The hallmark of Ted Kennedy’s 47-year Senate career was his inclusiveness and ability to reach across the aisle to find common ground. His niece Caroline painted a portrait of how his family and childhood influenced this characteristic. As the youngest of nine children, Kennedy knew what it was like to be crowded out. This sensitivity “helped him develop his special gifts of always looking out for others, of making people laugh, and bringing them together no matter how differently they saw the world,” she said. “He saw the law as an instrument of social change, not in the abstract but in its effect on the everyday lives of those who were left out or left behind and needed his help.”

The other speakers described his political acumen and boundless energy. Thomas Susman, who was assistant adviser to Kennedy and then general counsel on the Senate Judiciary Committee from 1968 to 1979, summed up the senator’s philosophy in reaching across the aisle: “Persuade, don’t trade. Don’t ask for personal favors. Get them there on the merits.” This strategy had its defensive advantages as well. If a senator would give him a vote that was not on the merits, there was a good chance that that senator would want one back, said Susman. Kennedy didn’t do that, he added—no small achievement given the more than 15,000 Senate votes Kennedy cast.

Breyer, who met with NYU Law students earlier in the day, recalled Kennedy’s vigor. Kennedy had appointed Breyer special counsel to the Judiciary Committee; later, Breyer became chief counsel. “We used to just wake up in the morning and try to get to work fast, because every minute, there was something going on,” the justice said. “Kennedy’s personality just gripped the whole thing.”

Recently, the current Republican chairman of the House Judiciary Committee asked Breyer to speak to its members. To Breyer’s surprise, Lamar Smith wanted to know how Kennedy had run the Senate Judiciary Committee. This request was a testament, Breyer said, to the efficacy of Kennedy’s bipartisanship.

Feinberg, administrator of the Gulf Coast Claims Facility, compensating those affected by the BP Deepwater Horizon oil spill, worked for Kennedy from 1975 to 1980, eventually becoming his chief of staff and general counsel to the Senate Judiciary Committee. Appearing by webcam because his flight was grounded, Feinberg characterized Kennedy as one of very few senators in modern times with “the political and institutional credibility to legislate” and achieve true partnership with members of the opposing party. The late senator worked tirelessly and went to great lengths to foster personal relationships with everyone in his orbit, Feinberg said. “He was constantly working from early in the morning till late at night, seven days a week, in order to achieve the endgame. He was driven by his name, by the history of his family, by the reputation he was determined to vindicate.”

One of Kennedy’s most lasting legacies, said Nick Littlefield, who worked as a staff director and chief counsel for Kennedy on the Senate Committee on Health, Education, Labor and Pensions, would be universal health care, an issue on which Kennedy worked hard throughout his career.

Although the health-care bill did not pass until after Kennedy’s death, Littlefield asserted that the senator “had a key role through the moral force of his personality, through his strategic sense, through being there for key votes, through talking to Obama, through the letters he wrote to Obama, through the speeches he gave. In many ways, universal health care in America is the great Kennedy legacy.” That something as basic as health care was so important to Kennedy affirms what Caroline Kennedy said about him: “More than almost anyone else I’ve ever met, Teddy’s humanity is what made him such a legislative giant.”

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What are the differences between law and banking other than the money?

When I was at Cravath, the culture of the firm was that a partner, no matter how senior, needed to read every document—and every word of every document. So as a partner at Cravath, you were still negotiating merger agreements. As a banker, you are not doing that kind of work; it is much more about your interpersonal skills, plotting strategy, and being out meeting with clients. I find that far more interesting. But on the downside, you travel a lot more as a banker. I’m on the road at least three days a week. And I didn’t do that as a lawyer.

So, then…J.D. or M.B.A.?

You can’t go wrong with either degree or even a combined degree. There are a lot of people in the M & A group at Morgan Stanley who have legal degrees. Getting a law degree is great training and doesn’t stop you from getting into banking—it might even help you. The business world is filled with people with law degrees. James Gorman, the CEO of Morgan Stanley, has one. Having said that, M.B.A.

What advice would you give your law school self if you could talk to him right now?

I would tell him that your career is going to take a very unpredictable path, and that you just need to focus on learning from everything you do wherever you happen to be working. And don’t think you can plan out your entire career. A lot of law students think that they can map out their careers, and you can’t.

After a recessionary lull, a lot of deals are getting done in early 2011. What’s your outlook for M & A?

The prognosis for 2011 is quite good. I’ve been fairly pessimistic about M & A the last couple of years, but going into 2011, all the signs indicate that we’re going to have a very good year. Corporations need growth, and they can’t get it organically. So one of the ways they’ll get it is through M & A. The other factor is a strong equity market. When you have a strong equity market, M & A is usually very strong. And maybe a third factor is that the equity markets are not that volatile. When you have wide swings in the equity markets, people stay away from doing deals, but that’s not the case right now.

You were at the center of the action in the credit crisis. What was the main thing you learned?

I didn’t fully appreciate how fragile financial systems can be. There were periods of time when you couldn’t get your money out of money market funds! A lot of us thought that while there are ups and downs in the stock market, the overall financial system was sound. But to see how fragile the system was—that it wouldn’t have survived without massive government intervention—was an eye-opener.

What was your favorite deal—as a lawyer or a banker?

The most exciting and unlikely deal was when Comcast took over AT&T’s cable business in a hostile bid. It was a $72 billion hostile bid for a subsidiary of AT&T. Taking over a subsidiary is tough—and complex—but we made the proposal publicly and kind of forced them to do it.

Your brother, Andy, is a successful stand-up comedian who has been on Letterman numerous times. What kinds of parents raise a comic and the global head of M & A at Morgan Stanley?

A plumber with two master’s degrees and a Quaker.

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The visitors from Washington span political parties and ideologies. For example, President George H. W. Bush’s former White House counsel C. Boyden Gray focuses his class on how energy issues affect international security, while Robert Bauer, who stepped down as White House counsel in June, but serves as general counsel to President Barack Obama’s reelection campaign and the Democratic National Committee, teaches a seminar on Law and the Electoral Process. Douglas Ginsburg and Sally Katzen, who served as the Office of Management and Budget’s administrator of the Office of Information and Regulatory Affairs in the Reagan and Clinton administrations, respectively, will each teach a 1L course, the Administrative and Regulatory State, this spring. Judge Ginsburg’s current colleague on the U.S. Court of Appeals for the District of Columbia Circuit, Judge Harry Edwards, was appointed by President Carter. Edwards’s classes elucidate the appellate process as well as the art of decisionmaking from the bench.

Hearing stories firsthand of the crafting of major policy initiatives or of dealing with political heat and a media hungry for a story not only demystifies federal government, but also allows students to imagine themselves in these roles. Martha Roberts ’12, a student in Katzen’s seminar last spring, the aptly named How Washington Really Works, says, “You get a more complete picture of who affects the regulatory process and the ways you can influence it—through comments or meetings, through different jobs. She’s also really good at challenging assumptions that you have about how things should work.” For those interested in pursuing government careers, having their eyes opened also may simply open doors.

Regulars on the Acela Express

Nine distinguished federal public servants who have recently taught or are currently teaching as adjunct or visiting professors, and a sampling of their courses.

Neil Barofsky ’95, Special Inspector General of the Troubled Asset Relief Program, 2008-11
Course: Government Responses to the Financial Crisis Seminar

Robert Bauer, White House Counsel, 2010-11
Course: Seminar on Law and the Electoral Process

Paul Clement, U.S. Solicitor General, 2005-08
Course: Supreme Court Seminar

Harry T. Edwards, Senior Circuit Judge, Chief Judge Emeritus, U.S. Court of Appeals for the District of Columbia Circuit
Courses: The Art of Appellate Decisionmaking; Federal Courts and the Appellate Process

Ezekiel Emanuel, Special Advisor for Health Policy to the Director of the White House Office of Management and Budget, 2009-11
Course: Health Law Policy Seminar

Kenneth Feinberg ’70, Administrator of the Gulf Coast Claims Facility; Special Master of September 11th Victim Compensation Fund, 2001-04
Course: Mass Torts

Douglas H. Ginsburg, Judge, U.S. Court of Appeals for the District of Columbia Circuit
Course: Readings in Legal Thought Seminar; Administrative and Regulatory State

C. Boyden Gray, White House Counsel, 1989–93
Course: Law and Policy Seminar on Energy, Environment and Security

Sally Katzen, Administrator of the Office of Information and Regulatory Affairs, 1993–98
Course: How Washington Really Works Seminar; Administrative and Regulatory State
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IRA RUBINSTEIN

In 2010, however, it released a video showing U.S. helicopters firing on Iraqi civilians. Then it released hundreds of thousands of field reports from Afghanistan and Iraq, having redacted names of individuals who might be endangered. And finally, it worked with the New York Times and other major newspapers on a controlled release of 250,000 State Department cables. These three releases have caused a great deal of anxiety, especially in the United States, where Private First Class Bradley Manning, the apparent source of the leaks, is now in solitary confinement. And Julian Assange, WikiLeaks founder, is considered experts in the First Amendment, national security, Internet law, and journalism, what worries you the most about WikiLeaks or the responses to it?

SAMUEL RASCOFF, Associate Professor of Law, NYU School of Law: The thing that’s causing deep-seated anxiety in the national security establishment is that the government seems to be structurally incapable of maintaining a secret. It’s not just that hundreds of thousands of sensitive diplomatic cables, dispatches from the battlefield, and records of covert operations have now been disclosed; it’s the sense that, going forward, the government will never be able to do anything without public knowledge and participation.

Couple that with the recognition that the available legal tools for addressing this state of affairs are actually totally ineffective. Whereas someone like Manning is certainly vulnerable to criminal prosecution of one sort or another, the likes of Assange are effectively immune from prosecution, on par with the New York Times itself.

There are two good news stories, however. One of them is that the leaks revealed thus far have not been terribly damaging to the reputation of the United States. In some ways, they’ve actually enhanced our reputation. American diplomats, generals, spies actually come across looking quite a bit more conscientious than some might have suspected. And whereas our legal architecture is radically ill-equipped, there are plausible information technology infrastructural fixes to the problem. So that’s got to be the way forward.

BURT NEUBORNE, Inez Milholland Professor of Civil Liberties, NYU School of Law: Widespread secrets in a modern society are a pipe dream. That’s as much a function of technology as anything else. When Gutenberg invents the printing press, all of a sudden the people who are in control are terrified because information is now going to be widely available to the masses. Milton is talking about unlicensed printing in Areopagitica. And in the United States, you had the 18th-century trial of John Peter Zenger, a printer. And so Assange is a modern heir to this notion of technology allowing widespread dissemination of information that is likely to be highly disturbing to the existing power structure.

The stuff that comes out of WikiLeaks just reinforced my assumption for years that we have radically overclassified information. When you have a government that is bent on getting as much information as it can about individuals and goes through tremendous violations of privacy and violations of the Fourth Amendment and at the same time claims the ability to keep what it does secret, that’s just a formula for WikiLeaks. It’s a formula for rebellion: A government that doesn’t respect my privacy doesn’t have any privacy of its own. That’s what we’re living through now.

JAY ROSEN, Associate Professor of Journalism, NYU: WikiLeaks is the first significant stateless news organization. Up to now, the press is free to report on what the powerful wish to keep secret because the laws of a given nation protect it. But WikiLeaks is able to report on what the government wishes to keep secret because the logic of the Internet permits it; it doesn’t require the law to protect it.

The press we have in the United States has, through its own mythology, obscured the way that national law creates it. It sees itself as a counterweight, an adversary, a watchdog, but is actually embedded with the state. This is one of the reasons that the professional press’s reaction to WikiLeaks has been so distorted, disappointing, and error-strewn. The New York Times reporters and editors were very insistent on describing Assange as a source. If he’s just a source, they have rules and constructs for dealing with that. Of course, he’s not just a source because he has what Yochai Benkler calls the networked public sphere at his disposal. He has the ability to publish himself. He is, in fact, a news organization.

The real source is Manning, and the fascinating thing is that the sources are voting with their leaks. That is, they are choosing to go to WikiLeaks rather than the press. There must be a reason for that. But rather than interrogate that reason, our press has tried to belittle WikiLeaks, to keep it in a box that makes it more familiar. This insistence that he’s just a source is a little clue that the press is freaked out by WikiLeaks. A bigger clue is a finding in Benkler’s really excellent paper on WikiLeaks: that 60 percent of all the reports that appeared in newspapers and magazines falsely claimed WikiLeaks indiscriminately dumped all of the cables online. This factual inaccuracy can only be a result of anxiety about WikiLeaks and its presence in what had been a very closed club.

NORMAN DORSEN, Frederick I. and Grace A. Stokes Professor of Law, NYU School of Law: I doubt if we’ll hear a more important comment than Sam Rascoff’s: The reason for anxiety is ultimately that we can’t do anything about it. We have to rely on individuals to make decisions about whether or not they’re going to leak, publish, or otherwise disseminate information. This was also true in the Pentagon Papers case. The Times had plenty of other information that its editors regarded as secret and dangerous, and didn’t publish. But because of the Internet, these days we’re relying in a sense on everyone. That’s us. There are going to be a lot of leaks that are going to cause harm of some kind or another.

We’ve got to be tough on the people in the government who are subject them to cruel and unusual punishment, but if you’re in the government, how are you going to run the government if people are free to leak things to the world using their individual judgment?

SIMON CHESTERMAN, Global Professor of Law, NYU School of Law: I don’t think Assange is Gutenberg. I don’t think Assange is that important. And the WikiLeaks “Cablegate” is not the Pentagon Papers. WikiLeaks is not the reason why the information got out. It’s the reason why the information was widely disseminated and hard to put back in the box. None of this would have come out in the absence of Manning.

WikiLeaks is just taking advantage of the positive aspects of the Internet: that it’s decentralized, anonymous, user-driven. These are also the disadvantages. The real tension on the journalistic front is that, whereas some of the disclosures during the past decade about government abuse of authority have come out primarily because of quality investigative journalism, WikiLeaks is quantity journalism. Certainly WikiLeaks itself has confessed the inability to do quality control, and that’s why it had to rely on the traditional media.

It’s also important to note that the information that comes out was available to three million people in the U.S. government, which is why PFC Manning had access to it. And most of it, frankly, is quite marginal. Who didn’t know that Silvio Berlusconi was vain? Or Robert Mugabe is a crazy old man?

The things that were influential tended to be accidental. So there were bits and pieces published about Ben Ali in Tunisia that were not commented on until the population of Tunisia started getting access to that information and then used it in their campaign against him. We found out Muammar el-Qaddafi has a voluptuous Ukrainian nurse and is afraid of flying over water. But we didn’t find out that his people were going to rise up against him. The really useful stuff wasn’t there.

What worries me is the message that went around the world: that you need to be careful what you put in writing. Diplomats in the future will be wary about giving full and frank commentary. Decisions will not be based on minuted meetings. And that the entirely justified push for greater information sharing within the U.S. government after September 11 will be rolled back. We’ve already seen that with the State Department taking itself out of the SIPRNet.

This will not lead to what Assange wants, which is greater transparency. It will actually lead to less transparency, worse decision making, and less accountability, which seems to be a pretty high price to pay for gossip.

NEUBORNE: The closest analogy is the Pentagon Papers. They did prosecute Ellsberg. But the government’s case disintegrated because it had engaged in far greater violations of things we care about than Ellsberg’s leaking. So their criminal prosecution came unhinged and the case was dismissed. The Supreme Court never definitively decided whether the Times could have been prosecuted. If you read the Pentagon Papers case very, very closely, you find that there are not five votes for the proposition that no criminal prosecution could have been brought against the Times under the Espionage Act.

DORSEN: I’m not sure that the Pentagon Papers case would be decided the same way today. The vote was 5-4, and as Burt suggested, White and Stewart concurred on a very narrow ground that would not cover the statutory espionage case. But in a way, that’s not too important. Despite the attention given to the Pentagon Papers case, it was a unique situation where the Times and the Washington Post published the materials serially. They told the government in advance, so then the government could come in and ask for an injunction. But supposing they published all the information the same day? There would be no injunction. It would be a question of criminal liability.

RASCOFF: Let’s go past the black-letter First Amendment law here to a more policy-oriented discourse. The fact is that the New York Times in the last decade published at least two stories, one about warrantless wiretapping, the other about the so-called Swift program, the consequences of which were felt around the world, and specifically within the American national security establishment. In both cases, the Bush administration had actively engaged the New York Times and sought to have them delay publication or not to publish at all, but ultimately the Times did publish both stories. The implications for national security were more significant than the stuff that WikiLeaks put out.

DIANE ZIMMERMAN, Samuel Tilden Professor of Law Emerita, NYU School of Law: It’s very easy to think of WikiLeaks as carving out entirely new territory, but in fact these problems with leaks of sensitive information are recurrent. The press has sometimes declined to publish things and sometimes regretted it afterward; the Bay of Pigs comes to mind. The New York Times knew about that before it happened; they were asked not to publish the story. They acceded. Afterward, President Kennedy said he wished he had either never asked them to or they hadn’t paid attention to him.

It would be a shame if the desire to get Assange leads us to bend our law, because there’s an awful lot of important information that comes out in the form of leaks. Government is not the most reliable representative of its people. An example occurred recently in Japan, where they attempted to underplay the damage to the cooling system of those reactors. There are things that governments do because it’s convenient, it’s pragmatically desirable, but it’s not necessarily for the public good. We have to be sure we don’t shut off all avenues of public dissemination of controversial information.

RUBINSTEIN: The Pentagon Papers were obviously very lengthy, but Ellsberg had a specific goal in mind, a single topic. WikiLeaks promises that all diplomacy, all military action may now be carried out in the shadow of permanent, massive leaks. Does the scale make any difference?

ZIMMERMAN: I don’t know how much difference it makes. One of the things about having a gazillion tons of information out there is nobody can process it all. Somebody has to sift through and pick out what is important in that mass of material.

ROSEN: The scale of the leaks that are possible and the scale of their distribution is different than the Pentagon Papers. But nobody was asking about scale when they vastly increased the number of secrets, right? That’s the problem of scale right there.

KATHERINE STRANDBURG, Professor of Law, NYU School of Law: WikiLeaks is not really the scary story because in fact they haven’t just put everything indiscriminately up there; they redacted some things, they worked with the newspapers, and so forth. If we go too hard after WikiLeaks, we will drive leakers even further underground and end up with indiscriminate leaking rather than consultation with the New York Times.

Without some trusted vetting organization, you just have anonymous dumps of information that might well include information that is just fabricated. It could even be disinformation from the government or from another espionage service. Once you have a huge quantity of supposedly leaked material, it’s very hard to vet each individual document to see if it’s really genuine. And given that these are digital documents, they’re also pretty easy to alter, so you have to have some way of figuring out how we know that all of these documents came from the source they’re supposed to have come from. This is a big concern.

BRIAN MARKLEY ’00, Partner, Cahill Gordon & Reindel: I am troubled by the way WikiLeaks went about disseminating this information and, by contrast, I admire the way the New York Times went about its coverage. What the Times did, as described in various stories they’ve published, was to go in and sit down with administration officials and genuinely listen to concerns about leaks that could harm people, and there were things that were redacted as a result. They redacted soldiers’ Social Security numbers. They redacted the names of Afghan informants. They chose not to publish information about how to disable devices that themselves disable IEDs in Iraq and Afghanistan.

Each of those things was disclosed by WikiLeaks. While maybe it was inadvertent, there were quotes from Assange himself in the New Yorker about how he’s not able to look at every piece of information and there will be what he called “collateral damage” that might harm individuals. I’m not saying that WikiLeaks should be prosecuted, because there are ramifications from that, too. We just need to think about all of this in context.

Lastly, among the things that concern me and members of the media is that the reporters’ shield law that was moving forward in Congress is now basically dead in the water, in part due to WikiLeaks. It had passed the House, and while it wasn’t perfect from our perspective—it defined journalists too narrowly— we needed something in the wake of developments such as the Judith Miller incarceration. The bill had gone through the House and the Senate Judiciary Committee and then was simply shut down in the wake of WikiLeaks.

ROSEN: WikiLeaks did ask the government if it would help it redact information that should not be released, and the Pentagon told them to go to hell and return all the documents. That should be mentioned when you talk about the difference between the Times and WikiLeaks.

If the press had been doing a better job at being a watchdog, at uncovering what had to be uncovered—if, for example, we had a press that was capable of preventing a phony case for war from being passed into history—maybe the leakers wouldn’t be voting with their leaks by going to WikiLeaks, an upstart, unknown organization. Maybe they would be going through these allegedly more responsible channels of the New York Times. I don’t think you can separate press failure from the popularity and viability of WikiLeaks.

NEUBORNE: You can’t have a worse situation than we’ve been living under. One of the more enraging things in recent years has been the government insisting on a very broad set of secrecy norms, and then selectively leaking information to journalists in a way that would enhance their particular political views. We’ve been manipulated as a people now for the past 25 years by selective leaks that lead us toward war. It is inevitable that institutions like WikiLeaks will rise up when you overclassify so that vast amounts of material are secret, and then you selectively release information to handpicked journalists who then write in distinguished newspapers that shape public opinion. So I acknowledge that there’s a cost, Simon. There will be a smaller number of people discussing the information. But the question we have to ask is, “Are we better off with secrets or without them?” Fundamentally, we’re better off without them.

DORSEN: I have a rather more pessimistic and less idealistic view about government than my good friend Burt. What he describes is nothing new. What do we think Franklin D. Roosevelt was doing when he made the destroyer deal with Winston Churchill in 1940? I could go back to Wilson in the First World War, and probably to Lincoln.

CHESTERMAN: After the McCarthy hearings, Edward Shils had a wonderful line: Liberal democracy depends on protecting the privacy of individuals and denying it to governments. In theory that sounds like a wonderful model, but in practice the last halfcentury has seen exactly the opposite happen.

It would be a mistake to believe that governments cannot still keep secrets. They keep vast amounts of information secret still. The material that’s been disclosed was only at the “secret” level, nothing above that level.

Yet a slightly different problem is the danger of what happens when you do get access to classified information. One is that you mistake words like “secret” or “top secret” as meaning “true.” It doesn’t mean true. It just means damaging if it got released. So there’s a danger that you overvalue classified information and that you therefore undervalue other information. Likewise there’s a tendency to think that WikiLeaks is special because of this privileged access. I completely accept the problems concerning journalism in the lead-up to the Iraq War, but in the last decade, the big scandals that have been released through traditional news media were things like warrantless electronic surveillance, extraordinary rendition, torture, and I don’t see any suggestion that Manning went to WikiLeaks because he had a scandal that he wanted to identify that the New York Times was not going to publish. He went to WikiLeaks because WikiLeaks was the venue of choice for volume or quantity disclosures rather than quality investigative journalism.

RUBINSTEIN: There’s a tension between traditional journalism, despite some of its failures, and the very different approach of WikiLeaks over the question of whether and to what extent journalists are using their judgment of the public interest in deciding what to publish, what to investigate, and how to go about this.

MARKLEY: WikiLeaks is trying to look like a journalist. If you look at its website, the words journalist or journalism appear all over it. But at its core it’s not very journalistic, at least in the traditional sense. Assange himself has said, “We are not the press.” WikiLeaks doesn’t provide any analysis, there’s no context in the disclosures, there’s no alternative view presented about the cables and the other disclosures. There’s no one’s interpretation. Those are the sorts of things that we generally associate with being a journalist. Now, it’s true that a lot of journalism is just reporting plain facts. The crime blotter, for example, is just facts. But there is some thought and editorial process that goes into the facts that are disclosed.

All that being said, I don’t think it much matters. Whether we call them journalists or not is irrelevant. It may come into play if we start defining who’s covered by a federal shield law and state shield laws. It’s completely irrelevant, however, for the purposes of the First Amendment. It’s well established that everyone’s entitled to free speech, not just journalists.

ZIMMERMAN: There’s a big difference between deciding what a journalist is in lay language and deciding what a journalist is for First Amendment purposes. Frankly, that’s a line that nobody’s ever been able to draw. Long before WikiLeaks came along, the Supreme Court had essentially thrown up its hands collectively
at the idea of being able to draw a real distinction between “the press” and individuals for purposes of speech protection. It’s more a question of a distinction between mass dissemination and private dissemination. Truthfully, the blurring goes back to our historical roots because the people who were the first “press” were oftentimes just individuals who had a printing press and individuals who had a soapbox. We weren’t talking in the 1800s about a professional press. We were talking about people who had big mouths and a way of disseminating what they wanted to say, true or untrue.

ROSEN: When I started teaching journalism 25 years ago, it was very common for professional journalists to say, “We’re the only profession who’s mentioned in the Constitution.” I used to look at people who would say this as if they were nuts because it says Congress shall make no law abridging freedom of the press. It doesn’t say journalism. It doesn’t refer to a profession.

What is so threatening to professional journalists about WikiLeaks is that it completely explodes this notion of an occupational group that somehow carries out the First Amendment functions that really belong to the people. The contrast between professional journalism and WikiLeaks is overdrawn. WikiLeaks does perform an editorial function. WikiLeaks has not published any significant documents shown to be fake. WikiLeaks does engage in verification before they publish something, and any way you look at it, verifying that this document is what people said it is is a journalistic act.

NEUBORNE: The press clause means something. The First Amendment says “freedom of speech” and “freedom of the press,” so the press has to mean something more than the freedom of speech, or else it’s just an inkblot. What WikiLeaks does, at least in my mind, is it illustrates the flip side of Jay’s point. There are large numbers of people who are now performing that function in ways that we never dreamed the function would be performed.

Bloggers, for example. The whole blogosphere is a massive perversion of the press but nevertheless is the press. WikiLeaks falls into that. Structurally, the press has an enormous role to play, not just as the disseminator. It wasn’t just a Xerox machine or a loudspeaker for somebody else’s speech; it was a filtering mechanism. It was a way that enabled people like me who don’t have time to verify everything that comes over the transom that it will have passed through some responsible set of hands who did either a good or a bad job of deciding what got published, but at least thought about it. Without that filtering device, I wonder whether free speech is going to be as powerful.

DORSEN: A.J. Liebling wrote that freedom of the press belongs to those who own one, and these days everybody owns one. That’s the world we’re in.

The Supreme Court considered Burt’s view on separate protection for the press, and Burt got one vote: Justice Stewart. One of the reasons is that liberals such as Justice Brennan believed more protection for the press would mean reduced protection for everybody else. But let’s talk about the press protection statutes that Brian mentioned, the shield laws. We now have many different statutes, but the press, which is national, is subject to different laws by state. It’s a shame that the federal law was rejected, because for the first time we would have had a consistent rule.

STRANDBURG: This issue of professionalism versus crowdsourcing, you might call it, is a general issue that the Internet raises and a real dilemma in many arenas. Is there some mechanism for vetting? Some of the things that work in other contexts, like restaurant reviews or Wikipedia, where you just get a lot of people and they all tell you what they think, I’m not sure that leaks can work that way. Collaboration with the mainstream media can work. But that’s not going to be open to everybody who wants to post a bunch of leaks on the Internet. We need something more.

CHESTERMAN: As someone based in Singapore, I think one of the great absences in much of the world outside the United States is quality investigative journalism on the level of the New York Times, the Washington Post. Historically, the most important factor in ensuring accountability of government in these most secret areas, second only to its self-restraint, has been investigative journalism.

ZIMMERMAN: The responsible filter, the press that we idealize, is going into the pits because none of us wants to pay for it. As long as we think that everything should be free and we should be able to log on and see anything we want to, we can’t support serious journalism. It costs a lot of money to have reporters in the field, around the world, and people seem quite unwilling to pay for it. That’s a serious problem.

One of the things that I worry about with WikiLeaks, even though we’re an awful lot better off knowing most of this stuff, is the problem of danger to individuals. WikiLeaks has been actually much more careful than we had any right to expect. There are going to be others that may get information that can lead to harm to individuals who won’t be so careful. That is really a scary problem, and I don’t know how we deal with that.

But one thing for sure is that we would have an awful lot stronger ground to stand on in trying to protect the things that are important if we actually limited classification to real secrets. Almost a million people have clearance—850,000 for the top level of security documents. That’s an awful lot of people, and even in that category there’s a lot of stuff that simply doesn’t belong there. If we tried to protect less, we’d be able to protect it better.

ROSEN: Here’s a radical proposal: What if public statements and private behavior came more in line? That’s not the way diplomacy works: We put this out for public consumption, and then we do this other thing. Maybe that is what’s outmoded. We actually have experience with this; I don’t assume that my e-mails are actually oppressed me. I’ve realized that I have to actually bring what I believe in line with what I tell people.

On this question of filters, the Internet has a kind of a cycle to it. First we get these improvements that allow there to be this explosion of uncontrolled, unfiltered information. And that becomes unmanageable. Instead of throwing up our hands and drifting on a sea of information chaos, what comes is improvements in filters. As my friend Clay Shirky says, “There is no such thing as information overload; there’s only filter failure.” No matter how much information there is out there, we still need to trust reliable accounts. There’s a demand for that. Filters themselves will become part of Benkler’s networked public sphere. This is actually happening right now in reporting on things like disasters, conflicts in Libya and the Middle East where reports come in over the Internet, and the Internet itself has to figure out how to filter wand check those reports.

MARKLEY: I generally agree that public and private statements ought to be the same, but there is also a genuine need for secrets. For example, one of the WikiLeaks disclosures dealt with the government in Yemen authorizing bombings of al Qaeda bases while they were telling their people they weren’t behind it. That was a positive secret from my perspective. If public statements had matched the private statements, we wouldn’t have been in a position to attack al Qaeda. There were other examples involving, for instance, President Mugabe’s opponent who was privately supporting sanctions against his country while publicly opposing them.

RASCOFF: It’s not simply a question of officials dissembling and then becoming exposed. Very significant issues of timing are involved here. Supreme Court opinions ultimately see the light of day. You get majority opinions and you frequently get dissents, but we don’t have a culture in which it’s been acceptable for those opinions to circulate in newspapers or WikiLeaks prior to their release. It sometimes seems that the only two institutions in our society that can keep a secret are the Supreme Court and Apple. Can you imagine the outcry if the iPad3 design were exposed tomorrow on WikiLeaks? Secrecy, if only for the sake of preserving the official right to time the decision, is a necessary fact of running any government agency or any business.

RUBINSTEIN: Let’s look at the role of the private sector. At the request of members of Congress, a number of private companies either shut off WikiLeaks’ domain name access or cut off its hosting services, and then other companies began to eliminate its ability to accept payments on the Internet. Is it a problem that the private sector, with its very significant role in the Internet infrastructure, may be in a position to take steps that we would consider improper for the government to take? Or that the government may in fact be pressuring private firms to take these steps?

STRANDBURG: There’s cause for concern that in fact private entities are able not only to put into practice government objectives in ways that the government would not be able to do, as a matter of constitutionality or democratic legitimacy, but that those private entities are also able to manipulate communications to serve their own goals. Think back to the previous election when there was a flap about a NARAL Pro-Choice America text message that Verizon didn’t let through. Later Verizon said it was a mistake, but that could have been an exercise of private censorship power. The circumstances under which communications providers are permitted to disclose information to the government is regulated, but what they can do about taking people’s access to lines of communication down is not.

We should also consider what happens after a private party denies WikiLeaks access to payment systems or Internet service. The response is often also a private one. Organizations like Anonymous, basically hackers, attack the payment providers and so forth in retaliation for their denial of service to WikiLeaks. One can say this is good, this is protest, so this is the way we’re getting the democratic legitimacy. But it’s really mob rule. It’s not like protest historically, where the more people you get, the more effective you are. Small numbers of people can be extremely effective at these kinds of Internet shutdowns and other attacks. So on the whole, there is a worry about getting out of rule-of-law territory so that we’re no longer talking about protected speech and breaches of rights being handled through law.

NEUBORNE: When I was younger, if a newspaper published something that offended a very large advertiser, the advertiser would pull the advertisement. We were convinced that lots of American newspapers were being manipulated by the local advertisers, especially about civil rights.

I’m glad we’re talking about private controls on information because the last time I looked, seven large corporations in the United States owned every single media platform other than an Internet medium, whether it was a book publisher, a newspaper, a magazine, a television station, a radio station. Now, I don’t suggest that there’s anything nefarious necessarily going on there, but it is a dangerous idea to allow that kind of private concentration over the control of information, especially when we then say that the private concentration is reinforced and protected by the First Amendment. The response that I thought was going to emerge would be an Internet response—in other words, an alternative set of information that was not controlled by them.

The flip side of WikiLeaks is Switzerland, where you have terrific privacy and terrific control of information, and unbelievable abuses that go on under the shadow of secrecy. It’s why nobody in South America pays taxes, because they can have accounts in Switzerland and no one will find out about it because of privacy and control about information.

RUBINSTEIN: The irony is that although we began by describing WikiLeaks as Internet-based, decentralized, et cetera, in effect it’s the one large organization doing this type of activity. But every mainstream media outlet could have its own WikiLeaks operation, as could specific organizations with expertise in different areas such as the environment, energy, human rights; each could have a WikiLeaks operation. Is that a more attractive model?

ROSEN: That’s already happening. Al Jazeera has its own drop box. The Los Angeles Times this week put out an appeal to people to send in government documents that would allow it to find more stories like the one in Bell, California, where the city manager was being paid over $700,000. And there’s an organization, OpenLeaks, that’s designed to enable any organization, news or non, to have its own secure drop box. That’s one reason why prosecuting Assange is idiotic, because the secret is out.

ZIMMERMAN: One thing that makes you think lovingly about the system under which we regulate telephones is you have to wonder if we should allow so much private censorship. We did tolerate it in the past, in part because we thought that it was sporadic and that there would be counterbalances. If Procter & Gamble withdrew its ads, somebody else might come in and advertise. But what we really have here is the potential for systematic censorship by virtue of the basic infrastructure of the Internet.

STRANDBURG: We tend to think that networks are so very dispersed, that they’re equal and egalitarian and so forth, but in general networks tend to organize themselves into a system in which there are highly connected nodes and highly unconnected nodes. The Internet was developed to withstand an attack, but that’s if you attack a random node. If you attack a supernode, where a concentration of connections is, like the domain name server or something like that, the Internet can in some ways be highly concentrated.

ROSEN: At the time when Amazon cut WikiLeaks off from its rentable server capacity, Newsweek.com was hosted on Amazon. I was astounded that the mainstream media didn’t react much more forcefully, because it threatens them just as easily as it threatens WikiLeaks. That that could happen, that there was no legal challenge to it, that Amazon wasn’t ashamed to do that, that the CEO of Amazon never even had to address it, is amazing. We don’t have the Internet we thought we had.

Ira Rubinstein then invited questions from the audience.
JERAMIE SCOTT ’12: Professor Rascoff, although we don’t expect to see the drafts of Supreme Court opinions, there is an expectation that the reasoning in the opinion that’s made public is what the reasoning is behind closed doors. That may not be the case, but there’s that expectation.

RASCOFF: But see Bush v. Gore.

SCOTT: Yes, but the larger point is that if you’re not trying to maintain consistency in public and private, aren’t you undermining the people’s ability to make a decision? If you’re saying you’re going to war because of national security reasons or saying you’re bombing Libya because we’re trying to protect the people but the real reason is oil, aren’t you undermining the people from making choices about their government that is supposed to represent them?

RASCOFF: Ultimately a relationship between a people and the government depends on some amount of trust. If there’s a prevalent view that the people are being bamboozled consistently by the state, by politicians, by the national security apparatus, you have a breakdown in the social contract. More transparency may be part of the solution. But this tension was not first identified by Julian Assange. It fundamentally implicates 3,000 years of Western political theory about the relationship between what gets said publicly and what gets done behind closed doors in government, and how accountability functions.

ROSEN: We need to cut way back on the number of people who think they’re smart enough to say one thing in public and do another in private and control it. You can’t control it, and that’s one of the messages of WikiLeaks.

CHESTERMAN: The diplomatic angle on this is worth touching on, yes, he means maybe. If he says maybe, he means no. And if he says no, he’s not a diplomat. In addition to the Yemen example that was highlighted earlier, the sotto voce Arab support for U.S. and Western handling of Iran was one of the things that was appropriately kept secret. Now it makes it that much harder for certain Arab governments to cooperate with the United States.

KYLE ALAGOOD, Research Associate, Liberty & National Security Program of the Brennan Center for Justice at NYU School of Law: How might we reconcile the recommendations of the 9/11 Commission— that all the agencies need to share their information—with the problem that seems to exist from someone like Manning, a very low-level army private being able to access the information? How do we not clamp down too much on secrecy but also keep the 9/11 Commission’s recommendations intact?

CHESTERMAN: Rather than limiting the sharing of information, another approach would be to move away from the current 1950s approach to counterintelligence, which relies on polygraphs and background checks. The CIA, the NSA, various other agencies have less-effective security protocols than many banks. In a bank, security is less a matter of background checks than it is a process of continuous monitoring to look for suspicious behavior. In the history of the United States, there have been 130 or so traitors who have given secrets or sold secrets to the enemy; 128 of them did it for money. This is not something that you can necessarily see in a background check.

ZIMMERMAN: There needs to be a cost-benefit analysis. I don’t know why Manning had the kind of access that he had. If you read what’s been written about him, he does seem to have been a person likely to become disaffected. But I don’t think we can expect to protect secrets in every case. We’re going to have to weigh the value of dissemination against the risk of disclosure. In the long run, I don’t believe it will have all that much effect on how people conduct their meetings or exchange information, because we will fall back into our old patterns. That’s what we do.

—

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The faculty of the NYU School of Law has in many ways led this tort evolution. Three of its members—Richard Epstein, Mark Geistfeld, and Catherine Sharkey—are focused principally on their scholarship and teaching in torts, and are co-authors of leading casebooks in the field. Other equally distinguished faculty members have made significant contributions to the field even while devoting much of their intellectual energy to other areas. “There’s no better faculty in torts,” says torts scholar Gregory Keating of the University of Southern California Gould School of Law. Most other law schools are lucky to have one serious tort expert, notes Robert Rabin, Stanford Law School’s top tort scholar, who teaches at NYU Law every other year. And many of the people who do teach it elsewhere don’t consider torts their primary field. By contrast, most tort classes at NYU Law are taught by professors with a strong grounding in the field.

Each of the NYU Law professors is working to improve a tort system everyone loves to hate. But their approaches diverge in critical ways. Epstein, Laurence A. Tisch Professor of Law, is the preeminent writer on torts from a libertarian viewpoint, a longstanding and vocal proponent of strict liability who greatly favors using contracts rather than torts to resolve personal injury cases. Geistfeld, Sheila Lubetsky Birnbaum Professor of Civil Litigation, is a self-described liberal-egalitarian guy and product liability expert who meshes economics with notions of justice in setting tort policy. Sharkey, steeped in law and economics, is doing pioneering work at the intersection of tort and administrative law, especially the issue of federal preemption of state tort actions. “Each of them has carved out a kind of distinctive path and is engaging in first-class scholarship,” says Rabin.

But NYU Law’s outstanding tort scholarship doesn’t stop there. Jennifer Arlen ’86, Norma Z. Paige Professor of Law, while generally known for her expertise in law and economics and corporate crime, has written ambitious papers in the area of vicarious liability— concerning to what extent a company should be liable for the actions of its employees. She’s probably best known for her often provocative work in medical malpractice litigation, which remains highly controversial and politicized at the state level. She has advocated for holding managed care organizations liable for their physicians’ errors, and argues that caps on damage awards are unfair, especially to people who are seriously injured. She is in the midst of editing a book, The Research Handbook on the Law and Economics of Tort, tentatively set for publication in 2012.

Roderick Hills Jr., William T. Comfort, III Professor of Law, whose interests center on public law, dips his toe into torts at the intersection of preemption and federalism. Noted civil procedure expert Samuel Issacharoff, Bonnie and Richard Reiss Professor of Constitutional Law, has extensive experience in mass litigation such as the Vioxx cases. University Professor Richard Stewart, an authority on environmental and administrative law, has made important contributions to the study of punitive damages, and recently testified on tort issues surrounding the BP oil spill. He was also a chief reporter for the influential American Law Institute study on enterprise liability for personal injuries. Troy McKenzie ’00, a specialist in bankruptcy law, is exploring the use of bankruptcy court to handle mass torts. Geoffrey Miller, Stuyvesant P. Comfort Professor of Law, who predominantly focuses on financial institutions and corporate and securities law, is an expert on class actions. And finally, Lewis Kornhauser, Alfred B. Engelberg Professor of Law and a microeconomics ace, and Dean Richard Revesz, Lawrence King Professor of Law and a noted scholar of environmental and regulatory law and policy, have written seminal pieces on vicarious liability and joint and several liability. (Epstein, Geistfeld, Kornhauser, Miller, and Sharkey are all contributing chapters to Arlen’s book.)

A feather in the cap of the torts faculty at NYU Law: Two of the leading torts casebooks are currently being revised in new editions by professors here. Geistfeld and Rabin are co-authoring one of them, Tort Law and Alternatives, and Epstein and Sharkey the other, Cases and Materials on Torts.

NYU Law also hosts a meeting of tort scholars known as the NYC Tort Theory Group. Each month the group of 10 or so meets on the fourth floor of Vanderbilt Hall to hear presentations and critique scholarly papers. Professors fly in from around the world to participate. Earlier this year, for example, USC’s Keating presented “Is Tort a Remedial Institution?” Ariel Porat of Tel Aviv University discussed “Risk of Death.” The discourse can be vigorous. Epstein recalls commenting at one meeting that recent Supreme Court decisions meant, unfortunately to him, that drug manufacturers could no longer expect federal regulatory approval to shield them from state tort actions (the preemption concept). Few agreed with him and weren’t shy about letting him know, he says with delight.

At the same time, NYU Law professors are engaged in the modern world of torts, a front-page topic, as evidenced in recent drug and car safety cases. About a half-dozen preemption cases were before the Supreme Court in the 2010-11 term. In one, Bruesewitz v. Wyeth, Geistfeld filed an amicus brief arguing that a federal vaccine law does not bar people injured by an injection from filing state tort suits (the Court, however, ruled 6–2 that it mostly does). Sharkey is advising the Administrative Conference of the United States on dealing with the collision between regulation and tort law. Epstein lambasted the Supreme Court’s decision in Wyeth v. Levine for permitting a state tort case to go forward against a Wyeth drug, rather than allowing federal regulations to govern. “‘Awful’ does not begin to capture what I think of that decision,” he says. “This is really an extraordinary point in American tort law,” says Issacharoff. A field that “used to be defined by common law doctrines,” he says, “is now becoming thought of in terms of its regulatory role and how it fits into an increasingly administrative society.”

Torts for 1Ls
If a 1L has any knowledge of what a tort is, it’s often a negative view, especially “if one of your parents is a physician,” Geistfeld quips. Yet by the end of the first-year course, students have learned that, as Sharkey likes to tell her class, “all roads lead back to torts.” Along with Procedure and Contracts, Torts is a core law school requirement. “It teaches students fundamental ways of thinking about law as an institution-regulating system,” Sharkey says. She adds: “It’s a fabulously interesting class to teach, as long as you don’t teach it myopically.” It shows students how the various mechanisms that strive to achieve optimal deterrence of risky behavior work together, such as private suits, government regulations, criminal law, and damages. Different intellectual approaches to torts are explored, such as the debate between the law and economic view and the corrective-justice view. “It gets students to think about deep questions that go beyond memorizing causes of action,” Sharkey says.

Unfortunately, too many law schools dragoon professors to teach a course in which they have little interest. The result is professors who impart a cynical view of torts. Those who dismiss torts as an unexciting area of practice, Sharkey says, are “wrong.”

The heart of the Torts class is negligence liability, on which the vast majority of suits turn, according to Geistfeld. He spends half or more of the semester teaching its various elements: duty, breach of duty, causation, and damages. He and other NYU Law professors also teach the intentional torts, the earliest torts, which typically involve a crime as well, such as punching someone in the face. Many laws schools have dropped this area as irrelevant, but Geistfeld insists it remains historically and conceptually interesting. A couple of weeks are then devoted to products liability, a complicated and challenging but hugely important area of study. “The raw numbers in dollars involved” in those cases warrant the focus, says Geistfeld, who also teaches an advanced class in products liability.

Although the essentials remain the same in Sharkey’s class, she says her approach is “unbelievably different” from the one in the Torts class she took as a J.D. student. New cases have arisen that enliven the class. For example, an old arcane tort known as trespass to chattels—someone interferes with another’s property—might have been glossed over. Now, thanks to the Internet, the concept is back in such cases as Intel Corp. v. Hamidi, in which the chipmaker claimed an employee’s use of its e-mail system to criticize the company constituted trespass to chattels. (It lost before the California Supreme Court.) Conversion, another old tort that’s similar to theft, arises in cases involving stealing of domain names or patents.

Sharkey notes that some of the basics learned in the Torts class feed into upper-level courses, which Jared Roscoe also observed. He graduated in May with an elective advanced torts class under his belt as well: Torts and the Administrative State. His understanding of tort issues such as preemption came in handy when he took Constitutional Law, for instance. Skills learned are translatable, too, he says. Just as in showing a tort (duty, breach, etc.), a lawyer has to break out each element when proving a crime.

Beyond that, Roscoe argues that although law schools need to focus on the “big, sexy” questions that come before the Supreme Court, the real judicial business of courts is dealing with the large volume of tort suits. “It’s not as immediately appealing as gay marriage,” he says, but hugely important. Remember, this is from a student who as a 1L wasn’t quite sure what a tort was.

Taking Positions
Richard Epstein joined the NYU School of Law faculty full-time in Fall 2010, bringing his polymathic scholarship, prolific writing, contrarianism, collegiality, and bluntness.

As I prepare to interview him in his fourth-floor office, I place two digital tape recorders on a stack of papers covering his desk.

“Two?” he asks.

“I don’t trust technology,” I answer.

He peers at them. “They’re the same brand, so they will make the same error,” he says.

I chuckle at his joke, but it’s soon clear he is making more than a joke. He is parlaying my two similar tape recorders into a point about the failings of the modern tort system.

“You know Ludwig Wittgenstein, the philosopher? He read something in the paper, and to make sure it was correct he got another copy.”

I laugh again.

“It’s called common mode failure: all sorts of things that you think are independent but are all resting on a single particular function.”

“OK, but let’s get back to torts,” I say.

“But it is torts!” Epstein bellows. “Common mode failure is one of the essential themes in tort law.”

The concept helps explain the massive growth of tort liability in the 20th century, an expansion that Epstein decries. Tort liability has expanded, he says, “from idiosyncratic events to systematic wrongs” as seen under common mode failure. To help curb that growth, Epstein is a strong proponent of preemption, the idea that federal regulation of a product—say, drugs or cars—overrides or preempts state tort actions.

On Preemption
Federal preemption invokes a host of important legal and policy threads that have been dissected by NYU’s law professors. What does the Constitution’s Commerce Clause say about whether the federal government or state tort law governs certain tort liability, and how and when? Who is best at setting national safety standards? Congress? Agencies such as the Food and Drug Administration? Private state suits and juries? Is federal regulation a more efficient way to reduce risk and liability, or are after-the-fact tort suits more effective at compensating injuries and deterring behavior to reduce the risk of accidents?

It’s a highly politicized issue. Trial lawyers, traditionally Democratic supporters, loathe preemption in that it blocks their lucrative state tort suits, and federal regulations don’t allow for damages to injured parties. Business generally prefers the consistency of federal regulation and the avoidance of potentially big jury awards at the state level.

And for students, preemption, despite the eye-glazing nature of the word, is a favorite part of her tort class, according to Sharkey: “It engages them because it’s not a historical or theoretical discussion, and it’s not about horses and buggies in the 19th century. They hear ‘torts’ and think it’s not for them, but this makes the subject come alive.”

Among the faculty, the clashes play out in academic papers and debates. Epstein, as always, knows where he stands. “I’m in favor of preemption almost across the board,” he says. Tort suits brought in state courts should be tossed out—“all of them, one and all”—on grounds that federal regulation of the activity protects against liability at the state level. “I’ve had this position for close to 40 years,” Epstein says, noting his long-ago preemption work for Philip Morris in the cigarette litigation. (“I worked for them when they won, and when I stopped they started to lose,” he says. “It’s not quite a causal relationship, but I’ll take it.”)

His essential reasoning is that the FDA, to name one federal agency, has already carried out extensive fact gathering on a drug and has issued a rule. This alone “should rule out state tort causes of action based on the inadequacy of any drug label,” he wrote in the Tulsa Law Review in 2009. Allowing state tort suits does not “let you make a better judgment.” Writing in the 2010 New York University Annual Survey of American Law, Epstein notes the “massive disruption” that “even a single trial causes to a blameless product.” These tort suits lead to “an absolute brawl,” he says, in trying to determine causation or whether a warning was adequate, as both sides need to hire batteries of experts. “You’re talking billions of dollars in wasted money, and God knows what it does to innovation,” Epstein says in our interview.

In his NYU Survey article, Epstein notes that tort law and the FDA lived in a “peaceful co-existence” before the mid-1960s. But the “huge expansion” of state product liability law since has led to the current collision between state torts and federal regulation generally. Epstein gives this example of the ballooning of liability in the last 50 years: “The original definition of a defective car was when it exploded because of a gasoline leak into the carburetor. Now the definition is in effect a car that won’t protect you when you crash—drunk—into a steel pole at 85 miles an hour.”

And yet, he adds, the safety of products, from cars to TVs, toasters to drugs, has grown enormously. “The safety probability error rate is one-one-thousandth of what it was in 1950—and the liability is a thousandfold what it was. Something is obviously out of whack,” Epstein says.

Roderick Hills Jr. expresses a far different view. He argues that state tort suits serve as an incentive to business to help federal agencies regulate products. “Federal agencies like the FDA just do not have the resources or the personnel to monitor industry,” says Hills, who explored the topic in a 2007 NYU Law Review article, “Against Preemption: How Federalism Can Improve the National Legislative Process.” He explains that the FDA’s clinical trials on a drug are done only once and on a relatively small number of people compared with the number who often take the drug—like Lipitor, for instance. The FDA can’t possibly anticipate the complete array of risks associated with a product. When a problem arises after approval, he says, a drugmaker has little obligation (and no incentive) to go back to the FDA for a new rule. That’s the role state tort suits should play. The threat of huge payouts, legal fees, and bad publicity should create an incentive for a company to ask the FDA for new rules—an updated warning label, for instance—that would also serve to block any future suits on preemption grounds.

“I don’t care if state tort suits are stupid and inefficient; you need some kind of prod,” Hills says. “The point is to force industry to help the FDA get it right.” He adds that opponents to tort suits have never offered up another mechanism to induce industry and agencies to update their regulations.

Sharkey has carved out an approach to tort suits and preemption that she has dubbed the “agency reference model.” She believes that federal rulemaking should block tort suits when the regulatory agency can show it has done its homework in investigating a product. Too many times, she says, agencies merely declare that their regulations require preemption (in a preamble, for instance) without a factual basis. Or they might be subject to ideological considerations—they don’t like torts, for instance, so they’ll reach for preemption in an arbitrary way. Courts, by looking to agencies to determine if they’ve done a thorough job, can make more informed decisions about whether the regulation was an optimal one or not—and hence, whether it should trump state action. Says Sharkey: “Courts are making decisions about whether there is preemption, but they are not well equipped” to parse the complicated regulatory process.

Is her model gaining any traction? Courts are starting to recognize that agency input is important, she says, but she won’t claim that the Supreme Court has embraced it. At the root of the issue is how Congress handles—or mishandles—the federalism question when enacting product liability laws. Sometimes Congress knows what it wants to do, so it expressly bars state tort suits. In those cases there is no ambiguity: suit dismissed. But often it writes muddled, conflicting language, declaring in one passage that the federal law trumps state law jurisdiction, while insisting in another that nothing in the law prevents the filing of state suits. In effect, Congress is punting the question to courts and agencies.

So what’s a poor judge to do when faced with a tort action? Here, too, courts must confront what Sharkey calls “two warring strands of jurisprudence” in administrative law. On the one hand, judges can go with the notion that there exists a presumption against preemption—and allow the suit to go forward. On the other, there’s Chevron deference (after a landmark Supreme Court decision), meaning judges should defer to agency interpretation the Supreme Court hasn’t squarely addressed it,” she says.

Epstein, however, has squarely addressed Sharkey’s agency reference idea—and doesn’t much like it. “As I told Cathy, compared to what Justice Stevens has ruled, I ought to embrace and kiss you,” Epstein says. But he maintains that federal agencies already carefully study products before issuing regulations. Her model will generate “too many fact-dense inquiries to work well in hard cases,” he has written.

The professors’ differing views play out in the Supreme Court’s Wyeth v. Levine. Stevens, writing for the 6-3 majority, said the fact that the FDA had approved a drug’s warning label doesn’t shield it from tort liability in Vermont. The plaintiff had lost her hand to gangrene when she was injected with Phenergan, an anti-nausea drug made by Wyeth.

Was it a bad decision, I ask Epstein? “It’s a level of institutional unawareness and incompetence beyond which you cannot compare,” he answers. The physicians who administered the drug made mistake after mistake and admitted as much, but insisted that if the label had told them more, they would have been more careful, according to Epstein. The suit should have been tossed out, he says. (“The state court ought to be put on a funeral pyre and left to burn,” he suggests in typical understatement.) Instead, the Wyeth decision means drug companies will find it almost impossible to obtain protection from state liability, Epstein concluded in his Annual Survey article.

Hills, again, disagrees with Epstein, insisting the Court’s decision to allow the suit was the right one. Wyeth’s Phenergan label was inadequate, Hills says, by failing to discuss the risks as compared with the benefits.

[SIDEBAR: It’s Not Easy Being Green: Litigating Environmental Disasters]

Sharkey is unhappy with the ruling, though for different reasons. She says the Supreme Court should have remanded the case to a lower court, which, using her agency reference model, could have explored more of the “indeterminate,” in her word, regulatory record on Phenergan. She thinks Epstein is reading the decision too broadly to say that it largely shuts the door on preemption. But she laments that lower courts seem to be interpreting it that way, too. “They’re putting the bar way too high,” she says.

Sharkey grew interested in the preemption debate while working with Samuel Issacharoff on a paper published in the UCLA Law Review in August 2006. At the time she was working on punitive damages issues, while Issacharoff was focused on class-action law. Their joint article, “Backdoor Federalization,” addressed what they called the Supreme Court’s “quiet federalization” of areas of law historically governed by state law, referring, in part, to preemption decisions. They argued that in doing so, the Court was attempting to capture the benefits that flow from “national uniformity” and to protect commercial markets from “unfriendly state legislation.”

Sharkey says the question in her mind was how to tap the expertise of agencies but not bow to them indiscriminately. To achieve this balance, she devised her agency reference model. “It places federal agencies front and center in a realm in which they have often lurked just out of focus,” she wrote in her paper for the George Washington Law Review in April 2008.

Sharkey’s ideas did not go unnoticed. Her paper on the agency reference model was read by Paul Verkuil (LL.M. ’69, J.S.D. ’72), who had recently been appointed by President Barack Obama to head the Administrative Conference of the United States, which issues recommendations on administrative law matters. (Revesz is a public member of the conference.) Verkuil invited Sharkey to lunch in May 2010 and proposed that she work up some practical ideas flowing from her academic papers, she recalls.

Intrigued, she accepted and began intensive research. The issue of preemption was especially high-profile at the time, and highly politicized. Just months after taking office in 2009, Obama had issued a presidential memo condemning how agencies such as the FDA and the National Highway Traffic and Safety Administration were too aggressive under former President George W. Bush in asserting blanket preemption of state law, known as preemption by preamble.

Over the summer of 2010, Sharkey interviewed officials in charge of preemption at various agencies in Washington, including the FDA, NHTSA, EPA, and Consumer Product Safety Commission. Her goal was to learn an agency’s inner workings—who specifically made decisions about preemption, how they reached those decisions, with whom they consulted. After undertaking an exhaustive review of agency rulemaking and intervention in court cases, she prepared a series of recommendations for the Administrative Conference, which were subsequently adopted. They boiled down essentially to her agency reference model.

Sharkey was that most unusual of law school students—she actually liked torts. She had gone to Yale as an undergraduate economics major. Embracing the intersection of policy and problem solving, she took off her first semester of senior year to pursue an independent study of the bail bond system in New Haven, Connecticut. Her paper, which concluded that private bail bondsmen tend to treat minority clients better than the courts do, won Yale’s prize for the best original economics thesis.

She went on to get her master’s in economics from Oxford, where she was a Rhodes Scholar. After attending Yale Law School, and falling under the law-and-economics sway of professor and Second Circuit judge Guido Calabresi, and then clerking for two years (for Calabresi, then Justice David Souter), she worked for three years in private practice, handling appellate litigation involving product liability and punitive damages. “I liked that because it had a law-andeconomics spin,” she says. She then accepted a research fellowship at Columbia Law School, where she wrote a paper on punitive damages.

She had the chutzpah to send the paper to Epstein, then at the University of Chicago, whom she did not know. “He was unbelievably critical,” Sharkey recalls with a smile. Responds Epstein: “She gives as good as she takes.” At one point, Sharkey found herself editing a piece Epstein had written on preemption. “It was an insane experience,” she recalls in awe. “He’d send me something at 3 in the morning, then I’d get something back to him at 5, and at 7 he’d be back to me. He was very engaged.” The two went on to become good friends and colleagues, and Sharkey speaks admiringly of his extraordinary support for students.

Sharkey became interested in preemption just before the Supreme Court jumped in and made it a hot issue. She says the Court’s focus on the issue has “kept me in the subject probably longer than I otherwise would.”

On Punitive Damages
Another area of state torts into which the Supreme Court has injected itself, raising some of the same constitutional and federalism issues as preemption, is punitive damages. In three cases starting in 1996, the Supreme Court rejected excessively large punitive damage awards by state juries on grounds they violated the defendant’s due process rights under the Constitution. The controversial rulings sparked renewed interest in the area from several professors, including Geistfeld and Sharkey.

Both wrote about the 2007 smoking case Philip Morris USA v. Williams, which involved an Oregon only $821,485 in compensatory damages. The Supreme Court vacated the award in part on grounds that the punitive award far outweighed the compensatory damage. (The Court, in an earlier ruling, had suggested a proper ratio requires that punitive damages be less than 10 times the size of the compensatory award.) But Oregon courts, after a protracted back-and- forth with the Supreme Court, upheld the smoking award.

In law review articles, Sharkey criticized the “heavy-handed direction” of the Supreme Court and also attacked the punitive-compensatory ratio as “theoretically bankrupt,” saying it lacks any correlation with the underlying deterrence and retributive goals of punitive damages.

Geistfeld took another tack, dissecting the Philip Morris decision to explore the novel question of how to justify and calculate punitive damage awards in a wrongful death case. In the Court’s two previous punitive damage cases, the plaintiffs had suffered economic damages—in one, diminished value in a new BMW that had been repainted; in the other, fraudulent insurance reimbursement. Those damages became a baseline to determine the size of the punitive award. But in the Philip Morris case the plaintiff, Jesse Williams, was dead. Wrongful death cases typically produce minimal, if any, compensatory awards. So, how to figure out the baseline to multiply for punitive damages?

Geistfeld scrutinized the award through the lens of the individual tort right to compensation. He first borrowed from government data that puts a value of $6.1 million on a person’s statistical life (used when assessing a proposed regulation’s cost versus its benefit in saving lives and preventing injury). But the risk of death from smoking is so high and clear that it yielded an injury measure between $10 million and $20 million, according to Geistfeld’s estimate. A single-digit multiplier, as specified by the Supreme Court, could then easily get punitive damages to the $79 million awarded by the jury. “I did everything from the perspective of what Jesse Williams’s rights might require,” Geistfeld said.

That emphasis on rights marks a substantial change in Geistfeld’s original thinking on tort issues. Geistfeld received an economics degree from Lewis & Clark and a master’s in economics from the University of Pennsylvania. Early on, he was interested in using the lessons of economics to figure out legal issues. As applied to tort law, this well-established school of thought evaluates liability rules in terms of their ability to minimize the social cost of accidents. That line of inquiry led him to the law. He returned to school for a joint Ph.D. in economics and law at Columbia.

Unlike Sharkey, he didn’t find torts in law school to be so interesting. “Kind of cookie-cutter,” he says. But in the mid-1980s, the tort reform movement and product liability cases were the rage, all of which Geistfeld found fascinating to observe through his economics lens. “I started writing papers [for his Columbia mentor, Susan Rose-Ackerman, a professor of law and political science now at Yale Law School] and did my dissertation on product liability,” he recalls. He graduated in 1990, and joined NYU Law two years later.

Geistfeld happened to have an office in Vanderbilt Hall near two of the most revered figures in the study of legal philosophy: Ronald Dworkin, Frank Henry Sommer Professor of Law, and University Professor Thomas Nagel. Influenced by them, he grew intrigued by a vision of torts that invokes fairness and justice, the idea that if you hurt someone you have committed a wrong and hence have a responsibility to pay for any losses. “I took the justice argument seriously because I was surrounded by really superb philosophers. I couldn’t just dismiss it out of hand as something I didn’t have to worry about,” Geistfeld recalls. “So I started on an exercise to try to figure out if I, as an economist, can make sense of what the fairness is that people are talking about in tort law.”

The result for Geistfeld was a kind of hybrid philosophy, the incorporation of economics into the justice view of torts. Most scholars insisted it had to be one or the other. But, wrote Geistfeld in a chapter of the 2009 book Theoretical Foundations of Law and Economics, “The idea that economic analysis is incompatible with or irrelevant to a rights-based principle of justice is mistaken.” In fact, he argues, economic analysis is “integral” to any rights-based tort system, an argument he has since defended by showing how this conception can resolve a number of doctrinal issues that have long vexed the tort system.

Of his new focus on fairness, one thing is clear to Geistfeld: “If I had been somewhere else and not here at NYU, I’m not sure I would have gone in that direction.”

On Medical Malpractice
There’s probably no area of torts more controversial in the public arena than medical malpractice litigation. That’s where Jennifer Arlen has made her mark, employing economics reasoning to debunk conventional wisdom about such suits. No surprise there: She has an economics B.A. from Harvard and a Ph.D. in the field from NYU. In between she earned her J.D. at NYU Law.

The overall tort system, she says, acts essentially as a corrective to the market: “Markets often don’t work, and you can’t regulate everything, so you need what I think of as a potentially market-enhancing system: the tort system. It can make markets function better. It’s not an opponent.”

That’s the argument she presented in a 2003 NYU Law Review article suggesting that the market alone was not sufficient to ensure optimal medical care. The article dealt specifically with managed care organizations (MCOs) and the extent of their tort liability. MCOs, which rose to vast influence in the 1990s, affect patient care by holding the power to approve or deny medical treatments selected by affiliated physicians (in a process known as utilization review). But federal law barred most state tort actions against MCOs.

Arlen, with co-author W. Bentley MacLeod, argued that MCOs should be held liable for their coverage decisions that ended with negligent medical care. The most obvious reason is when an MCO denies a costly treatment that, in fact, was appropriate for the patient. But the less obvious reason, they argued, is that physicians are less likely to invest in gaining “expertise” about medical procedures if their MCOs deny their use. Using the tools of economics in a follow-up 2005 paper for the RAND Journal of Economics, they showed how utilization review acts as a disincentive for physicians to gain that expertise to make better treatment choices. All in all, they wrote, the lack of liability results in less effective medical care and more negligence. “The cost of not having medical malpractice is increased patient deaths and injuries,” says Arlen. “Those are a real cost in an economic perspective. We have to see that as being as much of a cost as a dollar spent on care.”

In 2004 the Supreme Court ruled in Aetna Health Inc. v. Davila, its biggest case on MCO liability, that the federal Employee Retirement Income Security Act takes precedence over state tort suits. “We’ve lost this battle,” Arlen says.

She has also written extensively on the proposal, pushed by Epstein and others, that one way to reform medical malpractice is to use voluntary contracts between doctor and patient. In this scheme the parties agree on the level of liability—Cadillac or Kia— based on how much each patient is willing to pay for levels of safety. The patient then gives up the right to sue. The idea is that this would reduce the overall cost of liability in the health-care system and allow for more patient autonomy.

But Arlen, writing in a 2010 University of Pennsylvania Law Review article, argues that contracting over malpractice liability would not benefit patients, even well-informed ones, or do much to reduce health-care costs. The economic incentives are all wrong, she suggests. The problem is that physicians’ incentives to improve care by investing in technology, expertise, and safety measures arise from their expected liability to all patients, not just individual patients. So the quality of care that each patient receives does not depend primarily on her own decision to impose liability; it depends on choices made by patients collectively. Each patient knows that her decision to waive liability would not materially affect her provider’s expected liability costs. Therefore, the patient would be rational without something they can get for free?” Arlen asks. As a result, most patients would waive, and in turn doctors would have too little incentive to invest in patient safety, to the detriment of all patients.

Markets and Venues
Troy McKenzie is exploring a novel, and he thinks better, model to handle mass tort cases: bankruptcy. It was used in the 1980s when Johns Manville filed for bankruptcy as a way to aggregate all its asbestos liability in one place. But McKenzie thinks bankruptcy concepts can be applied more broadly now to handle other mass tort claims. “By its nature, the bankruptcy court and code are quite good at dealing with large-scale creditor claims that might be widespread and of high value,” he notes. That’s similar to when a manufacturer of a defective product is sued by hundreds of thousands of claimants—like creditors filing claims in bankruptcy.

His proposal is a reaction to the current debate over the right way to handle mass tort injuries. Courts are increasingly slamming the door on class-action suits as questions arise over certifying a class of victims. So plaintiff lawyers have moved to what McKenzie calls quasi–class actions, meaning aggregating mass torts claims but without the formal appointment of class counsel and court certification of the class. Yet courts grappling with quasi-class actions continue to rely on concepts that do not fit a post-class action world.

Bankruptcy would provide a model of aggregation different from the class action. One advantage is that bankruptcy courts can deal better with future or contingenct claims. In mass tort cases, courts now are often bedeviled by new claims of injuries popping up post-settlement. The Johns Manville bankruptcy provided for a future claims representative. Bankruptcy is also better at coordinating claims—making sure claimants who are in the same boat are treated in similar ways and that compensation levels are truly pegged to the level of injury. Now, the first plaintiff in a suit could get a $2 million award, the second nothing, and the third $500,000. “It shouldn’t matter when you file your suit; that shouldn’t determine the level of compensation or the chance you’ll succeed,” McKenzie says. The downside, he says, is that bankruptcy is expensive and that companies might feel a stigma filing for it. He nevertheless believes it provides lessons for handling mass tort claims even if defendants do not actually end up in bankruptcy court. If nothing else, he wants to inject some “mild skepticism” into the view that aggregated court actions must be modeled on class actions.

That view is warranted, according to Issacharoff, who has worked on several mass actions in private practice, including the 2007 $4.85 billion mass aggregate settlement by Merck for its painkiller and anti-inflammatory drug, Vioxx. “Bankruptcy has the right mindset of a workout,” he says, “whereas the litigation system still seems mired in individual-by-individual responsibility.”

Issacharoff explored this area in “Private Claims, Aggregate Rights,” a 2008 Supreme Court Review article. He noted that courts, including bankruptcy, are more flexible when overseeing private, non-class-action, mass litigation compared with the “formalism” they bring to traditional class-action cases.

Each NYU Law professor, in his or her own way, is dealing with “big, hard problems of justice,” as Geistfeld puts it. Their particular view of justice will influence how they think. But any tort suit stripped down to its bare facts involves the conflict between one party exercising liberty and another getting killed or injured by it.

Thus, to Geistfeld, the question for all is this: “How do you balance life and liberty in the pursuit of happiness? I think that is the fundamental tort problem.”

—Larry Reibstein is an executive editor at Forbes Media.

—

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Despite these liabilities Wyeth was in the midst of being acquired by Pfizer. So by late 2009, when the $68 billion deal had closed, Pfizer had inherited a full-blown litigation nightmare: Plaintiffs had racked up a 10-to-three record of trial wins and were clearly on a roll. With 10,000 cases still to be litigated, Pfizer, the world’s largest pharmaceutical company, had to take decisive action. The company brought in a new team that included its longtime outside counsel, Sheila Birnbaum ’65, a top products liability defense specialist who is partner and co-head of the Mass Torts and Insurance Litigation Group at New York-based Skadden, Arps, Slate, Meagher & Flom.

Setting her sights on defense strategy, the five-foot-two-inch Birnbaum did what she typically does in the high-stakes, bet-the-company cases she handles: She shrewdly surveyed the scope of the litigation, then proceeded to devise a game plan for stepping up settlement talks while also challenging the plaintiffs’ scientific evidence to strengthen Pfizer’s hand at trial.

By fall 2010, Pfizer had secured three straight trial wins, with juries in Pennsylvania, Virginia, and Arkansas finding that plaintiffs had failed to prove either that Prempro or Premarin had caused their breast cancer or that they had received inadequate warning of the drugs’ risks. What’s more, the federal judge overseeing multidistrict litigation proceedings in Arkansas recently barred the testimony of a few of plaintiffs’ key scientific witnesses who claimed these types of hormone-replacement therapies can cause cancer, deeming their testimonies insufficiently reliable or relevant. As a result, dozens of cases were dismissed or settled. All told, as of July Pfizer has managed to either knock out or settle some 3,300 suits, roughly a third of its caseload.

The litigation is still far from over. Yet thanks to Birnbaum’s efforts, said Pfizer in-house attorney Malini Moorthy last May, the momentum, at least for now, is no longer so heavily on the plaintiffs’ side. “I don’t want to tempt fate, but it’s fair to say the pendulum has swung,” says Moorthy. “We’ve evened up the game.”

Impressive as this turnabout has been, it is what clients expect from the 71-year-old Birnbaum, who has spent much of her career helping corporate defendants resolve their most difficult and costly litigation problems. Take Dow Corning’s leaky silicone gel breast implants, W.R. Grace’s asbestos contamination, or State Farm’s litigation involving claims arising from Hurricane Katrina. Birnbaum has played an integral role in defending and settling them all, not to mention countless other major mass torts cases involving everything from salmonella contamination to toxic spills to alleged injuries from cell phones.

Most recently, Birnbaum was tapped by U.S. Attorney General Eric Holder to serve as the special master of the revived September 11th Victim Compensation Fund. She is charged with distributing $2.8 billion to compensate Ground Zero rescue workers and New York residents who have suffered debilitating health problems in the aftermath of the World Trade Center attacks. This exceedingly difficult and public role complements the one she held between 2006 and 2009, when she successfully mediated settlements totaling $500 million for 92 of the 95 victims’ families who chose to litigate their claims instead of accepting compensation through the original 9/11 fund, administered by Kenneth Feinberg ’70.

Knowing how and when to settle headline-making cases like these have elevated Birnbaum to the pinnacle of the legal profession. She has been called a “legal genius,” a “lawyer’s lawyer,” and the undisputed “Queen of Torts.” She routinely comes in near the top (if not at the top) of the products liability defense bar in lawyer rankings by Chambers, Who’s Who, and other legal industry publications. And when the National Law Journal assembles its picks for the 100 most influential lawyers in the country, or when Fortune and Crain’s New York Business choose the most powerful national and local women business leaders, Birnbaum’s name is invariably on the list.

“On every type of serious matter, Sheila is my secret weapon,” says Eve Burton, general counsel of Hearst Corporation, a longtime client of Birnbaum’s. Even Zoe Littlepage, a lead plaintiffs’ attorney in the Prempro and Premarin litigation, says she can’t help but admire Birnbaum’s prowess as a tactician and the artful way she plots and maneuvers to advance her clients’ goals. So much so that at their first meeting Littlepage immediately went up to shake Birnbaum’s hand. “She’s a legend,” says Littlepage. “I told her, ‘I finally got to meet the master puppeteer.’”

Indeed, over more than four decades, as both a law professor and practicing attorney, Birnbaum has not only set standards and practices that helped to pioneer the practices of products liability and mass torts law. She has also blazed a path for women in the profession as a top rainmaker and longtime leader at Skadden, one of the world’s biggest law firms, with 2,000 lawyers around the globe and $2 billion–plus in annual revenue. She has even argued and won two Supreme Court cases, including State Farm Mutual Automobile Insurance Co. v. Campbell et al., a landmark 2003 defense victory in the long-running battle over punitive damages. “Pretty good for a torts lawyer,” quips Birnbaum.

Visiting Birnbaum’s office at Skadden’s 4 Times Square headquarters, one sees the usual signs of a successful senior partner and rainmaker. There is the 42nd-floor view of downtown Manhattan, including a dramatic close-up of the Empire State Building’s upper reaches. Papers and overstuffed file folders are piled on nearly every horizontal surface. On the coffee table is the odd tennis trophy amid a small village of gleaming crystal recognition and appreciation awards. Hanging on the walls, stacked on the floor, and propped up on a credenza are dozens of framed Wall Street Journal, New York Times, and legal journal newspaper articles, plus plaques and awards from women’s groups, Jewish groups, schools, and professional organizations. She has a mounted Louisville Slugger on a windowsill—a souvenir from a conference in Kentucky—along with a delightfully odd alligator sculpture with the words “Lady Litigator” painted on it. Here and there are photos, including a snapshot of Birnbaum with a beaming Supreme Court Justice Sandra Day O’Connor.

Most days Birnbaum gets to this office before 8:00 a.m. and works until 7:00 p.m., then logs additional hours during nights and weekends from her homes on Manhattan’s East Side and in East Hampton. She also maintains a sometimes grueling travel schedule: In one recent monthlong stretch, Birnbaum hopscotched between London (for a critical arbitration), Philadelphia (for oral arguments in a key appeal), and Little Rock (for a crucial hearing in the Prempro multidistrict litigation proceedings) before returning to Skadden’s Manhattan offices, packing in three full days, then jumping on a plane to Phoenix, where she helped lead a Sedona Conference panel discussion on mass torts and punitive damages.

Despite her devotion to her job and her climb to the top of megafirm Skadden, Birnbaum defies the stereotype most people have of the diehard corporate lawyer. For one, although she fights to restrain punitive damages—which aligns her with Republican reform efforts—she is a reliable Democratic voter. And although she is a fierce defender of her clients, she has also earned the respect and affection of members of the plaintiffs’ bar, among them Christopher Seeger, co-founder of Seeger Weiss, who considers Birnbaum a mentor and has sought her advice on cases in which her clients were not involved. She is known as a consensus-builder as well as an excellent listener who is generous with her time and advice for younger attorneys. “She’s old-school in the way she relishes her role as a lawyer and a teacher,” says Skadden products liability partner Mark Cheffo, who adds that Birnbaum often urges him and other veteran lawyers to bring junior associates along to key depositions and hearings.

Friends and colleagues add that there’s nothing affected, showy, or self-important about her. “With Sheila, there’s no pretense and no big ego to be assuaged,” says Matthew Mallow ’67 (LL.M. ’68), a former Skadden partner and longtime friend. Indeed, although she can certainly afford to be extravagant, Birnbaum still balks at paying exorbitant prices for first-class air travel, using her frequent-flier miles to upgrade instead. This frugality harks back to Birnbaum’s childhood in a lower-middle-class section of the Bronx. Even her voice, surprisingly sweet, almost girlish, has an accent that still hints of her old neighborhood. “Like they say, you can take the girl out of the Bronx, but you can never take the Bronx out of the girl,” says Barbara Wrubel, a recently retired Skadden partner who is one of Birnbaum’s closest friends. “She really is still Sheila from the Bronx.”

The eldest of three children, Birnbaum, who was born Sheila Lubetsky, grew up in the mainly working-class, southeast section of the borough, the kind of old-style New York neighborhood where mothers yelled out apartment windows and kids spent summer days playing stickball in the streets. Birnbaum could be counted on to join in. “I was a tomboy,” she says. “I didn’t like dolls.”

Her parents, Belle and Louis Lubetsky, didn’t make much money from the small grocery store they ran in Harlem. And space in the two-bedroom apartment that Birnbaum’s family shared with her grandmother (and sometimes an aunt) was definitely tight. But Birnbaum says she never really wanted for anything and recalls a safe, carefree childhood.

Though neither of her parents had gone to college, and her Russian immigrant father hadn’t finished high school, they were big believers in the American Dream and were determined that their children would get a better education than they had. Birnbaum was a standout student at P.S. 50, and though she says she wasn’t at “the top of the top” of her classes, she apparently made a strong enough impression that when her brother Paul, who’s 10 years her junior, came along, teachers would still gush over Sheila. “They’d all say, ‘Oh, you’re Sheila Lubetsky’s brother,’” says Paul. “I’ve been following in her footsteps all my life.”

Birnbaum isn’t sure where she first got the notion that she’d like to be a lawyer. Growing up, she says her family didn’t know any attorneys, much less any women attorneys, nor does she remember reading books or seeing television shows or movies about lawyers. Yet somehow when she filled in the space for My Favorite Profession in her sixth-grade autograph book, she wrote down “lawyer.” The only explanation that Birnbaum can think of is that she might have been inspired by one of the current events discussions that a favorite teacher, Mrs. Stahl, used to lead.

There were some other early signs that she might be cut out for courtroom combat, however. Her brother Paul recounts the time when a neighborhood bully started harassing her. Birnbaum’s mother, who caught the action from the window of the family’s apartment, urged her to fight back. Birnbaum, 11 or 12 at the time, did just that. “She turned around and walloped him,” says Paul. “He never bothered our family again.”

Birnbaum majored in history with a minor in political science at Hunter College. When she took a law survey course covering torts, property, and criminal law, she says the subject instantly clicked with her and helped crystallize her elementary-school dream of being a lawyer. “It was clear to me that I wanted to go to law school,” says Birnbaum, who also participated in a mock World Court at Hunter and loved the complexity of the issues and the debating.

The problem was that women at the time weren’t supposed to go to law school or become attorneys. They were expected to get married as soon as possible, and if they had to work, being a teacher was about the only socially acceptable option. “It’s hard to imagine the pressure we were under to go into teaching,” says Birnbaum, who remembers feeling as if her only choice was to go with the flow.

Thus, a week before she graduated cum laude from Hunter in May 1960, she married Bernard Birnbaum, an accountant. And that fall she started a job teaching fourth grade at P.S. 62 in the South Bronx, several miles from where she grew up. “Everybody was going to teach, so that’s what you did,” says Birnbaum. “That’s what was expected.”

Birnbaum liked her students, but from the start it was clear that teaching fourth-graders just didn’t provide the kind of intellectual challenge she was looking for. She took night classes at Hunter, where she got an M.A. in history. But her dream of becoming a lawyer kept nagging. So late in 1962, she finally decided to quit her job. In the new year, she enrolled at New York University School of Law in a program that allowed her to finish in two and a half years by taking courses continuously, without summer breaks. She was one of just 13 women in her class of 360 students.

The very month after she matriculated, February 1963, the watershed book The Feminine Mystique, by Betty Friedan, helped ignite the feminist movement. For Birnbaum, the bestseller was an affirmation that she could really have the kind of career she knew she wanted. “It really crystallized the fact that you could be a woman and have a life,” recalls Birnbaum.

Though some men would certainly have been threatened by their wife making such a bold move, Birnbaum says her husband, who also was taking classes at Brooklyn Law School at night, was encouraging. Even so, Birnbaum says, the two were “growing apart.” Within two years after she started at NYU Law, they decided to divorce.

At NYU Law, Birnbaum excelled in her classes and developed a clear interest in litigation. She jumped at the chance to test her oral argument skills in moot court competition. It turned out to be a fortuitous move: Birnbaum and her team not only won handily, but the hypothetical case happened to focus on the then-nascent area of products liability law, in the wake of a landmark 1963 decision by the California Supreme Court in Greenman v. Yuba Power Products. That ruling set forth the doctrine of strict liability for defective products, thus making it far easier for purchasers of those goods to pursue damages regardless of whether the manufacturer was found to have been negligent or at fault. It was, as Birnbaum recalls, a whole new concept, and she and her team wound up spending the better part of a year debating the parameters of the new doctrine and trying to understand how strict liability worked.

“She was always asking questions,” says moot court teammate Gorman Reilly ’65, who also remembers her as being very organized and having a real zest for the law. “She could look below the surface and facts. In making a court presentation, she had a way of getting to the point and getting [the judges] on the panel to go along with her arguments.” He adds, “You could just see that she was really made for this.”

After graduating, Birnbaum—with the assistance of a friend who had a talent for typing—sent out close to 100 letters to law firms around the city before landing an interview and a less-than-enthusiastic job offer from Berman & Frost, a small litigation firm on William Street that handled a mix of plaintiffs and defense-side matters. “They weren’t sure they wanted me,” says Birnbaum, who recalls that the firm had never hired a woman lawyer before and made it clear in the interview that they had strong doubts about whether she was up to the job. “I remember them asking me what I would do if one of them called from court and needed me to check on a decision right away,” recounts Birnbaum, who responded with the obvious answer: She’d simply go to the firm’s library and look it up. “I think they expected I would fall apart and cry,” she says with a laugh.

In making their offer, according to Birnbaum, the firm’s senior partners also informed her that, at least for starters, she’d be earning $1,000 a year less than a man in her position. Birnbaum took the job anyway. She quickly proved that she knew what she was doing. Within three months, she was making the same salary as her male counterparts, and over time she was given more and more responsibility on new matters. Some were simple personal-injury and slip-and-fall cases in which she represented plaintiffs. Others, however, happened to involve cutting-edge issues in the young but fast-growing area of products liability law, including a huge matter Birnbaum took on in the late 1960s for Syntex Corporation, a pharmaceutical company that was facing hundreds of lawsuits alleging that its oral contraceptives caused blood clots and strokes.

[SIDEBAR: An Interpreter of Maladies]

The sheer volume of suits was larger than almost any company had had to fend off before, and though no one at the time called it a mass tort, says Birnbaum, that’s what it was. She and other lawyers for Syntex’s co-defendants had to invent a new approach for managing such large-scale litigation, including setting up a national defense team and establishing ways to organize the massive discovery effort and ensure that defense filings across various jurisdictions were consistent. “We were sort of writing the rules,” says Birnbaum, who traveled all over the country attending meetings and hearings in connection with the Syntex litigation. “We were starting to create a blueprint for how these kinds of cases would be handled.”

As more and more states followed California’s lead and adopted the doctrine of strict liability, a new plaintiffs’ bar specializing in products liability matters emerged. And with consumer advocate Ralph Nader ratcheting up his campaign against defective car designs and other allegedly unsafe products, plaintiffs’ lawyers had a host of new targets. It was clear a tidal wave of large-scale litigation was coming.

Along with Syntex, Birnbaum also represented Chrysler Motor Corporation in connection with claims that the steering system on its Newport Custom sedan was defective, and she wound up taking a lead role in the car giant’s appeal in Codling v. Paglia, a seminal 1973 case that established the doctrine of strict products liability in New York State. Despite the court adopting strict liability, Birnbaum notes that the decision was actually slightly more pro-defendant than in other states. “It was the best a defendant could do given the way the law was shifting,” says Birnbaum.

While Birnbaum was making a name as an expert in products liability matters, the dean of Fordham University School of Law, Joseph McLaughlin, was seeking to add women to a virtually all-male faculty. In 1974, he made Birnbaum a surprise job offer, and she accepted. “Somehow he convinced me,” says Birnbaum, who recalls that McLaughlin played heavily on the fact that she’d be a pioneer, opening doors for women in the law.

Birnbaum’s detour into academia ultimately lasted a dozen years—first at Fordham, then at her alma mater NYU Law, where she taught from 1980 to 1986, and served a two-year stint as associate dean. Though it has been 25 years since Birnbaum left the NYU Law staff, she enthusiastically recalls how much she enjoyed the back-and-forth with her students. “I loved teaching” law students, says Birnbaum, who also appreciated the freedom to study and analyze the quickly evolving products liability landscape in a way that a busy practitioner never could.

“Sheila came and hit the ground running,” says Sylvia Law ’68, Elizabeth K. Dollard Professor of Law, Medicine, and Psychiatry, who has been on the NYU Law faculty since 1973. Indeed, Law recalls that Birnbaum not only won the instant admiration of students and colleagues, but also shared some helpful tips with Law and the handful of other women who were still a tiny minority on the faculty and sometimes struggled to get the full attention and respect of some of the male students. “She gave me some of
the best advice I ever got,” says Law, who remembers Birnbaum telling her that she was probably too nice and needed to seize control by batting down obstreperous students the very first week of class. Birnbaum says her strategy for handling students with an attitude was to make a few barbed comments or jokes at their expense. “You’re smarter than they are,” she says. “You just confront them straight on.”

One NYU Law student from that era who is deeply indebted to Birnbaum is Gregory Miao (LL.M. ’85). He was born and raised in Shanghai and was the first Chinese-trained lawyer to come to the Law School as a visiting scholar in the thaw that followed the end of China’s Cultural Revolution.

Landing in New York in fall 1983, Miao had virtually no money and no real sense of purpose or belonging at NYU Law, because as a visiting scholar he was simply auditing classes and wasn’t really connecting with students. He could have easily spent the entire year at Washington Square drifting about. Miao recalls that Birnbaum took the time to talk to him and find out how he was doing. She strongly encouraged him to improve his English, then apply for a slot in NYU’s LL.M. program. Even better, according to Miao, she also made it her mission to help him secure the funds he needed to pay for the program once he was in. “You can’t believe how wonderful that was,” says Miao, who vividly remembers the day Birnbaum called him into her office and handed him a big check. Birnbaum, by then associate dean and in charge of the LL.M. and visiting scholars programs, remembers Miao as “just an outstanding person,” and says that her efforts were all in the line of duty.

Birnbaum’s willingness to—at least in Miao’s view—go out of her way to help him led him to spend another few years in New York after he earned his LL.M. working for Paul, Weiss, Rifkind, Wharton & Garrison. Then, returning in the late 1980s to China, he ended up joining Skadden Arps (entirely independently of Birnbaum), where he is currently a partner splitting time in the Shanghai, Beijing, and Hong Kong offices and leads Skadden’s mergers and acquisitions and corporate practice in China. “I am so grateful to Sheila,” says Miao. “I was so surprised that a dean would spend that kind of time with me. It really changed my life.”

Today, Birnbaum is such a fixture at Skadden Arps that it’s a little hard to imagine her anywhere else. Still, as she recalls, it was really just a chance encounter at a Fordham faculty cocktail party in 1979 that brought her to the firm. Birnbaum says she had barely heard of Skadden at the time, but she got to talking to Skadden partner and Fordham adjunct professor John Feerick at the party, and he suggested she speak with one of the firm’s name partners, Joseph Flom, about setting up a part-time practice at the firm.

Skadden was in full growth mode at the time and actively looking to add new practice groups. Firm leaders believed Birnbaum’s expertise in products liability would be a smart fit. “For us, it was a no-brainer,” recalls former Skadden partner Stephen Axinn. He and other Skadden veterans, including Irene Sullivan, who would become one of the first woman partners, contend that gender was never much of an obstacle at Skadden, which has always prided itself on its entrepreneurial, egalitarian culture. “It was very much a meritocracy,” says Sullivan. “If Joe [Flom] believed you were talented, and you worked hard, that’s what mattered.”

Birnbaum says she had originally conceived of her work for Skadden as a “nice little side job.” Almost as soon as she joined the firm as counsel, however, clients with major products liability exposure began calling. Birnbaum’s practice, which included both products liability defense and insurance coverage matters, took off.

It wasn’t just the volume of new cases. The sheer size of the litigation was also increasing exponentially, with thousands upon thousands of plaintiffs now claiming injuries—a development that, as Birnbaum points out, was spurred by the rise of computers, which made it possible for the plaintiffs’ bar to instantly replicate filings. “Without computers you couldn’t have mass torts or class actions,” says Birnbaum. “There’d be just no way to do it.”

Birnbaum began hiring new lawyers to help her keep up with all the work. By the early 1980s, however, Birnbaum was spending so many long nights and weekends at Skadden that she decided it was time to leave NYU Law and join the firm as a full-time partner. In the months and years that followed, Birnbaum’s workload only got larger. In 1984, Dow Corning enlisted her help fending off what eventually mushroomed into more than 40,000 suits by women who claimed that the company’s silicone gel breast implants caused a range of serious autoimmune diseases. During the 1980s, she also defended Olin Corporation in thousands of suits involving DDT, as well as Georgia-Pacific in a mammoth class action in Louisiana alleging the company had contaminated the local water supply in 1981. Plus, she served as lead defense counsel on more than 100,000 asbestos-related lawsuits against insurance giant Metropolitan Life.

And that’s just a sampling. Indeed, as the numbers of large-scale class actions, products liability, and toxic torts cases continued to explode, Birnbaum became the go-to defense lawyer a long list of Fortune 500 companies. “Sheila was really ahead of the curve,” says Samuel Issacharoff, Bonnie and Richard Reiss Professor of Constitutional Law, an expert in complex litigation who faced Birnbaum in a water contamination case against BP, Chevron, and other oil giants involving the gasoline additive MTBE. In the early wave of products liability cases, Issacharoff notes, many companies would hire individual lawyers to litigate each matter separately. But Birnbaum understood that the flood of products liability litigation would make that strategy untenable. She built a practice around the idea of providing comprehensive representation to defendants with the aim of global resolution of their liabilities, says Issacharoff: “She anticipated where the law would require a whole different kind of representation.”

As co-head of Skadden’s Mass Torts and Insurance Litigation Group, Birnbaum oversees about 60 lawyers. She views her role as a big-picture strategist—assessing the present and future scope of the litigation, weighing the risks, and figuring out the best way to proceed to limit her clients’ exposure. “I’m always looking at what the endgame is,” says Birnbaum, who notes that it’s exceedingly rare for the defense to find a silver bullet that can suddenly make the thousands of cases in a mass torts litigation go away.

Allies and adversaries alike contend that one of her greatest talents lies in devising creative ways to resolve even the most massive, complicated matters. “A lot of defense lawyers have drunk the Kool- Aid—all they want to do is litigate,” says plaintiffs’ attorney Perry Weitz, co-founder of Weitz & Luxenberg. In the vast majority of mass torts and class actions, Birnbaum contends, the most cost-effective course of action for clients is to settle. The key question is when and for how much, she says: “You have to ask how you are going to win the most battles and skirmishes along the way so you get to the point where the litigation can be settled for the least amount of money.”

It is during those battles and skirmishes that Birnbaum demonstrates her strength and leadership. She is calm and even-tempered under pressure, even when she’s marshaling Skadden associates to meet deadlines on critical motions. “She’s our Rock of Gibraltar,” says David Zornow, global head of Skadden’s Litigation and Controversy practices. And she has a firm hand in defusing volatile situations. During settlement talks for thousands of toxic injury cases against the maker of the diet drug Dexatrim, Christopher Seeger recalls that one of his fellow plaintiffs’ attorneys jumped out of his chair and began yelling expletives in Birnbaum’s face. He says Birnbaum stuck her finger in the lawyer’s chest, said a few choice words, and put him right back into his chair. Seeger, who has had his own share of heated moments with Birnbaum over the years, contends that “if you push her too hard, the Bronx is going to come out.”

Seeger and other plaintiffs’ attorneys say, however, that Birnbaum is almost always pleasant to deal with, listening and respecting their positions. When the time comes to close settlement talks, Birnbaum is pragmatic and flexible, they say, and when she makes a promise during negotiations, she delivers. “When she gives you her word, you can count on it,” says Weitz, who has faced Birnbaum across the bargaining table in at least a dozen cases. “She’s shown she’s someone the plaintiffs’ side can trust.”

Over the years, some of Birnbaum’s pro-plaintiffs friends and colleagues on the NYU Law faculty have ribbed her about the merits of helping polluters, manufacturers of drugs, and the many other corporate defendants she represents to get off easy. “I tell her she’s a running dog for corporate America,” says University Professor Arthur Miller with a chuckle. To which, he says, Birnbaum can be counted on to retort that he’s “a supporter of extortionist” plaintiffs’ lawyers. Likewise, Sylvia Law recalls debating Birnbaum about whether helping to block plaintiffs who might have suffered real injuries from collecting damages is a worthy endeavor. “I thought that corporations should be held accountable,” says Law, while Birnbaum was sympathetic to the defendants.

Those sorts of debates haven’t done much to change the way Birnbaum regards her work. She maintains that she, too, firmly believes that corporations should not be let off the hook for willful misconduct. If, say, a drug company hid studies from the Food and Drug Administration showing a medication was harmful, then that company should be punished, says Birnbaum. The problem is that the facts on the whole in the vast majority of drug injury cases and many other types of toxic torts litigation are never that simple. She contends pieces of the story often get distorted and are used to malign corporate defendants. “It’s very easy to take an e-mail or document out of context to create passion and prejudice against a big corporation” and win a huge award, says Birnbaum. “But maybe you’re taking money from corporate shareholders and workers.”

Birnbaum says she is moved by the plight of many of the plaintiffs whose cases she defends, such as the women with advanced breast cancer in the Prempro and Premarin litigation. Still, as tragic as those women’s stories are, she insists that there’s just no proof that the two hormone-replacement drugs caused their illness. “No one knows what causes breast cancer,” says Birnbaum. “No doctor can tell a jury that the mere fact that a plaintiff took a particular drug caused their individual injuries.”

The Dow Corning case serves as a cautionary tale that helps to explain how Birnbaum can see past the swirling emotional drama of plaintiffs’ stories and insist on scientific proof of causation. Despite the tremendous hype in the 1980s and ’90s about the debilitating health issues the silicone gel breast implants allegedly caused, in the end the independent panel of scientific experts who examined the evidence found there was no credible proof linking the implants to the alleged injuries. “We knew the science [the plaintiffs were relying on] was very weak,” says Birnbaum, who helped lead the push for an independent review of the scientific evidence. “It was a decisive win for defendants.” Unfortunately for the company, by the time the review was completed Dow Corning had already declared bankruptcy and opted to settle the litigation.

And don’t even try to argue the merits of large punitive damages. While she supports the jury process, Birnbaum says large punitive damages are emotionally driven, and therefore frequently reduced by judges. She is proud of her Supreme Court win on behalf of State Farm in the 2003 Campbell case, which challenged a $145 million punitive damages verdict that State Farm had been hit with in Utah for bad faith in settling a case. Birnbaum argued that the size of the award was so excessive compared to compensatory damages that it violated State Farm’s due process rights under the 14th Amendment. She asserted that since civil defendants have fewer rights than criminal ones, grossly excessive or arbitrary punishment is unjust. A majority of the justices agreed and proceeded to lay down new guidelines on “reasonableness” for lower courts to consider when reviewing punitive damage awards. “Birnbaum argued quite forcefully that a punitive award must be limited to the rights violation suffered by the plaintiff,” says Mark Geistfeld, an expert in punitive damages who became the Sheila Lubetsky Birnbaum Professor of Civil Litigation in 2009. “Campbell has largely reoriented the hugely important tort practice of punitive damages away from the punishment of social wrongdoing to the redress of the individual issue in the tort claim.”

Birnbaum says the Court’s decision has clearly had a positive impact in making punitive damage awards more rational and predictable, in addition to reducing their size. And she contends that the net effect is actually pro-consumer. “When you punish a corporation [with a huge award], consumers often end up paying for it with higher prices,” says Birnbaum. In fact, she says, it’s simply a windfall for plaintiffs and their lawyers.

How a lawyer whose victory in Campbell was called “a big win for corporate America” by the Washington Post is not a Republican boils down to being, at heart, a hometown girl.

Growing up in the Democratic bastion of the Bronx, Birnbaum says, she never knew any Republicans. And though she officially labels herself an independent, she says that she almost invariably supports Democrats. During the 2008 presidential campaign, she was an enthusiastic donor to Hillary Clinton and went to Philadelphia on the day of the Pennsylvania primary to assist in the Clinton campaign’s get-out-the-vote effort. “I really wanted to see the first woman president,” says Birnbaum.

Over dinner with good friends, Birnbaum is always up for a lively debate about the latest political issues. “She loves to argue about politics,” says her friend Barbara Wrubel, who describes Birnbaum as liberal on social issues but a fiscal conservative.

Birnbaum, for her part, does say she’s strongly pro-choice, but she declines to get into her views on other hot-button issues for public consumption—especially in light of her recent appointment to oversee the 9/11 fund.

In her free time, Birnbaum can usually be found at her East Hampton home. Besides being an enthusiastic Scrabble player, she took up golf seven years ago. And all her corporate travel hasn’t dimmed her wanderlust or sense of adventure. She is an avid kayaker and outdoor enthusiast. This year she toured northern India and went snowshoeing in Aspen. “It’s just a beautiful thing to get out in the woods with the snow falling,” says Birnbaum.

She has also recently started cooking Italian food—thanks to Brooklyn Law School President Joan Wexler (and former NYU Law professor) and other longtime friends, who gave Birnbaum lessons with a private chef for her 71st birthday this past March. “We’re hoping she gets back into cooking,” says Wexler, who adds that in the past Birnbaum has hosted some great dinner parties, in addition to the party she throws in East Hampton every summer, when she treats a group of about 30 friends to an outdoor meal on the night of an annual town fireworks show.

Despite Birnbaum’s frenetic work schedule, Wexler and others say she’s exceptionally giving of her time and is the kind of friend who can be counted on whenever they’re in need. “We all know that Sheila will be there for us,” says Madeline Stoller, who says that when one of Stoller’s family members was ill, Birnbaum called her every day and offered helpful, practical advice.

Likewise, years back, when Stoller flew back to New York from Florida after her mother died, she says Birnbaum came to LaGuardia to pick her up at 11:00 p.m. “She’s the most supportive friend in every way possible,” says Stoller, who met Birnbaum when the two shared a summer home in the Hamptons roughly 40 years ago and credits Birnbaum with urging her to go to law school. Now retired, Stoller was in-house counsel at Wyeth Pharmaceuticals until 2006.

During Birnbaum’s early 40s, there was a period when she thought she might like to have children. That time came and went, but Birnbaum says she has no regrets. “I wouldn’t have been able to accomplish all I’ve accomplished,” she says, noting that she has three nieces whom she’s close to, including one—Sara, her brother Paul’s daughter—who graduated magna cum laude this spring from NYU’s College of Arts and Science.

Looking back at her many achievements, Birnbaum says she feels best about her ability to show that a woman could build a leading practice with top-tier clients and practice law at the very highest level. She’s also proud of the many things she has done to support other women lawyers, including serving as a mentor and helping to organize an annual Skadden women’s retreat, where the firm’s female partners can network with top clients. “I’ve always tried to open doors for other women,” says Birnbaum, who was also involved in the creation of the Women’s Bar Association of the State of New York.

For now, Birnbaum insists she’s still enjoying her practice at Skadden too much to think about retiring. “I love practicing law, and I intend to keep practicing as long as I can,” she says. You don’t need scientific evidence to conclude that’s a sound decision.

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