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Groundbreaking Conference Addresses Use of Secret Evidence in the Courts
Nobel Prize Winner Amartya Sen Discusses Limits of Law
Cardozo Supports Hurricane Katrina Relief Efforts
Class of 2008 Arrives on Campus
Heyman Center Events Focus on Securities Industry
Intellectual Property Program Features Scholars and Practitioners
African Women’s Rights Advocate Receives Peace Award
Series Showcases Stories of the Holocaust
Hate Speech Regulation Examined at Floersheimer Center Conference
Prominent First Amendment Scholar Discusses Recent Book
Corporate Election Reform Is Bauer Lecture Topic
Who is Judge Alito?
Insider Discusses Iraqi Constitution
Students Start Program for Youth
Innocence Project Gains Another Release

Groundbreaking Conference Addresses Use of Secret Evidence in the Courts

ACLU Attorney Jameel Jaffer

Secret Evidence and the Courts in the Age of National Security brought together government officials, lawyers, journalists, and academics to examine the increased use of secret evidence and discuss whether the government is protecting national security at the expense of fundamental liberties. The conference, sponsored by the Floersheimer Center for Constitutional Democracy and the Jacob Burns Center for Ethics in the Practice of Law, was the first to bring together people with varied perspectives to address challenges that secret evidence presents, especially in legal proceedings.

David Cole, professor of law at Georgetown University Law Center, said that historically the government’s handling of national security crises has not been balanced. Foreign nationals are targeted and stripped of their rights first, which “often serves as a kind of wedge for what will be done in the future to the rest of us.”

Washington Post Correspondent Dana Priest

According to Cole, what is also at stake is public knowledge of what our government is doing. Gitanjai Gutierrez, an attorney with the Center for Constitutional Rights, agreed that reliance on secret evidence is dangerous because it can hide executive misconduct. “What we’ve learned from Guantánamo is that, if anything, it has been a smokescreen for what our government has been doing in other facilities and other countries,” Gutierrez said. According to Jameel Jaffer, staff attorney at the American Civil Liberties Union, secrecy prevents citizens from having all the information necessary to make informed decisions about political leaders or holding leaders accountable for bad decisions and ineffective policies. “Excessive secrecy leads to uninformed decisions and to unaccountable decision makers,” Jaffer said.

Gutierrez discussed combatant status review tribunals, procedures used at Guantánamo Bay to evaluate a detainee’s status as an enemy combatant, and said evidence is often withheld from detainees. She questioned when it became appropriate to use secret evidence to detain foreign nationals for the rest of their lives, but according to Bradford Berenson, former White House associate counsel, during times of war we have always been able to hold an enemy until the war is over, as a lesser use of force than execution. “This is not just US practice,” Berenson said. “This is universal practice through millennia of human history.”

Prof. Monroe Price and keynote speaker Adam Liptak

The conference also addressed issues of secrecy, including the effects of the Patriot Act and expanding surveillance powers. “The Department of Justice wanted the Patriot Act to be drafted to tear down the wall, the so-called wall, between the criminal division and the intelligence side of law enforcement,” Karl Metzner, Assistant United States Attorney for the Southern District of New York, said. “The problem is that with the walls demolished so completely, the roof is in danger of coming down.”

According to New York Congressman Jerrold Nadler, the government has sought more ways of conducting secret searches since 9/11, and these efforts affect all US residents, not just the terrorists. In his opinion, the Patriot Act is bad legislation. “But I strongly believe that we can protect America without thinking of safety and constitutionality as opposite values,” Nadler said.

The way secret evidence is handled and how terrorism cases are tried in other countries was discussed by Gadi Tasfrir, senior prosecutor for the Office of the State Prosecutor of Israel, who said that Israel has no special court for terror cases. The cases are prosecuted in the regular criminal court, which James MacGuill, defense lawyer for the Special Courts, Ireland, said is preferable to having a separate system. “Throw the fair trial guarantees aside and you may never, ever recover from it,” MacGuill said.

US Congressman Jerrold Nadler

The Hon. Gerald Rosen, US District Court, Eastern District of Michigan, discussed some of the logistical problems with cases involving secret evidence, such as how everyone from the judges to the court reporters must receive clearance. Andrew McCarthy, a senior fellow with the Foundation for the Defense of Democracies, said that terrorism or national security trials often force opposing attorneys to take on each other’s roles. “The prosecutor is really called on to be a defense lawyer in many aspects of what he must do during the trial,” McCarthy said.

During a panel on investigative journalism and national security, participants discussed the reporting challenges posed by an increased use of secret evidence. Dana Priest, national security correspondent for The Washington Post, said the job is difficult when you don’t have the entire picture and that, when working in the field of intelligence, everything is secret. “We are in the business of challenging secrecy, because we presume it doesn’t really exist for the purpose [the government claims] it does, and I would urge that that’s something you need to consider yourselves,” Scott Armstrong, investigative journalist for the National Security Clearinghouse, said. Stephen Hayes, a journalist for The Weekly Standard, said that the current administration’s interest in secrecy extends not only to documents that are potentially harmful, but also to ones that are potentially helpful.

Priest discussed some of the difficult decisions she had to make when working on an article about CIA use of secret prisons in other countries. She had to consider the public’s right to know, our country’s national security interests, and the interests of the countries involved. The paper made the decision not to name the countries, but instead to refer to them as Eastern European democracies, which Priest called the responsible thing to do.

Adam Liptak, national legal correspondent for The New York Times, shared his perspective as both a lawyer and a reporter in the keynote address. He spoke in part about government use of preventive detention, which he said may be a good idea, but the existing laws have been stretched “beyond recognition” to achieve the goal. “That is, we don’t have a preventive detention law enacted by Congress, but we have various techniques that prosecutors and courts have molded into a preventive detention regime.” While he said it’s a bad time for the media, he added that our country is committed to free speech and it is “now so deeply rooted that it’s hard to imagine that it will be fundamentally disturbed.”

Nobel Prize Winner Amartya Sen Discusses Limits of Law

During an enlightening lecture at Cardozo, Nobel Prize-winning economist Amartya Sen discussed the relationship between human rights and the law and criticized a purely legal approach to handling human rights issues. “I speak here with great humility because I am not a lawyer,” he said, before apologizing to the audience because he was going to speak about the limits of the law.

Sen, the Lamont University Professor at Harvard University, said there are several ways to safeguard human rights other than through legislation. He said that those who fight for human rights often pursue legislation, such as new laws or new interpretations of old laws, but this approach is incomplete or “foundationally mistaken.” He challenged the idea that human rights protections are consequences of legislation, precursors to legislation, or ideal ground for legislation.

Sen said it is necessary to rely on public discussion and pressure, social critique, and education, in order to foster change. It is imperative to “look beyond the rigid box of legislation,” he said, adding that we need to think about the issues on a much larger scale, and while legislation is important, it is not the only route worth pursuing.

Cardozo Supports Hurricane Katrina Relief Efforts

Scott Sherman, Andrew Pickett, and Alex McBride were among nine Tulane Law Students who visited Cardozo for the fall semester in the aftermath of Hurricane Katrina.

As the country mourned the destruction caused by Hurricane Katrina, Cardozo did its part to provide support and assistance to those in need.

On behalf of the Cardozo community, the Public Interest Law Students Association (PILSA) enlisted the help of other student groups to organize fundraisers and a clothing drive, and to collect donations for hurricane relief organizations. During a two-week period—including five days of fundraising efforts called “Hurricane Relief Week” and a day when the Cardozo administration matched the donations—the student body, faculty, and staff raised approximately $5,400. The money was donated to the American Red Cross, Operation USA, and Habitat for Humanity.

The Law School admitted nine upper-level Tulane students as visitors for the fall semester at no charge since they had already paid tuition to their home institution. Cardozo also helped them acclimate by assisting with housing, securing free casebooks through textbook publishers, holding a special orientation upon their arrival on campus, and providing funds from The Carroll and Milton Petrie Emergency Fund for their initial and most basic needs such as housing, clothing, and books.

Tulane student Alex McBride worked at the Innocence Project during the summer of 2005, and that experience led him to Cardozo in the aftermath of the hurricane. He described the Law School’s faculty and students as fantastic and said he was enjoying his time at Cardozo. “I’m thankful that Cardozo let us in,” McBride said.

Class of 2008 Arrives on Campus

At orientation, 236 first-year students and 47 LL.M.s entering in September 2005 were formally welcomed to Cardozo, and to the profession, by Dean David Rudenstine and Robert Schwartz, associate dean for admissions. “We are all very proud of your accomplishments, and you should be as well,” Schwartz said. Dean Rudenstine gave a brief history of Justice Cardozo and of the Law School, and discussed some of what the students can expect—anxiety, disappointment, falling in and out of love, and exhilaration.

During a keynote speech, Michael Cardozo, corporation counsel of the city of New York, encouraged students to enjoy the practice of law while making a positive difference. Mr. Cardozo, a distant relative of Justice Benjamin N. Cardozo, portrayed lawyers as heroes and said they can save someone from death, can help eliminate discrimination, and have the capacity to effect change. “You don’t have to wait until you graduate to start doing this good work,” Cardozo said.

The newest J.D. candidates bring with them extraordinary qualifications, marking the Law School’s continued success in attracting high-caliber students. For the second year in a row, the number of students applying to Cardozo’s J.D. program was in excess of 5,000. Of those enrolling in September, the median GPA was 3.5—the highest in the School’s history. Half scored above 164 on the LSAT, and the top quarter of the class achieved scores of 166 or higher. Leiter’s Law School Rankings for 2005 ranked Cardozo 23rd nationally for student quality as measured by LSAT scores for the top quarter of the class. (See http://www. 2005student_quality.shtml)

The entering J.D. students call 30 states and 9 countries home, with a record 11.2 percent (46 students) from California. They represent 130 undergraduate institutions, with the major feeder schools being NYU with 24 students, University of Pennsylvania with 17, and Columbia/Barnard with 16. They range in age from 20 to 56, with 10 percent of them 30 or older. Overall minority enrollment for the class is 22.6 percent.

Several members of the class arrived with experience working on political campaigns and in a variety of careers. Enrolling in the fall were a former assistant military attaché at the Israeli embassy, a policy analyst at the National Immigration Law Center, a producer for MSNBC, a statistician for CBS Sports, an assistant to David Letterman, a stand-up comedian, an Olympic fencer, an economist for the US Department of Commerce, a published author and poet, and one student who lived with the aborigines in Australia. Several hold advanced degrees in areas such as philosophy, theology, Japanese literature, molecular genetics, education, and American history.

Of the entering LL.M. students, 33 received their first degrees in law abroad, while 13 graduated from a law school in the US, including 4 from Cardozo; 24 enrolled in the General Studies program and 22 enrolled in the Intellectual Property Law program. The new graduate students hold law degrees from more than 20 countries including Bulgaria, Chile, Estonia, France, Guinea, India, Israel, Japan, and Mexico.

Heyman Center Events Focus on Securities Industry

(Clockwise from top left) Dean David Rudenstine; Prof. Michael Stone; Prof. Eric Pan; Paul Merolla, president, Securities Industry Association Compliance and Legal Division; Hon. Lewis A. Kaplan, US District Judge for the Southern District of New York; Helene Glotzer, US Securities and Exchange Commission; and Carmen Lawrence, Fried, Frank, Harris, Shriver & Jacobson LLP.

James Sprayregan, Kirkland & Ellis LLP (left), and Todd Snyder, Rothschild Inc.

Eric J. Pan, who joined the Cardozo faculty in 2005 and was named director of the Samuel and Ronnie Heyman Center on Corporate Governance, has launched this year’s program with a series of public events that addressed trends reshaping the securities industry. Perspectives on Corporate Restructuring featured 21 of the nation’s leading experts involved in some of the largest and most complex corporate reorganizations of all time, such as Enron, United Airlines, and Calpine. Speakers included James Sprayregan and Richard A. Cieri of Kirkland & Ellis LLP; Stephen F. Cooper of Kroll Zolfo Cooper LLC; Henry S. Miller of Miller Buckfire & Co., LLC; Prof. David Carlson; Deirdre Martini, United States Trustee (Region 2); John Rapisardi of Weil, Gotshal & Manges LLP; Myron Trepper of Willkie Farr & Gallagher LLP; and Daniel H. Golden of Akin Gump Strauss Hauer & Feld LLP. The conference provided an opportunity for practitioners and students to learn firsthand from the experiences of lawyers in the vanguard of this field.The Heyman Center also began to collaborate with the Securities Industry Association Compliance and Legal Division (SIACL) in offering public programs. The first, Attorneys as Gatekeepers, explored the new obligations attorneys have to prevent securities law violations. The panel included Judge Lewis A. Kaplan of the Southern District of New York; Helene Glotzer, associate regional director, Northeast Regional Office of the US Securities and Exchange Commission; Carmen Lawrence, head of securities regulation and enforcement at Fried, Frank, Harris Shriver & Jacobson LLP; Mike Stone, former general counsel of Morgan Stanley Dean Witter and an adjunct professor at Cardozo and senior fellow of The Heyman Center; Paul Merolla, general counsel of Instinet Group, Inc. and president of SIACL; and Professor Pan. Two more Heyman Center–SIACL programs are scheduled for spring 2006 and another four during the next academic year.

during the next academic year. In addition to supporting public events, faculty scholarship, and student internships, The Center helps students with strong academic records and an interest in corporate law. With the addition this fall of 14 Cardozo students who are pursuing J.D. and LL.M. degrees, there are now 36 Heyman Scholars on campus.

Intellectual Property Program Features Scholars and Practitioners

The semester began with the fifth annual Intellectual Property Scholars Conference (IPSC). Held in August, the event provides young scholars, who present their works in progress, with networking opportunities and advice from veteran academics. IPSC is cosponsored with the Berkeley Center for Law & Technology, University of California at Berkeley; the Center for Intellectual Property Law and Information Technology, DePaul College of Law; and the Stanford Program in Law, Science & Technology, Stanford University.

FORUM FOR SCHOLARS Founded five years ago, the Intellectual Property Speaker series provides another forum for scholars to discuss cutting-edge issues with colleagues and students. The fall speakers included R. Anthony Reese, University of Texas, on “The New Unpublished Domain”; Jacob Jacoby, New York University Business School on “Sense and Nonsense in Measuring Sponsorship Confusion”; David Adelman, University of Arizona on “Grasping the Slim Tail of Innovation: Biotechnology Patenting from 1990–2004”; and Wendy Gordon, Boston University on “Moral Philosophy, Informational Technology: the Copyright Connection.”

FOCUS ON PATENTS Hon. Francis Gurry, deputy director-general and general counsel, World Intellectual Property Organization (WIPO), spoke on the “Future Direction of the International Patent System” at the 12th annual Distinguished Lecture in Intellectual Property. At WIPO, he is responsible for policy questions and administration of the Patent Cooperation Treaty; policy issues concerning biotechnology, genetic resources, and traditional knowledge; and the WIPO Arbitration Center. An Australian national, Gurry holds law degrees from the University of Melbourne and a Ph.D. from the University of Cambridge.

GEOGRAPHICAL INDICATIONS CONTROVERSY A major symposium, Geographical Indications: Rural Development, the Meaning of Place, and the Implication for Trade Talks, examined a specialized area of intellectual property law that is concerned with the protection of such things as names of foodstuffs like Bordeaux wine, feta cheese, and Idaho potatoes. Geographical indications are creating controversy between the European Union and countries such as Canada and the United States that use terms like Parmesan cheese and champagne generically. Panelists included Lynne Beresford, commissioner of trademarks, US Patent and Trademark Office (USPTO); Denis Croze, director-advisor, WIPO; Victoria Espinel, assistant US trade representative for intellectual property; Prof. Dev Gangjee, Oxford University; and Prof. Stefania Fusco, Stanford University.

James Cooperman (left), executive vice president, business and legal affairs, Wind-up Entertainment, Inc., and Michael Hausman, Michael Hausman Artist Management, Inc., spoke at Web Commerce and Development for Unsigned Artists.

THE MUSIC INDUSTRY & THE WEB “Web Commerce and Development for Unsigned Artists,” a panel of music industry experts, discussed the use of the Web in finding new streams of revenue for developing musical artists. For the third year in a row, the Grammy Foundation®, in partnership with Cardozo Arts & Entertainment Law Journal, The New York Chapter of The Recording Academy, and the ABA Forum on Entertainment and Sports Industries, presented programming on campus that examines and debates the most compelling issues facing the music industry.

A panel for students interested in intellectual property careers freatured (from left) Barbara Kolsun ’82, senior vice president and general counsel, Seven for All Mankind; Vejay Lalla ’00, director of legal and business affairs, Lifetime Entertainment Services; William Jelinek ’93, associate counsel, The Estée Lauder Companies, Inc.; Alan Barson ’90, principal, The Law Office of Alan D. Barson, and vice chairman, NYSBA Entertainment, Arts and Sports Law Section; and Jennifer Romano, attorney, NBC Universal, and chair, NYSBA, Young Entertainment Lawyers Committee.

African Women’s Rights Advocate Receives Peace Award

International Advocate for Peace Award-winner Betty Murungi with Cardozo Journal of Conflict Resolution editors David Evenhuis ’06 (left), and Dustin Adam Stein ’06.

As news of the first woman to be elected an African head of state spread across the airwaves in early November, students of the Cardozo Journal of Conflict Resolution presented Betty Kaari Murungi, a lawyer and leading figure of Africa’s women’s rights movement, with the 2005 International Advocate for Peace Award. She accepted it “on behalf of the thousands and thousands of women with whom I have worked over the decades … whose courage and conviction allowed me to collaborate in the work for justice and a sense of peace in their lives,” she said. Ms. Murungi’s speech was the keynote address for the conference International Mediation in Times of Conflict: Lessons from Public and Private Dispute Resolution.

Against the historic and emotional backdrop of Ellen Johnson Sirleaf’s victory in Liberia and Rosa Parks’s death in the United States, Ms. Murungi spoke of growing up on the slopes of Mt. Kenya and the influential role her grandmother played as a respected community mediator. Ms. Murungi said, “She knew and practiced human rights way back in the ’40s and ’50s. She gave voice to young girls and women by offering shelter, food, and counsel.” She credited her grandmother with introducing her to the importance and necessity of conflict negotiation.

Ms. Murungi explained that African women’s lives are shaped by “colonialism, neo-colonialism, imperialism, Christianization, Islamization, globalization, and militarism,” and yet they remain custodians of the old and trusted methods of building peace within communities. She said, “There are many such women all over the world to whom this art of resolving and transforming conflicts comes naturally. They represent the power that women have within their own communities that somehow fails to translate into political power within the formal structures that have evolved such as the United Nations or the African Union.”

Ms. Murungi spoke of the organization she directs, the Urgent Action Fund–Africa, which promotes the rights of women and girls in three main areas: rapid-response grant making, peace building, and transnational justice. The organization undertakes collaborative projects with women and organizations in conflict and postconflict situations.

Because political and security structures are, as Ms. Murungi said, “exclusive male clubs,” African women have resorted to innovative strategies to get their voices heard. She explained how women in Liberia refused to attend church and stayed away from their homes for weeks in order to win a place at the negotiating table during their civil war. Because they found this behavior so disturbing, the men relented and finally invited them to participate. “This was an unprecedented achievement, as an indigenous women’s group never before attended negotiations of this kind in Liberia,” she said.

Ms. Murungi called on the audience to stay vigilant as situations of extreme conflict continue in Western Sudan’s Darfur region, the Congo, Ivory Coast, and Northern Uganda, noting also that the “war on terror” has fueled religious and cultural fundamentalism that is producing repressive antiterror legislation that undermines human rights and sets back progress for women.

In ending, she urged Cardozo students as young advocates to continue on their paths, hold onto their dreams, and always remain open to new ideas, for this is how the law remains committed to the principle of growth.

Series Showcases Stories of the Holocaust

Actress Suzanne Toren in Lea Fridman’s play w/ Hole in the Heart.

The Cardozo Program in Holocaust and Human Rights Studies introduced Stories and the Holocaust: Challenges to the Artistic Imagination, a four-part series of performances and discussions scheduled throughout the academic year that illustrate events connected to the Holocaust and address the limits of artistic freedom in representing Holocaust accounts.

The first event featured Bernhard Schlink, author and Cardozo visiting professor, who read from his acclaimed novel The Reader, about a young contemporary German who must confront his country’s Nazi past. During a roundtable discussion, Clayton Koelb, chair of the department of Germanic languages at the University of North Carolina, Chapel Hill, said the novel raises the question of how to put a human face on evil. Cardozo Professors Richard Weisberg and Julie Suk and Visiting Professor Uriel Procaccia also offered their perspectives on the novel.

SEXUAL SLAVERY Sulia Chan of the Chinese Alliance for Memorial & Justice illustrated her discussion of WWII Korean comfort women at Sexual Slavery: New Approaches to an Old Problem. The symposium, sponsored by the Women’s Law Journal and the Program in Holocaust and Human Rights Studies, addressed the current rise of the sexual slavery trade and offered ways to combat the problem on the national and global level.

Later in the semester, the new play w/ Hole in the Heart, a powerful family story of Holocaust survival, was performed. Written by Lea Wernick Fridman, a professor at Kingsborough Community College, the play focuses on how the daughter of a Holocaust victim deals with her mother’s incomplete descriptions of the past by attempting to fill in the holes in her mother’s stories and reconstruct history. During a discussion moderated by Professor Weisberg, Lillian Kremer, the university distinguished professor emerita at Kansas State University, said the play shows how difficult it is to capture the past as it really was. Professor Schlink said the play shows how the Holocaust’s effects are felt by the second generation and that he’d like to see it performed in Germany.

Hate Speech Regulation Examined at Floersheimer Center Conference

Lord Bhikhu Parekh of the English House of Lords at A Comparative Examination of Hate Speech Protection

Constitutional experts from Europe, Israel, Canada, and the United States gathered to discuss the legal controversies surrounding the regulation of hate speech at A Comparative Examination of Hate Speech Protection, sponsored by the Floersheimer Center for Constitutional Democracy.

Different countries approach the issue in different ways; the goal of the conference was to better understand the regulation of hate speech in a comparative perspective. In the United States the courts have generally looked unfavorably on regulating hate speech. By contrast, restrictions on hate speech are accepted in other parts of the world.

Bhikhu Parekh, a member of the English House of Lords, gave a keynote address titled “Is There a Case for Limiting Hate Speech?” Calling himself an “oddity” in the gathering because he is not a lawyer, Parekh defined what hate speech is, discussed what is wrong with it, and spoke about whether the law is the best way to deal with it.

Parekh said that 148 countries regulate hate speech and that he supported hate speech regulation in the United Kingdom. “Free speech is a great value, but it’s not the only value,” Parekh said. Even in the United States, some forms of communication, such as child pornography, are now subjected to restrictions, and, according to Parekh, in certain societies hate speech needs stronger regulations. “Let us not judge all societies in terms of a single model,” Parekh said.

As part of a larger project on the study of hate-speech regulation, a follow-up meeting will be held this spring at Central European University in Budapest, where participants will address, among other topics, the challenges presented by hate speech on the Internet.

Prominent First Amendment Scholar Discusses Recent Book

Prof. Geoffrey Stone

Geoffrey Stone, one of the nation’s leading First Amendment scholars, participated in a lively discussion about his most recent book, Perilous Times: Free Speech in Wartime from The Sedition Act of 1798 to The War on Terrorism. The book, called by Prof. Michael Herz “a classic effort to study the errors of history so as not to repeat them,” examines how free speech protections have been diluted in America during times of war.

According to Stone, speech enjoys its special legal status because it is the means through which we make decisions in our society. When speech is restricted, the ability to make wise decisions is lost. “I think speech is valuable because it does have power,” he said. “That’s why we need to protect it, but it’s also why we need to fear it.” Nonetheless, Stone said, the government consistently overreacts to apparently dangerous speech during wartime.

Stone, the Harry Kalven, Jr. Distinguished Service Professor of Law at the University of Chicago, responded to the comments of Dean Rudenstine and Professors Herz and Richard Weisberg, and joked that he wished he had the benefit of their remarks before his book was published.

Cardozo professors who clerked for Supreme Court Justices— (from left) Monroe Price, Marci Hamilton, Richard Bierschbach, and Michael Herz—discussed their experiences at “Inside the Supreme Court.” The panel was part of Conversations on the Constitution, a series that addresses current Supreme Court cases and issues, and is sponsored by the Floersheimer Center.

Corporate Election Reform Is Bauer Lecture Topic

Prof. Lucian Bebchuck

Lucian Bebchuk, a professor of law, economics, and finance at Harvard Law School, shared his ideas on reforming corporate elections at Cardozo’s annual Uriel and Caroline Bauer Memorial Lecture.

Professor Bebchuk, the first corporate law scholar to give the Bauer lecture, explained the importance of corporate elections, saying that directors make critical decisions, such as selecting and/or firing the CEO and delegating day-to-day decisions to the CEO. Directors need to have the right incentives. “Independence is beneficial, but independence is inefficient,” he said, in determining who will make a good director. Noting that at present shareholders do not have the power to change the entire board, he argued that to increase shareholder power they should have the ability to replace all of the directors in one up-or-down vote. “We need to have some mechanism for accountability,” Bebchuk said. He also proposed holding more meaningful elections every two or three years instead of every year.

Who is Judge Alito?

As the debates and Senate hearings on Judge Samuel Alito’s nomination to the US Supreme Court were ongoing, the Cardozo Democrats and the NYU Democrats held a panel in the Jacob Burns Moot Court Room to discuss “Who is Judge Alito?” The panelists were Mark Tushnet, Carmack Waterhouse Professor of Constitutional Law, Georgetown University Law Center (who spent three weeks at Cardozo during the fall); Prof. Michael Herz, a former clerk to Justice Byron White; Prof. Ed Zelinsky, Alito’s classmate at Yale; and Kate Pringle, a partner at Kriedman Kaplan Seiler & Adelman LLP and former law clerk to Judge Alito. Adam Liptak, national legal reporter for The New York Times, was the moderator.

The panelists all had high praise for Alito’s ability and integrity, but were divided on the substance of his judicial decisions. The discussion also delved into the standards that the Senate should apply in exercising its constitutional authority to “advise and consent” on the appointment of US Supreme Court justices. Pringle, who received some attention in the press as a liberal Democrat who strongly supported the appointment, suggested that the Senate and the citizenry have the right to demand smart people who respect the Court and different points of view on it. Zelinsky stressed that it was important to look at the whole candidate and not to dissect individual decisions.

Insider Discusses Iraqi Constitution

Cardozo students were treated to a rare insider’s view when Iraq’s deputy permanent representative to the United Nations, Feisal Amin al-Istrabadi, spoke about the writing of the Iraqi constitution that was approved in a referendum in October 2005. He was one of the principal drafters of the Interim Constitution and also of the Bill of Fundamental Rights of the Interim Constitution.

Istrabadi described the hope and excitement his countrymen have because “politics are going on in Iraq for the first time in 35 years.” He said that the National Assembly election in January 2005 marked “the first time in our history when we didn’t know who was going to win the election before we voted.”

He did say that the constitution is not as liberal as he would have hoped, but stressed that the process was important: “Giving life to constitutionally defined political institutions is far more important to the course of Iraq’s immediate future.” He compared writing the constitution to horse trading, explaining that when the drafting process broke down, draftees added a provision to gain the participation of Sunni Arabs. The Parliament, elected in December with wide Sunni participation, can propose a new package of amendments, which may represent Sunni interests more favorably.

He noted that critics, notably The New York Times, have said the constitution didn’t offer adequate protection for women and minorities. He argued, “There is a clearly expressed equality before the law in that document.” Later he applauded the Iraqi political progress that took the country from a brutal tyranny to an elected government and noted that 31 percent of the National Assembly members are women, whereas in the United States only 14 percent of the members of the House and Senate are women.

Other especially contentious issues that surfaced during the drafting process included federalism and how to determine control of natural resources, applicability of federal laws to different regions, international treaties, representation in foreign capitals—for example, can a Kurdish leader have a regional office in California?—and how to work religion into the legal life of the country. The constitution now states, he said, that Islam is a source of legislation, but not the only source.

Despite Iraq’s varied ethnic concerns and complicated political ambitions, he thinks federalism will work best and said it is the “only key to the reunification of the country.” He compared the constitution’s federalist arrangement to systems such as those in the United Kingdom and Spain, where Scotland and the Basque regions, respectively, are under self-rule.

He also provided a snapshot of Iraq before the United States invaded in March 2003. “There was one Iraq legally, yes, but de facto there were two or three.” In Kurdistan there were two states, he said, and “they shared a common parliament but had their own prime ministers, were under international protection, had a healthy economic and cultural life, and used Iraq’s old currency for their currency. Baghdad, under the control of Saddam Hussein, had its own court of causation, used a different currency, and suffered a shrinking economy, primarily because of international sanctions. The country was in fact dissolved.”

He ended by saying he looks forward to the day when the United States can leave Iraq a secure and safe place and the two countries can enjoy friendly relations and healthy trade. “Rome was not built in a day. It will take at least a generation to rebuild Iraq.”

JUDGE STEIN Judge Sidney Stein of the US District Court for the Southern District of NY addressed LL.M. students on the future of the Federal Sentencing Guidelines. His visit was sponsored by the Office of Graduate and International Programs and the Graduate Law Society.

MEXICAN VISITORS Early in the semester, students and recent graduates of some of Mexico City’s law schools, including Escuela Libre de Derecho, Universidad Iberoamericana, Universidad Panamericana, and the UNAM Instituto de Investigaciones Juridicas visited Cardozo to learn more about the master of laws programs. They met with Dean Rudenstine and members of the faculty; attended classes, including a special presentation on trademark law by Prof. Barton Beebe; met with Judge Miriam Cedarbaum at the US District Court for the Southern District of New York; and toured Greenwich Village. Dean Rudenstine visited the Mexican law schools last year with Toni Fine, director of the LL.M. program (third from right).

ON DOUBLE-SUPER-SECRET BACKGROUND Viveca Novak, the Washington correspondent for Time who was called to testify in the Valerie Plame leak case, discusses dealing with and protecting confidential sources at On Double-Super-Secret Background: Managing Confidential Sources. Other panelists were (from left) Mark Bowden, national correspondent, the Atlantic Monthly; Mark Feldstein, director of the journalism program and associate professor of media and public affairs, George Washington University; and Victor Kovner, partner, Davis Wright Tremaine LLP.

TRUST LAW IN THE 21ST CENTURY Prof. Gregory Alexander of Cornell University Law School joined Prof. Stewart Sterk on a fiduciary duties panel at Trust Law in the 21st Century. The conference focused on significant developments in the growth of the perpetual trust and the move by many states and offshore jurisdictions to increase the availability of trusts for asset protection purposes. The event was cosponsored with The American College of Trust and Estate Counsel Foundation of Los Angeles, CA.

PAULSEN MOOT COURT COMPETITION Paulsen Moot Court Competition winner Baruch Gottesman ’07 and runner up Arkadia Delay ’08 are joined by competition judges (from left) Roy Barnes, former governor of Georgia; Mrs. Jenny Paulsen; and Judges Dora Irizarry, US District Court, Eastern District of NY; and Robert Katzmann, US Court of Appeals for the Second Circuit.

Students Start Program for Youth

Cardozo Youth Advocates founders (from left) Sarah Hudson-Plush ’07, Aron Zimmerman ’06, and Lauren Kaeseberg ’07, at The Door.

In the fall, 19 law students began working with the newly founded Cardozo Youth Advocates. Started by Sarah Hudson-Plush ’07, Lauren Kaeseberg ’07, and Aron Zimmerman ’06, this program is intended to get young people thinking and talking about the law. The Cardozo students have been working with The Door, a youth services center, where they share responsibility for teaching a weekly class called Law Talk, in which they cover a variety of topics and facilitate conversations about such legal issues as the death penalty, same-sex marriage, the First Amendment, and children’s rights. Hudson-Plush said similar sessions will begin in the spring at Washington Irving High School, located near Cardozo, where about 500 students are part of the high school’s law and public service program. Plans are also under way for a Law Day, an evening program when high school students will visit Cardozo for mock classes and opportunities to meet informally with law students.

Innocence Project Gains Another Release

On September 29 at the Innocence Project office, Barry Scheck held a press conference to discuss the exoneration that day of his client Barry Gibbs, 57, who was wrongfully convicted in 1988 of murdering a Brooklyn woman.

In an emotional statement, Mr. Gibbs, a Navy veteran and former postal worker who is free after serving 19 years in prison, said he was both humbled and overwhelmed, and cautioned that what happened to him could happen to anyone. He added that the judge’s words overturning his conviction were the best he ever heard in his whole life. The first thing he did after his release was take a two-hour bath.

His murder conviction was vacated after new evidence revealed that ex- NYPD officer Louis Eppolito, who is under indictment for mob-related activities, pressured an eyewitness to falsely identify Gibbs.

Innocence Project attorney Vanessa Potkin (far left) and Scheck acknowledged the efforts of the Brooklyn District Attorney’s Office, the US Attorney’s Office for the Eastern District, and the DEA, whose agents worked with the Innocence Project to reopen and reinvestigate the case. Scheck said this was originally a case of law enforcement gone bad, but now it’s a case of law enforcement corrected. As of press time, 175 prisoners have been exonerated with the help of the Innocence Project. Mr. Gibbs was the 166th to be released.