Miller, who joined NYU Law in 2007 as a University Professor after 35 years at Harvard Law School, is a singular figure in American law and culture. Both in and out of the classroom—clad in his trademark three-piece suit and red tie and pocket square—he presents a carefully crafted persona, fearsome and imperious. But as those offering accolades made clear, this is a front, behind which is a person capable of touching people deeply and offering them life-changing inspiration. “Everyone who has taken one of Professor Miller’s classes remembers the experience,” said Danielle Kantor ’10, the Annual Survey’s editor in chief.

Supreme Court Associate Justice Ruth Bader Ginsburg, who flew in from Washington just to speak at the dedication ceremony, offered personal observations dating to 1957, when she and Miller were both law students at Harvard. Back then, she noted, “he was a wee bit shy, would you believe?” Years later, she recounted, her daughter’s decision to take Miller’s copyright law class at Harvard “determined her life’s work.” (Jane Ginsburg now teaches intellectual property at Columbia Law School.) Ginsburg also read a statement from her fellow justice Stephen Breyer, who said Miller “has helped thousands of law students understand the intrinsic interest in, as well as the human importance of, the law.” Another jurist, Robert Sack of the U.S. Court of Appeals for the Second Circuit, praised Miller’s work in privacy law.

The field of civil procedure connected many of the ceremony’s speakers to Miller, co-author of the 31-volume Federal Practice and Procedure. It was because he took Miller’s civil procedure class, Sexton said, that he went on to teach the subject. (In addition to serving as NYU’s president, Sexton is the Benjamin F. Butler Professor of Law at the Law School.) Two other distinguished civil proceduralists took to the podium to honor their longtime colleague. “Though I was technically his senior, he was always my mentor,” said David Shapiro, a visiting professor at NYU Law and colleague from Harvard Law School. And Martin Lipton Professor of Law Linda Silberman, who was Miller’s student and summer research assistant at Michigan Law School, noted that she “learned more in that summer than I did in the rest of my law school years.”

But Miller’s star power has extended far beyond the walls of academia. Most notably, he hosted his own TV shows on the law, Miller’s Court and Miller’s Law, and served as a legal commentator on many others, including ABC TV’s Good Morning America. Indeed, Jeffrey Toobin, a legal analyst for CNN Worldwide and the New Yorker, credited Miller with pioneering TV coverage of the courts. “Arthur was the first person—the very first person—to recognize that law could make compelling television,” Toobin said. Longtime Good Morning America anchor Charles Gibson said, “In my 33 years at ABC, I can count on one hand those academics who could make their subjects come alive for a mass audience. There’s no better teacher than Arthur Miller.”

Lawyers who have practiced with Miller praised his wide-ranging expertise—Simpson Thacher & Bartlett partner Henry Gutman for Miller’s work on copyright cases; Brad Friedman, a partner at the Milberg law firm (where Miller is now special counsel) for his guidance in class action litigation.

When it came time for Miller himself to speak a few words at the close of the dedication ceremony, he confessed that he was “filled with all sorts of emotions.” He offered: “I’m honored, I’m humbled. I might say I’m speechless—but nobody would believe that.”

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Read Professor Miller’s profile.

Read about Professor Miller’s collection of Japanese prints.

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More than 400 guests convened in the library’s august rooms to celebrate the Law School’s achievement in raising $415,064,515 to fund student scholarships and public interest work, increase the number of faculty and chaired professorships, and support faculty-run centers and institutes. The Law School also succeeded in doubling its annual fund between 2002 (when it raised $3.1 million) and 2009 (when it raised $6.2 million), thanks to the seven-year effort that emphasized opportunity, community, and leadership.

Attaining such ambitious fundraising goals despite a recession and a historic bear market lent the festivities a victorious air. A jazz band serenaded attendees as they passed the library’s iconic stone lions to ascend the stately staircase—carpeted in violet for the occasion. In Astor Hall for the cocktail hour, the curious could look up at vintage black-and-white photographs of the Law School’s past projected on the ceiling. Hydrangeas festooned the hallway leading to the dinner hall, where green tablecloths and orchid, lily, and rose centerpieces played up a spring theme.

Several speakers took the stage to note the importance of the occasion and to deliver a clear message of gratitude to the donors as well as the campaign staff and leadership. Dean Richard Revesz reflected on the ambitious campaign in his remarks: “Many thought, $400 million—Is that possible? Could we do it? Are we crazy? The answer to all three of those questions is a resounding ‘yes.’ I stand here before you today to announce that we did it. You did it. Our campaign raised more dollars per year than any other law school campaign ever. Thank you! Our Law School community is over 40,000 strong, spread across six continents, and if I could, I would thank each and every member of our community personally.”

Revesz gratefully acknowledged Jeannie Forrest, then-associate dean for development and alumni relations. She invited Sullivan & Cromwell partner Kenneth Raisler ’76, vice chair of the campaign steering committee, to join her at the lectern.

Raising $400 million, Forrest said, fell into a category the corporate world calls “big HAGs,” or “hairy, audacious goals.” Recalling that when she came to NYU Law she had been daunted by the task, Forrest remarked of the dean, “I’m thankful he saw through me to the possibilities. His reply personified his approach: ‘I need you to start today.’”

She also credited Revesz for his leadership throughout the campaign, describing how he “impressed the heck out of prospects with his big ideas and vast knowledge of the Law School and huge faith in the institution.”

Raisler spoke to the campaign’s broader goals: “Our intent was not simply to raise money. Our intent was to make a legitimate difference in the fabric of legal education and guide this law school’s upward trajectory.” To illustrate the campaign’s success in that area, Forrest and Raisler recounted the stories of four students whose lives were changed by NYU Law professors. They capped off their speeches by introducing a “thank-you” video featuring members of the Law School community.

The evening concluded with remarks from Board of Trustees Chairman Anthony Welters ’77, who was also chair of the campaign steering committee. Thanking the committee’s vice chairs—Raisler, Florence Davis ’79, Wayne Perry (LL.M. ’76), and Eileen Sudler ’74—Welters said, “Our sights were high, our campaign team indomitable, and this great institution’s alumni the most generous in the world.” Welters also acknowledged the leadership of Lester Pollack ’57, who was chairman of the board when the campaign began.

Welters spoke of the economic downturn as “a period when people were focused on protecting their resources, limiting their commitments, and hunkering down for the long haul.” He added: “We are fortunate to have trustees who said there is something more important than hunkering down….[NYU School of Law] is a global community…[that] has come together to accomplish some extraordinary initiatives. A community that believes it can make a difference in the daily lives of real people across the globe.”

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To understand why Epstein is depicted doing a Saturday New York Times crossword puzzle, or why Kenji Yoshino is sitting with Yorick, click on each professor’s name for a full profile.

View the entire illustration closeup.

Samuel Rascoff, Katrina Wyman (and her interest in brightly plumed birds), Roderick Hills, Jennifer Arlen, Oren Bar-Gill

José Alvarez, Deborah Malamud, Florencia Marotta-Wurgler ’01, Mitchell Kane, Kenji Yoshino, Cynthia Estlund

Troy McKenzie ’00, Margaret Satterthwaite ’99, Jeremy Waldron, Robert Howse, Katherine Strandburg

Richard Epstein, Smita Narula, Barton Beebe, Samuel Scheffler, John Ferejohn

Catherine Sharkey, Daniel Hulsebosch, Ryan Goodman, Arthur Miller (and his collection of Japanese prints), Lily Batchelder, Stephen Choi

Moshe Halbertal, Rachel Barkow, Kevin Davis, Cristina Rodríguez, Samuel Issacharoff (and his role on the Obama campaign legal team)

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The Roof is Alive

Preservation Hall
Established in the 1920s, the Provincetown Playhouse premiered many of Eugene O’Neill’s plays. Wilf Hall retains all four walls of this historic gem, which will continue as a working theater run by the Steinhardt School of Education to hold classes, readings, and storytelling evenings, and debut new music.

Platinum Standard
Designed and constructed to join an elite few New York City buildings that attain the highest certification of the U.S. Green Building Council’s Leadership in Energy and Environmental Design, Wilf Hall will be evaluated in five categories including water and energy efficiency, indoor environmental quality, and innovative design. Notable features include bicycle storage and showers for commuting riders, and the green roof and terraces.

Patron Vikings
Law School Trustees Leonard Wilf (LL.M. ’77) and Mark Wilf ’87, partners in real estate development firm Garden Homes, generously underwrote the hall. The cousins’ gift is one of several important contributions the Wilf family has made to the Law School, including the Wilf Family Professorship of Property Law, established in 2002. Leonard, Mark, and Mark’s brother Zygi are also co-owners of the Minnesota Vikings.

The A-Team
Lillian Zalta, assistant dean for operations and administrative services at NYU Law, and Kenny Lee, construction director at NYU, led the successful collaboration of Law School and University staff, architects, engineers, consultants, and construction managers and workers, particularly Morris Adjmi Architects and Skanska, that built Wilf Hall.

A Center for Centers
Intended to be a central gathering place for scholars, Wilf Hall will house a dozen centers, programs, and institutes, plus an admissions welcome desk on the main floor, and admissions offices and offices for academic fellows below.

Corner of the Park
This new addition establishes a true campus for the Law School in Greenwich Village, with four academic buildings (shown in orange) in the vicinity of Washington Square Park. Two residence halls (shown in peach) are a short stroll away.

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What are the common strategies you employ to deal with these unique assignments?
Get very, very good people to help you. Think out of the box, because the problems are out of the box. Maintain a high degree of creativity in developing procedures and substantive solutions. Promote transparency and open handedness. Make sure you apply principles consistently, so there’s not the slightest tint of bias or favoritism.

What is a fair resolution?
Now that could be a law school seminar! The elements are: 1. The statute, which in most cases circumscribes my authority. 2. The objective—what do we seek to achieve by valuing lives, distributing money? 3. The politics—what does the public, the taxpayer, expect? And, 4. apply consistency and openness as a surrogate for fairness, so that the process is transparent and people view it as appropriate and just.

You’ve said you emerged after 9/11 “not the same person.” How so?
I’ve become much more fatalistic. Those victims left their homes that morning, said goodbye to loved ones, and never saw them again. I tell students, “Don’t plan too far ahead.” I’m also a better listener. At the beginning of the 9/11 fund, I dictated like a lawyer; after a while I learned that most victims wanted to vent and I was better off listening, which I did.

How do you talk a banker into forgoing his pay for a year?
One, he has no choice but to accept it; I have the power under the law to impose it. But more important, I try to minimize the downstream consequences of pay. I’ll say, “Look, if you don’t do it, Congress will call a hearing, ask you to testify, make you a political target, and there will be pickets at your house.” Why not do it? At a time when there is such economic uncertainty and populist anger, I try to be viewed as a friend, not a foe.

Has being pay czar changed your views?
What I’ve learned is there’s a huge gap between Wall Street perceptions of worth and Main Street perceptions. It is not a gap; it is a chasm. Wall Street pay is all out of proportion. It is excessive.

How do you deal with the very public criticism of you, your manner, your methodology, your sensitivity?
hat criticism is balanced by the fact that you have others who are very supportive. Anybody trying to distribute money to Vietnam veterans; anybody reducing pay on Wall Street, but not reducing it to the level that Main Street would like to see; anybody distributing money to grieving families months after 9/11—criticism goes with the territory. You come to expect it, you can’t let it influence you.

You often try to achieve consensus. Why is there so much polarization in Washington on so many issues now?
A couple of reasons. The extraordinary growth and transformation of the media—with cable and 24-hour news bites—invite newsworthiness in the form of polarization, criticism; and historically, right now you lack the type of moral leaders, institutional leaders of the Senate who are able through force of personality to forge consensus. There is no Senator Kennedy, no Scoop Jackson, no Jacob Javits. There are no, or few, giants who are able to forge that type of bipartisanship now.

Why do you keep taking these daunting assignments?
It’s not easy to say no to Secretary Timothy Geithner, Attorney General John Ashcroft, and particularly Judge Jack Weinstein. And these are discrete assignments; it’s not like a 10-year litigation. You come in, study it, propose a resolution, resolve it, and get out. Plus, I say half jokingly that the bar of success is quite low.

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JOSÉ ALVAREZ: Many of us look at different institutions, formal and informal, from a variety of perspectives, including political science, anthropology, and law. We use different terminology to describe what global governance is. Some of us see “global administrative law,” some describe “regime complexes,” others the “constitutionalization” of the world or the spread of “the rule of law,” “judicial empowerment,” or “judicialization.” Are these different parts of the elephant? Does the label we choose influence how we see that elephant? Are the labels important?

JAN KLABBERS, Professor of International Organizations Law, Helsinki University: There is definitely something more going on than just describing different parts of the elephant. A label such as constitutionalization carries with it a sense of legitimacy, a sense of rights protection, which would not be as evident if you describe things as a regime complex, or as legalization or judicialization. The label would definitely indicate a certain way one would normatively think we might be heading, or ought to be heading.

ALVAREZ: So part of it is prescriptive.

GIANLUIGI PALOMBELLA, Professor of Legal Philosophy and Sociology of Law, University of Parma: There is an epistemic value and pragmatic consequences behind description. Global administrative law (GAL), for example, as a paradigm of global governance, rejects substantive organizing constructions but enhances the legal side: It does see a transborders reconnecting structure of law. This is a very effective view that aims at managing global governance in a certain way. While global governance works through the double move of narrowing to specialized areas and extending control over the globe, the legal account tends to configure a new overarching legality (like GAL), equating it with a homogenizing global law. These theoretical frames have pragmatic consequences.

ALVAREZ: So there’s description, prescription, differing specializations, and perhaps methods to exert control in our labels. So that when we say we’re “governing the world,” that in itself suggests what we aspire to accomplish?

ANDREW HURRELL, Montague Burton Professor of International Relations and Fellow, Balliol College, Oxford University: In a sense, all labels are arbitrary. What’s important is the way in which whatever label we use actually connects with the different parts of the elephant. After all, there is an elephant, and it’s large, lumbering, and dangerous. And people and societies get affected, often negatively, by that elephant that we call global governance.

One of the very powerful ways that many people have tried to capture the idea of global governance, particularly in the 1990s, was to adopt a rather narrow view, to see it essentially in terms of finding effective, efficient solutions to a set of well-understood, shared global problems. But the risk is that this displaces two other crucial issues.

One is the issue of values: Whose values are being included in the solutions to these apparently shared problems? And the other is power: How are these different clusters of regimes, rules, and institutions connected to power structures? This problem is particularly evident in periods when power is shifting and changing, because any legal regulatory administrative structure has to be connected to the realities of how power is changing and has to be compatible with the interests and values of the powerful states that are emerging in the system. And we are living through a period where power is shifting—away from the established core of the old G-7 and toward a new group of emerging regional and global powers.

ALVAREZ: So our labels partly describe reality and are partly aspirational—“if you build it, they will come”—and it will reflect reality.

ROBERT KEOHANE, Professor of International Affairs, Princeton University: Let’s go back to the first question: Why do we have so many labels for global governance? I come to this as a political scientist. Basically what it comes down to is that this is a highly variable phenomenon. It’s not one elephant; it’s a herd of elephants. One way to think about this descriptively is to think about dimensions along which global governance varies. I want to mention three: 1. Legalization. Some local governance takes place with informal practices that are not legalized. Others take place with a very legalized structure—WTO, for example—with dispute settlement arrangements, opinions that are argued out and published. 2. Comprehensiveness. The attempt of the UNFCCC, the framework convention on climate change, to have a comprehensive climate regime, in my view, has failed, and we’re seeing a very different, less comprehensive regime, a set of specific regimes. And, 3. How integrated or fragmented the pattern is. If we mapped out the local governance, we’d find lots of examples on all three of these dimensions. It becomes hard to generalize until we have a clear notion of what we’re talking about. For example, the WTO is as close as we get to a legalized, comprehensive regime. The migration regime is an example of a nonlegalized, informal, fragmented regime.

JOSEPH WEILER, University Professor and Director, Straus Institute for the Advanced Study of Law & Justice, NYU School of Law: I would bet that you can open any book on the law of the WTO and the word “governance” would not be in it. So if you look at your standard international law book, you will still find it working within the paradigm that international law is a way that states negotiate, try to vindicate their national interest and rules to contain their national interest, or to harmonize with the national interest of others. Even the most progressive communitarian view of international law would still privilege (a) states and (b) this notion of sovereign equals with different volitions trying to make the world a better place. Using a vocabulary of governance much better describes what’s happening in the international arena. Before, the main normative sensitivity was consent or nonconsent by states. Now there’s a much broader set of both efficiency questions and normative questions of legitimacy. In the former, for instance, where governance exists, we will want efficient governance for the management of resources and also the achievement of objectives. There’s a huge payoff if you go to any doctrinal area of international law, whether it’s state responsibility, the use of force, international, environmental, or the law of the sea, and look at it through the spectacle of global governance. Is there global governance here? How does it affect global governance? Global governance is a sensibility employed like a prism. It’s a coloring agent that suddenly illuminates phenomena that, under the normal spectacle of international law, you didn’t see.

RICHARD STEWART, University Professor and Chair and Faculty Director, Hauser Global Law School Program, NYU School of Law: The sensibility of governance frees us from the distorted perspectives of traditional legal categories. But then we have to reconstruct the field, because governance is such an amorphous set of phenomena. Reconstruction is necessary to understand it and set at least an implicit normative agenda. And then the question is, Do each of us just retool his or her own particular discipline? Or are there other crosscutting pathways conceptually and normatively?

KEVIN DAVIS, Beller Family Professor of Business Law, NYU School of Law: I want to resist the implication that there’s been this evolutionary progress. The concept of governance misses certain aspects of the phenomenon that are of particular interest to me—typically, the ones that involve more decentralized forms of cooperation. When I think of governance, I think of the relationship between the governors and the governed. It’s difficult for me to fit in things like private contracting, like the terms of credit default swaps on sovereign debt and their impact on behavior, into the concept of governance. That activity is not necessarily being dictated by any sort of governing authority. It is a form of normativity that is structuring international activity, international capital flows, and so forth, and I am not sure that using the term “governance” or a governance lens, is going to allow us to analyze that particular phenomenon in all its different facets. I caution against the idea that now that we’ve discovered the role of governance in international affairs, we’ve arrived at the sort of intellectual nirvana where this is the best model, because it’s not necessarily so obvious to me.

SALLY MERRY, Professor of Anthropology, Law and Society, New York University: I’ve always found it interesting to look at how international law works in practice—the kinds of social relationships, networks, and sets of understanding that shape international law in process. The term “governance” moves us in that direction. But it’s also important to recognize that there are social relationships, informal organizations, networks of people that are now transnational that do a lot of the work of actually making international law activities relevant to populations and countries. There are important dimensions of shared cultural understandings that exist in a variety of the institutions of cosmopolitan consciousness. What we see emerging are various populations that think of themselves in more or less cosmopolitan ways. Certainly in the field of human rights, human rights compliance is going to depend on average people who think of themselves in terms of possessing human rights, which means in some sense they think of themselves as global citizens. How those social/cultural changes happen is enormously important for thinking about how international law works. It’s a dimension—if we shift from law to governance—that we need to keep in place, both the social networks and the cultural dimensions of what this might mean and how it goes about reshaping the world.

ALVAREZ: Does the WTO create this consciousness? Or is it the other way around?

MERRY: It goes both ways. As the consciousness emerges, it feeds into these institutions, which otherwise are fairly irrelevant to the local population, and the institutions themselves begin to shape what are essentially local normative orders that may be law or law lite. We live in a world of plural legal systems; some are international or domestic, and some are very informal social-group based. Each one shapes the other in a somewhat semiautonomous way. But they’re very unequal in power. This is an important dimension of them. Looking at the complexity of these different regulatory structures and how they shape each other is really essential to understanding how this international law system works as a social system.

ALVAREZ: Does anybody other than Joseph think there’s something to the progress narrative that international lawyers talk about? The suggestion is that international law and governance are better for the world. This is at the heart of constitutional talk, rule of law talk, judicialization talk….

WEILER: Wait a minute—I never put any normative value on it. The only progress was an epistemic progress, to realize that it’s not that we once were in the Wood Age, and then the Copper Age, the Bronze Age, and then the Steel Age, but that these things coexist.

So in terms of legal norms, international law simultaneously has to be understood as having some constitutional, legislative, and administrative norms. Also governance norms. If we don’t use that concept in trying to explain the complexity which is the international legal system, we are missing out on something very important.

KEOHANE: The progress issue would be a whole discussion in itself. I want to point to two changes in the last 20 years that I certainly didn’t expect. The common wisdom in political science in the 1980s was that GATT was not legalized, and that was because of the structure of power and the nature of the interest involved. It was quite a surprise when WTO was as legalized as it was.

The other change is the development of a shared understanding that governance and government are different. Governance, as it’s used by political scientists, does not imply the kind of hierarchy that government implies. That distinction is important because you don’t have a lot of hierarchy in world politics. You have a lot of reciprocal relationships, a lot of activity by non-state actors; you have the kind of contracting you talk about.

PALOMBELLA: The question of governance has different layers itself. But the problem now has shifted from government vis-à-vis governance to legality vis-à-vis governance. We do not even dare to have a global government, but we try to develop “legality.” Now, as a connected issue, the aspiration to legally “cover” or tame global governance somehow might overlook the persistent multiplicity, diversity in shapes and social embeddedness of different orders, and legalities that overlap and compete on the surface of the globe. As Professor Merry said, we have many layers with very different raisons d’être. Their inevitable connection should not be taken as testament of legality as one-dimensional (if we have global administrative law, we also have inter gentes/interstates law, national law, transnational “merchant” law, regional law like the E.U., and so forth). Still, it is relevant that the legal dimension can prove to be promising in facing such complexity.

Medievalism is a “false friend,” but still we can learn something from it: The medieval environment was not controlled politically but through law, by diffusion of legalities, by legal science, development of legal scholarship. It was the only way to keep all the layers together. We are close to such a step in global governance.

BENEDICT KINGSBURY, Murry and Ida Becker Professor of Law and Director, Institute for International Law and Justice, NYU School of Law: The idea of global governance can become hopelessly broad. One way for lawyers to tighten the concept to get some analytical purchase is to focus specifically on regulation, or regulatory governance.

Global regulatory governance is, of course, highly political. It aims to affect conduct, including private conduct, and an ever-increasing volume of human interactions on important questions that people care strongly about. It has substantial effects on the distribution of resources. So the moral and normative stakes in global regulatory governance can be high. That applies to governance by both formal and very informal institutions.

In our view, this political enterprise also has important legal dimensions. The NYU Global Administrative Law Project focuses principally on situations where regulatory power is being exercised beyond the state, whether by states or intergovernmental organizations or partially or wholly private actors. Not all of the regulation we study is explicit. Behavior might be regulatory in the sense that there’s an absence of regulation there deliberately, to serve the interests of some particular groups, or perhaps with the normative aim of letting people flourish free of formal regulation.

Regulatory power in transnational governance is often wielded by a complex combination of actors addressing a myriad of different activities, and without a single directing mind. The interplay among regulatory actors and activities often does not correspond to any single act of will. There are sometimes irrationalities, arbitrage opportunities, curious gaps, etc. But we can still think of those situations as regulation.

In all of these regulatory situations, we must start to think: How should that power be structured? What should be its principles of transparency? Who should be participating there? Should there be accountability? Should there be review? Could or should the structure be set up more hierarchically?

The legal global governance perspective brings at least two important features that have been missing from more traditional international law approaches. First: the dynamic effects of regulation. Rather than somebody primarily asking, “Well, what is the law? How does it work? What is the function of this institution?” we urge that scholars, and our students, also ask: “What are the incentives on all the actors? How do players reposition? How do they start to think differently? How does it reconfigure power around those things? How does it reconfigure normative expectations and the language in which an issue is debated in terms of justice?” Second: attention on the effort of regulation to motivate private actors. Legally grounded regulation is not simply a matter of the structure or formal international regulatory power and its application to states; it aims also to incentivize action by a lot of other players. There are thus likely to be unexpected shifts of behavior, leading to further regulatory actions or problems. There are also likely to be counteractions: counter-power mobilized against whatever precise regulation is taking place, by those who contest it.

STEWART: Gianluigi asked how can we bring law to global governance? Rather than elaborating the structure of law within a relatively closed institutional system, globally we face a much more open universe of communication, including normative interaction. It is very plastic.

How does law catch up with globalization? And should it try to? How far should global governance be “legalized”? Global administrative law does not aspire to provide a comprehensive answer to the questions of law’s role in global governance. We focus on the procedures and mechanisms for review of global regulatory administrative decision making. We are witnessing the rapid growth of global regulation, as Benedict has articulated, and we see that much of that regulation is administrative in character. Accordingly, we ask questions about the role of administrative law mechanisms in promoting accountability and responsiveness by the global administrative decision makers.

We are aware of the drawbacks of this focus. If you don’t look at all the systemic effects and have more inclusive goals, maybe you’re not making progress. Our strategy is to examine the role of some elements of law as applied to critical subsets of the global governance phenomenon.

MERRY: There are multiple ways that law can be brought into focus as part of governance, which doesn’t involve just asking about whether it’s compliant.

With law, it could be seen as standard setting, as producing cultural shifts, as a political resource. If we look at human rights, the enforcement mechanisms are relatively weak, and yet there are ways that those laws are actually culturally important in terms of determining standards by which people judge behavior. They gather resources, and they provide political mobilization strategies for actors in various places.

ALVAREZ: Beth, how does compliance play into this question of whether governance exists or not?

BETH SIMMONS, Clarence Dillon Professor of International Affairs, Harvard University: One of the most fruitful ways to answer is to think about the way that international standards and norms strike a chord in domestic conversations. And, how they further the interests of certain groups and start to help them see themselves in different ways.

The extent to which the international legal norms and international laws become very useful in domestic conversations and contestations, and create a power resource in many cases, is an area in which power for some of these groups is very hard to come by. And it’s just about the only thing that they have to try to grasp.

One of the very interesting questions is the way in which international norms diffuse to the domestic level, whether that is by persuasion, by group activation, or by changing the incentives. For example, whether litigation, or the fear of litigation, transnationally can create incentives to look over domestic processes, to handle investment disputes.

KINGSBURY: Can you say something about your empirical work on human rights in this area?

SIMMONS: I did some quantitative and qualitative work. I found that when states read international treaties, there are actually three kinds of consequences. One is that it can change domestic agendas. So issues that might not have even been on the table in certain countries, by virtue of their exogenous introduction from the outside, get introduced. The second is that in domestic contexts, international treaties when they’re ratified, and under certain circumstances, can be used as very specific legal resources in actual litigation. That has helped to feed into the third mechanism: social mobilization. There’s a very strong relationship between those two things, where litigation can support and stimulate social mobilization and social groups, very consciously, when it seems like the right strategy in a particular cultural context, decide that litigation would actually strengthen their mobilization efforts.

What I find is that when states ratify agreements, these consequences in the aggregate lead to changes in some indicators we might care about with respect to human rights.

DAVID KRETZMER, Professor Emeritus of International Law, Hebrew University: How do human rights fit into this whole notion of global governance? You have to distinguish three issues. First, take the institutions, created by treaties between states, that are operating on the international level, such as the Human Rights Committee: What are the rules that apply to them? How are they supposed to act in new situations?

Next, what is the place of human rights in the actions of global actors that are not ostensibly connected with human rights—the WTO, E.U., and IMF? What human rights constraints apply to them? The third issue is the general way that we perceive human rights. We are trying to have an influence on state compliance with norms that have been laid down internationally, and the whole mechanism here is geared toward closing the deficiency gap between the international norms and the way states act in actual practice.

The questions that Sally Merry and Beth Simmons have asked are the most fundamental questions because lawyers have often made the simplistic assumption that if you only have these norms, everything is going to change and people are going to comply. The relationship is much more complex. How does this monitoring function, and can it really contribute to promoting compliance? Look at the tremendous changes that have taken place in the very perception of the HRC, of its role over the years, perceiving its role originally as part of friendly relations between states, which implies that we must not rock the boat too much and not criticize each other.

ALVAREZ: Do you have a tentative working hypothesis about how or why this mission creep with the human rights committees happened? Is it just the product of bureaucratization, or is it due to pressure from social movements?

KRETZMER: In the human rights field, treaties are a mechanism for lawmaking and not for regulating the relations or the interests of states. States may have some kind of concern about whether other states comply with their obligations. However, persons in one country are generally not going to be affected if the government of another country violates its obligations or the rights of its citizens.

When discussing how to monitor compliance with human rights treaties, there was a debate. Are we going to have monitoring by political bodies? Or are we going to have some kind of professional monitoring? The states opted in this case for a professional monitoring body. But at the time of the Cold War, you could have independent professional monitoring by people who were elected from the non-communist countries. There was no such thing when HRC members came from the communist countries; they were all political nominees of the state parties involved, and in the HRC they were plugging the interests of their states.

This eventually broke down when the Cold War ended. But the HRC was left with some of the rhetoric that had been adopted during the Cold War, like the notion of constructive dialogue, which reflected the idea that the object of the monitoring process was to promote friendly relations amongst nations. The HRC continued using the rhetoric of constructive dialogue without ever having considered what the term meant once the Cold War was over and its constraints on the committee’s work were removed.

KEOHANE: If there has been progress in the last 20 years, it’s been intellectual progress in the convergence between political science and law. When I was in graduate school a very long time ago, there were two sides of this issue. Many political scientists scorned international law, because of the ridiculous claims that were sometimes made.

To use the phrase by Andrew Jackson at the Battle of New Orleans, international lawyers have lowered their sights and achieved much. You’re doing global administrative law, which is very different from saying that world peace comes through world law. So the claims have come down to a point where they’re much more reasonable.

And second, we political scientists find ourselves like Molière’s bourgeois gentleman who’s speaking prose without knowing it, and I’ve been told this for 25 years. We talk about accountability and about diffuse reciprocity. So we are speaking in terms familiar to legal scholars while using different terms. And so it seems to me that this convergence came partly because the world changed; we see much more legalization. And it helped that international legal scholars lowered their sights a little bit and became more realistic politically.

WEILER: There is a payoff when we think of governance as part of political science, of social science, explaining why things happen in the way they do. What are the incentives? What are the disincentives? But there’s also a payoff in terms of political theory. One of the blind spots of law in general, and international and constitutional law in particular, is a certain fixation on rights.

And one of the most important developments in international law in the last half-century is this tremendous interest, both in theory and in practice, in instruments that protect rights. So there are multiple instruments and they protect multiple rights in different regimes, and the mechanisms for protection, and the monitoring have increased. A good world is a world where everybody’s rights are effectively protected.

But obscured is the fact that despite all this development and progress, individuals are still treated as objects. In the political theory of the state, the individual is very much a subject. He determines the outcome of elections. There is a very different understanding of the role of the individual in international law. So the first payoff of a governance perspective is that it draws upon certain aspects of political theory that highlight a different view of the individual, not simply as a recipient of rights, the way I protect my children, but as subjects entitled to powers. This perspective encourages us to see the power deficiencies of individuals. The lens of global administrative law highlights this phenomenon because the stakeholders of international legal governance grow both wider and deeper, and yet the individual is often not more than an object.

And the second payoff of a governance perspective is that it allows us to think: In what ways can the individual be empowered rather than be granted rights? Because once again, the notion of responsibility in international law is exclusively state responsibility. When there’s a violation of the law, it is states that are held to account.

So in humanitarian law, in the field of use of force, there can be some individualized responsibility. Within the theory of the political state, from which governance is borrowed, in some ways individuals are responsible-ized. If you elect a certain president and a certain party, there will be consequences to that. And you will bear the material consequences, the political consequences, and you as individuals will also bear the moral consequences.

No point in complaining about, “The government took us to war”—you voted for the government; you even voted them into power. There’s a much stronger notion that individuals are responsible for actions of the polity, in a way that is totally absent in international law. In the use of force, we never differentiate between the state that went to war on the basis of democratic decision making and some dictator who took them to war. It’s only the state that is held responsible, and if there were crimes, we might individualize the responsibility.

But the actions of the individuals within a state are never responsible-ized. In some deep way, we don’t take democracy seriously in our thinking about international law. And governance sensitizes not only to the power gap in international legal discourse—it’s all about rights and not about power—but also to the responsibility gaps, where responsibility is only attached to states and not to individuals who comprise those states.

That’s a huge advance in our thinking. But it enriches not only our social science understanding of international law but also our theory of international law: what it is about, what it ought to be about, in discomforting ways.

KLABBERS: Part of the problem is a practical one: that international organizations by and large refuse to cooperate. They refuse to give access to their standard practice of solving responsibility problems, etc. So all those people who have been rapporteurs for the International Law Association or the International Law Commission have found the doors closed in their faces.

The deeper problem may well be that no matter what sort of deontological regime you create, whether it’s constitutionalization or global administrative law, whether you call it responsibility or accountability, it’ll always leave a few gaps, partly because rules never figure out their own application.

HURRELL: The conversation between political theory, political science, and international law is important here. It has been slow in developing, but this is now changing. Political theorists have often tended to focus rather narrowly on human rights and economic distribution, rather than on the politics of global governance. A lot of the normative discourse has been somewhat disconnected from the actual practices and embedded practices of global governance. The triangular conversation among political theory, explanatory political science, and international law is one of the areas that has been gathering pace as a conversation.

WEILER: In developing the political theory of global governance, there might be some places where the global administrative law movement is ahead of political science, because they’re thinking seriously about these kinds of normative evaluations.

KEOHANE: We political scientists are still talking about accountability and legitimacy. And you’re providing some much more specific metrics and standards and procedures, which constitute and flesh out what it means to be accountable, and which might be the basis for legitimacy. You’re proceeding in a kind of parallel track along the same direction, but you’re getting more specific.

ALVAREZ: How do we criticize these institutions for what they do, and why?

MERRY: Actually, Kevin and Benedict and I have been working for a while on thinking about what role the construction of indicators as a form of knowledge has in processes of global governance. And as we look around at global governance decisions, they increasingly rely on these systems of numerical representations, often of countries—human rights violations, social economic factors—that produce rankings that provide a kind of simplified knowledge base, which producers recognize are a simplified knowledge base, but on which decisions may be made and public opinion constructed. The questions really are about how these forms of knowledge are produced, what kinds of information are included and what are not included, and how this may be affecting the way we understand the world and specifically how global governance works.

My concern about this developing technology has to do with the kinds of knowledge that get included and the kinds that are by definition not included in the need to produce commensurable categories across a wide variety of social situations and contexts. Representing a country by a number is clearly difficult. There is kind of an inexorable move toward doing this, which came from phenomena that were more readily measured, in the sphere of economics, to other areas that are much more difficult to measure in the field of governance—like rule of law and human rights compliance efforts. Here, there are issues about where the data comes from, who’s measuring it, and who’s counting, as well as more complicated questions about how these specific pieces of data collected in particular contexts get put together and constructed as this simplified representation.

Now, despite my concerns about this process, the creation of numerical measures and ranks is both a mechanism of governance and also a fundamental mechanism of reform these days. So social movements that are trying to produce reforms will also develop indicators. Another example is the U.N.’s Millennium Development Goals, which include indicators and are a way of raising awareness of the problem. Providing reports about “this many people are starving or in poverty” or “this many women are battered” offers a mode of reform. At the same time, it is also a mechanism for producing knowledge about populations to govern them. So the use of indicators for governance has this duality to it.

As indicators become more central to global governance in both ways, it is important to ask how this information is produced, how the data is collected, how it is used, how it is understood, and whether it is really producing a new basis for global decision making. Despite my concerns about what indicators actually represent, I recognize that this is a mode of power in the contemporary global world, that we probably cannot do without them.

ALVAREZ: So your project with Kevin is not to get rid of them but to improve them?

MERRY: My goal is to have users be more skeptical about them. Producers are quite skeptical about them. They know the limitations and the compromises they have to make to represent them to the general public—all the cautions and the worries and the compromises and the inadequate data that produced them tend to disappear. In the media these indicators get represented as facts. It’s the intersection between the indicators and the public and decision makers that is the area I am principally concerned with.

DAVIS: The first move for us is the conceptual one: simply to recognize these indicators as a form of, an exercise of, power. Recognizing that you don’t only govern through legal instruments and administrative directives and so forth, but also by producing information, including in this quantitative form that we’ve labeled “indicators.”

And then you can spin out the policy implications as well. Focusing on indicators gives us a new way of thinking about the role of law, for instance, in controlling the exercise of power, because once you’ve recognized that this is a technology of governance, you can start to think, Well, how should it be controlled? And in thinking about how to control that exercise of power, you can apply a global administrative law or regulatory framework.

For example, there might be procedural controls that you can place on the producers of the indicators, encouraging them to be more transparent about the methods of construction, involving more participation, more accountability, or having review mechanisms to validate their data, and so forth.

Or you can think about substantive norms that might be applied, particular standards of reliability that indicators might satisfy. Or structural interventions where you try to encourage the production of competing indicators to prevent one producer from gaining too much power.

There could also be education of the decision makers who are actually using some sort of World Bank indicator, for example, to decide how to allocate aid across countries. You can say, “Well, there are concerns here that you may not be recognizing in your current practices.” So there is definitely space for more policy-oriented interventions.

PALOMBELLA: Often it happens that “rule of law” is used as a device to protect internally, say, U.S. democracy against international law, and the like. But there is some other sense, for the rule of law “outside,” that is, on the global governance dimension. On the globe, legalities can conflict and overlap like tectonic plates.

My hunch is that rule of law on this meta level deals with granting some equal standing between legalities, although of different extension and depth. Some kind of legal language develops through this meta rule of law in between legal orders. One can think, among many, of the European Court of Justice when contrasting Security Council resolutions by appealing to a rule of law that protects our fundamental rights and making clear that this should matter in the confrontations with other legal orders—international law included. There should be, and in part there is already, a kind of rule of law that contrasts asymmetries of power and fosters some communicative processes beyond pre-given, content-independent hierarchy or formal priority among legal orders.

ALVAREZ: Tom Franck would have called these “claims of justice.”

KINGSBURY: Our discussion today has not yet focused on the reality that a lot of the discussion of global governance has mainly a North Atlantic provenance and sensibility. Because of the experience of the E.U. and European projects, and of the U.S. and North American and transatlantic projects, there’s a lot of thinking in the North Atlantic world about how to organize power in these governance-different modalities, how to evaluate it, and what place law and legality have in it.

But global issues require a somewhat different way of thinking and talking, some different ideas and structures with wider appeal and in which the concerns of the whole world participate. All of us have struggled with how to think about ideas from China and India and other major cultures and polities with very sophisticated, different sets of ideas—and with how to think about extreme inequality.

The indicators project we have launched in the Institute for International Law and Justice shows this pattern very acutely. Almost all the major global indicators are produced in the developed countries. But the “indicated,” the countries who mainly have incentives and are mainly affected by this, are principally in the south. Of course, many indicators rate and rank all the countries, but the countries who are really pressed by these rankings to change, the countries who need the World Bank soft loans or the support of aid agencies, and who are most often criticized for this or that poor performance on some indicator, are mainly—although not always—the poor or middle-income countries, the non-producers of the indicators that measure them. Many of us around the table have tried to work on global governance issues with the perspective of partner institutions in different developing countries. But our conversation today has not yet quite brought out the basic tensions in applying North Atlantic experiences and sensibilities to truly global issues: the justice questions, the participation questions, the real voice questions, the issue of whether new concepts, new techniques, new language are going to have to be developed—and contested—alongside or in succession to the export of dominant models that all of us here are somewhat in the business of doing.

HURRELL: One needs to make a distinction between where influential academic work comes from and how it is used and becomes politicized. In the case of globalization, the debates and academic literature grew up faster outside of the U.S. because that’s where the people were who were more affected by it. Academically, though, many people simply didn’t pay much attention to the work that was being generated outside the U.S. until globalization hit the U.S., especially the negative impact.

I’ve done some crude little Google searches on when global governance as a term and idea starts to appear and in which places. Compared to globalization, it is quite recent. It has been developing fast in Europe, well before it hit other places. In the emerging world, there has been a big take-up in use in Latin America, a huge take-up in China, but rather little in India.

WEILER: You’re underestimating the cleavage in Europe between political science, international relations, and law. If you look at the French philosophers, at the French postmodernists, they get to European law through the U.S. So the Americans pick it up from France, integrate it into their legal work, and then it slowly migrates back into the legal work in Europe. Global governance is the same: It starts in Europe, it migrates to the legal work in some ways in the U.S., and now it’s slowly migrating back to the legal work in Europe.

HURRELL: In terms of politics, it has been visible. Think of all the work on global governance that’s come out of Germany and Scandinavia.

In terms of the Global South, one theme is obviously the counter-hegemonic side and the protest against existing global governance. The other part—that I’m particularly interested in—is the way in which big emerging states view these changing processes of global ordering. Here, the role of small groups of the major players is particularly important. Even quite integrated formal institutions, like the WTO, are still dominated by bargains amongst particular players and by small clubs of states. In terms of the emerging architecture of global governance, gaining access to these clubs and groupings has become particularly important for rising powers.

One of the dominant imperatives for big developing countries is to try and work out exactly where power is in these different groups, and to try and get in, reshape, and refashion these clubs, such as the G-20—not only for interest-based reasons but also because access matters for status, prestige, and achieving a sense of getting a voice in the world. So I think that the issue of how ideas of global governance have spread, how they are understood, and that how this then translates into the goals and perceived interests of different actors, is one of the really interesting aspects of what global governance means on a global scale.

ALVAREZ: In Europe, if we gathered 12 people around the table, especially international lawyers, would the conversation bear any resemblance to ours today? My impression is that legal positivism has a greater hold in Europe, and that not only would those people not talk about indicators, they probably also wouldn’t be talking about “governance.”

KLABBERS: Well, it depends a bit on which 12 Europeans would be around the table. What is probably more American than European is just the interdisciplinary thing.

ALVAREZ: Is that a good thing?

KLABBERS: It’s not by definition bad or good. If it comes to be domination by one discipline over the others, then it’s not necessarily all that useful. But if it’s based on parity and making use of each others’ insights and trying to bring each others’ blind spots to each others’ attention, then I don’t see anything particularly wrong with it.

PALOMBELLA: There is much development in many different countries and beautiful political science work on governance. The question has become how all these disciplines interact. I believe there is a worldwide awareness of the fact that nothing here can be addressed only from a legal perspective.

SIMMONS: One of the essential questions global administrative law deals with that is so important and actually is the title of a classic book in political science, is “Who governs?” And one could add: “And how?” How are people gaining power, governing, and exercising that power?

The paradigm of global administrative law seems to be able to highlight the need for really good descriptive perks, about who governs and how they’re doing it. We need a good description to include things like, “Who are the players?” Not just firms, governments, councils, but who are the repeat players that counsel the respondent states and the arbitrators that again and again are at the table, and again and again are cited by others who end up creating, eventually, accumulating what we might call law in this area.

The other question is “What are the consequences in certain areas of putting so much weight on law generation through litigation?” It’s a way of generating rules and law where the agenda is controlled by the complainants. And the complainants are almost always, though not exclusively, companies and firms.

STEWART: I want to raise a different issue, namely the relation between our students and the legal profession. In my experience through the Hauser Global Law School Program, students are not only intellectually interested in the law-and-governance perspective but find it tremendously professionally useful. Those who want to work in the global arena, including international organizations, NGOs, human rights bodies and groups, or law firms in the U.S. or abroad working in investment trade or global regulatory law areas, find that our courses, centers, and programs dealing with global legal issues equip them to be more effective and successful. The global governance perspective has not penetrated the great mass of our students or the legal profession. The situation is different in Europe, where you are dealing with a supranational governance system. At NYU we are working, through the activities of the global law school programs as well as our teaching and research, to change that. On the normative part, we see global administrative law as providing not only important issues for academic study but tools for reformminded lawyers who want to improve governance in some sense.

ALVAREZ: Well, on that note, we will conclude. Thank you all for participating in this great conversation.

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All 2010 Features

2010 Home

Problem was, most law schools failed in their attempts to reflect this fundamental shift. But a decade ago, with the strong support of Professor Richard Revesz, the NYU School of Law put in motion an ambitious plan to prepare students for this new world—and to give them the underpinnings to help build a government that works better. Now the school’s dean, Revesz wanted to have the Law School play a pivotal role in generating fresh ideas in regulation—theoretical and practical—that would be advocated to policymakers here and abroad. Today, after a series of initiatives, the school is considered a leading and innovative center for the teaching and study of administrative law and policy. Its faculty and former students are influential on important regulatory and administrative issues in Washington, from climate change to workplace safety to national security to financial regulation. “NYU has embraced administrative law more fundamentally than any place I know,” says Michael Levine, a distinguished research scholar and senior lecturer at NYU Law and a pioneer in airline deregulation.

Those initiatives have included: 1. In 2003 the school began requiring first-year students to take an administrative and regulatory law course—a closely watched and controversial decision that was soon followed by Harvard and Vanderbilt law schools, with a handful of others, including the University of Michigan and Georgetown, making it a first-year elective. 2. Two years ago, Revesz and one of his former students, Michael Livermore ’06, founded the Institute for Policy Integrity, which advocates before agencies, legislatures, and courts the idea of using cost-benefit analysis and economics to make better regulatory policy. 3. This fall upper-level students began working in a new policy clinic, co-taught by Livermore and Revesz, where they are participating in real regulatory proceedings before federal agencies. And, 4. To create an academic home where scholars and policymakers could wrap their heads around the vexing issue of how agencies, states, and regulators can coordinate across borders and between and among governments, Professors Richard Stewart and Benedict Kingsbury started the Global Administrative Law Project. Says Revesz: “We’re generating ideas, pushing them into the political process, pushing them before administrative agencies, and pushing them into the courts.”

Revesz has also wooed a number of prominent figures from both ends of the political spectrum who reflect a wide range of professional experience in administrative law and regulatory policy to teach at the Law School (see sidebar on page 16). From the bench come Judge Robert Katzmann of the U.S. Court of Appeals for the Second Circuit and Senior Circuit Judge Harry Edwards of the U.S. Court of Appeals for the District of Columbia Circuit. From the executive branch come C. Boyden Gray and Sally Katzen, major regulatory thinkers for former Presidents George H.W. Bush and Bill Clinton, respectively. And from the private sector comes Levine, a former executive at Continental Airlines, Northwest Airlines, and New York Air. Influential administrative law academics, such as Herz from Cardozo and Jerry Mashaw of Yale Law School, have also taught NYU Law students. “At NYU,” says Gray, “there is a concerted effort to become a if not the leading institution for teaching the various facets of administrative law and regulatory policy.”

That effort has clearly grabbed the attention of students. Take Daniel Deacon ’10, who is now clerking for Judge A. Raymond Randolph of the U.S. Court of Appeals for the District of Columbia Circuit—the court that handles a significant proportion of cases that arise out of federal administrative agency actions. Deacon became interested in administrative law and policy while taking the Administrative and Regulatory State (ARS), the required 1L course, under Stewart. In his second year, he took a course with Katzmann on the administrative process and another with Revesz on environmental law. He later worked as a research assistant for Revesz and wrote a student note that was published in the NYU Law Review in June on whether courts should decline to step in when an agency decides not to use its enforcement powers (the courts should generally not review those non-actions, he argued).

Deacon applauds the school’s emphasis on the statutory side of law: “The type of practice most NYU Law grads will have will involve, at the least, statutes in the background on matters they are working on, whether in big law firms or government.”

And consider Daniel Nudelman ’12, who by the end of his first year was already planning to apply for a seat in the administrative law and policy clinic currently taught by Livermore and Revesz—for his third year. What propelled his interest over the course of one semester was taking ARS with Assistant Professor Samuel Rascoff; attending an all-day symposium organized by students from the Environmental Law Journal and the Environmental Law Society that in part addressed cost-benefit analysis and its alternatives for reviewing regulatory policy; and taking in a lunchtime forum during which Gray and Katzen discussed the executive orders they helped draft that spelled out how regulatory decisions would be weighed. “It’s really cool to be here, because there’s obviously a lot going on in this field,” says Nudelman. The combination of courses and substantive extracurricular events, he says, “got me progressively more interested in that side of the law.”

Seeing the Big Picture

For more than a century, first-year law students such as Nudelman have had to take essentially the same courses—torts, property, contracts, civil procedure. They can thank Christopher Columbus Langdell, the legendary legal educator, for that. He instituted a curriculum at Harvard in the late 19th century that was taken as gospel by just about every law school in the nation. Tradition-laden law schools largely resisted efforts to update the curriculum, except for adding a required constitutional law course here and there.

In the early 1990s, NYU Law’s faculty met to consider a more radical proposal: to require an administrative law course for first-year students. Any time a faculty of a law school gathers to discuss changes in curriculum, you can expect angst and heated debate—and such was the case here. The professors were almost evenly split; the proposal lost by a mere one vote.

Ten years later the faculty took up the issue again, the debate no less fevered. Some professors pressed for adding constitutional law as a requirement, while others suggested adding international law or simply offering more electives. But Stewart, who joined the NYU Law faculty in 1992, argued strongly for a required course in the first year that would focus on statutes and their implementation by administrative agencies. “We live in an administrative, regulatory, bureaucratic state at all levels of government,” he told his faculty colleagues, “and it impacts the lives of all of us.”

Stewart, whom many experts consider the area’s founding academic, specializing in environmental law, had long sought the course. He began teaching administrative and environmental law at Harvard Law School in 1971. Four years later he wrote what Revesz calls the seminal article in the area: “The Reformation of American Administrative Law,” published in the Harvard Law Review. The piece conceived the idea, now accepted wisdom and practice, that people other than those directly affected by a regulation had a right to a hearing before an agency or the courts. Stewart followed that up another four years later with one of the earliest textbooks on the topic, Administrative Law and Regulatory Policy, co-authored with his Harvard faculty colleague, Stephen Breyer, who became a Supreme Court justice in 1994. It is currently in its sixth edition.

Pressing the administrative law and policy course requirement with Revesz at committee meetings, Stewart was well aware that the precedent wasn’t encouraging. Similar 1L administrative law and policy courses had been tried and dropped as a requirement at a handful of other law schools, such as Stanford and the University of Chicago, and most notably at Columbia, where it became an elective in 2002 after some 10 years. But, recalls Stewart, “I thought that it could be done right and could be successful, and if we didn’t try, we’d still be stuck with Langdell’s courses.”

The course, formally called the Administrative and Regulatory State, won out over Constitutional Law and debuted in Spring 2003. Today only a few schools—such as Vanderbilt and Harvard, both of which followed NYU Law’s lead—require a similar course. Columbia Law School Professor Peter Strauss, who fought unsuccessfully to retain his school’s required administrative law course, remains a strong advocate. “A curriculum that spends a whole year focusing student attention on common-law courts,” he says, “is misrepresenting what the legal system is about. This course teaches a set of skills lawyers need to have.” Seconds Judge Edwards: “Administrative law and the regulatory state are so prominent now in our system of government that the student ought to begin to understand that sooner rather than later.”

Sorting the Pieces

Seven years later, ARS remains a vibrant offering at NYU Law. Why has it succeeded here? For one thing, Stewart and Revesz determined early on that a particularly adept set of teachers, interested in public law and regulation, was needed to teach a class that doesn’t look or feel like the other common law–based 1L classes. “It’s not an easy course, because in tort law, criminal law, contract law, you have certain substantive principles you can lay out,” Stewart says. “But this is a course about institutions and processes, so it’s more difficult for students to grasp.”

A second reason for the course’s success: Faculty agreed on a core set of principles and cases all would teach. They would refrain from turning it into a mushy, theoretical, political science–like course, the undoing at some other schools. At the heart of the principles was the idea that students would understand how Congress makes statutes and how courts and administrative agencies interpret them. At the same time, the professors would inject their particular interest in certain substantive issues, such as the environment, immigration, and education. That intersection allows them to illustrate administrative law points using cases and insights drawn from their expertise, keeping the course topical.

“Everyone is cooking chicken soup, but everyone adds his or her flavor into the recipe,” is how Professor Rascoff puts it. So Rascoff, an expert on terrorism, flavors his course by exploring how administrative law principles can be applied to national security issues. Cristina Rodríguez, who also taught the class at Harvard in Spring 2010 as a visiting professor, stirs in immigration cases. Rachel Barkow, a telecommunications lawyer before joining the faculty, sometimes seasons her course with a Federal Communications Commission case study. Stewart, Roderick Hills Jr., and Brookes Billman (LL.M. ’75) pepper theirs with environmental cases, Title IX education issues, and tax examples, respectively. “Given who they have teaching it,” says Herz, “if the course can’t succeed at NYU, it can’t succeed anywhere.”

[Sidebar: Building on the Foundation]

The professors’ differing specialties and perspectives provide students with a rich and nuanced understanding of how our government truly works. Consider how Barkow and Rodríguez teach the fundamental issue of delegation, the question of how and when Congress can delegate power to executive agencies. Barkow uses the 1935 Supreme Court decision known as Schechter Poultry to mark what she calls the high point of the idea that Congress had little power to delegate. In that case the court struck down New Deal regulations governing chicken safety and worker wages. Oft cited is the remark Justice Louis Brandeis made to an aide to FDR: “This is the end of this business of centralization, and I want you to go back and tell the president that we’re not going to let this government centralize everything.” It was a battle won, however, and not the war. From that point on, Barkow says, citing cases involving regulation of benzene and air quality, among others, it’s largely settled that Congress can delegate just about anything. Even still, the issue does not always sit well, as Rodríguez has shown in her class. She discusses a 2005 law allowing Homeland Security to do whatever it needed to build a border fence, including waiving federal, state, and local laws to override environmental and labor laws. Outraged opponents took the law to the top, but to no avail. In 2008 the Supreme Court, without comment, declined to hear an appeal.

Cost-benefit analysis is another staple of administrative law that gets tweaked differently by various professors. Cost-benefit is the now-routine practice, begun under President Reagan, of regulators weighing whether a proposed rule’s price tag exceeds its advantages.

Barkow discusses in class the notion of using cost-benefit analysis to a greater extent in criminal law. She believes the administration of criminal law should be no different from, say, environmental or securities regulation. A law that sets certain mandatory minimum sentences for drugs, for example, should weigh the cost—in the amount of prison beds, guards, buildings—against the benefits to society, she says. “Cost-benefit analysis doesn’t dictate a solution. But it is a very rational process for thinking about the pluses and minuses as opposed to using sensational anecdotes designed to charge up people’s emotions,” Barkow says, referring to media firestorms about crimes.

And both Barkow and Rascoff expose students to the idea that cost-benefit analysis should be applied to national security policies. Should airport security rules, for example, be subjected to the rigors of cost-benefit analysis? “Is there a role for this kind of ‘on the one hand, on the other’ approach in the national security base?” Rascoff asks in class.

At first, some students think it’s dangerous to take chances with people’s lives. Says Rascoff: “It becomes uncomfortable terrain for people to think there’s a price tag that we’re placing on security, even though it’s just as uncomfortable that we’re placing a price tag on people’s lives when we regulate the economy or regulate safety in the workplace.”

Connecting the Parts

Rascoff has a realworld background in national security. He was director of the New York City Police Department’s 25-person intelligence analysis unit for two years before joining NYU Law’s faculty in 2008. He has embarked on a project, funded by a two-year, $100,000 grant from the Carnegie Foundation in 2009, that attempts to discover how much government officials understand about Islam and how they generate this knowledge. His point is that just as EPA regulators need to understand science, national security personnel need to understand Islam.

Rascoff continues to work on terrorism issues contractually with law enforcement agencies. Now that he’s not managing intelligence agents, though, he says he has time to think and share the “bigger thoughts” with the folks who do security work all day.

In doing this, Rascoff lives up to one of the hallmarks of this group of teachers and scholars: engagement with our government and democracy, starting with Stewart. “Dick Stewart is the model of the publicly engaged academic,” says Herz, who has taught the ARS course at NYU and in Spring 2010 taught the Advanced Administrative Law class. “On the one hand, he has this extraordinary academic career, and on the other, he has been very hands-on in the real world.”

In an effort to reform environmental laws, Stewart co-founded in 2006 an organization called Breaking the Logjam, jointly funded by NYU Law and New York Law School. The logjam refers to the fact that the last major piece of environmental legislation came in 1990, with amendments to the Clean Air Act. “Our federal environmental statutes basically date back to the 1970s,” says Stewart, who heads the group with NYU Law colleague Katrina Wyman and New York Law School professor David Schoenbrod. The organization’s goal is to bridge the gap between the left and right with, Stewart says, “better, smarter ways to regulate.”

Drawing on the views of 40 environmental scholars, the group has issued reports generally advocating market systems for dealing with pollution, including cap and trade for both greenhouse gases and conventional air pollutants. Stewart and Schoenbrod have conducted briefings and workshops with Congress and the administration as well as environmental, industry, and other groups. Stewart is realistic enough to know that today’s raging political divisiveness poses a challenge to enactment of these ideas. But at least, he says, his proposals are getting seeded among important policymakers.

Stewart was also instrumental, along with NYU Law Professor Kingsbury, in starting the Global Administrative Law Project in 2005. Through conferences and papers, the group is exploring whether and how administrative procedures common in the U.S.—such as judicial review, transparency, and participation—can be applied globally. It’s addressing the concern that global regulation, through agencies such as the World Trade Organization or the World Bank, has enormous impact on people on anything from the environment to trade to intellectual property piracy. Yet those agencies are often not subject to the basic administrative procedures that would enhance their legitimacy.

“You get a lot of very important decisions that are made beyond the state without the normal elections or some sort of legal review,” Stewart says. Developing countries in particular, he notes, may not have the resources and wherewithal to effectively participate in regulation making. To strengthen that capability, the GALP has held conferences on the topic in such cities as Buenos Aires, New Delhi, and Cape Town. Judge Katzmann, who teaches an upperlevel seminar on administrative law at NYU, calls the GALP “pathbreaking” in how it created a community of scholars, lawyers, and policymakers around the world to examine administrative law issues. Indeed, Stewart proudly notes that global administrative law has become in effect a trademark in legal literature, as that community recognizes the need for better regulatory policies around the world. GALP plans to issue specific recommendations after its current fact-finding phase.

If Stewart wrote the seminal article on administrative law in 1975, then Revesz might be considered among the second generation of administrative law and policy scholars—and one of the most widely followed, especially on environmental regulation and cost-benefit analysis. On two occasions, in 1994 and 2007 (the latter with a student, Nicholas Bagley ’05), Revesz’s writings have won the American Bar Association’s award for best article published during the previous year in the administrative law area. Only three other scholars have gained that double distinction: Jerry Mashaw, Columbia Law School’s Thomas Merrill, and Harvard Law School’s Cass Sunstein, now the administrator of the Office of Management and Budget’s Office of Information and Regulatory Affairs.

Revesz is notably generous with his time and expertise in mentoring students and academics in the administrative law area. Bagley recalls how Revesz assigned him difficult writing assignments that quickly stretched him. “He’d then look over what you did, sit down with you, and walk through what worked, what didn’t, and what I might do to make the piece stronger,” Bagley says. “Then I’d try again.”

Rascoff, too, praises Revesz for guiding him. In 2001 Revesz offered Rascoff a fellowship at the Frank J. Guarini Center on Environmental and Land Use Law, and the two collaborated closely on a law review article about risk regulation, during which Revesz “constantly pushed me—in his unfailingly gentle way—to deepen my thinking about law and policy,” Rascoff remembers. “He showed me by example what rigorous legal scholarship is all about.”

Revesz’s current outreach into the policy world centers on his work in cost-benefit analysis, an interest that goes back to the Clinton years, when he served on a science advisory board to the Environmental Protection Agency. He recalls how he noticed something odd then: No environmental groups ever showed up to testify about EPA’s guidelines for the preparation of cost-benefit analyses. Yet trade associations representing polluters frequently came to present their views, allowing them far more influence to shape regulations to their liking. Environmentalists were so inherently opposed to weighing costs and benefits of regulations that they absented themselves from the discussions. In their view, it’s wrong to even try to put a dollar value on lives.

Katzen, who headed the Office of Information and Regulatory Affairs in the Clinton administration and will be a visiting professor at NYU School of Law in Spring 2011, also saw this firsthand. “We in the Clinton administration were thinking how to do cost-benefit analysis, and labor, the enviros, and public safety folks were conspicuously absent,” she recalls. “Who came to the table? The people who believe in mathematical precision. Where were the people to talk about how to do it in a more sensible way? They decided not even to participate.”

The frustrating experience convinced Revesz, along with Livermore, then a student, to write a book that challenges the liberal camp to dive into cost-benefit analysis. In their 2008 book, Retaking Rationality: How Cost-Benefit Analysis Can Better Protect the Environment and Our Health, they argue that cost-benefit analysis, when done properly, can in fact thwart anti-regulatory forces and arrive at progressive regulations. “Ricky was not buying into those who are totally enamored of cost-benefit analysis,” Katzen says, “but at the same time, he was not buying into the more liberal wing that says, ‘Why do any analysis?’ He basically says it’s the best information we have, and let’s see if we can make it better.”

To extend these ideas outside academia, Revesz and Livermore founded the Institute for Policy Integrity (IPI), also in 2008, with grants from the Hewlett Foundation and the Rockefeller Family Fund, among others. Staffed by lawyers and economists, IPI publishes studies, files amicus briefs, and meets with NGOs to discuss how they can employ cost-benefit analysis in their areas. Says Katzmann: “To my knowledge, there is no other law school that has brought to the fore in such a focused way this important aspect of decision-making.”

[Sidebar: The Libertarian Among Us]

Early in the Obama administration, the institute offered its suggestions about how to fix the government’s regulatory review process, including the cost-benefit component, essentially left over from the Clinton era. The institute has devoted considerable time to climate change, releasing a study in 2009 that looks at the way the EPA can regulate greenhouse gases under its existing authority and discussing the design of attractive cap-and-trade schemes. And it has weighed in on such disparate issues as the controversy affecting control of Internet content known as Net neutrality, the hazards of mountaintop mining, and the number of hours a trucker can safely drive.

The institute is also trying to spread its cost-benefit gospel to developing countries, holding conferences in Chile, the Dominican Republic, and China. In such little-regulated countries, new environmental regulation would bring massive benefits compared to its cost.

Richard Pildes, Sudler Family Professor of Constitutional Law, is another example of a faculty member heavily engaged in the real world—or, as Revesz puts it, proof that “we’re not just writing articles nobody reads.” He notes that Pildes has played a role in several of the most important administrative law issues to come before the Supreme Court during the last 10 years.

The most significant was the attack on the constitutionality of the Sarbanes-Oxley law, enacted in 2002 after the financial crisis brought on by the Enron debacle. Plaintiffs argued that the regulatory board created by the law to police the accounting profession was too independent of the president (he had no authority to remove members) and thus unconstitutional under the separation of powers doctrine. Pildes, representing seven former chairmen of the Securities and Exchange Commission, including Harvey Pitt and Arthur Levitt, filed amicus briefs supporting the law—from the trial court up to the Supreme Court, over a period of several years. His argument: The disputed agency (the Public Company Accounting Oversight Board) was completely under the control of the SEC. So, “[a]s long as the SEC itself is constitutional, the SECBoard structure is constitutional,” Pildes stated in his 2009 brief. In a June decision that delighted Pildes, the court rejected all the constitutional attacks, save one minor defect, leaving the accounting board in place. In a separate opinion, Justice Breyer cited both Pildes’s amicus brief and an article on the SEC-Board structure that he published in 2009 in the Vanderbilt Law Review En Banc.

“It’s the kind of issue,” Pildes says, “that goes to the heart of the relationship between the Constitution and the structure of administrative governance—exactly the kinds of things we teach in the first-year course.” Pildes and other professors have used the case itself in class; Barkow even used it as an exam question one year. Indeed, Pildes adds bemusedly, the facts of the case are so germane that “one could imagine making it up to help students sharpen up their understanding of the various issues.”

In another high-profile Supreme Court case, in 2005, Pildes won in a decision that divided the Court 7 to 2 and sharply rebuked the U.S. Tax Court for concealing documents and findings from people with cases before the court. The broader issues addressed questions of the institutional structure of the Tax Court and how it conducted trials. Pildes recalls that during the appellate stage, the judge, an administrative law expert, grilled him about the “classic” administrative law cases from the 1940s and ’50s that are always taught in the ARS class.

Pildes is currently involved in another potential Supreme Court case that raises the administrative law issues of due process and fair treatment. Along with Paul Clement, a former U.S. solicitor general and adjunct professor at NYU Law, he is representing a health insurer in a dispute with a Puerto Rican taxing authority.

The ascension of the Obama administration, along with the reality check of the financial crisis, brought a new focus to the role of government regulation—creating opportunities for NYU professors to influence the debate. Barkow was asked, for example, to weigh in on Obama’s plan to create a Consumer Financial Protection Agency to oversee financial instruments such as mortgages and credit cards, part of the proposed overhaul of the nation’s financial regulation system. Given that she specializes in criminal law, and not in business or corporate law, the invitation was a testament to her insights into administrative design. Testifying in July 2009 before a House subcommittee, she urged a series of changes in the legislation that generally would make it more independent of the president and less dominated by any one political party. She urged that no more than three of the five members of the agency hail from the same political party. The addition of different political viewpoints, she said, will temper the common tendency of likeminded people to adopt extreme positions.

In the spring, Barkow was named to a panel that will advise the Manhattan district attorney’s office on how to avoid wrongful convictions. The assignment is a species of administrative law, she notes, and in fact fits nicely into the longtime focus of her scholarship: how the theories and practices of administrative law can be applied to the criminal justice system, from sentencing to prosecutors’ offices.

Consider the question of how to police federal prosecutors, a topic Barkow explores in a February 2009 Stanford Law Review article, among other papers she has published on this topic. Prosecutors represent, she writes, a “glaring and dangerous exception” to the separation-of-powers idea. Immensely powerful, they can both advocate decisions and make final adjudications (95 percent of all federal cases are settled in nontrial pleas). As she points out, “There are currently no effective legal checks in place to police the manner in which prosecutors exercise their discretion to bring charges, to negotiate new pleas, or to set their office policies.”

How to prevent abuses? Barkow notes in her article that lawmakers are reluctant to rein in prosecutors for fear of looking soft on crime. So she proposes using an administrative model of checks and balances because, after all, prosecutors are effectively regulators. Think about how they often strong-arm corporate executives into agreeing to deals rather than have their companies face potentially crippling criminal charges. “If I say I’m going to charge you unless you do the following things—change your business, install a monitor—this looks a lot like regulation,” she says, describing the main thrust of her article. (In 2009, “Regulation by Prosecutors” was the inaugural symposium of the Center on the Administration of Criminal Law, where Barkow is faculty director. Key participants included Mary Jo White, former U.S. attorney for the Southern District of New York, and James Comey, former U.S. deputy attorney general under John Ashcroft and Alberto Gonzales.) The safeguard she advocates, borrowed from administrative policy, is to separate the individuals who carry out the investigation from those who decide whether to file charges, to avoid the appearance and reality of bias. This would work better, she says, than other politically difficult ideas often discussed, such as judicial review or a limit on plea bargains. She argues that her approach should appeal to prosecutors, as it keeps decision-making within their offices.

In a paper published in the Yale Law Journal in December 2009, Rodríguez also weighs in on the separation-of-powers issue, but by looking at the issues through an immigration lens. With her co-author, Adam Cox, a University of Chicago Law School professor, she argues that although the president has power over whom to deport, the chief executive is lacking authority on whom to admit; Congress has that responsibility. That is illogical as well as slow. “We need to change the way we think about how to admit immigrants, especially immigrant workers,” she says. “The current system is too sclerotic, too slow to react, not responsive to conditions in the world.”

At the Migration Policy Institute, a Washington, D.C., think tank where she is a nonresident fellow, Rodríguez works on the controversial issue of who should enforce immigration law—local police or federal authorities. One key question she’s studying is how the Department of Homeland Security can maintain authority over state and local officials who have, in some high-profile cases, relied on racial profiling.

Topping Off

You can make the argument that Craig Wenner, who will graduate from NYU Law in Spring 2011, has already won his first administrative law case. Working over the summer after his 1L year for Revesz and the Institute for Policy Integrity, Wenner helped research and write an amicus brief using cost-benefit analysis to attack a Bush administration rule setting trucker driving hours. The regulation was ultimately withdrawn by the Obama administration, leading to the dismissal of the case. Though victorious, Wenner would have liked to see how his legal arguments would have stood up in court.

Like other students, Wenner expresses some amazement that administrative law wasn’t required in years past. “The regulatory state is one of the few aspects of law that really touches individuals on an everyday basis,” he says. “And the day-to-day practice of lawyers generally always involves government agencies to some degree.” Nicholas Bagley, who was in that first-ever ARS class in 2003, worked from 2007 to 2010 at the Department of Justice. Almost every day, he says, he harked back to the lessons learned from Richard Pildes when he dealt with cases involving federal agencies such as the Federal Aviation Administration and the Federal Bureau of Investigation. “Administrative regulation is pervasive,” he says. And lawyers practicing in the private sector are no different in their need to understand the subject, asserts Bagley. In a nod to Langdell’s time, Bagley says: “I think it’s a difficult argument to sustain nowadays that property—to name just one of the tried-and-true courses—is more fundamental to the work of a lawyer than administrative law.”

One of the Law School’s most recent graduates underscores this point. At the White House, David Kamin ’09 is special assistant to the president on economic policy at the National Economic Council. But from 2009 to 2010 he was adviser to Peter Orszag, director of the Office of Management and Budget. In that role, he was a policy guy on budget matters without an explicitly legal role—yet administrative law issues were never far from his job. His ARS course and advanced administrative law class with Rachel Barkow proved “incredibly helpful.” When, for instance, Obama proposed a regulatory body like a Medicare Commission, Kamin had a knowledge base that at least allowed him to understand the discussions. “As you develop a proposal, it’s very helpful to know the ways that regulations get formed, the ways regulations get litigated,” he says. “If someone says this is a delegation issue, you understand what they are talking about.”

Kamin pays the ultimate student compliment to his teacher when talking about meetings in which an administrative law issue arose: “I’ve often thought of writing to Professor Barkow and saying, ‘You know, I’m damned glad I took your class!’”

Larry Reibstein is an editor at Forbes Media.

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The atmosphere on the fourth floor isn’t much different. Low ceilings, high cubicle walls, and a deafening silence suggest the kind of action you might find in the quarters of a paper-pushing bureaucracy. It’s just the opposite, though: this is the office of the special inspector general for the Troubled Asset Relief Program, or SIGTARP, where a small number of government employees are doing their utmost to save the American people billions of dollars. And no one is working harder to that end than Neil Barofsky ’95.

Since his confirmation as the country’s newest special inspector general in December 2008, Barofsky hasn’t had much time to catch his breath. After spending more than eight years as a prosecutor in the United States Attorney’s office for the Southern District of New York, he was tasked by President George W. Bush with keeping tabs on what ultimately became a possible $3 trillion in disbursements under the TARP—better known as the bailout of Wall Street and the auto industry. It’s certainly the most ambitious undertaking the 40-year-old lawyer has ever tackled, and his focus is unwavering. While he has a corner office with a view, he still hasn’t had time to move in properly. His workplace has a not-quite-unpacked feeling, and even the framed copy of his presidential appointment leans on a window ledge, next to a signed photograph of New York Yankees legend Don Mattingly.

Dressed soberly in gray pants, a white shirt, and gray tie on one of February’s seemingly endless snowy days, Barofsky is remarkably subdued when explaining what it’s like to try to hold the most powerful people in U.S. finance to account, from banking CEOs all the way up to the secretary of the treasury and the chairman of the Federal Reserve. He seems unfazed by the act of speaking truth to power, but that’s not too surprising: he has faced far more terrifying adversaries than the pinstriped crowd—including drug smugglers known for disemboweling people who get in their way.

WELL BEFORE 2008, Barofsky already had an enviable résumé. A graduate of the University of Pennsylvania and the NYU School of Law, he had distinguished himself in the New York legal community as an excellent trial lawyer, taking on everybody from drug pushers to white-collar thieves. The way things were going, he might have been a candidate for U.S. attorney one day, or, at the very least, he was setting himself up for a cushy partnership in one of the city’s prestigious law firms.

And then came the financial crisis. Like many Americans, Barofsky has found his career inexorably changed by the near-meltdown of Wall Street and the global economy as a result of the bursting of the real estate bubble. But unlike the tales of a bunch of the erstwhile Wall Street masters of the universe whose flameouts were a spectacle for the ages, Barofsky’s story is that of a remarkable talent plucked out of relative obscurity at a desperate time.

When President Bush authorized Treasury Secretary Henry Paulson to start throwing mountains of money at the crisis—the TARP was initially conceived as a $700 billion bailout, and Paulson spent $125 billion in a single meeting with nine large financial firms—Congress had the foresight to create a position that would track just where the money went. The new special inspector general’s office would conduct, supervise, and coordinate audits and investigations into the use of TARP money. That’s when Barofsky first came to the attention of those outside the legal community in New York and Washington.

Working with a bare-bones staff—by May 2010, he had about 118 people working for him and had budgeted a relatively puny $48 million—Barofsky has shown a degree of productivity that boggles the mind. Since the start of 2009, his office has conducted nine audits of TARP spending (12 more are ongoing), launched dozens of investigations into potential fraud, and produced thousands of pages of reports to Congress.

What’s more, the tenacity with which Barofsky has stayed true to his stated mandate has resulted in a startling degree of public awareness of the results of the SIGTARP office’s work. The cover of each of its quarterly reports to Congress includes the tagline “Advancing economic stability through transparency, coordinated oversight, and robust enforcement.” There is progress on all three fronts.

When he testified before the U.S. Senate on February 5, 2009, Barofsky made it quite clear that his office would not rubber-stamp Treasury decisions when it came to disbursement and oversight of TARP funds. Whereas in the heat of the moment, Treasury had quite simply given hundreds of billions of dollars to the country’s largest banks with few restrictions on how that money was to be used, Barofsky signaled that he would insist on transparency, starting with the seemingly obvious request to banks that they provide details on what they planned to do with any funds they received. Remarkably, that was something Treasury hadn’t thought to ask.

“When I came on board on December 15, 2008, within eight days I made a recommendation that Treasury start requiring TARP recipients to report on how they were using the funds,” Barofsky said at the 2009 NYU Law Global Economic Policy Forum and Law Alumni Association Fall Lecture last November. “That recommendation was rejected by the Bush administration and has been rejected by the current administration. That has been indicative of a bad attitude toward basic transparency.” Barofsky has been a thorn in the side of both the Treasury and the Federal Reserve ever since.

But that’s part of the job. Another part: coordinating efforts with a veritable grab bag of other government bodies, from the Congressional Oversight Panel, headed by Elizabeth Warren, to the comptroller general of the United States (who is the head of the General Accounting Office), the FBI, and the Department of Justice. A recent inquiry into potential fraud surrounding Bank of America’s disclosures in the lead-up to its controversial merger with failing investment bank Merrill Lynch, for example, conducted in conjunction with New York State Attorney General Andrew Cuomo, resulted in civil charges being filed against Bank of America and its former CEO Ken Lewis in February.

Enforcement, by definition, has come last. Barofsky, who refers to his office as “the cop on the beat” for the TARP, has 105 open investigations as of July 2010 into potentially fraudulent use of TARP funds, but only a handful that have been successfully concluded. Barofsky doesn’t see anything wrong with that. “You can’t investigate a crime until it’s actually occurred,” he explains with a smile. “TARP only came into being in late 2008, so the majority of crimes we’re looking into occurred in 2009. Securities and accounting fraud cases also take a lot of time. We’re just getting started here.” A hotline to report fraudulent or wasteful use of TARP funds has received more than 10,000 calls as of May, leads from which have been behind some 27 investigations.

Despite the underwhelming office space, the insignificant budget, and the relatively new position in Washington’s power grid, Barofsky has, since the moment he became SIGTARP, had his voice heard as if he were one of those Looney Tunes characters speaking through a megaphone. (Or maybe a Fox cartoon: friends joke that Barofsky resembles Homer Simpson once his five o’clock shadow kicks in around noon.) But no one who knows him, from his family to law school professors and longtime colleagues, is surprised that he’s achieved so much in such a short period of time. It’s what he’s been doing his whole life.

NEIL MICHAEL BAROFSKY was born in April 1970 in northeast Philadelphia. For the next 16 years, his would be a peripatetic life. His father worked in the travel business, which necessitated that the family—parents Stephen and Gail, and Neil and his two older sisters—move to Wyndmore, a suburb of Philadelphia, when Neil was three years old; to Scarsdale, New York, when he was nine; to Minnesota when he was 15; and finally, when he was 16, to Boca Raton, Florida, where Stephen and Gail opened their own travel agency.

While he says he had typical boyhood fantasies of being a fireman or a policeman when he grew up, Barofsky also remembers wanting to be a lawyer at a “ridiculously young age.” He says his mother still keeps the fortune from a cookie Neil opened when he was 12 that read, “You Will Be a Great Lawyer One Day.”

Thinking back, his high school friends recall clues that suggest the anonymous cookie fortuneteller was onto something. “Neil would always win the debate,” says David Scharnweber, a classmate at Spanish River High School who remains a close friend. “He could craft reasonable, compelling arguments from the very beginning.” (Barofsky says simply: “I had a big mouth as a kid.”)

It wasn’t only the teenager’s verbal skills that garnered notice. He was a standout in mathematics as well. Barofsky’s math teacher—and pal David’s mother—Terry Scharnweber remembers a precocious mind. “He always asked the questions that needed to be asked,” she recalls. “He took nothing for granted, always wanting to know what was behind the math.” (“I was a mathlete!” Barofsky says with a bashful smile more than two decades later.) He would take Advanced Placement classes and win a handful of regional academic awards in his two years in the Boca Raton school district.

This combination of verbal and mathematical fluency would put Barofsky in good stead to handle the intricacies of his position as SIGTARP—a job that quite literally involves sifting through mountainous volumes of numbers and then somehow translating the results into English.

Barofsky says there was more talk of sports around the family’s dinner table (he remains a fan of the NFL’s Miami Dolphins to this day) than there was about politics or social injustice. Still, 20 years before Bush would nominate Barofsky to the job of a lifetime, the high school senior would include “Republicans” in his list of dislikes in the school’s yearbook. “That will always haunt me,” he says, laughing, in 2010. “But I have overcome my dislike of Republicans. I count many as my friends today.”

During his four years as an undergraduate at the University of Pennsylvania, Barofsky maintained his unrelenting work ethic. Penn is chock-full of Ivy League overachievers, but Barofsky managed to stand out even among those peers by earning a dual degree: a bachelor of science in multinational management, from the undergraduate division of Penn’s Wharton School, and a bachelor of arts in international relations.

Barofsky joined a fraternity—Tau Epsilon Phi, or “TEP”—and enjoyed Penn’s urban campus in West Philadelphia. Jonathan Bing ’95, a fraternity brother and later a law school classmate, says Barofsky “was pretty well destined to do something important and intellectual down the road.” Bing, now in his fourth term in the New York State Assembly representing the 73rd District in Manhattan, hastens to add, “He had fun and enjoyed college, but he was also pretty intense, even then.” Indeed: Barofsky graduated magna cum laude.

THE WHARTON SCHOOL supplies much of Wall Street’s white-collar labor force. Barofsky headed north too, but he entered NYU Law in the fall of 1992.

The decision to attend NYU, he says, came down to a combination of the reputation of the school itself as well as its location. “To be 22 years old and living in subsidized housing in the West Village…there’s nothing better than that,” he recalls. “Law students are neurotic people by nature, and it’s very easy to get sucked into the school, and your life becomes nothing but law and law students. That’s not the case at NYU. There’s just way too much going on around you.”

While he enjoyed and excelled in the majority of his classes—Barofsky graduated magna cum laude from law school too—one particular course comes to mind when he considers how NYU may have shaped decisions he made after graduation: Criminal Procedure, taught by Adjunct Professor Andrew Schaffer.

“[Schaffer] was one of the few professors at the time who were teaching with a pro-government stance,” Barofsky recalls. It was a controversial class, with Schaffer delivering a perspective of how the government managed to navigate around such hot-button issues as the Fourth Amendment, instead of the more typical perspective of how a defendant might use it to wiggle out of a legal corner. “Listening to his war stories, I remember thinking that this was the kind of thing I wanted to do,” recalls Barofsky. (“I tell my students every year that I am likely more pro-prosecution than all but about 10 of them,” laughs Schaffer. “It’s a good bet Neil was among the 10.”)

Barofsky did manage to find the time to enjoy what New York City had to offer, including taking in as many games as he could of his beloved New York Yankees. (He’d been a fan since moving to Scarsdale.) He maintained his allegiance to the Dolphins, however, and would brazenly cheer for them during their once-a-year pilgrimage to Giants Stadium to play the New York Jets. Along with classmate Jonathan Klarfeld ’95, now a deputy assistant director at the Federal Trade Commission, he attended the now-legendary 1994 game during which hall-of-fame quarterback Dan Marino faked a spike with just seconds left, caught the Jets’ defense napping, and threw a game-winning touchdown. “He was not a good sport that day,” laughs Klarfeld, a Jets fan.

He also fed an insatiable desire to see live music, his tastes in which run from classic rock—Barofsky is probably one of the few people working in the Treasury Department today who saw Pink Floyd play “The Great Gig in the Sky” at Yankee Stadium in June 1994—to 1980s new wave band Echo and the Bunnymen. His favorite? “It changes every day,” says Barofsky. “But right now, I’m back to the Clash, otherwise known as the Greatest Rock Band of All Time.”

IN JANUARY 2009, the New York Times referred to the office of the United State Attorney for the Southern District of New York as “one of the city’s most powerful clubs” and home to “perhaps the most prestigious federal prosecutor’s job outside Washington.” While some of the office’s assistants are hired straight out of law school, the bulk of them are plucked from the city’s elite law firms themselves. After graduation from NYU Law, Barofsky decided to take the latter route.

He landed a job in the litigation department at Weil, Gotshal & Manges. In short order, he was drafted to the legal team representing a number of cable television networks in a dispute over the appropriate rate they should pay the American Society of Composers, Authors, and Publishers (ASCAP) for music licensing. While Barofsky and his colleagues were representing high-profile clients such as MTV Networks, ESPN, USA Networks, and the Disney Channel, he feared the case might overwhelm his early career and prevent him from building the résumé that would position him best for the highly coveted gig as an AUSA.

A colleague, Chris Morvillo, saw Barofsky’s frustration at not having an opportunity to work a wider range of cases and suggested that he speak to Morvillo’s father, Bob, one of the founding partners of white-collar litigation firm Morvillo Abramowitz. Both Morvillo and Elkan Abramowitz ’64 had worked in the Southern District office—first as AUSAs and later as chiefs of the Criminal Division—and the firm had a singular reputation as a kind of finishing school for those seeking admittance to the SDNY.

“These guys pretty much invented white-collar prosecutions when they were AUSAs,” says Barofsky. “And then they went on to invent white-collar criminal defense.” A job at Morvillo Abramowitz held not only the promise of experience on the kinds of cases that he wanted to work on but, of equal or greater importance, the possibility of a recommendation to the SDNY from legendary figures in the field. After spending just 14 months at Weil Gotshal, Barofsky decamped for Morvillo Abramowitz. (He may have been right about the ASCAP case as well: litigation dragged on for more than a decade.)

Barofsky got the immersion in white-collar litigation that he’d been looking for. An early case: In 1997 the firm acted as defense counsel for Josef Goldstein, son of the former president and owner of 47th Street Photo, who was charged with defrauding the highprofile electronics retailer’s creditors. Goldstein and three co-defendants decided to risk a jury trial. It was the wrong decision—all were convicted—but Barofsky remembers the six-week trial as a tremendous experience. “I learned a ton,” he recalls, “both during the trial itself and in the long lead-up to it, especially how to use the tools of federal criminal practice in a practical way.”

Barofsky worked alongside Abramowitz himself during the trial, handling a few witnesses and even arguing a motion. He impressed the partner with his fledgling courtroom abilities. “Neil had an ability to synthesize a ton of material and explain it to the jury in an easy-to-understand way,” recalls Abramowitz. “His verbal skills, in particular, were well beyond those of many of his contemporaries.”

Just a few years out of law school, Barofsky was already demonstrating a relentlessness that might be grating were it not for its lack of sharp edges. He was forceful but not quite abrasive, and the same holds true today. Barofsky is that guy—the one who some way, somehow, usually avoids being irritating, even when disagreeing with you.

After two and a half years apprenticing for the white-collar pioneers, Barofsky had gotten what he set out to obtain: the ability to think like a defense lawyer if and when he was putting together a criminal case from the other side of the courtroom. “Having that defense perspective, that ability to scope out the weaknesses in a criminal case, is an essential tool in the prosecutor’s toolkit,” he says.

“Neil came in more mature than many of the young lawyers we hire,” recalls Bob Morvillo. “He hit the ground running. While he was both careful and diligent, I think one of the reasons we recommended him so highly to the U.S. Attorney’s Office was that he was also creative. Give him a task, and he didn’t just give you back the four corners. He would give you the context in which the project should take place.”

In the fall of 2000, the 30-year-old was offered the job he’d been aiming at for almost five years: then-U.S. Attorney Mary Jo White named Barofsky an AUSA. He would spend more than eight years in the office—working under four different U.S. attorneys—and handle several extremely high-profile cases. He would also narrowly avoid being kidnapped and killed by narco-terrorists.

BAROFSKY’S TENURE AS AN AUSA started the same way as every other new assistant’s did: he spent a year in the general crimes division, dipping his toe in the prosecutorial waters and trying to learn as much as he could from his more seasoned colleagues. Along with his colleagues, Barofksy moved to narcotics in his second year. Like many who have trodden the same path, he found the action energizing enough that he decided to stick around, and he joined the International Narcotics Trafficking team.

Over the next three years, he would prove an aggressive lawyer, unafraid to bring charges or pursue a difficult case. Nor, for that matter, was he afraid to challenge his superiors. “He does what he thinks he should do even if it leads to clashes with those above him,” says Anthony Barkow, a former SDNY colleague and current executive director of NYU Law’s Center on the Administration of Criminal Law. “Still, those same people wanted him on their cases because of his tactical, strategic, and professional judgment.”

Sifting through the voluminous indictments, extraditions, and convictions that Barofsky and various colleagues successfully brought against drug smugglers of every stripe between 2001 and 2005 can cause one to revise one’s first impression of Barofsky. In person, he comes across as lawyerly, a little on the bookish side. What doesn’t come across, though, is how boldly and fearlessly he pursues criminals to bring them to justice.

He prosecuted heroin kingpin Ramiro Lopez-Imitola for importing more than 2,000 kilograms of heroin, worth some $200 million, into the U.S. Lopez-Imitola is the kind of guy who, when told that one of his drug mules has died in Miami, offers a henchman $10,000 to cut the body open and retrieve 88 pellets of heroin from his intestinal tract. Lopez-Imitola was sentenced to 40 years in prison.

But prosecutions against the likes of Lopez-Imitola were merely a warm-up to one of the most groundbreaking drug smuggling cases ever brought in a U.S. court: Barofsky’s investigation and prosecution of 50 leaders of Revolutionary Armed Forces of Colombia—known by their Spanish acronym, FARC—on seminal narcotics charges. The Department of Justice charged FARC with importing more than $25 billion worth of cocaine into the U.S. and other countries, and accused them of supplying more than 50 percent of the world’s cocaine. It was the largest narcotics indictment ever returned. “I think we redefined the FARC, which was one of our goals,” Barofsky later told the Washington Times. “The press stopped calling them freedom fighters and started recognizing them for what they are, which is one of the most thuggish, violent, narcotics cartels that’s ever existed.”

Richard Sullivan, then a senior AUSA and currently a judge of the U.S. District Court for the Southern District of New York, says what Barofsky was able to accomplish with the FARC prosecution was a show of dedication for the ages. “Main Justice had spent years trying to develop a case,” he recalls. “And we only got involved because agents and law enforcement in Colombia asked us to step in and make some headway. Keep in mind, if we were going to seek to extradite, we needed the strongest possible case. We couldn’t afford to swing and miss if the evidence fell apart. But Neil was able to accomplish in a couple of months what it had taken several years for people in Washington to not accomplish. It’s a great example of how he was—and is—willing to push people if they got in the way of what he thought was the right result.”

Over several months in the lead-up to the case, Barofsky and his partner Eric Snyder ’94 spent weeks at a time in Colombia, unearthing evidence that everyone knew was out there but that had yet to be put together into a coherent whole. A big part of the plan: trying to lure FARC defectors identified through a Colombian witness protection program called Reinsertado to come to the other side and testify about the organization’s crimes. One of the most promising witnesses was a high-ranking female who had corroborated a number of pieces of information and who had access to FARC’s senior leadership. She was so promising, in fact, that the U.S. team had identified her as one of the small number of cooperating witnesses to whom they would offer entry into the U.S. witness protection program in return for crucial testimony. It was a fortuitous decision.

Presented with this new future, the witness came clean and explained that she’d been operating as a double agent, telling her FARC bosses what she’d been asked by Barofsky and how she’d replied. More importantly, she revealed a plan to kidnap Barofsky at an upcoming interview, torture him for information, and likely kill him. (The original plan had called for the woman to detonate a bomb during her interview, but she’d refused.) “It would have been a great ‘get’ for the FARC to grab a U.S. prosecutor,” says Barofsky, somehow managing to consider the strategic implications before the personal ones. “But that was it; I didn’t go back after that. I’m not that brave.”

It didn’t matter; the work was done. On March 2, 2006, Attorney General Alberto Gonzales announced a one-count indictment charging 50 leaders of FARC with importing $25 billion of cocaine into the United States. The press release announcing the indictment mentioned contributions from the Department of Justice, the DEA, U.S. Immigration, the IRS, the FBI, the NYPD, the New York State Police, and the U.S. Marshals Service, as well as Colombian law enforcement. But Barofsky was the glue that held the case together.

Former U.S. Attorney Michael Garcia says Barofsky’s work on the FARC investigation firmly ensconces him in the SDNY’s lofty tradition of spearheading innovative federal litigation. “There are lots of great lawyers in the Southern District, so it takes a lot to stand out,” he says. “The way to do that is to be one of those people who can actually create a new case, a new enforcement initiative, or a new legal approach. That’s a rare quality, but Neil showed he had it when he pretty much created the FARC case. Those are the people who move the office. Those are the people who can conduct great trials. That puts Neil in a very select group.”

Barofsky’s main souvenir from the FARC days is an eight-inch bayonet knife given to him by local law enforcement with an inscription of one operational code name: “Bogotá 2007: Tango Chaser.” It is not, contrary to some published reports, the actual knife taken from a would-be assassin of Barofsky. Still, it’s a damn cool piece of office décor.

WHETHER HE’LL ADMIT IT OR NOT, Barofsky realized that narcotics wasn’t going to get any better than the FARC case, and in 2005 he transferred to the Securities and Commodities Fraud Unit.

It didn’t take long for him to end up at the center of another important case—the prosecution of several executives of the brokerage firm Refco for perpetrating a $2.4 billion accounting fraud. Along with colleague Chris Garcia, he deciphered an unusually complicated scheme in which Refco’s former CEO Phillip Bennett and one of its owners, Tone Grant, had, over a period of several years, masked hundreds of millions of dollars of losses through a series of sham transactions.

If Barofsky was already known for his dogged investigations and ability to work well both with internal teams and other law enforcement agencies, it was during the Refco trial that his courtroom abilities became widely appreciated. “He is a tremendous trial lawyer,” says Barkow. “He delivers his jury addresses, opening, closing, and rebuttal without a scrap of notes, which is very rare, particularly in complicated cases. His rebuttal in the prosecution of Tone Grant was probably the best one I have ever seen by a prosecutor.”

The compliments also come from the other side of the courtroom. Gary Naftalis, who represented Bennett in the Refco proceedings, also praised Barofsky’s performance. “It was a complicated whitecollar criminal case involving very complicated transactions,” he recalls. “He mastered those transactions and presented them to the jury in a very clear and understandable way. Everybody talks about all the glory of trial lawyers, but you’re putting in 10 hours out of court for every hour in. And it’s clear that Neil is getting his hands dirty outside the courtroom.”

“The experience of being a trial lawyer combines the best and the worst of the job,” says Barofsky. “As a prosecutor, it’s like an elaborate game of chess. Your work literally starts months before the first pretrial motion, and everything is designed six months or a year out for what’s going to happen in that courtroom. There’s nothing quite as gratifying as laying down a strategy—anticipating a certain defense, for example—and seeing it come into play a year later. At the same time, there’s the responsibility of it all. You can’t be wrong; you can’t be 99 percent sure that some person probably committed a crime. You might still get a conviction, but you still have to look at yourself in the mirror every morning. That’s a heavy burden.”

In October 2007, Barofsky was part of an SDNY team that won the John Marshall Award for Asset Forfeiture from the Department of Justice as a result of the Refco trial. Just over a year later, the DOJ again recognized the Refco team, giving it the 2008 Director’s Award for Superior Performance by a Litigative Team. That was just a few months after Bennett and Grant were sentenced to 16 and 10 years, respectively, for their roles in the fraud.

Barofsky thinks both were adequate sentences, but he does agree with the perception that the lack of a sufficient threat of jail time is a major contributor to the preponderance of securities fraud in the U.S. “I’m in the minority in being pro-sentencing guidelines,” he says, “and I do think the fact that they have been basically abrogated by the Supreme Court has meant that a lot of these white collar criminals don’t get the sentences they deserve. I’ll tell you what another problem is, though: Most people don’t get caught. It’s usually only during a financial crisis that a lot of these crimes get detected. It’s much harder to detect fraud when everything is going well.”

Speaking of going well, Barofksy was also thriving in his personal life at the time. He’d met a psychologist named Karen through an online dating service in March 2007, and was planning to ask her to marry him once the Refco case had wrapped up. On April 17, 2008, the decision came back on Tone Grant. While his trial partner was typing up the press release, Barofsky slipped out and picked up the ring. Like many a man with a ring in his pocket, he found it nearly impossible to concentrate on the celebratory drinks that evening, and at seven o’clock the next morning he asked Karen to marry him. Her verdict marked the second victory for Barofsky in as many days.

The couple planned to get married in Costa Rica in early 2009. It should come as no surprise, however, that the legally minded Barofsky wanted a U.S.-sanctioned marriage, and the couple decided to tie the knot stateside. Judge Richard Sullivan—Neil’s SDNY mentor—married the two on 8/8/08, a date chosen for the Asian superstition that eight is a lucky number. (Even lawyers can be superstitious.) They told no one of the secret nuptials.

UNITED STATES ATTORNEY GARCIA had seen enough of Barofsky’s tenacity and judgment to trust him with important cases. But in working with him on the Refco case, he also saw leadership traits. Turnover at the senior level in the Southern District doesn’t happen on a regular schedule, however, and while Garcia—now a partner at Kirkland & Ellis—had his eye on Barofsky for a senior position, none opened up.

A solution presented itself, however: in mid-2008, Garcia decided that mortgage fraud had become pernicious and pervasive enough that it was time to create a new mortgage-focused investigative group. He asked Barofsky to be in charge of it. “Neil took our ability to go after mortgage fraud to a whole new level, pretty much from a standing start,” recalls Garcia.

The group wouldn’t enjoy the fruits of Barofsky’s leadership for long, though. Just months after creating the group, Garcia received a call from the White House. The administration was looking to fill a new position as chief watchdog of the TARP, which would soon be disbursing money to banks at a disturbingly fast clip.

Did Garcia have anyone in mind, the White House wanted to know? Yes, in fact, he did. “The person I thought of immediately was Neil,” says Garcia. “Because it’s a really difficult role requiring a combination of attributes: good judgment, the ability to work with folks, but also the ability to push back. And while we know in hindsight some of the dimensions of the crisis, at the time we didn’t really know how things were going to break in terms of a possible meltdown in the markets.”

Taking the idea to Barofsky, Garcia decided to go with the hard sell. “Neil likes to say that I gave him the ‘God and country’ speech, and I did. I told him that it was a call to service at a historic moment. I told him that the country needed the right person in the role, and that I thought that he was that person. On a smaller scale, I’d seen him create an organization from scratch with the mortgage fraud group. I told him he had a chance to do it again, but this time on a humongous scale—to be the only watchdog, the only check on spending of hundreds of billions of dollars. Needless to say, he bit.”

Things proceeded quickly from there. Bush nominated Barofsky on November 14, and the Senate confirmed him on December 8. One glitch: During the confirmation hearings, Barofsky referred to his “wife,” Karen. One of his sisters, watching in Miami, turned to his mother and said, “What did he just say?” Numerous theories sprang up regarding Barofsky’s apparent slip of the tongue, all of which would be cleared up at their “official” wedding. The two would postpone their African honeymoon until May 2009.

A reporter for the New York Daily News tracked down Barofsky’s father for comment. “You should congratulate the country,” Barofsky the elder said. “He does his homework and his prosecutions speak for themselves. [But] I don’t envy him. It’s not going to be an easy thing.”

BAROFSKY ROLLED INTO WASHINGTON with a full head of steam, if not an actual office or employees to speak of. For the first several months, he barely saw his new wife, working from dawn until dusk trying to build a government agency from the ground up. Fifteen months later, he has succeeded in that goal, and his creation has been successful both in terms of its objectives and in terms of public relations measures. When Barofsky talks, Congress, the media, and the American people listen. “I sometimes chuckle when I think about it,” says Sullivan. “He was tailor-made for the job: so independent, so smart, so hardworking. The taxpayer is getting their money’s worth.”

That’s not to say that he hasn’t ruffled a few feathers along the way. When Barofsky is taking people to task, he rarely aims low. He has on several occasions lambasted Hank Paulson for misleading the American people about the health of certain banks—Bank of America and Citigroup come to mind—during the early days of the financial crisis, when Paulson claimed that every bank receiving the TARP’s initial disbursement of $125 billion was healthy. Both banks would require subsequent infusions of billions more to stave off collapse. The result of that disconnect, Barofsky says, is a level of cynicism among the public that could have been avoided. “He knew in his heart that they weren’t healthy,” Barofsky says. “And in the process, he created a sense that you can’t believe anything the government says.”

Barofsky has also chided the current treasury secretary, Timothy Geithner, taking him to task over what he considered misleading statements about the ultimate return to taxpayers for the $85 billion in government support of AIG. Over and over, he has criticized government officials for what he considers unnecessary and damaging obfuscation regarding the use of TARP funds, a position with which most major media organizations are in total agreement—thereby guaranteeing Barofsky a podium when he seeks it.

It’s ill advised to respond to such attacks publicly when someone has the moral high ground on their side, so there’s been nary a peep out of the Treasury Department regarding most of Barofsky’s barbs. That doesn’t mean that Treasury officials don’t get up to their usual Washington antics. In early 2010, a whisper campaign was apparently emanating from senior Treasury officials suggesting that Barofsky was planning to switch parties and run for state attorney general of New York as a Republican, thus explaining his attacks on Obama’s choice of Treasury Secretary. But such a theory ignores the patently obvious fact that Barofsky is and always has been bipartisan in his choice of critical targets.

Indeed, Barofsky understands that his job is not to make or to implement policy, but merely to keep an eye on those doing so with billions of dollars of taxpayer money. Still, he also understands the context of it all. “We talk about the costs of the TARP,” he told the NYU Law audience last November. “We can talk a lot about dollars and cents. And we can talk about the need for regulatory reform. . . . But there is a third cost: to the credibility of the government itself, which is one of its most important and necessary assets in dealing with a crisis. People need to trust their government. They need to be able to have faith when asked to come up with hundreds of billions of dollars. And the failures of transparency have had a dramatic impact.”

Interestingly, Barofsky comes across as more critical of dissembling public officials than of Wall Street itself. Indeed, he thinks bankers are doing as bankers are wont to do, and that if there’s any real tragedy from the crisis, it’s that policymakers may yet squander a perfectly good opportunity for meaningful financial reform. “It’s interesting to hear so many people say, ‘Wow, rather than accomplish our policy and societal goals, Goldman Sachs and these banks are using all this money to maximize their profit,’” says Barofsky. “What do you think happens in a capitalist society? What are these banks supposed to do? They are going to do what they do, which is to try to make profit. If you are going to push this amount of money out and not put any conditions on it, it just seems strange to me to be shocked and horrified by what is a very predictable result.”

BAROFSKY IS MORE OF A DOER than a talker, though, and those who know him best think the real action at SIGTARP is yet to come. He’s an investigator at heart, after all, and he promises that some of those 105 open investigations could be quite significant. The Bank of America charges were just the beginning.

“Unfortunately, history teaches us that an outlay of so much money in such a short period of time will inevitably draw those seeking to profit criminally,” he testified to Congress in February 2009. “One need not look further than the recent outlay for hurricane relief, Iraq reconstruction, or the not-so-distant efforts of the RTC [Resolution Trust Corporation] as important lessons.” A year later, he made clear what he considers the likelihood of uncovering fraudulent use of TARP funds: “The only government program that has zero chance of fraud or misconduct is a program that never gets run.”

Once again, he’s thinking like the other side: “Put yourself in a corporate fraudster’s mind. The $700 billion bailout of Wall Street was not only a financial bailout but also a potential fraud bailout. Anyone in the midst of perpetrating a fraud is always looking for the big cash out, the infusion that’s going to save you and get you out of the situation you’ve found yourself in. So let me be clear: If you think TARP money is going to be your way out, you’ve got another thing coming. And we’re not going to stop at banks that got TARP money. We’re going to be looking at those who merely applied for TARP money.”

He wasn’t kidding. On March 15, 2010, Charles Antonucci Sr., the former chief executive of Park Avenue Bank in New York, was charged with trying to steal from the TARP by cooking the bank’s books—the first time criminal charges had been brought in connection with an attempt to steal from the program. It’s a point worth repeating: Park Avenue Bank never even received TARP funds. That didn’t matter; they tried to get their hands on some, and that put them in the SIGTARP’s sights. His accompanying statement on the day of the arrest was pure, no-frills Barofsky: “If you attempt to profit criminally from this historic program. . . you will be charged, and you will be brought to justice.”

Barofsky knows that his is a temporary job, even if it lasts another five years or so. At some point, after all, the TARP will be wound down, and there will be no more money left to track. What then? If it was hard to see him settling into a well-paying partner’s gig a few years ago, it’s even harder now. A civic-minded lawyer from the very beginning, Barofsky’s gotten a taste of what it’s like to make a difference on the biggest stage possible, one populated with actors like the president of the United States, the Congress, and the most powerful corporate interests in the country. New York attorney general might not be too far off the mark.

Before he dives headlong into the next gig, however, he and his wife are likely to step back and appreciate their most significant accomplishment yet: the birth of the couple’s first child—Zoe Ella—in April. Pointing to a picture of Karen scuba diving off Lombok, Indonesia, Barofsky sheepishly admits that he brought the underwater photo into the office when he realized that the only person he had a picture of was the Yankees’ Mattingly. And while he has spent a career doing things a little differently than those around him, it’s a good bet Barofsky will soon be acting like a typical new father. Which means Mattingly better get ready to share a shelf with pictures of a little girl.

—Duff McDonald is a contributing editor at Fortune and New York magazines. He is also the author of Last Man Standing: The Ascent of Jamie Dimon and JPMorgan Chase (2009).

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