama transition as a member of HUD’s agency review team, and remained a policy adviser for a few months after the inauguration while Secretary Donovan put his team in place.

Donovan began his speech at the Furman Center’s conference, “A Crisis Is a Terrible Thing to Waste: Transforming America’s Housing Policy,” by citing “terrifying” statistics: 2.2 million foreclosures in 2008, and in December alone 45 percent of home sales were foreclosures or short sales. Donovan then vowed that one of HUD’s top priorities would be to step up the loan modification process. (A few days later, President Obama announced an aggressive plan to help up to nine million homeowners by providing billions in funds to Fannie Mae and Freddie Mac and offering financial incentives for lenders to reduce mortgage rates.)

Donovan’s speech—in which he also revealed his long-term goals for HUD—generated a flurry of news coverage from outlets such as CNBC, the New York Times, and the Wall Street Journal. Many reporters noted Donovan’s announcement that HUD would, for the first time, focus on sustainability issues, striving to make public housing a model of energy efficiency. Residential housing accounts for 28 percent of greenhouse gas emissions in the United States, and as many as one in 10 households resides in buildings that are in some way connected to HUD, Donovan said: “We can catalyze an enormous change in the way that housing gets built and renovated.” He announced the creation of the Office of Sustainability, to be run by Ron Sims, Washington State’s King County executive. Sims has a national reputation for his environmental stewardship and was unanimously confirmed as deputy secretary of HUD by the U.S. Senate in May.

Also noteworthy was Donovan’s pledge to make fair housing part of HUD’s mission. A 2007 Furman Center analysis found that the 10 New York City neighborhoods with the highest rates of subprime mortgages had black and Hispanic majorities, while the 10 areas with the lowest rates were composed largely of non-Hispanic whites. “We have to ensure we never again have targeting of communities,” he said.

Funded by the Rockefeller Foundation and the MacArthur Foundation, the Furman Center’s conference also featured addresses as well as roundtable and panel discussions by economists, bankers, scholars, and policy makers. A talk about mortgage-backed securities (MBS) included Joseph Tracy, executive vice president of the Federal Reserve Bank of New York; Austan Goolsbee, member of the Council of Economic Advisers and staff director of the Obama administration’s Economic Rec overy Advisory Board; Lawrence White, Arthur E. Imperatore Professor of Economics at NYU; and Lewis Ranieri, chairman of Ranieri Partners, a private investment advisory firm. Described as an inventor of MBS, Ranieri introduced himself as “Dr. Frankenstein” and engaged in a spirited discussion with the panelists on how MBS—initially a boon to homeownership—became a curse, causing the housing bubble that wreaked havoc on the U.S. economy. Some of the panelists argued that to avoid future subprime messes, mortgage originators should be required to “have skin in the game” and retain some of the risk of loan defaults.

Each session was designed to generate candid discussion about the challenges and opportunities of the current crisis, and to end with specific policy recommendations for moving forward. At press time, the center was working on a summary white paper to deliver to the Obama administration.

“The conference helped the Furman Center move outside of its sometimes New York–centric research to more explicitly engage in federal policy debates,” said Vicki Been ’83, director of the Furman Center and Boxer Family Professor of Law, a few months after the event concluded. “The center has remained a critical part of this discussion and will continue to take on research with national policy implications.”

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Calling her quarter century on the Court of Appeals (the last 15 as chief judge) “the role of a lifetime,” Kaye led the audience on a whirlwind tour of the state’s judicial system. She began by reviewing efforts to improve child welfare proceedings and hire more judges in the overburdened family courts, before moving on to the state of civil justice, which has been affected dramatically by the nation’s current financial crisis—some counties’ housing courts have seen 200-percent increases in foreclosure cases. Kaye also discussed one of her most-lauded achievements as chief judge, jury reform, calling the American jury system “a rare opportunity to show the public firsthand a justice system that is modern, up-to-date, effective, and efficient.” In 1996 Kaye famously eliminated professional exemptions, compelling notable figures like former mayor Rudolph Giuliani ’68, newscaster Dan Rather, actor Robert De Niro, and even Kaye herself to show up for jury duty. Her legacy also includes a host of initiatives tackling domestic violence, drug abuse, and mental health through the courts. And it was Kaye who broke the New York judiciary’s glass ceiling: The first woman to serve on the state’s highest court, let alone lead it, she left it with a female majority.

Throughout her speech, and particularly as she concluded her remarks, Kaye thanked many of her colleagues, especially Jonathan Lippman ’68, now Kaye’s successor, who was then still the presiding justice of the Appellate Division. Kaye, the longest-serving chief judge in the history of the post, deemed it “a privilege beyond description to labor in the cause of justice alongside the greatest people on earth.”

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In 1991 I attended a summer workshop for young international law and international relations teachers. Tom’s model of engaged advocacy for ordering the world on the basis of the rule of law so thoroughly captivated our interdisciplinary group that at our closing dance we improvised a new step, the “compliance pull,” in tribute to Tom’s response to why “powerful nations obey powerless rules” in what was then his latest book, The Power of Legitimacy Among Nations.

Over the years Tom became a friend, but he never ceased to intimidate me by virtue of his achievements. In addition to producing, on average, one book every 17.8 months for 43 years, Tom became the confidant of governments and secretaries general. He pushed the American Society of International Law to deepen its commitment to scholarship (eventually he became ASIL president), and he mentored hundreds of students, many of whom became leading lights in practice, government, or academe. Of course, Tom came into his own shortly after 9/11, when he courageously voiced support for law and multilateral cooperation when few, particularly in our government, were inclined to listen.

When I became president of ASIL, there was no doubt whose example I would seek to follow. I tried to emulate Tom’s wit—as when he reimagined the society 100 years hence as a wholly owned subsidiary of the Chinese Society of International Law. I sought to make an esoteric, technical field accessible and to cross political and legal (and not just disciplinary) divides, as he did. To this day, his is the fellow émigré’s voice I hear when I teach a class, comment on a colleague’s work, give students advice, or try to make someone understand what the law means and why it matters.

We all need someone like Tom to make us do our best and to teach us how to face life’s challenges with equanimity, courage, and poise. He died as he lived. In his last weeks he was engaged in planning for next semester’s U.N. class, assisting yet another government before the World Court, and giving talks on his latest tour de force (an article that uses proportionality to examine everything from trade to human rights). Just days before he passed away, he dragged himself from his sickbed to join in a tribute to his retiring colleague Andreas Lowenfeld. In a gesture that typifies his irrepressible efforts to bridge academe and politics, he used that occasion to remind us, movingly, of the as yet unfulfilled dreams of those who seek to use law to achieve a more just world. Looking at Harold Koh, the Obama administration’s nominee to be Secretary of State Clinton’s top lawyer, he asked whether it was “too late” to achieve that world. Koh responded by saying that it was not. It was to be Tom’s last message to those with power.—José Alvarez, Herbert and Rose Rubin Professor of International Law

Professor Franck was more than my boss for 44 years; he was a part of my family and my friend. Working with him was a joy and a learning experience.

I fondly remember being invited with my husband to accompany Tom to the University of British Columbia when he received his LL.D. So that we could see the beautiful city of Vancouver, where he grew up, Tom borrowed a friend’s car and spent two days showing us the sights. Sherwin and I also travelled to The Hague, where I spent two weeks working with Tom on his Chad v. Libya case before the International Court of Justice. The Hague is where Tom introduced us to Indonesian food. Wonderful memories!

Tom took tremendous pride in the achievements of his students. He was excited to hear when one was accepted to a clerkship, pursued an advanced degree, landed a prestigious job in government or a faculty appointment, or when one was honored with the Nobel Peace Prize. He felt the pride of a father. I admired most how Tom extended himself on behalf of his students. I will surely miss Tom, but I will always have a smile on my face when thinking of him.— Shelley Fenchel

In one of his last publications, Tom writes of the beginning of his career as a research assistant to the legendary international law professor Louis Sohn. Tom was struck by the collection of giraffes that Sohn kept in his office and home to remind him that it was possible to keep one’s head in the clouds while keeping one’s feet firmly planted on the ground. I think that also describes Tom perfectly.

We were friends, to some extent rivals, and on most issues, we thought alike. Interestingly enough, we differed several times on issues of U.S. constitutional law. To take just one instance, at the time that the U.S. government wanted to get out of the Mutual Defense Treaty with the Republic of China (Taiwan), Tom and I were both asked to testify before the Senate Foreign Relations Committee on whether it was the president or the Senate that had the authority to terminate a treaty. Tom argued that since the Senate had given its advice and consent to making a treaty, it had to give its advice and consent to unmaking or withdrawing from it. I said the president makes treaties, and so the president must be able to unmake them. Government lawyers faced with such a question too often look first to the answer desired, then develop an argument to support it. For Tom it was not only possible but fundamentally ethical to address the question without regard to how one felt about Taiwan or the Defense Treaty.

Tom Franck will be best remembered for his seminal work at the frontier of law and philosophy—explorations of legitimacy, fairness, impartiality, proportionality, and the use and abuse of force. But like the giraffe in his mentor’s study, he could plant his feet firmly on the ground as well.—Andreas Lowenfeld, Herbert and Rose Rubin Professor of International Law Emeritus

Tom Franck’s exceptional contributions to international law—as scholar, teacher, mentor, advocate, and judge—have been widely and justly recognized. Tom also deserves to be honored for his powerful influence on the NYU School of Law.

From the time I met him, soon after my appointment to the faculty, he was a key participant in the long process of transforming NYU from a good regional law school to the world-class institution it is today. He demanded quality in his own work, and he had high expectations for his colleagues. Thus, Tom was the obvious person to present the paper at the first faculty workshop, which younger members of the faculty instituted in the early 1960s. And, among many other activities, he served with distinction on the committee that formulated the plan for what became the Hauser Global Law School Program.

In short, Tom was for the Law School what in baseball is called an impact player—he brought luster to us all through intellect, character, and dedication. He cannot be replaced.—Norman Dorsen, Frederick I. and Grace A. Stokes Professor of Law

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Why are you pushing the “zero option” now?
I read in the press after 9/11 that if those airplanes had carried nuclear weapons, New York and Washington would have been destroyed. It scared the living daylights out of me. So I called some of my old staff and asked them, “Were you right or was Reagan right?”

That’s how you became the catalyst behind the “Gang of Four”— former Secretaries of State George Shultz and Henry Kissinger, former Secretary of Defense William Perry and former Senator Sam Nunn— who are advocating eliminating nuclear arms. But with the North Koreans testing their nuclear device and the Iranians enriching uranium, this doesn’t seem the time to go to zero.
All of this makes it essential to go to zero. It’s got to be done universally. It also cannot realistically materialize unless we develop a method of preventing cheating. We must first establish a recognition about the international desirability and necessity of zero, and build on that. It depends on our leadership or the leadership of other countries—and, in my opinion, the declaration of the “ought” by the General Assembly of the United Nations. There is no other vehicle in the world which can establish the “ought.” Now, it is much too weak and unable to bring about the “is,” but it can establish the “ought.”

Would you support the use of force against Iran if it doesn’t stop the development of nuclear weapons?
Yes. If they got it, and the Pakistani scientist admits he sold the goddam thing, I would.

You have always described yourself as a liberal Democrat. How did you become Ronald Reagan’s arms negotiator?
When Reagan was elected, I was in Madrid as President Carter’s negotiator for the Conference on Security and Cooperation in Europe, the continuation of the 1975 Helsinki Conference. I got a call from Al Haig, who was going to be the secretary of state. “The president wants to reappoint you.” I knew Haig quite well and said, “Al, I’m a Democrat.” He says, “He knows you’re a Democrat and he’s reappointing two Democrats: you and Ambassador Mike Mansfield in Japan.” Madrid lasted till 1983, then I was back in private life. President Reagan, out of the blue, calls me up and says, “Max, we’re gonna restart our negotiations on arms.” I knew he had just seen Gorbachev in Geneva. “And I want you to head up the American delegation.” I said, “I’m not equipped—I don’t know the first thing about the nuclear arms issue.” He said, “I know, but you and I worked very closely in Madrid.” And he then said with a laugh, “Actually you’re the only fellow Shultz and [Caspar] Weinberger could agree on.”

As an aide to Humphrey, you worked for the passage of key civil rights legislation. How did you feel seeing an African American sworn in as president?
Really, my chest bursts with satisfaction. My concern is that he is inadequately prepared. But he can learn.

You had been a pacifist during World War II—a pretty unusual thing for a Jewish kid from the Bronx. And as a conscientious objector, you were involved in a range of government-approved activities.
I was an only child; I went to a Jewish school. But the exposure to the world was not there. During the war, I worked as a hospital nurse for mentally handicapped children in Maine, and was involved in soil conservation work and the University of Minnesota’s Starvation Experiment, which was supposed to help the authorities learn what challenges they would face with POWs and concentration camp survivors. We had a 1,500 calorie-a-day diet and 3,000 calorie-a-day work regimen. I went from 161 pounds to under 120.

Looking back on your life, what are you proudest of?
The starvation project. Everything else took time, a little energy—but the thing that hurt and I paid a price for was the Starvation Experiment.

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Directed by University Professor Joseph Weiler, who is also Joseph Straus Professor of Law, the Straus Institute offers generous fellowships to top scholars from diverse fields, with the intent of creating an intellectual haven for free interaction among multidisciplinary thinkers while retaining a broad focus on issues of law and justice. It is an academic format embodied by a group of institutes of advanced study, the most famous of which are located in Berlin, at Stanford University, and near Princeton University (the latter served as Albert Einstein’s academic home, where he pursued a unified field theory in physics during the last two decades of his life). The Straus Institute will support high-level research and scholarship without requiring teaching commitments of its fellows. Two-thirds of each year’s fellows will pursue scholarship related to an annual theme; in 2009-10, the topic will be the emerging legal field of international governance.

The new institute was funded by Daniel Straus ’81, a member of the Law School’s board of trustees, and his wife, Joyce Straus. “In a way, it’s the ultimate ivory tower,” Weiler said. “You’re telling people, ‘Come. Spend a year here. Think.’ It’s not an immediate action or reaction kind of thing. But it’s fundamental deep thinking about serious social issues.” Throughout the year, forums, colloquia, and seminars will allow Straus Fellows to engage with the Law School community.

Like the Straus Institute, the Tikvah Center, directed by Gruss Professor of Law Moshe Halbertal and Weiler, will host eminent scholars. The foundational premise of the center is that the study of Jewish law can profit immensely from insights gained from general jurisprudence, and that Jewish law and Jewish civilization can provide illuminating perspectives on law and legal issues of true academic and social significance. The Tikvah Center will showcase fellows’ scholarship through forums and an annual conference. Beginning in 2010, the center will facilitate a Master of Studies in Law program focused on law and Jewish civilization; students will not need a prior law degree. An undergraduate outreach program will feature courses taught in NYU’s College of Arts and Science by instructors affiliated with the center. The Tikvah Center is made possible by the Tikvah Fund, a private foundation that supports Jewish intellectual life.

STRAUS FELLOWS
At-Large

Marta Cartabia is a professor of constitutional law at the University of Milano-Bicocca Faculty of Law. She received her Ph.D. in Law from the European University Institute in Florence, Italy, and was a clerk in the Italian Constitutional Court from 1993 to 1996. Her most recent publications include I Diritti in Azione (2007) and Europe and Rights: Taking Dialogue Seriously,” in the European Constitutional Law Review (2009).

In recent years, legal changes affecting some of the most crucial sectors of social life have occurred in national and international courts. Many “new fundamental rights” have been created, covering a wide range of subjects, from environmental emergency to immigration law to the role of religion in the public sphere. The recognition of new rights has significant consequences on the use of different standards of review and burdens of proof. By analyzing various judicial decisions, Cartabia aims to discover the conceptual, legal, and procedural matrix of the new rights.

Meir Dan-Cohen is Milo Reese Robbins Chair in Legal Ethics and an affiliate of the Department of Philosophy at the University of California, Berkeley. Dan-Cohen received his LL.B. from Hebrew University and clerked for the Supreme Court of Israel. He received an LL.M. and J.S.D. from Yale Law School. Dan-Cohen has written Harmful Thoughts: Essays on Law, Self, and Morality (2002) and Rights, Persons, and Organizations: A Legal Theory for Bureaucratic Society (1986).

Dan-Cohen’s research draws on a tradition claiming that human beings are self-creating: the self is the largely unintended by-product of human practices, including law and morality. The recognition that we are the products as well as the authors of our norms complicates our normative agenda. In devising behavior-guiding norms we must explore not only their effects on what we do but also on who we are: what subjects will emerge from the activities generated by a particular set of norms? And what considerations ought to guide this constructive aspect of our normative engagements?

Robert George is McCormick Professor of Jurisprudence and director of the James Madison Program in American Ideals and Institutions at Princeton University. He has served on the President’s Council on Bioethics and as a presidential appointee to the U.S. Commission on Civil Rights. George was a judicial fellow at the U.S. Supreme Court. He is co-author of two recent books: Embryo: A Defense of Human Life (2008) and Body/Self Dualism in Contemporary Ethics and Politics (2008).

Drawing upon sociological, historical, and philosophical sources, George will work on a book presenting a natural law argument for marriage as the lifelong conjugal union of man and woman as husband and wife. In addition, he will answer critics’ arguments against this understanding of marriage, including those by proponents of same-sex and polyamorous marriage, and show that marriage, soundly understood, is a great good for individuals, spouses, children, and society.

Moshe Idel is Max Cooper Professor in Jewish Thought at the Hebrew University of Jerusalem and a senior researcher at the Shalom Hartman Institute. He received the 1999 Israel Prize for Jewish Thought and the 2002 Emmet Prize, and has been a member of the Israeli Academy since 2006. Among his publications are Kabbalah: New Perspectives (1988) and Ben: Sonship and Jewish Mysticism (2007). Idel is both a Straus and Tikvah Fellow.

Idel distinguishes between three major modes of thinking in Judaism: the biblical, the rabbinic, and the speculative. He will concentrate his inquiries on the dynamics of the concatenation between these modes, emphasizing the intellectual superstructures that were added to legalistic structures, especially by thinkers who were both legalistic figures and kabbalists or philosophers. His research will explore the thoughts of Joseph Karo as well as examine the ideas in the Sefer ha-Qanah, a Byzantine 14th-century unsigned kabbalistic commentary on the commandments.

Carol Rose is Ashby Lohse Chair in Water and Natural Resource Law at the University of Arizona Rogers College of Law and the Gordon Bradford Tweedy Professor Emeritus of Law and Organization and Professorial Lecturer in Law at Yale Law School. Rose received an M.A. in political science from the University of Chicago, a Ph.D. in history from Cornell University, and a J.D. from the University of Chicago School of Law. Her publications include Perspectives on Property Law (2002) and Property and Persuasion: Essays on the History, Theory and Rhetoric of Ownership (1994).

Rose, with contributions from Yale Law professor Richard Brooks, will research a book on racially restrictive covenants, their history, and what they tell us about the relationships between social and legal norms. She will also continue her research on the intersection of property rights, environmental law, and development.

Thematic

Gráinne de Búrca is a professor of law at Fordham Law School. She was previously a professor of E.U. Law at the European University Institute. De Búrca co-edited Oxford Studies in European Law and co-wrote E.U. Law, which is currently in its fourth edition.

De Búrca will explore the ways the European project of integration-through-law has changed over time and examine the model of transnational governance developed by the European Union. The key role of the European Court of Justice has changed in important ways. De Búrca will examine how the external dimension of E.U. governance has intensified as the E.U.’s interest in playing a more significant global role has grown. The ambiguous identity of the E.U. as an international actor, the place of law, and the relationship between political and judicial activity in shaping different aspects of this identity will also come into play.

Andrew Hurrell is Montague Burton Professor of International Relations and Fellow, Balliol College, Oxford University. His book On Global Order: Power, Values and the Constitution of International Society (2007) won the 2009 International Studies Association Prize for Best Book in the field of international relations; and he has co-edited Inequality, Globalization and World Politics (1999) and Order and Justice in International Relations (2003).

Hurrell will focus on emerging powers and global governance, using as examples two countries, Brazil and India, and three regimes: the World Trade Organization, nuclear proliferation, and climate change. The project will be informed by a broad historical examination of the processes by which Western ideas have been transposed into different national and regional contexts. He will examine and evaluate the sorts of international society norms and global governance practices that have been, or might be, pressed both by emerging powers and other social forces.

Robert Keohane is a professor of international affairs at Princeton University. He has written After Hegemony: Cooperation and Discord in the World Political Economy (1984) and Power and Governance in a Partially Globalized World (2002). He won the 1989 Grawemeyer Award for Ideas Improving World Order and the 2005 Johan Skytte Prize in Political Science.

Keohane’s scholarly research has focused on international regimes that regulate activities like world trade, accounting standards, and arms control. He has explored how our existing knowledge of the ways institutions operate effectively should influence the way designers of such institutions structure them. This topic will intersect with his work on accountability, legitimacy, and democracy in global governance.

Benedict Kingsbury is Murry and Ida Becker Professor of Law, director of the Institute for International Law and Justice (IILJ), and director of the Program in the History and Theory of International Law at the NYU School of Law. He co-directs the IILJ’s Global Administrative Law Research Project, a pioneering approach to issues of accountability, transparency, participation, and review in global governance.

Kingsbury will focus on developing and applying a theoretical account of the public law that should apply to global governance entities outside the state. This builds on his work with Richard Stewart on global administrative law. He will also research a second project concerning the production, use, and significance of indicators, particular quantitative ordinal rankings, as a technology of global governance. He will consider who participates in or should influence the production and use of particular indicators and how this power should be channeled and controlled.

Jan Klabbers is a professor of international organizations law at Helsinki University and director of the Academy of Finland Centre of Excellence in Global Governance Research. His main publications include The Concept of Treaty in International Law (1996), An Introduction to International Institutional Law (2002), and Treaty Conflict and the European Union (2008).

Klabbers focuses on the problem of how to control the exercise of public power in international affairs. He aspires to develop a “constitutionalist” approach to public authority in global affairs that complements legal thought with virtue ethics and the character traits of those who exercise public power. He cites Martti Koskenniemi’s “constitutionalism as mindset,” Lon Fuller’s “internal morality of law,” and Onora O’Neill’s approach of integrating principles with virtue as precedents.

David Kretzmer is a professor emeritus of international law at Hebrew University of Jerusalem and a professor of law at the Transitional Justice Institute of the University of Ulster. His books include The Occupation of Justice: The Supreme Court of Israel and the Occupied Territories (2002), The Concept of Human Dignity in Human Rights Discourse (co-editor, 2002), and The Legal Status of the Arabs in Israel (2002).

Kretzmer, in collaboration with Eckart Klein of Potsdam University, will be working on a critical study of the U.N. Human Rights Committee. The two will review the development of the committee’s work and evaluate its functions and role in the international monitoring and protection of human rights.

Daryl Levinson is Fessenden Professor at Harvard Law School, where he teaches and writes primarily about constitutional law and theory. He is a faculty fellow of the Harvard Project on Justice, Welfare, and Economics, and he won the 2008 Sachs-Freund Teaching Award at Harvard Law School.

Levinson will explore the relationship between international and constitutional law. Held up to the benchmark of domestic law, international law is commonly perceived as a distinctively dubious form of law. Constitutional law is seldom subject to similar doubts, though the features of international law that lead to questions about its legitimacy are shared by constitutional law. International and constitutional law’s differences from ordinary domestic law follow from the distinctive aspiration of public law regimes to constrain the behavior of state institutions, and the difficulty they face in not being able to rely on these same state institutions for implementation and enforcement. Levinson will explore these difficulties and the resources available to overcome them.

Gianluigi Palombella is a professor of legal philosophy at the University of Parma. He received his Ph.D. at the Scuola Superiore of Pisa and has been Senior Professorial Fellow at the European Union Institute. He has authored several books, including L’autorità dei diritti (2002) and Dopo la certezza (2006). Recently, he published “The Rule of Law, Democracy and International Law” and Ratio Juris (2007), and co-edited Relocating the Rule of Law (2009).

Palombella’s work will concern the rule of law as equilibrium between law-as-justice and law-as-power. He will explore the extent to which international rule of law, considered through global governance, provides for a noninstrumental and autonomous normativity irreducible to regulatory functions and teleology, how the public legality sphere is framed, and whether it should embody governance practices.

Beth Simmons is Clarence Dillon Professor of International Affairs and director of the Weatherhead Center for International Affairs at Harvard University. Her 2009 book, Mobilizing for Human Rights: International Law in Domestic Politics, provides quantitative and qualitative evidence that the ratification of several human rights treaties is associated with improvements in rights practices in countries around the world.

The first of Simmons’s two research projects will look at laws, processes, and institutions that have developed over the last two decades relating to the international arbitration of investment disputes between foreign multinational firms and host governments. One of the goals will be to assess the extent to which international arbitration is perceived as effective and legitimate. Simmons will also be launching a project on international cooperation to address transnational crime.

Richard Stewart is a University Professor at New York University and director of the Hauser Global Law School Program and the Frank J. Guarini Center on Environmental and Land Use Law at the NYU School of Law. Stewart’s scholarship and teaching focus on environmental law and policy and administrative law and regulation, including global administrative law and climate change regulation and finance. Stewart served as assistant attorney general for environment and natural resources at the U.S. Department of Justice, where he led the prosecution of Exxon for the Exxon Valdez oil spill. He was formerly chairman and currently serves as advisory trustee of the Environmental Defense Fund.

Stewart will be conducting research for a book on global administrative law. The book will include an overview of GAL development in response to the rise of global regulatory governance; an examination of GAL mechanisms of transparency, participation, reason-giving, and review; the adoption and role of mechanisms and norms in various global administrative bodies; and conceptual and normative foundations of GAL in relation to regulatory administrative efficacy, rights protection, global rule of law, global and domestic democracy, and global constitutionalism.

TIKVAH FELLOWS

Yishai Beer is a professor at the Hebrew University of Jerusalem Faculty of Law, specializing in taxation, and a major general in the Israel Defense Force, currently serving as a corps commander. He is a former president of the Israeli Military Court of Appeals. Beer has an M.A. from the London School of Economics and a Ph.D. from Hebrew University.

Saul Berman is an associate professor of Jewish studies at the Stern College for Women at Yeshiva University and an adjunct professor of law at Columbia University School of Law. Rabbi Berman received an M.H.L. from Yeshiva University, an M.A. in political science from the University of California, Berkeley, and a J.D. from the NYU School of Law. He is a contributor to the Encyclopedia Judaica.

Beth Berkowitz is an associate professor of Talmud and Rabbinics at the Jewish Theological Seminary. She earned her Ph.D. from Columbia University and has held postdoctoral fellowships in Yale University’s Program in Judaic Studies and the University of Pennsylvania’s Center for Advanced Judaic Studies. Her book Execution and Invention: Death Penalty Discourse in Early Rabbinic and Christian Cultures (2006) won the Baron Prize for First Book in Jewish Studies.

James Kugel is the director of the Institute for the History of the Jewish Bible and chairman of the Bible Department at Bar Ilan University. His numerous books include The Bible As It Was (1997), The Ladder of Jacob (2006), and How to Read the Bible: A Guide to Scripture, Then and Now (2007).

Avital Margalit is a professor of property law and the sociology of law at Bar Ilan University Faculty of Law. Her research focuses on law and reconciliation, the social and cultural aspects of property relationships, and the legal history of the kibbutz.

Adiel Schremer is an associate professor in the department of Jewish history and director of the Halpern Center for the Study of Jewish Self-Perception at Bar-Ilan University. He is a fellow at the Shalom Hartman Institute in Jerusalem. Schremer is a recipient of the Urbach Prize from the Jewish Memorial Foundation and the World Union for Jewish Studies. His publications include Male and Female He Created Them: Jewish Marriage in Late Second Temple, Mishnah and Talmud Periods (2003), and Brothers Estranged: Heresy, Christianity, and Jewish Identity in Late Antiquity (2009).

Aharon Shemesh is an associate professor in the department of Talmud, Bar-Ilan University. He has published widely on the development of Jewish law, including Punishments and Sins (2003) and Halakhah in the Making: From Qumran to the Rabbis (2009).

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Nixon’s trip, of course, not only marked the opening of U.S.-China relations, it also set China on a path to becoming a world economic power. And as China ascended, so did Cohen’s legal career; his specialty—Chinese legal studies—went from an obscure, backwater academic discipline to a high-profile, high-stakes area of expertise. By any standard, his career has been remarkably productive and influential: Through his 17 years at Harvard Law, where he founded the nation’s first East Asia legal studies program, his nearly two decades as a deal-making partner at Paul, Weiss, Rifkind, Wharton & Garrison, and his most recent years at NYU Law, which he joined in 1990, Cohen, 79, has had a significant impact on legal affairs in East Asia, particularly in China.

As a human rights advocate, he has helped secure the release of several political prisoners in the region, such as Annette Lu, who would become a vice president of Taiwan, and Kim Dae-jung, who would serve as president of South Korea and win the Nobel Peace Prize. As an attorney practicing international business law, he achieved several firsts, including becoming the first Western lawyer to practice in Beijing under communist rule.

Known as the “Godfather” of Chinese legal studies because he was a pioneer in the field and a mentor to so many, Cohen has taught and inspired literally hundreds, many of them now leading scholars and policy makers, including William Alford, director of East Asian Legal Studies at Harvard, Ma Ying-jeou (LL.M. ’76), Taiwan’s president, and Clark Randt Jr., the recent U.S. ambassador to China, all of whom Cohen taught at Harvard.

[Sidebar: A Force in Taiwan]

As a result of NYU’s LL.M. program, which annually draws some 40 students from China and another dozen from Taiwan, as well as his frequent speaking and teaching engagements overseas, Cohen acolytes can be found in law firms, in law schools, and throughout the civil and criminal justice system in China and Taiwan, and he is a virtual celebrity in Chinese legal circles. “If you look at the field of China law—now an enormous community—it’s kind of shaped like a pyramid,” says Stephen Orlins, 59, a former Cohen student from Harvard and president of the National Committee on U.S.-China Relations. “People in their 20s are at the base. People like me are in the second rung near the top. And Jerry sits at the top. Jerry is the father of it all.”

A MASTER NEGOTIATOR

With his full moustache, propensity for bow ties, and friendly, can-do demeanor, Cohen has always stood out in China. But due to his ability to read people and connect, regardless of their age, social status, or nationality, he has managed to bridge the cultural divide and broker solutions.

Everyone who knows Cohen remarks upon his graciousness and generosity, his consistent willingness to make introductions or give advice to people in the field. “He is such a prince,” says Sharon Hom ’80, executive director of Human Rights in China, who recalls how Cohen spent hours vetting the organization’s draft report on China’s opaque state-secrets system. “Jerry always has time for people, not just famous people,” says Ira Belkin ’82, who runs the Ford Foundation’s Law and Rights program in China and still remembers attending an NYU Law event in Shanghai years ago and being impressed at how Cohen had a personal relationship with every student. Indeed, this knack for cultivating relationships, whether with Chinese bureaucrats, American politicians, human rights activists, or young law students, is a key factor in his influence.

Cohen always uses his relationship-building skills in service of his higher goal: pushing for a genuine rule of law in China. Cohen has consistently supported China’s international ambitions, advocating for normalization of relations in the 1970s, negotiating Chinese joint ventures for multinationals through the 1980s and 1990s, and pushing for China’s admission to the World Trade Organization in 2001, because he believes that through international contacts, contracts, and cooperation, China will gradually adopt and follow the rule of law. But Cohen also has been willing to point out when China falls short—and in recent years has adroitly used the media to put pressure on the government. Whether pointing out corruption in China’s international arbitration body, as he did in 2005, or campaigning day-in, day-out for the protection of Chinese defense lawyers from government harassment and imprisonment, Cohen has often named names, publicly challenging the responsible government officials to do the right thing.

Quite remarkably, Cohen manages to still be seen as a “friend of China,” free to speak, lecture, and travel in the country, even while he has become one of the most vocal critics of human rights abuses and corruption in China’s legal system. “I am walking a fine line,” says Cohen. “Some people there don’t appreciate my criticism. But I’ve got a long track record in China. People know that I’ve invested many years in improving relations with China.”

Many, such as Orlins, point to Cohen’s masterly way of framing his arguments to the Chinese. “He never lectures them on democracy or some Western concept,” says Orlins. “He points to their laws and talks about how they need to conform to them. There is a genius to what he does.” Chenguang Wang, former dean of China’s Tsinghua Law School who also has been a Global Visiting Professor at NYU Law, agrees, adding, “I am really fascinated with how Jerry communicates. He is so skillful and knows exactly how to get his point across.”

FROM NEW JERSEY TO BEIJING

Cohen’s ascent to China law scholar was not something anyone in his family would have predicted. He grew up in Linden, New Jersey, a middle-class suburb of Newark. His father, a Republican lawyer, had served as city attorney but was frustrated from higher office due to subsequent Democratic dominance during the Roosevelt years. His mother, hoping Jerry would go into politics, once suggested he drop his Jewish surname and run for office as “Jerome Alan.” But Cohen, always preternaturally confident, brushed off the idea. “Changing my name seemed counter to the best American traditions,” he says. “I also believed that ability was more important than background.”

And Cohen’s ability was obvious to all from a young age. After graduating Phi Beta Kappa from Yale in 1951 and spending a year studying international relations on a Fulbright Scholarship in France, he went to Yale Law School, where he served as editor-in-chief of the Yale Law Journal and graduated number one in his class. He then clerked at the Supreme Court—first for Chief Justice Earl Warren in 1955, then for Associate Justice Felix Frankfurter the following year. Frankfurter, with his willingness to speak out, became a role model; he also served as godfather to Cohen’s two eldest children, Peter, 52, a Cambridge, Massachusetts, real estate attorney, and Seth, 50, a New York City doctor. (Cohen’s youngest son, Ethan, 48, owns a New York City art gallery, the first in the U.S. to specialize in contemporary Chinese art.)

After stints as an associate at Covington & Burling, as an assistant U.S. attorney for the District of Columbia, and as a consultant to the U.S. Senate Committee on Foreign Relations, Cohen had the résumé, smarts, and connections for the kind of political career that would have made his parents proud. But he chose to teach law at the University of California, Berkeley. “I always wanted to be able to speak freely, and academic tenure provided that,” he said.

A year later, in 1960, the Rockefeller Foundation’s president, Dean Rusk, who had been assistant secretary of state for Far Eastern affairs during the Korean War, offered a four-year grant for a law professor at Berkeley to study China. Frank Newman, the incoming dean, asked Cohen to help find someone for the spot. Cohen spoke to several prospects but couldn’t persuade anybody to take up such an arcane discipline as Chinese legal studies. In the process of trying, though, Cohen says, he persuaded himself. “This was a chance to do something distinctive. I wanted to be a pioneer.”

His wife, Joan, who had a B.A. in art history from Smith College and was then an at-home mom of two (with a third son to be born in 1961), says she gave Cohen her blessing but told him, “You’re picking the one field where no firm would ever want to consult you.” Many of Cohen’s friends and colleagues “thought I must be having a nervous breakdown,” says Cohen, noting China was then completely closed off from the West. His old mentor Justice Frankfurter even wrote Cohen, warning him that he was “throwing away” all his hard-earned knowledge of U.S. law.

Cohen’s faith—in himself, his new vocation—was not shaken, and in fact, as was his nature, he seemed to gain strength in the face of opposition. After getting over Frankfurter’s barb, Cohen wrote him a note saying he understood Frankfurter’s reaction because the retiring Berkeley dean—whom Frankfurter disliked intensely—had told Cohen the same thing. Frankfurter, Cohen says, then dashed off a handwritten letter: “Given the role China is destined to play in your lifetime and that of your children, you tell him to go to hell!” It was vintage Cohen: With his good-natured sense of humor and astute insight into people, he’d gotten exactly the response he’d wanted—and proven a point.

So, just after his 30th birthday, Cohen began studying Mandarin in the basement of his Berkeley house. “It was August 15, 1960, 9:00 a.m.,” says Cohen, who has a razor-sharp memory for names, dates, and events. Joan, meanwhile, began taking a course in Chinese studies at Berkeley, which would lead to her own career as a photographer and an art historian specializing in modern Chinese art. (The couple would collaborate on China Today and Her Ancient Treasures, an illustrated book aimed at newcomers to Chinese culture. Chosen by the Book-of-the-Month Club as an alternate selection, it was first published in 1974.)

By 1963, Cohen, near-fluent in Mandarin, was on sabbatical in Hong Kong, interviewing refugees from mainland China about legal procedures used in criminal cases. The result was his first book, The Criminal Process in the People’s Republic of China, 1949-1963, widely praised for detailing criminal procedure in China and analyzing its connection to Confucian and imperial Chinese traditions and social norms and practices. In 1964, he joined Harvard Law School and moved to Cambridge.

Like many Asia scholars in the 1960s, Cohen lectured, gave interviews, and wrote articles opposing the reflexive anticommunism of the time. But unlike many of his fellow academics, Cohen also had a gift for negotiation and saw an opening to broker a solution to a notorious Cold War case that had been a sore point in U.S.-China relations. In 1952, a Yale classmate of Cohen’s, John Downey, along with another American, Richard Fecteau, had been captured and imprisoned by the Chinese government. China had insisted that Downey and Fecteau were CIA agents on a secret mission to foment rebellion in China. The U.S. denied the charge, claiming they were Army civilian employees whose flight went off course from South Korea. But Cohen remembered attending a CIA recruiting session at Yale in early 1951, where a CIA recruiter spoke vaguely of a possible mission in China. Cohen decided not to sign up, but it was known that a few students, including Downey, did.

[Sidebar: Feats in Two Koreas]

At a Yale reunion, Cohen’s classmates asked Cohen to work on Downey’s release from prison. In summer 1971, Cohen appeared before the Senate Foreign Relations Committee and wrote a New York Times op-ed, revealing what he knew about the Downey and Fecteau case and urging the U.S. government to come clean. (During that spring, he’d also floated this idea to Kissinger and Huang Hua, then China’s ambassador to Canada.) “I knew how much China resented the hypocrisy of the U.S.,” says Cohen. “I thought if I could get the U.S. to finally tell the truth, that would satisfy China and they’d release” Downey and Fecteau.

In December 1971, Fecteau was released. Downey was released in March 1973, six weeks after Nixon, for the first time, publicly admitted Downey’s CIA affiliation.

FINALLY, A VISIT TO THE MAINLAND

Although it is known that Kissinger discussed the Downey case during his secret talks with the Chinese during the summer of 1971, the extent of Cohen’s influence is unclear. Kissinger didn’t even acknowledge the existence of Cohen’s 1968 memorandum on China until the 1979 publication of his White House memoir. Even then, he downplayed the memo’s importance, suggesting that the China scholars didn’t understand all of the geopolitical subtleties.

But for Cohen, getting credit was never as important as getting access: What he most wanted then was to finally visit China and learn the inner workings of the legal system he’d been studying from afar. In May 1972, Cohen made his first visit to China, as part of a small delegation of the Federation of American Scientists. It was thrilling. “So few Americans were allowed to visit that Zhou Enlai personally approved each visa that year,” he says.

Cohen and a few others had a four-hour dinner with Zhou, in which they discussed the possibility of academic exchanges. But Cohen knew that legal exchanges wouldn’t be imminent. Upon his return, he wrote in an essay, “The first thing to learn about legal education in China is that there isn’t any.” Their constitution, he noted, was mostly “an unenforceable collection of political slogans and principles.” Bookstores had no legal section. There were no law professors to meet—since the Cultural Revolution, they’d been sent to work on farms or shuttered at home.

In part because of Watergate, the reconciliation process stalled. Cohen’s real adventures in China would not begin until Deng Xiaoping became China’s leader and President Jimmy Carter signaled his readiness to complete the process of normalization begun under Nixon. As usual, Cohen saw an opening and seized it, suggesting that Senator Ted Kennedy, a champion of normalization, go with him to China to meet Deng. But when they arrived in Beijing in late 1977, Deng was ill with the flu, and his aides told Cohen he didn’t want to set a precedent of meeting with individual U.S. senators. Cohen remembers Kennedy was upset and warned Cohen, “I will consider this trip a failure if I don’t meet Deng.”

Cohen swung into action. Knowing that he and Kennedy were under constant surveillance, Cohen shrewdly staged some conversations with Kennedy in his hotel suite in which Kennedy complained about the impact on U.S. and China negotiations if he, one of China’s true friends, did not get to meet with Deng. Then Cohen called home to Joan in Massachusetts. “I spoke—loud and slow—about all the years I’d invested in getting Senator Kennedy on the right side of China issues, and now Deng’s handlers were messing things up,” he says. The ploy worked; Deng had a 90-minute meeting with Senator Kennedy, his family, and Cohen. (On January 1, 1979, the U.S. and China officially established diplomatic relations.)

A NEW ERA OF U.S.-CHINA RELATIONS

While few China experts have met both Deng and Zhou, as Cohen has, what established Cohen as a China insider were the years he spent as a deal-making attorney in the country. “I don’t hang around with the Chinese leadership. They think I am not a person who is entirely reliable,” Cohen says, explaining he never tried to cultivate relationships with the top leaders, fearing it might hamstring his ability to speak freely.

When Cohen tells the story of how he became the first Western lawyer to practice in Beijing, he notes he happened to be in Hong Kong on a sabbatical in January 1979, with a sideline consulting at Coudert Brothers, a New York law firm trying to expand its presence in Asia. Deng had just announced a raft of economic and legal reforms that were opening China to foreign trade and investment, and Cohen’s phone began ringing off the hook from Fortune 500 companies interested in setting up joint ventures in China.

Some of these calls, however, came as a direct result of Cohen’s gift for building relationships. A former Chinese tutor of his at Harvard, for instance, put him in touch with Xiao Yang, who headed the Beijing Economic Commission. Xiao and Cohen worked out a deal: In exchange for teaching 30 of Xiao’s commerce officials basic contract and business law a few hours a week, Cohen would receive permission to live and practice in Beijing, something no Western lawyer had done since the People’s Republic of China was established in 1949.

Even Cohen’s first major client, General Motors, which wanted to open up a $1 billion heavy-truck manufacturing plant in China, came to him through an acquaintance he’d made. Bob Rothman, a GM attorney, had heard Cohen lecture at the University of Michigan while an undergraduate majoring in Chinese in the late 1960s. He then wrote Cohen for career advice. Cohen wrote back, advising him to apply to law school and sending him several publications to help Rothman with a paper he was writing about Chinese marriage law. Rothman never forgot it.

“I was so impressed that he’d bent over backwards for some kid he didn’t know,” says Rothman. Though the company never got further than a memorandum of understanding on that plant, GM retained Cohen as an adviser off and on for nearly a decade.

Living at the Beijing Hotel, Joan and Jerome found themselves under constant surveillance. Their office and home phones were tapped, their rooms bugged. Visitors to their hotel suite were often interrogated on the way in—and on the way out. The couple, however, made a decision not to be intimidated. “We knew that at any point, we could be asked to leave. We wouldn’t know why or when it might occur, so we just went on with our lives,” says Joan.

In 1981, with his leave at Harvard up, Cohen decided to resign from Harvard and join the New York firm Paul, Weiss. “I just couldn’t leave China,” Cohen recalls. “I felt this was an historic moment, and if I went back to Harvard, I’d have to ask my former students in practice what is really going on, instead of being the person leading the charge.” (Joan’s career, teaching and writing about contemporary Chinese art, was flourishing, too. She would later publish The New Chinese Painting 1949−1986, as well as other books.)

Spending much of the year in Hong Kong (with a small apartment in New York and a summer house in Cape Cod), Cohen devoted the next few years to making deals and matching wits with Chinese officials, many of them party functionaries with no legal experience. “At first, I would go to meetings and people would just stare at us, blank faced. They’d never seen a Westerner before. They didn’t know if they could trust us,” he says. He learned that it helped if he could explain his positions using “a few old ideological maxims,” such as Deng’s saying, “Speak truth to facts.” He also found that if he could “say that it was good for foreign investment, and say it with a straight face,” his suggestions would often be adopted. “Often these slogans were useful tools, especially when dealing with people who weren’t lawyers but were guided by [Communist Party] clichés,” he says.

A favorite Chinese negotiating tactic, Cohen says, would be to insist that they couldn’t agree to a clause because of a regulation, but if you asked for a copy, the Chinese would claim it was nei bu, an “internal document,” restricted and illegal to show to foreigners. “You wouldn’t know if the instructions required the result they were advocating, or if the document even existed,” Cohen says, adding he supported China’s entry into the WTO, knowing that that would lead China to agree to conform to international standards, including doing away with the use of “internal documents.”

AN ADVOCATE FOR THE RULE OF LAW

On June 4, 1989, China’s army crushed the student protest movement centered in Tiananmen Square, and deal-making ground to a halt. Paul, Weiss closed its Hong Kong office. Drawn to the NYU School of Law’s growing global emphasis, Cohen joined the faculty in 1990, while staying engaged at Paul, Weiss until his 2000 retirement.

At NYU Law, he worked to build up the school’s Asia legal studies program, recruiting Frank Upham, a former student and an expert in Japanese law, as well as bringing over numerous visiting scholars and professors from East Asia. One of Cohen’s signature courses became Legal Problems of Doing Business with China and East Asia; drawing on Cohen’s unique experiences, the course also has included his frontline view of how Chinese business disputes can turn ugly.

After China established capital markets in the early 1990s, the Chinese had more opportunities to accumulate wealth, but Cohen says the system of guanxi—“connections,” or the old boys’ network— often meant that local authorities would sometimes collude with, or against, Chinese business executives embroiled in disputes.

In the mid-1990s, an American investment firm brought Cohen in as a legal adviser after a Chinese executive involved in its joint venture was kidnapped and illegally detained by local authorities; Cohen says the officials were looking to prove corruption charges leveled by jealous ex-employees. Cohen met with local prosecutors and went over with them “line by line” China’s then-recently amended criminal procedure law, including the provision allowing the right to counsel. “The prosecutor looked at me and said, ‘Our job is to get corrupt people! We don’t have to pay any attention to this procedure!’” says Cohen, who then appealed to the national prosecutors’ office to investigate—to no avail.

The local authorities typically have the last word in such disputes. For despite Americans’ impression that China’s leadership rules from Beijing with an iron fist, Cohen says the provinces and local governmental institutions often function as quasi-independent “feudal baronies,” in part because of the system of local protectionism.

As a result of such cases, since 1999, Cohen has focused on reform of the criminal justice system—what he calls the “weakest link” in China’s legal system. Even when Chinese officials do follow the existing rules, police still are permitted by law to detain suspects without approval of an outside agency, and suspects have no right to silence. Vaguely worded criminal laws against “endangering state security” and “inciting subversion” enable the regime to impose harsh sentences whenever it desires. Amnesty International, in fact, calls China the world’s “top executioner,” estimating some 1,700 death penalty executions, though probably many more, each year. China classifies the exact number as a state secret.

Cohen began working as a legal adviser on several key human rights cases in China. One of them involved Yongyi Song, a Dickinson College librarian and China scholar researching the Cultural Revolution who was arrested by secret police in Beijing in August 2000 and held in prison on charges of “purchasing intelligence and exporting it to a foreign country.” (Song said he bought old newspapers, books, and Red Guard wall posters from the late 1960s.)

Working pro bono for Song’s wife and Dickinson College, Cohen arranged for a Chinese lawyer to represent Song. Then, he masterminded a public relations campaign, enlisting the support of Senator Arlen Specter, as well as launching a petition calling for Song’s release, which garnered 176 signatures from China scholars around the world. Less than a month after Cohen joined the case, Song was released in January 2001. “If you see Jerry, please tell him, ‘Thank you, again,’” says Song, now a research librarian at California State University in Los Angeles.

More recently, though, China has been less willing to bend. Since 2005, Cohen has crusaded for the release of Chen Guangcheng, a blind human rights defender placed under house arrest and then imprisoned after filing a lawsuit on behalf of thousands of Chinese women who underwent forced abortions and sterilizations. In 2003, Cohen met Chen, known as a “barefoot lawyer” because he is selftaught in the law and provides free legal counsel to peasants, and Cohen became an ardent champion of his work. After meeting Chen through Cohen, Chenguang Wang, Tsinghua Law School’s former dean, says he instituted a program for Tsinghua law students to spend their summers training other “barefoot lawyers” in rural communities in China.

But in 2005, Chen was placed under house arrest; the next year, he was tried and convicted of trumped-up charges—property destruction and “interfering with public order”—and sentenced to four years in prison. Cohen has been writing and speaking out about the case ever since, even in China.

At a 2007 legal conference in Beijing, he held up a Tshirt reading “Free the blind man, Chen Guangcheng” and spoke about the case. “I wanted to make the people at the conference feel guilty,” he explains. “There are criminal justice specialists in China who don’t know what’s going on in their own country.”

In fact, his views carry weight with the Chinese legal establishment. “Jerry is the guardian of the conscience of the intellectual,” says Henry Chen (LL.M. ’03), a partner at MWE China Law Offices in Shanghai, pointing to Cohen’s criticisms of the China International Economic and Trade Arbitration Commission (CIETAC), China’s powerful international commercial arbitration body. In a speech at a 2004 legal conference in Xiamen and a 2005 article for the Hong Kong–based Far Eastern Economic Review, Cohen—the first foreigner to advocate before CIETAC in 1985—called out the commission for corruption, citing specific instances, and he said he’d advise clients to stay away from the commission, even though he was one of only about 100 foreigners appointed as CIETAC arbitrators. Soon after, CIETAC adopted some of the reforms Cohen suggested, but Cohen learned he would not be reappointed to the body. (At a 2007 arbitration conference in New York, Cohen says, CIETAC’s new leader publicly vowed Cohen would be reappointed. “I am still waiting,” Cohen says.)

Such retribution has been rare, and if he is worried about losing the right to travel, teach, and speak in China, he isn’t showing it. The Law School’s U.S.-Asia Law Institute, established in 2006 by Cohen and Upham, continues to promote legal reform. With the help of senior research fellows Margaret Lewis ’03 and Daniel Ping Yu, as well as others, the institute has brought over Chinese judges, lawyers, prosecutors, and academics to study such hot-button issues as procedural safeguards in death penalty appeals. Writing a twice-monthly column for the Hong Kong–based South China Morning Post, Cohen also keeps the spotlight on legal abuses, such as the case of Gao Zhisheng, a missing Chinese human rights lawyer who was last seen in the custody of State Security agents in February.

Despite the recent spate of human rights abuses in China, Cohen has no thoughts of retiring and remains optimistic that China will create a genuine rule of law. “Seeing the changes I’ve seen in China over the last 40 years, I know that it is possible,” he says. “And what better use for my life? I’ve engaged in meaningful work, and I am having an impact.”

—Pamela Kruger is a New Jersey-based writer and editor.

—

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Robert Katzmann, Judge, U.S. Court of Appeals for the Second Circuit; Adjunct Professor, NYU School of Law: I would try to facilitate effective legal representation in the system. A system in which nationally only 35 to 42 percent of immigrants have legal representation is flawed. Given the high stakes for immigrants and their families, the lack of representation and the problem of deficient representation pose real challenges in terms of assuring fairness.

Gregory Chen ’97, Director for Legislative Affairs, Lutheran Immigration and Refugee Services: Lutheran Immigration and Refugee Services has a broad base of networks, people, and organizations providing services for immigrants. Its greatest concern is about the escalation of detention and the resulting inhumane treatment of detainees.

Recently, a Department of Homeland Security official testified that in fiscal year ’09, they anticipate 442,000 people will be held in the immigration detention system. That’s an astronomical increase in the past 10, 15 years. The budget allocation is over $1.5 billion for detention. There is this disproportionality. Why are we using prisonlike facilities for people who pose no threat to physical safety, no threat to national security, and also are likely to appear at immigration proceedings because they’ve got a family and a job?

What strikes home the most is the fact that the Lutheran church is a midwestern, moderate constituency, and they have come out and said: “We’re shocked about this. We’re concerned about what we hear. Aren’t there alternatives?” Rule of law is very important to the Lutheran constituency. What about using parole, alternatives to detention and incarceration, that the criminal justice field has already massaged? For some reason, the immigration system just hasn’t been able to mine those creative solutions for more humane and also less costly alternatives.

Cristina Rodríguez, Professor of Law, NYU School of Law: In my “official capacity” as someone who is originally from south Texas, I would reorient our approach to the border and border enforcement. Resource allocation is dramatically weighted in favor of border enforcement, rather than enforcement in the interior. But much of what is spent on the border represents a gigantic waste of money, because there’s very little return. I don’t mean there’s little return with respect to either deterring undocumented immigration or in the number of arrests, but in terms of security, which is the way that border enforcement is generally sold.

The construction of the fence, in particular, is highly disruptive to communities that are real binational communities, and that’s a substantial loss. From a foreign affairs perspective, it’s exactly the wrong way to set the agenda with Mexico, which should be a partner in trying to deal with broader immigration-related issues, such as how to manage migration between the two countries and reduce undocumented immigration.

Rachel Rosenbloom ’02, Assistant Professor, Northeastern University School of Law: I would agree with that point, and add that there’s a significant waste of money in interior enforcement that we should be worried about as well. I don’t think we should see the border and the interior as pitted against one another, but rather as part of the same, larger picture.

All of which raises the question of prosecutorial discretion. Not everyone who is deportable should be deported. Before thousands of dollars are spent on detaining and deporting someone, we need to ask: Is there a substantial federal interest in the removal?

In the final days of the Clinton administration, INS Commissioner Doris Meissner issued a memo on prosecutorial discretion that laid out a set of criteria for answering this question: What are the person’s ties to the U.S.? Are there family members depending on this person? If there is a criminal conviction, how serious was the offense and how long ago did it occur? This memo is unfortunately a dead letter these days. If the established criteria were being used, far fewer people would be in removal proceedings, which means fewer people detained, fewer people in need of counsel, and fewer petitions for review taking up space on Judge Katzmann’s docket.

Andrea G. Black ’96, Network Coordinator, Detention Watch Network: I’ve been thinking about this question of “if there were one thing…” What really can get at the core of creating change?

In my mind that one thing would be a cultural shift away from the criminalization of immigrants overall, looking at balanced enforcement that upholds due process and human rights and at strategic priorities that keep our country safe. We’re seeing the creation of an underlying link between the immigration enforcement system and the criminal justice system. Immigrants are now the fastest growing population in our prison system. The U.S. is increasingly using our failed criminal justice system to imprison, detain, and deport immigrants. So unless we target that underlying culture, it’s going to be hard to have more than superficial changes.

Philip J. Costa ’92, Deputy Chief Counsel, U.S. Immigration and Customs Enforcement, U.S. Department of Homeland Security:* I would like to pick up on the issue of prosecutorial discretion. I get frustrated when I hear attorneys say that ICE does not exercise prosecutorial discretion, because I know firsthand that it does so every day.

I am responsible for new attorney training in my local office, and every single attorney who joins our office receives a lengthy lecture from me about prosecutorial discretion on his or her very first day. I explain that prosecutorial discretion is a key litigation priority. I make clear that I expect ICE attorneys to be the most prepared attorneys in the courtroom, that I expect them to understand the extraordinary stakes that are at issue for each applicant, and that I expect them to understand that their job is not to win a case but rather to achieve the correct result.

I also chair a working group that recently established ICE’s first national trial advocacy training program. And at the close of each program, after spending a week teaching trial techniques to ICE attorneys, I personally lead a discussion on prosecutorial discretion. So ICE attorneys get the message very clearly that prosecutorial discretion is a key litigation priority and that they must exercise their authority responsibly.

Benita Jain ’03, Co-Director, Immigrant Defense Project: Andrea’s comment about a cultural shift is incredibly important. The culture or the goal at both DHS and DOJ is often “Let’s try to deport as many people as we can.” Numbers are the measure of success— more people detained, more people deported—and not necessarily proportionality or fairness or some other value.

I would love to see in both agencies a more reasonable approach to interpreting immigration statutes. We have a regime that subjects immigrants to some of the harshest consequences imaginable, including mandatory deportation and mandatory detention. On top of that, we have DHS looking for aggressive outlier arguments to expand the intended reach of these laws. For example, they have argued that simple drug possession is really drug trafficking, which would result in mandatory deportation. And that a drunk driving offense is a crime of violence. And that a misdemeanor offense is an aggravated felony. Taking the law to the extreme, whether the language calls for it, whether Congress actually intended these consequences, is a big problem. Even Judge Posner once said that the only thing consistent about the government’s approach is that the immigrant always loses.

Omar Jadwat ’01, Staff Attorney, ACLU Immigrants’ Rights Project: If you’re not going to change any statutes, discretion is the key to getting the system that we have working better. But not necessarily just prosecutorial discretion in the classic sense of a prosecutor operating on a set of facts that’s before him and deciding, Is this a case that, according to some guidelines, makes sense to defer or not?

The federal executive is, or should be, in charge of this whole system, at least until a case goes up on appeal. So if, for example, immigration judges are totally overloaded, that’s in part because the federal government isn’t exercising its discretion overall in a way that makes that system work, that makes it possible to allocate those resources the right way. You’ve got people at various points in the system shoving cases into the funnel without regard to whether the funnel’s backed up or, realistically, how many cases is it reasonable for us to put in, given the capacity we have? What’s a reasonable way to interpret the laws, given the facts on the ground?

Katzmann: Isn’t the statistic something like 1,500 cases per immigration judge? Also, in terms of how much support that judge gets, there’s one law clerk for six immigration judges. It takes time to reach the right decision. Especially in these cases, which are so difficult and are so fact-intensive, if you don’t have the time and resources to develop the record and to think through the issues, it’s very hard to secure justice.

Nancy Morawetz ’81, Professor of Clinical Law, NYU School of Law: Part of the problem is that it’s not prosecutors who are making the decision to issue an NTA. A Notice to Appear, which starts the whole deportation process, is issued by a border patrol officer, an immigration customs enforcement officer, or from somebody having been identified just because they were arrested, even if the charges were dismissed. So cases are placed in the system by people who aren’t really held institutionally responsible for whether those are the right cases to be in the system, whether those cases cause enormous cost to the system and to those individuals. If somebody is arrested in a city jail, is identified and placed in proceedings, that person might raise a defense that he or she is a citizen. During the months or years it takes to prove citizenship, he or she could be detained or shipped around the country.

What I would try to do is go back to a document called Operation Endgame, which was announced in 2003. It was a blueprint to literally “remove all removable aliens.” And it launched a whole series of projects that led to an internal culture at the agency of “If you can find someone, and they’re removable, then put them in.” Maybe if they can come up with a defense, they can persuade the immigration prosecutor that they have a good case. It’s quite true that when people can show relief, in many cases the immigration customs enforcement lawyers will waive appeal. But generally, they feel limited to where it’s clear the person has relief. So the problem is up-front. Cristina raised the question, is this a border-enforcement- versus-interior-enforcement question? What I would really hope is that we get beyond that zero-sum game concept in which there has to be a shift and the agency has to show large numbers— because if you ask for numbers, you’ll get numbers.

I would look for the Department of Homeland Security to officially repudiate Operation Endgame. To say, that’s the enforcement practices of the last administration. And that they are looking to design enforcement at the border and away from the border that is thoughtful about whether it makes sense at the very beginning to place somebody in proceedings. If somebody is going to be able to adjust their status, but their number just hasn’t come up yet, why are you putting that person in proceedings? The person who makes that decision at the beginning can’t just have an institutional job that says, you find the people, and somebody later will figure out what we do with the people. They have to have some responsibility at the beginning to be asking whether they’re finding the right people in the first place.

Rosenbloom: I recently read a statistic that an estimated five percent of the population of the United States is removable. If that is anywhere close to accurate, that’s a lot of people. I don’t think any of us would argue that the job of this agency is to remove five percent of the population.

President Obama has signaled that this administration is shifting away from the large workplace raids we saw during the Bush administration. That’s an important start. The question is, can the culture of the agency change enough to extend that approach to some tougher issues? For example, to say that ICE is no longer going to sweep up permanent residents who end up in county jails for minor offenses.

Rodríguez: Is there something inherent in the culture of an enforcement agency, where numbers are important as benchmarks, that leads in that direction? There’s a need for external mechanisms of supervision, like congressional oversight. We should consider whether congressional oversight can be effective at shifting enforcement priorities, or if it’s even possible for something to come from the top and change the culture of the whole agency. Or, do the agencies just develop enforcement priorities of their own without regard to direction they might or might not be getting from the political process? The resetting of priorities thus goes back to whether you can change the culture of the agency.

I’m curious what those who deal with the agency on a more regular basis think about the possibilities for that.

Morawetz: What happened with people with outstanding orders of removal is a good example of the problem of turning to numbers. People then got tagged and called fugitives, which is not fair, since many people with outstanding orders don’t know that they have an outstanding order. Nonetheless, that was the stated priority. When performance standards were created geared to numbers, that priority shifted to being basically whoever could be rounded up. We represent such a person in our clinic who was simply living in an apartment that was the subject of a raid.

It’s a lesson, because if you’re looking for numbers, you’re going to be making a lot of mistakes. There have been reported instances of citizens being placed in removal proceedings and sitting in detention for a long time. I don’t walk around with my passport. We are not a country that requires a national ID.

Jain: That is really instructive. Since 1997, more than one million people who have convictions or some kind of interaction with law enforcement have been deported. They’ve left behind more than two million spouses and children in the U.S. The stated reasons are national security and public safety, but people’s experiences don’t bear that out. We see people being tagged for deportation—through jails, when they apply for naturalization, when they return from trips abroad—for convictions that may have happened years ago, and for which they’ve already served their time. People who have really gotten their lives together or are trying to get their lives back together are suddenly and permanently ripped from their families and communities. That’s where prosecutorial discretion, and the need to determine whether a situation actually merits enforcement action, again comes in. Deporting one million people with convictions does not necessarily mean that our communities are safer when families have been split apart and these same communities are disintegrating.

Black: I was reflecting on what Cristina was saying, about this issue of what we need outside the system. Outside accountability is really critical, and we’ve been calling for not only codification of the detention standards that are currently in place but an outside oversight mechanism. Take the case of Sheriff Joe Arpaio in Arizona, who most recently paraded a group of shackled immigrants down the road, to the horror of a lot of people. Actually his local immigration enforcement program is under the supervision of ICE. In October of last year, ICE reviewed the program and said that they had no problems with it. Clearly there’s some internal guidance that’s missing. We need to think very carefully about what this outside oversight should look like.

Maybe it’s a good time to talk about money interests too, because of our economy. It’s not only the wastefulness. We know that there are many private-prison lobbyists on the Hill advocating for increased spending. But also, where is the money going in terms of local and state agreements? These local law enforcement agreements are meant to be unfunded mandates, so a lot of communities are actually suffering. However, the way these programs are being sold, local communities are being told that there’s going to be money for their detention beds. For example, at another recent hearing in Washington, a local sheriff in Maryland said that it costs him $7 a day to house and feed an immigration detainee, and he gets $83 a day from the government. And then he said, “Oh, but there’s no incentive for me.” Seriously.

Jain: And the amount of money that’s spent in appealing immigration judges’ grants of relief, in keeping people in detention, or in litigating through the federal courts is phenomenal.

Chen: It is striking to see how faith leaders are responding to the immigration debate. A lot of faith communities see rule of law as being very important. But they are also seeing that punitive enforcement of those laws is inhumane and morally wrong. The extreme cases of enforcement have galvanized a shift in attitudes and beliefs about the fairness and justness of our laws and government practices. It’s beginning to happen where people see the inhumanity of enforcement actions. Last year, there was the largest raid ever, at a Postville, Iowa, facility. The Lutheran bishop from northeastern Iowa was born and raised in Postville. He spoke with personal conviction about what had happened to his community of a few thousand. To have 400 people suddenly gone has reverberations across the community. Schools actually had to close down; teachers lost their jobs.

Lutherans and everyday Americans were shocked by the fact that they used black Suburbans and helicopters and all sorts of high-tech weaponry when it was highly unlikely that anyone was armed in the factory. Many of the workers were unlikely to present a flight risk. Then the government charged them with aggravated felony identify theft and used aggressive bargaining tactics, such as exploding plea offers. Those detained had counsel that were representing huge numbers of clients and had little time to prepare their cases. There’s been a culture of fear, especially post-9/11, that has enabled people to ferret out and identify anybody who might be different. Until a shift in attitudes occurs, where that pervasive fear dies down, it’s going to be very hard in local communities to have rational and fair policies and legal reform.

Jadwat: Part of what we need may be a culture shift, but part of it is also just a volume shift—getting politicians to understand, which maybe they saw to some degree in the last elections, that what they’re getting in their in-boxes and on their phone lines from these very well-organized restrictionists is not really representative of what people at large are thinking.

Costa: I lend a different perspective because I’m hearing the agency that I’m a part of described. The culture that many of you are describing has nothing to do with the agency that I work for. At the heart of ICE’s mission is the protection of our communities by targeting national-security risks, dangerous criminal aliens, and aliens who have committed human rights atrocities, including persecution, torture, and extrajudicial killing.

Frankly, I’m taken aback at the notion that the jails are a bad place to look for litigation priorities. It strikes me that jails are actually a particularly good place to look. I appreciate that there are difficult cases, and we may agree to disagree about what constitutes a “minor” crime. For example, in my judgment, someone who has engaged in DWI, which statistics reveal is often a recidivist offense, presents a real threat to the community.

Further, I object to the notion that there is not a substantial security payoff for ICE’s enforcement actions. The government doesn’t get extra points for removing somebody on a national security-related charge if a simple visa-overstay charge works just as well. Sometimes, what seems like an ordinary immigration charge involves additional considerations.

Rosenbloom: No one would question the notion that preventing terrorism is a worthy goal. The problem lies in leaping from that to justify a broad range of enforcement actions that have nothing to do with terrorism. Deporting a former drug-user who has children depending on her is not going to make America a safer place for anyone, and it is going to destroy a family in the process. So-called “criminal aliens” are often simply ex-offenders who are important and valued members of their family and community.

Jain: Of people who have been deported because of convictions, at least 65 percent have been for nonviolent offenses. Perhaps 20 percent for violent offenses. They have included veterans that have fought on behalf of the United States. Identifying an immigrant who has a conviction does not automatically mean that you’re protecting a community and enhancing public safety.

Costa: We’ve talked a little bit about older crimes. For those of us who have lived through changes in the statutory scheme, we’ve seen people with old criminal offenses who were never put into immigration proceedings but who would have been eligible for relief if they had been put into proceedings. Then suddenly the immigration laws change. Now some of these same people travel abroad to visit family, and when they show up at the airport upon their return, they have a problem. This resulted in a hailstorm of litigation, going all the way up to the Supreme Court.

Jain: Nothing requires DHS to take the extreme positions on statutory interpretation that it does. In case after case, the Supreme Court keeps overturning the government, sometimes unanimously. The Lopez opinion refuting the government’s position that simple drug possessions are drug trafficking aggravated felonies, simply because a state labels them “felony,” reads like a grammar lesson to the government.

You also mention that the law keeps changing. People who never imagined that they would have been deportable at the time they pled guilty years ago all of a sudden are. That and the lack of counsel for most people makes it even more important for the government to interpret laws more reasonably and use prosecutorial discretion.

Morawetz: How people get into the system is probably the most important question, and that’s long before that case shows up in immigration court. But it’s interesting to think about what happens in immigration court and what can be done to make that work better. Are there things from your perspective, Mr. Costa, that could be done by people who care about the rights of immigrants to enhance the ability to exercise discretion?

My perspective is that certain kinds of discretion are easy. If you are in the middle of a hearing and it’s clear the person has a really strong case, the government lawyers will often then say, that’s enough, judge. We’re willing to take an order. We’re not going to appeal. That’s a major form of discretion that goes on all the time. But the other forms, like, to drop the case, decide that the notice to appear was improvidently issued—my impression is that that’s really hard, institutionally, for a lawyer to do, and that’s a lot of work compared to going forward with the case. Are there things that could be done inside to make it more friendly to the exercises of discretion for the people who probably face a more crushing caseload than the immigration judges face?

Costa: Sometimes applicants or their attorneys will ask ICE for the exercise of prosecutorial discretion. The applicant may have no statutorily available relief. Nonetheless, there may be compelling humanitarian considerations, and the applicant may ask ICE to consider administratively closing or even terminating removal proceedings. Depending upon the circumstances, ICE may be authorized to do that, but it needs a whole host of information to be able to make an informed determination. As a result, applicants and their attorneys need to provide ICE counsel’s office with as much information as possible. I promise you, when someone brings that sort of request to ICE counsel’s office in New York, every single request gets a close look.

I want to emphasize that we understand the significance of these cases to the applicants. In a typical asylum case, for example, the person sitting across from us is litigating issues relating to his immediate liberty and potential return to a country where he may face economic deprivation, persecution, or even torture. The stakes of these cases are extraordinary, even in the nondetained setting, particularly when you consider family reunification principles. Whether a claim is meritorious or nonmeritorious, a typical applicant walks into court thinking, “Depending upon what happens today, I may be able to see my wife or my husband or my children for the first time in five or six years.” I cannot imagine something that could be more important.

Peters-Quintero: Judge Katzmann, how do we increase adequate and competent representation in the system?

Katzmann: Short of legislative solutions, one approach is to engage the legal community. These are not easy cases. It’s not simply that a lawyer can go in without any training and do a competent job. What we have to do is to provide encouragement to lawyers in the private bar to work with lawyers in the immigration bar. It starts in law school. The immigration clinics can play a very critical role in interesting lawyers, even if those lawyers don’t go into immigration practice itself. And law firms need to devote more of their pro bono resources to immigration.

The state gives lawyers a monopoly—the legal system is essentially a monopoly of lawyers—and in light of that monopoly, there surely is some reciprocal responsibility among the lawyers to serve those in need. The immigrant poor should be at the very top of the list. If you have more and more lawyers taking on these cases, they will have a greater understanding more generally of the complicated issues associated with immigration. Their involvement will enrich the public policy debate.

Chen: Prior to coming to Lutheran Immigration and Refugee Services, I was director of policy at a refugee advocacy organization, but I also happened to run what, at the time, was the largest pro bono law program for children in immigration proceedings.

Pro bono lawyers can be excellent, but as the solution to the huge caseload that you’re seeing in your courts and on your dockets, it’s not the answer. Pro bono lawyers generally are highly selective in the kinds of cases they are willing to take and also can’t take more than a few cases at a given time. Then also, for reasons of geography, for reasons of timing, there’s going to be a large population of immigrants in proceedings, especially those detained, that can’t be represented. At a fundamental level, there is not going to be any real basic way of replacing having a full-time practicing lawyer. So the answer has to involve some kind of paid-for counsel, maybe government paid-for counsel.

Black: For example, what about the people where I used to work in Eloy, Arizona, out in the middle of the desert? Currently there are two thousand people detained. Right now, there are two staff attorneys trying to perform legal orientation and consultation. It’s definitely not representation.

It’s so hard to get access to counsel when people are detained thousands of miles away from their families, and shipped around constantly. We have this system that actually moves people away from any access to counsel they may have. Then there are the conditions on top of that where the phones do not work consistently, there are no legal materials in the library. This goes to detention conditions. It’s all really interlinked. Can we look at a system where alternatives to detention are really the norm, where there is access to counsel and access to pro bono services, and where if detention is used at all, it’s used in those rare cases where it’s needed for public safety? It’s hard to look at one piece of the system without seeing the impact of the overarching detention and deportation system.

Peters-Quintero: The issue of local enforcement has been in the news recently. Omar, you’ve worked on this issue. What is the problem, if you see one? Is there room for state and local bodies to enforce immigration law?

Jadwat: This comes up in several ways: 287(g) is the statutory program that allows state and local police to enter into agreements with the federal government to do certain aspects of immigration enforcement. There’s also a whole bunch of other initiatives that seek to involve local law enforcement without a 287(g) agreement. Like, linking up the jail computer systems with ICE’s computer system.

One obvious problem with having state and local police involved in enforcement is in terms of trying to get the federal government to intelligently prioritize and exercise discretion. That is made infinitely more difficult when it’s not the federal government doing the initial thing that gets people into this process. They’re cramming more people into the funnel with either no federal oversight because it’s part of some informal program, or, in the 287(g) program, no use of the potential oversight that might be built into those agreements.

Another problem is that if you tell police that part of their job is to arrest illegal aliens, then, with the minimal training that a 287(g) officer would get, or, as is often the case when you have some sort of immigration enforcement without that training, often the way that gets implemented is that people of color and particularly Latinos get stopped and run through the system. So you have all of the negative effects of profiling and of estranging the police from the community.

Rodríguez: It is about setting priorities in two ways. One is the extent to which using police in the enforcement of immigration law can complement the setting of federal priorities, or whether it’s actually creating incoherence.

In the second sense, it’s about priorities with respect to policing communities and advancing the public safety mission of law enforcement. If these agreements do undermine the ability of police to establish trust in places where they need trust, then they’re a problem. The potential erosion of trust is why a lot of police chiefs are opposed to them.

Because it’s a relatively new phenomenon, we have only strong intuitions about why it frustrates both sets of priorities, and the fear of racial profiling is obviously one. There’s a growing body of anecdotal evidence suggesting that that’s exactly how 287(g) authority is used. A study by the General Accounting Office just came out that is the most comprehensive look at how the agreements are actually operating in practice. The main problem is the absence of supervision; police officers are simply being told to arrest illegal immigrants and are then engaging in unfettered decision-making about who that means they should arrest.

So it goes back to what we were talking about before in finding mechanisms of oversight and accountability to make it work. Only if you can do that does it make sense as a model.

Rosenbloom: Just a final thought to tie together two themes that have emerged. People need counsel, and maybe they even need appointed counsel. That would be expensive. At the same time, the agency is spending millions of dollars each year to detain and deport people who are not a threat to the United States in any way. So let’s save some money by scaling back these enforcement actions, and shift the dollars over to appointed counsel. That would take care of both problems together.

Peters-Quintero: That’s a great note to end on. I would just add, as someone who is not working directly on immigration enforcement, that I hope the issues discussed today get taken up by the wider immigrant rights community, and by legislators and policymakers who are supporting positive comprehensive immigration reform. As we wait to see when and how Congress will take up immigration reform again, today’s discussion is an important reminder that a true commitment to creating a more humane and just immigration system must include working to address the immigration enforcement issues raised here. Thank you all for your contributions.

*Mr. Costa participated as an alumnus and not in his official capacity with the department of homeland security.

—

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She counseled the aspiring lawyers and legal scholars in the audience to remember the basic tenets of American democracy as they responded to seismic shifts in the legal landscape. “We’re likely to experience more restrictions on our personal freedom than has ever been the case in our country,” O’Connor said, reminding legal professionals of their obligation to protect the rule of law. She urged politicians to move cautiously after a disaster that “will cause us to reexamine some of our laws pertaining to criminal surveillance, wiretapping, immigration.” And she predicted, “Lawyers and academics will help define how to maintain a fair and just society with a strong rule of law at a time when many are more concerned with safety and a measure of vengeance.”

Anticipating that momentous cases concerning presidential and judicial authority during national emergencies would find their way to the Supreme Court, O’Connor, who retired in January 2006, then posed a series of questions that continue to frame public discussion about terrorism (and would make for a very respectable law school exam): “First, can a society that prides itself on equality before the law treat terrorists differently than ordinary criminals? And where do we draw the line between them? Second, at what point does the cost to civil liberties from legislation designed to prevent terrorism outweigh the added security that the legislation provides?”

As the legal system grappled with those questions, a new discipline developed, known as Law and Security. The form it has taken at NYU is particularly expansive, welcoming not only legal scholars and practitioners but also investigative journalists, policy and government wonks, and police and military officials sharing information in ways that have benefited all parties. Here they have three primary outlets to practice, study, and exchange ideas: (1) the NYU School of Law Center on Law and Security, a trailblazing internationally focused forum—something akin to an old-style intellectual salon updated for the life-and-death issues of the 21st century; (2) the scholarship and classrooms of about a dozen faculty, including, notably, David Golove on the law of war, Stephen Holmes on the rule of law, Richard Pildes on rights during wartime, Margaret Satterthwaite ’99 on extraordinary rendition, Stephen Schulhofer on police antiterrorism tactics, and Samuel Rascoff, one of the nation’s first tenure-track professors of national security; and finally, (3) the clinical and advocacy work of other Law School centers, such as the Center for Human Rights and Global Justice, which oversees the International Human Rights Clinic, the Brennan Center for Justice, and the Center on the Administration of Criminal Law.

Through its faculty and the centers, the NYU School of Law has helped shape the national security debate, says New York City Police Commissioner Raymond Kelly (LL.M. ’74). “NYU Law has provided an important platform for an examination of crucial issues ranging from constitutional safeguards to the ongoing threat posed by terrorists,” he says. “The Law School’s faculty and other experts involved with the Center on Law and Security are valued resources for critical thinking on the most pressing security challenges of the day.”

The development of law and security at the NYU School of Law began with a desire to create something meaningful out of the stunning destruction. “Everyone was shocked, shattered, demented by getting up in the morning and watching 3,000 people murdered right next door,” recalls Stephen Holmes, Walter E. Meyer Professor of Law. “So there was an attempt to come to grips with it, to think about it: What happened? How should we respond?”

The most immediate answer was to create the Center on Law and Security. Dean Richard Revesz turned to four faculty members whose specialties recommended them for the task: Holmes, a political philosopher; Golove, an authority on international law; Pildes, a constitutional law scholar; and Noah Feldman, an expert on Islamic law who now teaches at Harvard Law School. In turn, they recruited Karen Greenberg to help them draft a proposal. A former Soros Foundation/Open Society Institute executive, she had founded a program that opened NYU campuses in Prague and London.

Greenberg suggested that the Law School start a practical-minded center within the ivory tower. Her goal: “bring people with policy-making responsibilities and academic credentials together, so that officials would have a think tank of their own to rely upon, and academics and experts could apply their skills to a realistic set of concerns.” She also wanted to bring journalists into the conversation “because they had done their homework. They knew about Osama bin Laden and al Qaeda. They understood how to effect a constructive dialogue between Muslim communities and the West.” In Greenberg’s opinion, greater communication among scholars, reporters, law enforcement officials, and policy makers was essential for national security.

The proposal was greenlighted, and Greenberg was appointed executive director, with Feldman, Golove, Holmes, and Pildes named faculty advisers. The center immediately entered into the public discourse through the articles and books the scholars published on such subjects as wartime effects on the rule of law, the Constitution, civil liberties, and separation of powers. Feldman was tapped to be a senior constitutional adviser to the Coalition Provisional Authority in Iraq. His opinion pieces and feature articles for the New York Times and the Wall Street Journal, influenced by his role helping to craft a new Iraqi constitution, helped to raise the profile of the CLS. “The center became a focal point for discussion of counterterrorism and security for both scholars and practitioners,” says Rascoff, now a CLS faculty adviser who in 2003 was a special assistant to Ambassador Paul Bremer in Iraq. However it was the center’s response to reports that the U.S. was torturing prisoners of war that—for a broader audience—put it on the map.

[Sidebar: The “Doyenne of Counterterrorism”]

In early 2004, only months after the CLS officially opened its doors, the Abu Ghraib scandal broke. Leaked photographs of the abuse of Iraqi detainees sparked widespread concern about whether tactics in the American war on terrorism had come to include torture. Greenberg’s aggressive networking among journalists on the national security beat paid off as reporters—and soon thereafter, lawyers and human rights activists—began to request information about U.S. interrogation methods. As government whistle-blowers and enterprising journalists gradually pried classified memoranda from locked drawers at the Justice Department and Pentagon, the center diligently collected copies, amassing a lengthy paper trail of how the Bush administration justified detention policies that appeared to violate U.S. and international law. There was no other place where skeptics of Bush policies could do such efficient one-stop shopping for internal accounts of what Vice President Cheney famously termed “the dark side.”

Among those who approached the center was Joshua Dratel, a New York criminal defense attorney representing a detainee held at the Guantánamo Bay naval base in Cuba. He collaborated with Greenberg in editing the comprehensive collection of primary sources they provocatively titled The Torture Papers: The Road to Abu Ghraib (2005). Anticipation for the book was high. Senator Patrick Leahy used an advance copy to shape his stiff questioning in the attorney general confirmation hearings of Alberto Gonzales in January 2005. The New York Times later described the monumental 1,284-page collection as “necessary, if grueling, reading for anyone interested in understanding the back story to those terrible photos from Saddam Hussein’s former prison, and abuses at other American detention facilities.”

[Sidebar: Beyond the Academy: The Fellows of the Center on Law and Security]

The CLS soon gained a reputation as a leading critic of government security policies. In February 2005, Greenberg and her staff began producing the Terrorist Trial Report Card, a widely cited print and online periodical that assesses the prosecution of terrorism-related crime in the United States. The Report Card has helped fuel a lively debate over the Justice Department’s policy of invoking the threat of terrorism when indicting hundreds of Muslim Americans on garden-variety financial fraud and immigration charges. In a January 22, 2009 editorial, the Chicago Tribune cited the center’s research in arguing that the Obama administration needs to ensure that terrorism suspects are afforded better legal representation.

[Sidebar: Policy Incubator: Student Work in Law and Security]

More recently, the center has begun analyzing terrorism trials in Europe. Among the insights gained from comparison to U.S. strategies: European police tend to spend more time observing suspects before making arrests, sometimes yielding more concrete evidence, and some European judges have shown pronounced reluctance to uphold convictions where there is evidence that alleged terrorists have been questioned harshly while in American custody.

This sharing of information, the center’s trademark, occurs not only in its publications, but through conferences, open forums, and other live events where members of the faculty, students, and the community at large can voice their thoughts to guests to whom the public may otherwise not have ready access. At the December 2008 forum “After Torture: Discussing Justice in the Post-Bush Era,” cosponsored by Harper’s Magazine, Burt Neuborne argued passionately for civil litigation, alleging various abuses of power by top Bush aides. “If we’re serious this time [about upholding the Constitution], we ought to go after the people who made the policy,” Neuborne, Inez Milholland Professor of Civil Liberties, told an overflow audience in Lipton Hall. Retired Major General Antonio Taguba, another panelist, seemed to agree in principle. Taguba, who before his retirement from the Army in 2007 led a Pentagon investigation of the Abu Ghraib abuses, pointed out that while low-level soldiers had been punished, those higher up in the chain of command have largely escaped discipline. “We must have a single, uniform standard [for the treatment of military detainees overseas],” Taguba asserted. “We deserve clarity. I’m speaking for the troops out there, the 19-to-24-year-olds who are out there doing God’s work.”

In further pursuit of strategic cross-pollination, the CLS hosts an annual summer symposium that was specifically created to give European and American security officials a neutral place to share ideas. A group of about 20 counterterrorism authorities—including Michael Sheehan, the former deputy police commissioner responsible for counterterrorism in New York, and Peter Clarke, the former head of the antiterrorism branch of Britain’s New Scotland Yard—convene at NYU’s Florence, Italy, campus to speak candidly about their work. Although the discussions are off-the-record, they have sometimes sparked important public debate. In one notable instance at the June 2006 conference, Baltasar Garzón, Spain’s investigative magistrate and a former distinguished fellow at the center, denounced the detention center at Guantánamo Bay. His call to close Guantánamo crystallized growing European disillusionment with American policy.

While these examples draw a portrait of an organization that was, during the Bush administration, opposed to government policies, the CLS has made concerted effort to give all sides an equal platform. Daniel Benjamin, a former senior fellow at the Brookings Institution and a past member of the center’s outside board of advisers, notes that one of CLS’s great contributions was to create a venue for civil disagreement, even as it adopted a skeptical stance toward the Bush administration’s policies. Interviewed before he joined the Obama administration State Department as coordinator for counterterrorism policy, Benjamin called Greenberg “the doyenne of counterterrorism,” praising her ability to “bring people together, people of such diverse views that you’re astonished to find them in the same place: senior officials of the Bush administration together with the human rights lawyers who are fighting them tooth and nail in the courts; strong advocates of the ‘war paradigm’ in the struggle against terrorism and the scholars and journalists who have attacked them relentlessly; and American and European jurists and policy makers who are on opposite sides of issues such as Guantánamo, rendition, coercive interrogation, and the like.” Among Benjamin’s fellow board members was Viet Dinh, a senior Justice Department official during the Bush administration who teaches at Georgetown University Law Center. “The exchange has been vital, and just about everyone comes away a bit better informed and even wiser,” says Benjamin.

After 9/11 there was bound to be a surge of scholarly attention to the sort of legal questions posed by Justice O’Connor: Would the rules of a war on terrorism be different from those of a conventional war? What lessons could be learned from the constitutional conflicts that arose during Vietnam, World War II, or even the Civil War?

[Sidebar: David Golove on the Law of War]

“Although people liked to pretend that they knew all of this on September 12, 2001, that just wasn’t true,” observes Richard Pildes. Law and security issues seeped into classes on constitutional and criminal law with fresh problems related to surveillance, privacy, and the reach of government authority. New courses were created, too. The weekly Law and Security Colloquium, offered since 2003 and led last year by David Golove and Stephen Holmes, gives some 30 students the opportunity to read journalistic and academic books in the field and then meet with the authors to debate their findings. Past guests have included Pulitzer Prize winners such as the Washington Post’s Barton Gellman (Angler: The Cheney Vice Presidency) and the New Yorker’s Lawrence Wright (The Looming Tower: Al Qaeda and the Road to 9/11). Other visitors have more formal expertise, such as former CIA operative Marc Sageman (Leaderless Jihad: Terror Networks in the Twenty-First Century). In December 2008, New Yorker staff writer Jane Mayer, who wrote the critically acclaimed The Dark Side: The Inside Story of How the War on Terror Turned Into a War on American Ideals, a 2008 National Book Award finalist, was one of the colloquium’s guest speakers. In addition to ample praise from several students, her discussion about interrogation received some respectful dissent. Andrew Sagor ’10, who before coming to NYU worked from 2003 to 2007 as a special assistant in the Office of War Crimes in the State Department, argued that indefinite preventive detention of some terrorism suspects can be justified on security grounds and doesn’t necessarily lead to abuse. “No one wants to torture for the sake of torture,” added Sagor.

[Sidebar: Stephen Holmes on the Rule of Law]

Perhaps not, Mayer said, but her conversations with CIA operatives have revealed that some of them earnestly believe that indefinite detention, rough treatment, and, ultimately, the fear of death can elicit valid information. “I’ve interviewed people at the agency,” Mayer explained, “who say that anyone who says torture doesn’t work doesn’t know what they’re talking about.”

Afterward, Sagor, who hopes to combine private practice with future government service, called the colloquium a welcome contrast to more traditional black-letter law courses. “It’s really helpful to hear from a combination of investigative journalists and former government officials,” he said. “There are a lot of pieces of the puzzle, and the colloquium helps you fit the pieces together.”

[Sidebar: Richard Pildes on Rights in Times of Crisis]

The newest addition to the curriculum, Counter-Terrorism and the National Security Constitution, taught by Samuel Rascoff since 2008, guides students toward a practical view of the topic that might confound the typical prosecutor, cop, or defense lawyer. During one class last fall, Rascoff urged his students to consider whether terrorism investigations should be shaped exclusively by the goal of achieving jury convictions, as opposed to squelching threats before they coalesce. With that choice in mind, prosecutors might refrain from taking marginal cases to court. Instead, they might concentrate on turning budding extremists into intelligence sources. The government has undermined its counterterrorism campaign by seeking to imprison people with radical views who have shown no proclivity for violence, rather than cultivate them as informants, Rascoff told the class. He cited the Terrorism Trial Report Card: “It’s a pretty dismal or, at best, a lukewarm record on the part of the Justice Department.”

[Sidebar: Samuel Rascoff on Regulating Terrorism]

There are two aspirations behind the law and security work of faculty and students: to help shape public policy and help individuals caught in the web of new and hastily drawn laws. Besides the Center on Law and Security, several other NYU Law centers make these goals possible: the Center for Human Rights and Global Justice, which oversees the International Human Rights Clinic, taught by faculty directors Smita Narula and Margaret Satterthwaite; the Brennan Center for Justice and its Liberty and National Security Project; and the Center for the Administration of Criminal Law.

[Sidebar: Margaret Satterthwaite on Extraordinary Rendition]

In several papers published since 2004, all partly researched by students in the human rights clinics, the CHRGJ has criticized the U.S. government for secret detentions, renditions, and torture. A few months after releasing “Torture by Proxy: International and Domestic Law Applicable to Extraordinary Renditions,” jointly published by the CHRGJ and the Association of the Bar of the City of New York, Satterthwaite, the report’s co-author, stood behind Massachusetts Congressman Edward Markey as he introduced the Torture Outsourcing Prevention Act in February 2005. In a 2006 report, “Irreversible Consequences,” principal co-authors Narula, CHRGJ Research Director Jayne Huckerby, and International Human Rights Clinic students Adrian Friedman (LL.M. ’06) and Vrinda Grover (LL.M. ’06) criticize authorities for mishandling race and religion in the war on terrorism. They argue that so-called “shoot to kill” protocols adopted by the world’s police agencies to eliminate suspected terror bombers rely too heavily on stereotypes and lead to avoidable tragic mistakes, such as the London shooting of Jean Charles de Menezes, a Brazilian electrician. According to the report, “profiling sends the problematic message that the security of some is worth more than the security of others; or worse, that human rights abuses against those who fit into this ill-defined category of ‘terrorist’ are a necessary precondition to ensuring the security of the nation.”

Just last year, CHRGJ Fellow Lama Fakih ’08 worked with Martin Scheinin, U.N. special rapporteur on counterterrorism and human rights, to develop policy initiatives regarding gender in counterterrorism efforts. When the U.S. military detains Muslim men, typically their family’s breadwinners, the impact on women and children can be devastating, said the Beirut-born Fakih, who studied Islamic law in Egypt as a Fulbright scholar. When military interrogators force Muslim men to don women’s clothing, she added, the long-lasting effect is cultural humiliation.

[Sidebar: A Plan to Make the World Safer: Ronald Noble]

The ambiguity surrounding enemy combatants and detainees has created plenty of opportunity for litigation, too. The Brennan Center for Justice was part of the legal team that represented Ali Saleh Kahlah al-Marri, a legal U.S. resident detained as an “enemy combatant” without charge in a South Carolina navy brig for nearly six years. In December the U.S. Supreme Court granted certiorari review, but in March before oral arguments were made al-Marri was indicted and transferred into the civilian criminal justice system. The Supreme Court dismissed his habeas case as moot and vacated a lower federal court decision giving the president power to detain citizens and legal residents indefinitely. “We are disappointed that the court did not firmly clarify the limits of the executive’s detention power,” said Brennan Center Counsel Emily Berman ’05. “But we are happy that Mr. al-Marri finally got his day in court.” The center has also filed amicus briefs on behalf of a Canadian seeking damages after being extraordinarily rendered by the U.S. government to Syria, where he was tortured, and a group of 17 Chinese Muslims held at Guantánamo Bay since 2003 who are seeking habeas relief.

[Sidebar: Stephen Schulhofer on Law Enforcement]

In September 2008, Anthony Barkow, executive director of the year-old Center for the Administration of Criminal Law, visited Guantánamo and attended military tribunal proceedings as a volunteer observer for Human Rights First. Noting allegations of improper political influence on prosecutors, restrictions on public access to the proceedings, and problems with Arabic-English interpretation, Barkow advocates a fact-based analysis of each detainee case “with the hope that as many as possible should be tried in the federal courts.”

Barkow’s center has filed numerous amicus briefs on behalf of criminal defendants treated unfairly by overly aggressive prosecutors, says Barkow. In May, the Supreme Court unanimously agreed with the center’s position supporting the petitioner in Abuelhawa v. United States, which concerned a man who used his cell phone to buy a small amount of cocaine from another man whose telephone was monitored by the FBI. Both men have Muslim surnames. The buyer argued he had been wrongly convicted of a high-level felony given the fact that the law considers possession of drugs solely for personal use a minor offense often addressed by court-ordered treatment and rehabilitation.

Each day’s headlines bring intricacy and change to the complicated and fast-moving field of Law and Security. But with its broad mix of faculty, administrators, and students taking part in the debate, the NYU School of Law remains a relevant source of, and place to exchange, ideas. “We’re looking for a balance of scholarly deliberation and real-time analysis,” says Holmes. “Terrorism, unfortunately, is one of the challenges of our times, and the Law School has to be involved in figuring out how we best respond while preserving the rule of law.”

–Paul Barrett is a journalist, an adjunct professor at the NYU School of Law, and the author of American Islam: The Struggle for the Soul of a Religion (2007). Additional reporting by Thomas Adcock.

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