Faculty Focus – NYU Law Magazine https://blogs.law.nyu.edu/magazine The magazine for NYU School of Law Fri, 30 Sep 2011 17:57:28 +0000 en-US hourly 1 https://wordpress.org/?v=6.5.3 Latest Book Makes Raves https://blogs.law.nyu.edu/magazine/2011/latest-book-makes-raves/ Mon, 26 Sep 2011 20:01:50 +0000 http://blogs.law.nyu.edu/magazine/?p=4782 Frank Henry Sommer Professor of Law Ronald Dworkin published his most comprehensive book, Justice for Hedgehogs, in January. It is an ambitious and wide-ranging exploration of moral, legal, and political philosophy. This spring Dworkin’s arguments were challenged in some academic corners, but overall the book has met with critical acclaim.

The hedgehog of the title is a reference to the Greek saying that while the fox knows many things, the hedgehog knows one big thing. Dworkin’s big thing is the unity of value, which is, as he writes in the book, “the hedgehog’s faith that all true values form an interlocking network, that each of our convictions about what is good or right or beautiful plays some role in supporting each of our other convictions in each of those domains of value.”

In his essay in Problema, “How Far Can You Go with Quietism?” Gerald Lang concludes that “Dworkin’s arguments are deeply powerful and suggestive,” but he takes issue with Dworkin’s attack on metaethics, or the study of whether values really exist (as opposed to the question of what actual moral rights and duties we have). “Dworkin’s concern to avoid leaving metaphysical hostages to fortune is taken by him, rashly, to justify a principled incuriosity about moral metaphysics,” Lang writes. “But the arguments he deploys do not justify this incuriosity.”

No such reservations were evident in a glowing review in the New York Review of Books. Dworkin weaves together ethics, morals, interpretation, politics, free will, and law into a complex argument to make this case, reviewer A.C. Grayling notes, and then explores the practical implications. “That is what gives the overall argument its urgency, for Dworkin’s principal aim in establishing unity of value is the familiar and central one for him: to show how law and government can be based on political morality.” The book develops theories of liberty and economic justice, democracy, law and ethics, among many other subjects, and qualifies, Grayling says, as a debatechanger: “We are in at the birth, here, of a modern philosophical classic, one of the essential works of contemporary thought.”

Writing in New Humanist, reviewer Conor Gearty says that, in Justice for Hedgehogs, “all of Dworkin’s great talent is on display,” and likens reading this philosophical exploration to “being on an ideas roller-coaster: periods of calm punctuated by extreme excitement as you try desperately to hang in there while being pushed back and forth, in and out of your comfort zone, albeit with occasional brief returns to the known to calm you down.”

After having opened his review with the rueful observation that academic scholarship today is often akin to staying at a hotel—well-furnished rooms but little meeting of the minds with other guests— Gearty concludes with this observation: “If Ronald Dworkin were a hotel he would be the Savoy, but a Savoy that is genuinely open to all, doors always open, guests spilling into the reception rooms, talking, arguing and laughing too.”

Dworkin created a blog (justiceforhedgehogs.com) to respond to the book’s critiques, including exploring unpublished comments on the book made by University Professor Samuel Scheffler. On Gearty’s Savoy equation, Dworkin wrote, self-deprecatingly, “That hotel, I note, was closed a few years ago as in urgent need of modernization. (It has since reopened.)”

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Introducing Sujit Choudhry https://blogs.law.nyu.edu/magazine/2011/introducing-sujit-choudhry/ Mon, 26 Sep 2011 20:01:50 +0000 http://blogs.law.nyu.edu/magazine/?p=4784 For a renowned comparative constitutional law scholar who has written or edited more than 60 works, Sujit Choudhry spends a lot of time with his boots on the ground.

In 2003, he and a team of foreign constitutional experts traveled to Sri Lanka to propose a federalist solution to the country’s ethnic conflict. They drove past burned-out villages and barbed-wire checkpoints guarded by machine gun–toting soldiers. He made similar trips to Nepal in 2007 and 2010 in support of constitutional negotiations. “He’s not an ivory-tower intellectual,” says Michael Trebilcock, chair in law and economics at the University of Toronto Faculty of Law. “He’s a public intellectual with a bewildering array of public policy involvements.”

Choudhry has appeared before the Supreme Court of Canada three times, including for the highly publicized case of Omar Khadr, the only Canadian citizen held at Guantánamo Bay. He was part of the three-member Governing Toronto Advisory Panel that drafted a proposal leading to the restructuring of the city government. As a board member of Legal Aid Ontario, he found himself in the middle of a nightmare scenario when the organization’s defense counsel went on strike, threatening to shut down Ontario’s criminal justice system.

Choudhry leaves the University of Toronto Faculty of Law, where he held the Scholl Chair, to join the NYU Law faculty this fall. He’ll teach Comparative Constitutional Law, both in the classroom and in the field, as he plans to create a center to deploy students and colleagues to post-conflict countries that are grappling with constitutional issues. He also plans to visit the Middle East to identify projects emerging out of the Arab Spring. “He brings a unique dimension to our program,” says Beller Family Professor of Business Law Kevin Davis, Choudhry’s childhood friend, as his interest in Asia and Africa complements the faculty’s strength in European constitutional law.

Choudhry started writing in the late 1990s, when the changing political landscape in Eastern Europe and South Africa produced an enormous but polarized scholarship in comparative constitutional law. Some scholars encouraged courts to look to other nations for guidance. Others discouraged comparative engagement by courts, arguing that a nation’s constitution is the very embodiment of its unique identity. Both camps missed the boat, according to

Choudhry, who staked out a third position in “Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation” (Indiana Law Journal, 1999). He argues that a nation can best grasp what its constitution should be by using others as a tool for self-reflection: “Comparative materials help us define better what we want to include, and what we want to avoid.”

Since then, Choudhry has focused on forging constitutions in ethnically divided societies. He brought together legal scholars and political scientists in editing one of the most important collections in the field, Constitutional Design for Divided Societies: Integration or Accommodation? (Oxford University Press, 2008). “He’s by far the best comparative constitutional scholar of his generation,” says Sanford Levinson of the University of Texas School of Law.

Born in Delhi and raised in Toronto, Choudhry says his Indian immigrant parents created a home for grooming scholars. “Our house was all about intellectual stimulation. The radio was permanently tuned to CBC [Canada’s version of NPR], and we read several newspapers daily,” he recalls.

His late father, Nanda, taught economics at the University of Toronto; his mother, Ushi, taught nursing. “They had a procession of academic visitors from around the world to the house for dinner parties,” he remembers. “My brother, Niteesh, and I always sat at the table and were part of these events. It’s no coincidence that we’re both academics.” (Niteesh teaches at Harvard Medical School.)

Premed at McGill University, Choudhry became interested in law after a summer internship in bioethics. Attending Oxford as a Rhodes Scholar, he earned a Bachelor of Arts in Law in 1994. Two years later he earned a Bachelor of Laws from the University of Toronto. After clerking for the Supreme Court of Canada, he earned a Master of Laws at Harvard Law School in 1998.

Choudhry joined the University of Toronto in 1999, receiving tenure in 2004. He received high marks for teaching. “It was hard to come out of his class without being a little more excited about constitutional law because he had such passion for it,” says former student Michael Pal (LL.M. ’10).

Of a typical busy week, when he may be teaching, writing, chairing faculty meetings, and attending to his policy work, Choudhry says, “It can be a bit frenetic. And then there are the kids!” He and his wife have a daughter and son, and, he says, “We look forward to raising our kids in a global city.”

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Introducing Adam Cox https://blogs.law.nyu.edu/magazine/2011/introducing-adam-cox/ Mon, 26 Sep 2011 20:01:50 +0000 http://blogs.law.nyu.edu/magazine/?p=4786 It was tough for Adam Cox to choose between practicing law and teaching it. “I knew I’d love to teach,” he recalls, “but I was a little less confident that I’d love the process of legal scholarship because I’m a social person.” The gregarious Cox decided to teach, but surmounted the “lonely academic” issue by working collaboratively with other scholars to produce a significant body of multidisciplinary research on two dinnertable topics of debate: voting rights and immigration law.

Cox will join the faculty of NYU School of Law as a tenured professor this fall. He will teach immigration law, as he did while a visiting professor in Fall 2008. He comes from the University of Chicago Law School, where he began his academic career in 2002 as a Bigelow Teaching Fellow and was most recently professor of law. University of Chicago colleague Eric Posner, who has co-authored several articles with Cox, including “The Rights of Migrants: An Optimal Contract Framework” (New York University Law Review, 2009), adds: “Professor Cox brings to bear a wide range of interdisciplinary approaches, such as economics and political science, which enable him to advance the literature in immigration law significantly.” For example, by applying economic models, the authors concluded that rather than being a problem due to insufficient enforcement resources, illegal immigration is a policy choice that allows the United States to obtain cheap labor while retaining the power to deport those who burden the justice or welfare systems and grant amnesty to those who become productive members of society.

Cox has also made significant contributions to the literature of voting rights and election law. In “Judging the Voting Rights Act” (Columbia Law Review, 2008), he and co-author Thomas Miles, an economist and law professor at the University of Chicago Law School, provided the first empirical evidence that race as well as political ideology can influence judicial decisions. Their analysis of how judges voted on lawsuits brought under the Voting Rights Act of 1965 also revealed that the political affiliation and race of the colleagues that judges sat with on panels affected their decisions.

Cox and Miles had clerked for judges on opposite ends of the political spectrum on the U.S. Court of Appeals for the Ninth Circuit. Cox worked for Judge Stephen Reinhardt, who is so renowned as an activist that The Onion once satirically reported that he had declared the private celebration of Christmas unconstitutional. Noting that their findings didn’t make them any friends on either side of the political divide, Miles praises Cox: “He is a fantastic person to collaborate with who has great academic and scholarly values and is interested in a thorough and wide-ranging inquiry.” Posner, echoing Miles, describes Cox as “by nature dispassionate rather than ideologically inclined, which allows him to understand and evaluate all points of view.”

Growing up in suburban Detroit, Cox was more interested in science than public policy. His father, an engineer, and mother, a child psychologist, own a small manufacturing company, and Cox entered Princeton University on the techie track, graduating summa cum laude in 1996 with a degree in mechanical and aerospace engineering. (Miles adds that Cox is still mechanically adept, having fixed his iPhone recently.) Cox won a full-tuition merit scholarship to the University of Michigan Law School, eventually graduating first in his class.

After his clerkship in Los Angeles, Cox moved to New York City, where he spent a year as Karpatkin Civil Rights Fellow at the American Civil Liberties Union Foundation. Before beginning his academic career, he worked for a year as an associate at Wilmer, Cutler & Pickering, where he litigated civil rights and immigration cases.

He and his wife, Courtney Oliva, who until recently was an associate at Winston & Strawn in Chicago and will work at NYU Law’s Center on the Administration of Criminal Law, are eager to move to the West Village. Cox is looking forward to listening to indie bands at the Bowery Ballroom and small Brooklyn clubs, and checking out the foodie scene on the Lower East Side and in Brooklyn.

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Introducing Alina Das ’05 https://blogs.law.nyu.edu/magazine/2011/introducing-alina-das-%e2%80%9905/ Mon, 26 Sep 2011 20:01:50 +0000 http://blogs.law.nyu.edu/magazine/?p=4788 As students in the Immigrant Rights Clinic, Alina Das and her friends would joke about making those years last forever, perhaps by forming a law firm to fight for immigrants’ rights. “Of course, we all knew that we’d go our separate ways, but we fantasized about what an ideal job it would be,” she says.

Returning to the IRC first as a teaching fellow in 2008, then joining the faculty in May 2011, she has come close to realizing her dream. “To actually have this be my professional home for the foreseeable future is really exciting,” says Das.

Petite, unassuming, and reserved, Das is nonetheless “a tenacious advocate, focused and completely attuned to what really matters to immigration judges,” says her mentor and fellow IRC instructor, Professor of Clinical Law Nancy Morawetz ’81. Her students concur. “What stands out is her boisterous laugh and genuine joy when we’re doing well for our clients,” says Stephen Kang ’11. “She encourages us to always keep our clients front and center.”

Coming from an immigrant background that often made her feel an “overwhelming otherness,” Das has a personal connection to her specialization at the intersection of immigration and criminal law. With the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, “all the rights that we assume apply to everyone—a day in court, a judge’s discretion—get tossed out the window once the defendant is labeled an immigrant and a criminal,” she says.

In “The Immigration Penalties of Criminal Convictions: Resurrecting Categorical Analysis in Immigration Law” (New York University Law Review, forthcoming), Das notes that convictions once triggered a categorical immigration penalty based on the statutory definition of the offense. Today’s courts increasingly permit inquiry into the adverse facts of the crime. She argues for the traditional approach.

In “Immigrants and Problem-Solving Courts” (Criminal Justice Review, 2008), Das examined the unintended consequences that incarceration alternatives have on immigrants. Typically, a defendant pleads guilty up front to lessen or erase the offense if he successfully completes a treatment program. But under federal immigration law, officials assert that the plea, coupled with a restraint on one’s liberty (albeit a volunteer program), is grounds for deportation.

Joanne Macri, director of the Criminal Defense Immigration Project at the New York State Defenders Association (NYSDA), says Das’s work helped bring about a provision in the Rockefeller Drug Law Reform to waive the up-front guilty plea when it can result in severe consequences such as deportation. Similarly, another brief Das co-authored was cited in Jean-Louis v. Attorney General of the United States, which ruled in favor of categorical analysis. “It’s amazing to see what she’s accomplished in such a short time,” says Macri. “I can’t wait to see what she’s going to do next.”

Das and her brother, Shamik, grew up in Baton Rouge, Louisiana, with dad, Dilip, and mom, Mala, who encouraged Das to focus on her education. “I was a nerdy, focused student who joined the math club, went to science fairs, and threw myself into learning,” she recalls.

As an undergraduate at Harvard University, she spent one summer at an NGO in Bangladesh working on women’s issues, and another in Mozambique studying democratization. After graduating magna cum laude in 2001 with an A.B. in government, she entered NYU Law on a Root-Tilden-Kern Public Interest Scholarship and continued to explore a variety of interests, taking internships in mental health, racial discrimination, housing, community health, and employment discrimination. She graduated with a J.D. and a master’s of public administration.

After clerking for the Honorable Kermit Lipez of the U.S. Court of Appeals for the First Circuit, she was a Soros Justice Fellow and staff attorney for the NYSDA Immigrant Defense Project.

Das spends her spare time with her fiancé, Nafees Tejani, and a close group of friends. Given her intense focus, it’s understandable that she might need time to learn how to adjust her tempo and relax sometimes. “I’ve worked hard to carve out a space where I can get outside of my head,” she says, “and just enjoy being in this really great place.”

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Introducing Gráinne de Búrca https://blogs.law.nyu.edu/magazine/2011/introducing-grainne-de-burca/ Mon, 26 Sep 2011 20:01:50 +0000 http://blogs.law.nyu.edu/magazine/?p=4790 One of the foremost scholars on E.U. law and its relationship to national legal systems and the international legal order, Gráinne de Búrca has written or edited nine books and 50-plus articles and book chapters, and she edits the Oxford Studies in European Law book series. Her influential E.U. Law: Text, Cases, and Materials (fifth ed., 2011) has been in print since 1995. Throw the unusual name into the mix, however, and people “often expect to meet this wise old man, the Great Gráinne de Búrca,” says her friend Neil Walker from the University of Edinburgh. “Instead, they meet this chirpy young woman.”

NYU Law colleagues will have no such confusion, having already worked with de Búrca when she was a Hauser Global Visiting Professor in 2005 and Straus Inaugural Fellow in 2009–10. “Copies of her books sit open on desks from Moscow to Madrid,” says Murry and Ida Becker Professor of Law Benedict Kingsbury. “Her insights into every case, directive, proposal, and parliamentary position paper in the large and complex European legal system are acute and creative. She is a scholar who really knows her field and helps to shape it.”

De Búrca’s academic interests stem from a fascination with the E.U. itself. “Despite its current troubles, the E.U. remains one of the most successful examples of regional economic and political cooperation,” she says. Her work analyzes the kind of international actor the E.U. is becoming and whether lessons learned (both positive and negative) can be applied in other arenas of global governance.

In “The European Court of Justice and the International Legal Order After Kadi” (Harvard International Law Journal, 2010), she criticized the popular European Court of Justice decision that blocked the implementation of U.N. Security Council measures, freezing the assets of a Saudi businessman with alleged terrorist connections. De Búrca argues that the decision, along with recent ECJ case law, reveals an increasingly reserved and even skeptical approach to international law.

In “The Road Not Taken: The E.U. as a Global Human Rights Actor” (American Journal of International Law, 2011), de Búrca challenges the notion that the European Community in the 1950s was unconcerned with human rights protection. Delving into the archives, she finds that long-forgotten plans for the E.C.’s engagement with human rights were in many respects more ambitious than the current E.U. human rights system. De Búrca “has mastered not only the intricacies but all the subtleties of European Union law,” says George Bermann, director of European Legal Studies at Columbia Law School. “She is a meticulous and insightful scholar.”

One subject de Búrca doesn’t study, however, is status. Colleagues say she judges her peers’ work solely on merit, assesses that work generously even if its views contradict hers, and appears to be immune from strategizing. “She goes where she wants to go,” says Oxford’s Stephen Weatherill. “There’s never any sense of having an agenda.”

One might say de Búrca follows the Golden Rule. Having been, at age 23, one of the youngest fellows appointed to Oxford University, and a decade later the youngest professor—and one of the first female law professors—at the prestigious European University Institute in Florence, de Búrca is all the more impressive for emerging from humble beginnings.

De Búrca and her three siblings were raised in a strict household in suburban Dublin with an emphasis on education and discipline. Both her late father, Seán, and her mother, Bernadette, taught Gaelic. The children attended Gaelic-speaking public schools and spent summers with their dad’s family in a fishing village in the west of Ireland.

At her mother’s urging, de Búrca studied law at University College Dublin, graduating in 1986. The following year, she got an LL.M. from the University of Michigan, then returned to Dublin to become a Barrister-at-Law. In 1989 she got a one-year teaching position at Oxford, giving her an edge, she said, when a tenured post came her way. “It’s so often a matter of serendipity where people get their appointments,” she says modestly.

In 1998, she left Oxford to join the European University Institute—a graduate research institute set up by the founding members of the E.C.—“a dream for anyone interested in European law,” she says, and became the co-director of the Academy of European Law. There she met her husband, John Norton Pomeroy Professor of Law Philip Alston, who was then a professor at the EUI, then moved to the U.S., where she taught at Fordham Law School from 2006 to 2010 before joining the Harvard Law faculty.

Their two young children in tow, de Búrca and Alston visit Ireland often. “We have a running joke that my family doesn’t understand what academics do,” she says with a laugh. “My mother, to this day, thinks that once I’m done with my teaching, I’m on holiday. I have to justify my existence.” To her mother, maybe, but certainly not to the legal academy.

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Introducing Douglas H. Ginsburg https://blogs.law.nyu.edu/magazine/2011/introducing-douglas-h-ginsburg/ Mon, 26 Sep 2011 20:01:50 +0000 http://blogs.law.nyu.edu/magazine/?p=4792 When Judge Douglas H. Ginsburg of the U.S. Court of Appeals for the District of Columbia Circuit isn’t wearing his black robe, he prefers red—a scarlet jacket, to be precise. Among Ginsburg’s many extrajudicial interests, none is more arresting than his passion for foxhunting.

“It’s thrilling, a melding of horse and rider into one joint effort that can be fatal if separated,” says Ginsburg, who started riding when he moved to rural Virginia in 1993 and “earned his colors” a few years later. “For four hours at a time, one clears the mind and focuses only on not getting killed.” That respite is significant for a jurist often described as “meticulous and thorough,” with an “academic and intellectual rigor.” Ginsburg has for 25 years heard more than 100 cases annually as one of the top appellate judges in the nation. This September he announced he will be taking senior status from the D.C. Circuit in January 2012, which will allow him more time for his pastimes and to increase his teaching load from part-time at various law schools to full-time on the faculty of NYU Law.

Known among corporate attorneys as a “giant in antitrust law,” Ginsburg has heard appeals in several of the landmark antitrust cases of our times, including U.S. v. Microsoft, a series of suits alleging that the company had excluded competition in bundling its Internet Explorer web browser with its Microsoft Windows operating system, and therefore should be broken into two units. Ginsburg’s court reduced the number of violations found by a lower court and remanded the case for a reassessment of the remedy. Those decisions “set the template for evaluating monopolization practices today,” says Rick Rule, head of Cadwalader, Wickersham & Taft’s antitrust group, who had been Ginsburg’s deputy and succeeded him as assistant attorney general for antitrust at the Department of Justice.

A self-described originalist, Ginsburg coined the term “Constitution in exile” to refer to decisions when the canon has not been interpreted as originally intended. “No one would put on a Shakespeare play without trying to understand what the words meant 400 years ago,” he explains.

Although he is regarded as a conservative, his clerks and other lawyers say he is not an ideologue. “When deciding a case, he makes an honest assessment of the facts in front of him and the governing law. He doesn’t bend the case to become a piece of advocacy for a conservative agenda,” says former clerk David Lehn ’04. On the bench, he asks penetrating questions but is always courteous. He keeps his opinions short—with very few footnotes—and painstakingly redrafts each one 10 to 20 times. As chief judge from 2001 to 2008, he strove to unify the court and to reduce the number of dissenting opinions.

Ginsburg’s esteemed judicial career began with great tumult and disappointment. In 1987, President Ronald Reagan nominated the yearling judge to the Supreme Court. The 41-year-old soon withdrew over admissions that he had smoked marijuana. Ginsburg took the letdown in stride, says Rule: “He remained as outgoing and amiable as ever. And he moved on to become one of the leading lights on the D.C. Circuit.”

What led to the nomination was Ginsburg’s impressive career in government. In 1984 he became the administrator for the OMB Office of Information and Regulatory Affairs in the Reagan White House. At the center of the president’s deregulation effort, Ginsburg was charged with approving all federal agency regulation and policy proposals—an inherently combative task. The stress was such that “the morning staff meetings looked like the locker room of a rugby team after a game,” relates John Cooney, a Venable partner who was then an OMB deputy general counsel. “But Doug wore it well and was a calming factor within the institution.” In fact, none of Ginsburg’s decisions was ever appealed to the president.

A year later, Ginsburg served as assistant attorney general in the Justice Department’s Antitrust Division; one of his lasting executive decisions was to elevate the position of the chief economist.

Ginsburg, a University of Chicago Law School graduate, was among the first students to study law and economics with the now legendary Judge Richard Posner. He has applied the cost-benefit analysis and other “Chicago School” economic principles he learned then to help shape modern antitrust law, and regulatory law and policy, ever since. He has published more than 50 inf luential scholarly works, including co-authoring the seminal 1986 Harvard Law Review article “White House Review of Agency Rulemaking,” which “explained to the world at large how one should assess a regulatory program,” says Cooney.

In 1975, after clerking for Supreme Court Justice Thurgood Marshall, Ginsburg got his first teaching job at Harvard Law School. He and his childhood friend Hal Scott taught one of the first courses in the country on the regulation of financial institutions. “There was no course, no body of writing,” says Scott, who remains at Harvard. So the two did original research by calling regulators to analyze specific problems, once even calling bank regulators in Honolulu when offices in all other time zones had closed.

Now Ginsburg can return to the classroom, where this spring he will teach one of NYU Law’s signature foundation courses, the Administrative and Regulatory State. Possessing firsthand knowledge of regulation, Ginsburg will nonetheless exhaustively prepare for each class, says Scott. Students, says Rule, should follow suit and come thoroughly primed and ready to be engaged.

Ginsburg is fond of pointing out that he was born on May 25, 1946, nine months after V-J Day, making him one of the earliest baby boomers. His mother, Katherine, stayed at home to raise Ginsburg and his two siblings in Chicago. His father, Maurice, was selfeducated and owner of a small financial advisory business. He entered Cornell University in January 1964 but took leave a year later and started Operation Match—the world’s first computer dating company. His enduring interest in computers and technology has, former colleagues say, influenced his well-informed antitrust decisions such as Microsoft.

In 2007, Ginsburg married government affairs consultant Deecy Gray. He has three daughters from earlier marriages. His wry wit and engaging manner make him a coveted dinner party guest. For now, he will commute from the D.C.- area, where his varied interests and pursuits allow him to be, as Rule put it, “a foxhunting Virginia gentleman in the old sense and a thoroughly modern man at the forefront of technology and the law.”

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Shaping Minds and Morals in Battle https://blogs.law.nyu.edu/magazine/2011/shaping-minds-and-morals-in-battle/ Mon, 26 Sep 2011 20:01:32 +0000 http://blogs.law.nyu.edu/magazine/?p=4766 Moshe HalbertalMany philosophers have grappled with the ethics of war—Mill, Rawls, Kant, and Aristotle among them. But in 2000, Moshe Halbertal, along with lawyers, generals, and other philosophers, worked with a standing army to draft a new Israeli military code of ethics that would test their philosophical ideas in real life-and-death situations. Halbertal’s work didn’t stop once the code was written. Now Gruss Professor of Law at NYU, he spends each spring at Hebrew University of Jerusalem, and on his days off teaches ethics to commanders and lectures to platoons at the Israel Defense Forces Command and Staff College.

“Professor Halbertal can be philosophical and very practical with two feet on the ground, which is essential, because what he teaches will be put into action tomorrow by our commanders,” says Noam Tibon, IDF commander in charge of the officer training school. “He can deal with any problem in three or four dimensions and is reviewing his views at all times.”

As a small country not at peace with all of its neighbors, Israel has seen much change since 2000. While the capture of soldier Gilad Shalit (2006), the war in Gaza (2008-09), and the raid by Israeli forces on a flotilla of “Gaza freedom” activists (2010), for example, have not forced revisions to the code, they have provided new questions for Halbertal, who is still engaged in making sure the code addresses and accounts for modern realities. By speaking to different groups of soldiers who have been engaged in recent conflicts, Halbertal has learned some of the reasons that the soldiers on the ground have had difficulties applying the code, and even about times the code has failed to translate to the field.

For instance, one of the principles the team of ethicists codified in 2000 stated: “One must do everything possible to minimize the enemy’s civilian casualties. It is not enough to say, ‘I am not intending or did not intend to harm civilians.’ You have to show intention of not harming.” Speaking to those who were charged to fire artillery in the recent Gaza war, Halbertal learned that the way war is currently fought, a target is often not visible to whoever is on the ground. A soldier is given coordinates by central command, which is miles away. In other words, the soldier firing the missile is not in a position to apply the ethical principles in the way the team desired. His or her individual ethical autonomy has to be replaced by “a shared world of trust within the operation because of such heightened divisions of labor,” as Halbertal put it. Thinking through how to create this shared world of trust is one of Halbertal’s newest endeavors.

How the soldiers now think about the capture of their comrade Shalit is another challenge to the application of the code. The principle of proportionality, as modified for this code, states that “if you foresee a collateral harm to enemy civilians (even after doing everything you can to avoid doing so), you have to weigh whether that military achievement is proportional to the death you will cause.” A minor military victory is not enough to justify the collateral death of many civilians. But when the other side thinks capturing one soldier or shooting down one tank can embolden them, especially through the use of propaganda and modern media, the soldiers in the field who are trying to act ethically can lose their bearings and misapply the principle of proportionality. “You can’t be obsessed with how it will look to the other side,” teaches Halbertal. “This was an element that I never understood fully in the nature of this war.”

Soldiers and commanders bring their own battle experiences into the classroom. Halbertal recognizes that war is not an ethics seminar and takes soldiers’ objections to aspects of the code seriously. (“You want me to go through the principles of avoidance, proportionality, etc., when I am under fire?!”) Halbertal’s answer is that soldiers must train and internalize these principles before going to battle so that they become second nature. This ability to act from an absorbed ethical character rather than having to calculate consequences is similar to Aristotle’s concept of phronesis, or practical wisdom.

Commander Tibon believes that allowing even the lowest-level soldiers to be inspired and challenged by one of Israel’s top philosophers keeps them open-minded and reminds them of the importance of their jobs in the army. “Moshe is very smart, and he takes you to a very high point in your thinking,” says Tibon. “It is not two plus two is four. There is no clear-cut right and wrong, and so he has to teach us how to think beyond simplicity.” Such highmindedness, one can hope, might eventually lead to fewer conflicts in the Middle East along Israel’s borders.

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Three Lectures and the British Academy https://blogs.law.nyu.edu/magazine/2011/three-lectures-and-the-british-academy/ Mon, 26 Sep 2011 20:01:32 +0000 http://blogs.law.nyu.edu/magazine/?p=4770 University Professor Jeremy Waldron delivered three lectures—one on each of three successive days last May—as part of the Hamlyn Lectures series, administered by the University of Exeter and held annually since 1949 to give distinguished legal minds an opportunity to further knowledge and understanding of the law.

Waldron’s overarching topic was “The Rule of Law and the Measure of Property.” Waldron argued that, despite his use of Locke’s phrase “the measure of property,” the non-Lockean aspects of the origin, legal status, and moral force of property deserve attention: “It is better in the end to evaluate laws on their own merits—and to make whatever case can be made about the exigencies of market economy untrammeled by too much regulation—better to take that case directly, rather than muddy the waters by pretending that some laws have transcendent status under the auspices of the Rule of Law and that other laws—like environmental regulations—barely qualify for legal respect at all.”

Two months after he delivered these prestigious lectures, Waldron was elected a fellow of the British Academy, which was established by a royal charter in 1902 to champion and support the humanities and social sciences in the United Kingdom and internationally. He joins two other NYU Law professors, University Professor Thomas Nagel and Frank Henry Sommer Professor of Law Ronald Dworkin, among the academy’s nearly 900 distinguished scholars.

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On a Shifting Balance of Power https://blogs.law.nyu.edu/magazine/2011/on-a-shifting-balance-of-power/ Mon, 26 Sep 2011 20:01:32 +0000 http://blogs.law.nyu.edu/magazine/?p=4773 Catherine SharkeyProfessor Catherine Sharkey, a leading expert on federal preemption in the realm of products liability, won a prized fellowship from the John Simon Guggenheim Memorial Foundation.

For her fellowship project, Sharkey is examining the established view of preemption and analyzing the expansion of federal power. “I hope to show that the preemption debate is no less than a debate over the fundamental allocation of power between the federal government and the states,” she says, “and one that is not likely to be resolved anytime soon.” Sharkey focuses her teaching on torts. In her research, she has been studying the interplay between private and public law through the lens of torts and products liability. Sharkey combines a love of theory and a devotion to practical problem solving in both her classes and her scholarship. She studied economics as an undergraduate at Yale, where she also received her law degree; her work on the bail bond system and racial discrimination earned her Yale’s prize for the best original economics thesis. As a Rhodes Scholar at Oxford, she pursued a master’s in economics.

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An Extraordinary Dean https://blogs.law.nyu.edu/magazine/2011/an-extraordinary-dean/ Mon, 26 Sep 2011 20:01:32 +0000 http://blogs.law.nyu.edu/magazine/?p=4775 Norman Redlich (LL.M. ’55) was my family’s dean. He was the dean who hired me in 1985 to join the NYU Law School faculty and during whose tenure I served for three years as a very junior faculty member. And for the last nine years, I’ve been occupying an office that I had long referred to as “Norman’s office.”

Norman was also the dean when my wife, Vicki Been ’83, was a law student. He was the dean who called her to his office to let her know in a stern but caring way that during her clerkship with Judge Edward Weinfeld, perhaps the Law School’s most illustrious alumnus at the time, she would need to uphold the Law School’s reputation and honor.

Law School Career
Norman was an extraordinary dean. Much of the Law School’s current success can be traced to Norman’s visionary leadership. Norman served in the military during World War II. Then, after graduating from Williams College in 1947 and receiving his LL.B. from Yale Law School in 1950, Norman earned his LL.M. in taxation from NYU School of Law in 1955. He joined our faculty in 1960, received tenure in 1962, and became the Judge Edward Weinfeld Professor of Law in 1983. Norman was a prolific scholar in the areas of constitutional law and professional responsibility, and authored an influential casebook in each of these areas.

Norman served as the NYU Law School dean from 1975 to 1988, and was dean emeritus at the time of his death. After stepping down as dean, he continued to teach Professional Responsibility for many years while he was counsel to the law firm of Wachtell, Lipton, Rosen & Katz.

Norman’s deanship significantly accelerated the Law School’s remarkable upward trajectory, which had begun in the early 1950s under Dean Arthur Vanderbilt. He made many transformative appointments to our faculty, including Ronald Dworkin and Thomas Nagel, whose Colloquium in Legal, Political, and Social Philosophy institutionalized the school’s commitment to interdisciplinary work; Anthony Amsterdam, who designed our Lawyering Program and greatly expanded the Law School’s clinical programs; and John Sexton, who followed in Norman’s footsteps as dean and led the Law School through 14 extraordinary years.

In addition, much of the Law School campus’s current footprint can be attributed to Norman’s vision. Both of our residence halls, D’Agostino and Mercer, were built during his deanship, and the Law Library was extended underground, making it possible for us to now connect our two main academic buildings: Vanderbilt and Furman Halls. Norman laid solid groundwork that helped propel the Law School’s success well after his deanship.

He set a high bar in another area as well. Every year, the students put together a show, called the Law Revue, pronounced Law Revuee, to distinguish it from the far more staid Law Review, the publication often seen as the hallmark of law school academic success. And at each performance Norman sang a song, written by students, which typically poked fun at him. Norman was quite self-effacing, and this kind of stage appearance must have been difficult for him, but he was an incredibly good sport.

In 1988, as Norman was getting ready to step down from the deanship, he wrote the lyrics himself. I will not sing them because this is one area in which, I’m sorry to say, the talent at the Law School’s helm has gone downhill since Norman’s time. But I will read Norman’s lyrics.

Thanks for the memories
Of listening to me croon
Each May and every June
I may not be Sinatra but I try to keep a tune
Oh, thank you so much.

Thanks, friends at NYU
Oh, how the students swore
Construction noise galore
But now we’ve Mercer, D’Agostino,
Fuchsberg still in store
Oh, thank you so much.

I tried to beef up the clinics
While other schools started as cynics
But now they are trying to mimic
Ah, now they know, I told you so.

Oh, thanks for the memories
We built a school that’s strong
And now I say so long
Just keep your sights on doing right
I know you can’t go wrong
How lovely it’s been.

Oh, thanks for the memories
The budgets were a chore
You always asked for more
I may have been a headache
I often was a bore
How lovely it’s been.

It is nice to know that his deanship was lovely to Norman. It was certainly very lovely for the Law School.

Other Accomplishments
His impact on the Law School, by itself, would be considered an extraordinary accomplishment, but for Norman, it was only one facet of his remarkable career. Norman also performed significant public service in New York City and in the federal government. Just three years after joining our faculty, Norman was appointed assistant counsel to the President’s Commission on the Assassination of President Kennedy (popularly known as the Warren Commission), where he investigated the relationship between Lee Harvey Oswald and Jack Ruby. He later worked in New York City’s Law Department, where, among other accomplishments, he litigated significant cases concerning the city’s pathbreaking historic preservation law. In this connection, Norman’s legal acumen and negotiating skills had already helped his friend Jane Jacobs save Washington Square Park from Robert Moses’s plans to run a highway through it. In 1972, Mayor John Lindsay named him corporation counsel, the city’s highest legal office, a position he held until he became dean of our Law School.

Norman Redlich, Dean of NYU School of Law

Norman also was devoted to improving the state of the legal profession. Among other significant leadership roles, he was chair of the American Bar Association’s Section of Legal Education and Admissions to the Bar and a member of the ABA’s House of Delegates.

In the ABA, he was one of the leading voices for promoting and improving clinical legal education in law schools. He worked closely with Robert MacCrate and our colleagues Tony Amsterdam and Randy Hertz on the MacCrate Report, which sought to narrow the perceived gap between legal education and the legal profession. In the years following the issuance of that report, he played an important role in implementing the report’s blueprint for improving the teaching of professional skills and values in law schools.

Civil Rights and Civil Liberties
Norman was passionately committed to civil liberties and civil rights. Steven Epstein ’86, a Law School alumnus and also a Williams graduate, reported the following: “During my time at NYU Law I had some great conversations with him about Williams and his love for the place. There’s only one commercial street in Williamstown and one barber shop. He told me that when he was a student, he started a protest because the African Americans at Williams wouldn’t be served in the barber shop—and he changed that. He used it as a lesson that you can fight injustice pretty much anywhere.”

A decade later, as a young lawyer in the 1950s, Norman courageously challenged the tactics of Senator Joe McCarthy. On behalf of the National Emergency Civil Liberties Committee, he defended people blacklisted because of their refusal to answer questions before the House Un-American Activities Committee. Subsequently, then-Representative Gerald Ford sought—unsuccessfully—to have him removed from the Warren Commission as a result of these activities.

Just before joining the NYU faculty, while serving as counsel to the New York Committee to Abolish Capital Punishment, Norman brought one of the early challenges to the death penalty. Later in his career, he was on the Executive Committee of the NAACP Legal Defense and Education Fund, and chair of the National Governing Council of the American Jewish Congress. He also served as a co-chair of the Lawyers’ Committee for Civil Rights Under Law and received that organization’s highest award—the Whitney North Seymour Award—in 1993.

Conclusion
In his wonderful speech at the Law School’s graduation in 1985, Norman commented on another Law Revue (as in Law Revuee) song, titled “I Want it All.” The song had been written by the students from the perspective of a woman, as in “I want to be Scarlett O’Hara, Joan of Arc, Lauren Bacall.” For his speech, Norman wrote a companion song from the perspective of a man, which I will read:

I want to be Mario Cuomo and work
pro bono
I want to shop at Tower and be a
legal power
I want to run the Fed and play in the
Grateful Dead
I want to be seen at the ballet and at Shea
I want to be Henry K., Dr. J., I.M. Pei,
Reggie J., and Dr. K.
I want to run the firm
I want to be David Byrne
I want to be Arthur Ashe and Sam Dash
I want to be Andrew Young, Robert Young,
Coleman Young, and Neil Young
I want to be Clarence Darrow and
Robert De Niro
I want to get top fees and honorary degrees
I want to fight the crooks, be Albert Brooks
Negotiate Ewing’s deal, eat a five-star meal
Be a loving dad, a supportive mate
Have an East Side pad, be Secretary of
State
I want to be Earl Warren, and drive a car
that’s foreign
I want to win big trials, run four-minute
miles
Clean up the sludge, and be a judge
I want it all!

Those of you who knew Norman well know how close he came to having it all, even by the standard of this song. But to the Law School graduates whom he was addressing, for whom accomplishment of this magnitude might have seemed unfathomable at the time, he had the following words of wisdom: “If you maintain a good sense of balance, a bit of humor, resist the pressures to be narrowed into narrow grooves, and define what you want in terms of a personal and professional life of meaning and concern, then, indeed, you can have it all.” By this standard, there is absolutely no doubt that Norman had it all.

To conclude, Norman’s extraordinary energy and powerful leadership inspired not only generations of students and faculty, but also a much broader community of lawyers and public servants. Dean Redlich: Vicki and I, as well as so many others, will deeply miss you.

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