David Rudenstine

Sheldon H. Solow Professor of Law

Education

B.A., 1963, M.A.T., 1965, Yale University;
J.D., 1969, New York University

Areas of Expertise

Constitutional Law
Cultural Property
Federal Courts
First Amendment
National Security and Terrorism
Securities Law

Bio

David Rudenstine served as Dean of the Cardozo School of Law from 2001-09, and is currently the Sheldon H. Solow Professor of Law at Cardozo, where he has taught constitutional law since 1979. The first dean appointed from the ranks of the Cardozo faculty, Professor Rudenstine is an American legal scholar respected for his work on free press, free speech, and national security issues. He is the author of The Day the Presses Stopped: A History of the Pentagon Papers Case, which was nominated for a Pulitzer Prize, and he is currently writing a book on the role of courts in national security cases. In recent years, he has organized and participated in legal panels on subjects such as the disclosures made by Edward Snowden and Wikileaks, the NSA Surveillance Programs, and the ACLU in American Life. In 2000-01, he was an inaugural fellow in Princeton University’s Program in Law and Public Affairs.  

 

Prior to his teaching career Professor Rudenstine served as Acting Executive Director of the New York Civil Liberties Union, Counsel to the National News Council, a staff attorney in the New York City legal services program, and Director of the Citizen’s Inquiry on Parole and Criminal Justice, Inc. He was the primary author of Prison Without Walls: Report on New York Parole, written in the wake of the 1971 Attica prison riots, and the author of Rights of Ex-Offenders. During the 1970s, Professor Rudenstine litigated extensively in federal and state courts in the 1970s, and throughout the 1990s, he frequently served as a labor arbitrator and a court appointed mediator and referee. For three years he served as Chair of the Labor and Employment Law Committee of the Association of the Bar of the City of New York.

 

In the summer of 1962, Professor Rudenstine taught African American children in Prince Edward County, Virginia, the only county in the United States to close its public schools rather than comply with a judicial order requiring integration. From 1964-1966, he was a Peace Corps Volunteer teaching in Uganda. He was a Field Fellow in the Arthur Garfield Hays Civil Liberties, while attending New York University School of Law.

 

While he was the Cardozo Dean, The Kathryn O. and Alan C. Greenberg Center for Student Life was given in his honor, and in 2012, Susan Halpern funded the establishment of the David Rudenstine Fellowship Program in Public Service. 
 

Publications

BOOKS & BOOK CHAPTERS

 AGE OF DEFERENCE: THE SUPREME COURT, NATIONAL SECURITY AND THE CONSTITUTIONAL ORDER (forthcoming)
 
THE DAY THE PRESSES STOPPED: A HISTORY OF THE PENTAGON PAPERS CASE (1996)
 
 Breaking the Tradition: the Case for the 640 Detainees in Guantanamo, in GUANTANAMO BAY AND THE JUDICIAL-MORAL TREATMENT OF THE OTHER 17 (Clark Butler ed., 2007)
 

THE RIGHTS OF EX-OFFENDERS: AN AMERICAN CIVIL LIBERTIES UNION HANDBOOK (1979)

 
PRISON WITHOUT WALLS: REPORT ON NEW YORK PAROLE (1975) (with Ramsey Clark)

 

ARTICLES & BOOK REVIEWS

The Courts and National Security: The Ordeal of the State Secrets Privilege, 44 U. BALT. L. REV. 37 (2014)
 
Self-Government and the Judicial Function, 92 TEX. L. REV. 161 (2013) (reviewing J. HARVIE WILKINSON III, COSMIC CONSTITUTIONAL THEORY: WHY AMERICANS ARE LOSING THEIR INALIENABLE RIGHT TO SELF-GOVERNANCE (2012))
 
The Irony of a Faustian Bargain: A Reconsideration of the Supreme Court’s 1953 United States v. Reynolds Decision, 34 CARDOZO L. REV. 1283 (2013)
 
Roman Roots for an Imperial Presidency: Revisiting Clinton Rossiter’s 1948 Constitutional Dictatorship: Crisis Government in the Modern Democracies, 34 CARDOZO L. REV. 1063 (2013)
 
A Reporter Keeping Confidences: More Important Than Ever, 29 CARDOZO L. REV. 1431 (2008)
 
E. Nathaniel Gates, 28 CARDOZO L. REV. 1041 (2006)
 
Weapons of Mass Destruction: National Security, and a Free Press: Seminal Issues as Viewed Through the Lens of the Progressive Case, 26 CARDOZO L. REV. 1337 (2005)
 
Common Ground: Law Schools In American Life During the New Age of Faith, 37 U. TOL. L. REV. 143 (2005)
 
Lord Elgin and the Ottomans: The Question of Permission, 23 CARDOZO L. REV. 449 (2002)
 
A Tale of Three Documents: Lord Elgin and the Missing, Historic 1801 Ottoman Document, 22 CARDOZO L. REV. 1853 (2001)
 
Cultural Property: The Hard Question of Repatriation: The Rightness and Utility of Voluntary Repatriation, 19 CARDOZO ARTS & ENT. L.J. 69 (2001)
 
Who is Entitled to Own the Past, 19 CARDOZO ARTS & ENT. L.J. 243 (2001)
 
The Legality of Elgin’s Taking: A Review Essay of Four Books on the Parthenon Marbles, 8 INT’L J. OF CULTURAL PROP. 356 (1999)
 
Need a Lift? Read The Federalist, 1 ST. FRANCIS C. REV. 15 (1999)
 
Reporting From the Front, 20 Cardozo L. Rev. 1705 (1999) (reviewing LIBRARY OF AMERICA, REPORTING VIETNAM, PARTS ONE & TWO (1998))
 
Yet Another Fox in the Hen House: Government Protection of Artistic Expression Within Privately Owned Public Spaces, 17 CARDOZO ARTS & ENT. L.J. 159 (1999)
 
The Book in Retrospect, 19 CARDOZO L. REV. 1283 (1998)
 
The Pentagon Papers Case: Recovering Its Meaning Twenty Years Later, 12 CARDOZO L. REV. 1869 (1991)
 
Foreword, A Symposium on Justice Scalia’s Jurisprudence, 12 CARDOZO L. REV. 1593 (1991)
 
Tolerance: The Bridge Between Religious Liberty and Privacy, 12 CARDOZO L. REV. 821 (1991)
 
Imprisoned for Membership: The Junius Scales Case, 11 CARDOZO L. REV. 791 (1990) (co-author)
 
Justice Brennan, the Constitution, and Modern American Liberalism, 10 CARDOZO L. REV. 163 (1988)
 
Foreword, Symposium on the Bork Nomination, 9 CARDOZO L. REV. 5 (1987)
 
Judicially Ordered Social Reform: Neofederalism and Neonationalism and the Debate Over Political Structure, 59 S. CAL. L. REV. 449 (1986)
 
Pennhurst and the Scope of Federal Judicial Power to Reform Social Institutions, 6 CARDOZO L. REV. 71 (1984)
 
Institutional Injunctions, 4 CARDOZO L. REV. 611 (1983)
 
The Rehabilitation and Risk Assessment Goals of Parole Theory: A Reply to Professor Vincent O’Leary, Criminal Law Bulletin, Vol. 11, No. 4, 1975, at 488–497
 
Report on New York Parole: A Summary, CRIMINAL LAW BULLETIN, Vol. 11, No. 3, 1975, at 273–303 (co-author)

 

SELECTED OTHER WRITINGS

 The Pentagon Papers at 40, New York Law Journal, June 27, 2011
 
Rwanda, Cardozo Life, Issue #2, 2008
 
Review of Secrets: A Memoir of Vietnam and the Pentagon Papers, by Daniel Ellsberg (Viking 2002) The Nation (December 23, 2002) pp. 33 36
 
Review of The Miner’s Canary by Lani Guinier and Gerald Torres, Harvard University Press (2002) The Journal of Blacks in Higher Education, (Autumn 2002) pp. 132 136
 
Go Ahead. Let’s Publish: Katharine Graham and the Pentagon Papers, Legal Times (July 23, 2001) pp. 50 51
 
Review of Our Vietnam: The War, 1954 1975, by A. J. Langguth, Simon & Schuster (2000) The Nation (March 5, 2001) pp.25 30
 
Did Elgin Cheat at Marbles?, The Nation (May 29, 2000)
 
Review of The Conscience of the Court: Selected Opinions of Justice William J. Brennan Jr. on Freedom and Equality, Sepinuck & Treuthart (co editors), New York Law Journal (October 22, 1999) p. 2
 
Sunstein’s Law, The Nation, (October 11, 1999) pp. 26 34
 
Review of Reports from the Front Reporting Vietnam, Part I: American Journalism 1959 1969 and Part II: American Journalism 1969 1975 20 Cardozo L. R. 1705 (1999)
 
Telford Taylor 1908 1998, Cardozo Life (Fall 1999)
 
Review of Making Constitutional Law: Thurgood Marshall and the Supreme Court, 1961 991, by Mark V. Tushnet, New York Law Journal (September 30, 1997)
 
Democracy, the Press, and National Security, Yeshiva Review, Fall 1996
 
An Excerpt from The Day the Presses Stopped, Cardozo Life, Spring 1996
 
Pentagon Papers, Twenty Years Later, New York Times, Op Ed page (June 30, 1991)
 
Review of The Wars of Watergate: The Last Crisis of Richard Nixon by Stanley Kutler, The Nation (August 6, 1990)
 
Watchdogs   A Report to the Fund for the City of New York (1984)
 
Review of Criminal Violence, Criminal Justice, by C. Silberman, National Law Journal (March 26, 1979)
 
On East 67th Street, An Injunction Against the World, New York Times, Op Ed page (November 25, 1978)
 
Press v. Bench: Closure is Worse than a Gag, The Nation (July 8 15, 1978) pp. 41 43
 
Review of Love and Evil: From a Probation Officer's Casebook, by Sakall & Harrington, Juris Doctor (1975)
 
Parole in a Legal Perspective, Fortune News (1975)
 
Review of Crazy Rhythm: My Journey from Brooklyn, Jazz, and Wall Street, to Nixon's White House, Watergate and Beyond, by Leonard Garment, New York Law Journal (May 23, 1997)

 

SELECTED SPEECHES, LECTURES & TESTIMONY

 Panel, Snowden: Traitor or Hero? (January 2014)
 
Panel, The Press and National Security: The Pentagon Papers, WikiLeaks & Snowden (Fall 2013)
 
Panel, The ACLU in American Life (April 2012, Cardozo School of Law)
 
Panel, WikiLeaks and the Pentagaon Papers Case (April 2011, Cardozo School of Law)
 
Panel, Courts and National Security (October 2010, Princeton University)
 
Speech, The Canary and the Hawk: The Utility of Hate Speech, Conference, The Impact of Global Terrorism on Society, Madrid, Spain (September 6-7, 2007)
 
Speech, Two Frames of Mind: A Brief Historical Perspective on the Federal Courts During an Age of National Security, conference, Secret Evidence and the Courts in the Age of National Security, Cardozo School of Law (December 5 6, 2006)
 
Panelist, The Pentagon Papers Cases: Did the Courts Get it Right?, The Historical Society of the District of Columbia Circuit, Washington, D.C. (November 30, 2006)
 
Speech, Constitutional Day, Cardozo School of Law (September 18, 2006)
 
Introductory speech, Fundamentalism and Freedom of Thought, conference Fundamentalism and the Rule of Law, Cardozo School of Law (March 14, 2006)
 
Panelist, The Pentagon Papers Case? 35 Years Later: How Would the Court Decide Today?, 11th Annual Conference of the ABA Forum on Communications Law, La Quinta, CA  (January 12-14, 2006)
 
Member, Round Table Conversation, Terrorism, Globalism and the Rule of Law, International Meeting at the Bellagio Study and Conference Center under a grant by the Rockefeller Foundation, Bellagio, Italy (July 18 22, 2005)
 
Keynote address, Breaking the Tradition: The Case for the 640 Detainees in Guantanamo. Conference, Guantanamo Bay and the Judicial Treatment of Aliens Fort Wayne, IN (December 10 11, 2004)
 
Symposium Introduction, Weapons of Mass Destruction, National Security, and a Free Press: Seminal Issues as Viewed through the Lens of the Progressive Case, Cardozo School of Law, New York, N.Y. (March 2, 2004)
 
Annual Helen Buchanan Seeger Lecture (Myth and Illusion Surrounding Lord Elgin's Taking of the Parthenon Sculptures),   Sponsored by the Center for Hellenic Studies, Princeton University, (April 26, 2001)
 
Lecture at the Princeton University Museum, Lord Elgin and the Parthenon Marbles (April 2001)
 
Comment on Professor Christopher Eisgruber's paper, Civic Virtue, Princeton University (April 2001)

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            Lecture: Four Law Schools in England (Leicester, De Montfort, Birmingham, Nottingham): The U.S. Supreme Court in a Constitutional Democracy (February 2001)

 
 
  Princeton University, Law and Public Affairs Seminar, Princeton University, "The Legality of Lord Elgin's Taking of the Parthenon Marbles" (October 2000)
 
Athens, Greece, Presented "Grand Illusion, The Legality of Lord Elgin's Taking" at a conference sponsored by UNESCO and the Greek Ministry of Culture (May 2000)
 
Conference Chair, Public Institutions, Public Collections, Public Ethics, A Roundtable Discussion with representatives of major museums, dealers, collectors, and art source nations (May 2000)
 
Conference Co Director: Reports on Art and Cultural Property Law Wars (April 2000)
 
Art and Censorship in Privately Owned Public Spaces, AALS Annual Meetings, January 1998
 
The Pentagon Papers Case, Barnes & Noble, June 1997
 
The Press and National Security, The Carnegie Council on Ethics and International Affairs. December 1996
 
The Pentagon Papers Case, The Kennedy School, Harvard University, October 1996
 
Prior Restraints, A Panel Discussion, Association of the Bar of the City of New York, June 1996
 
Democracy, the Press, and National Security, a public lecture at Central Eastern University, Budapest, Hungary, December 1995
 
Guest Lecturer, Free Speech and National Security, a U.S.A.I.D. funded seminar for Hungarian press and government officials, Cardozo Law School (November 1990)
 
Conference Director, Justice Scalia's Jurisprudence, Cardozo Law School Oct. 28 29, 1990
 
Guest Lecturer, Emerging Constitutionalism in Eastern Europe, Eötrös Lorand University, Budapest Hungary (July 1990)
 
Commentator, Law and Religion Conference, Cardozo Law School, Fall 1989
 
Cardozo Faculty Seminar:  Commentator on a paper on Extremist Speech (March 1987)
 
Association of the Bar of the City of New York (Threat of AIDS in Our Prisons) (March 1987)
 
Cardozo Law School: Free Speech Conference: Luncheon Address (Orthodoxy of a Generation: The Pentagon Papers Case) (February 1987)
 
Law and Society Meetings (Chicago, 1986) (Judicially Ordered Social Reform)
 
Legislative testimony given before numerous New York State Assembly and Senate Committees, the New York State Commission of Correction, the Connecticut Legislative Task Force on Criminal Sentencing, and Governor Carey's Select Committee on Criminal Sentencing (1974–1979)

 

THE DAY THE PRESSES STOPPED

This bold account provides an original perspective on one of the most significant legal struggles in American history: the Nixon administration's efforts to prohibit the New York Times and the Washington Post from publishing the 7,000-page, top-secret Pentagon Papers, which traced U.S. involvement in Vietnam. In his gripping account of this highly charged case, Rudenstine examines new evidence, raises difficult questions, and challenges conventional views of a historic moment. (University of California Press)
Awards
 Pulitzer Prize nominee
 
Robert F. Kennedy Annual Book Award nominee
 
Selected as one of the “Best Books” of 1996, Publishers Weekly
Critical Feedback
 “Rudenstine writes well . . . this potentially dry, true-life story is told with more panache than a John Grisham novel. By the time readers reach the U.S. Supreme Court, they are hooked by the drama. This is not the first book about the landmark legal case, but it is the best.” —Publishers Weekly, April 29, 1996
 
 “[A] very readable political narrative with scholarly analysis of the landmark case . . . Nothing less than the definitive account of the Pentagon Papers case.” —Kirkus Reviews, April 15, 1996
 
“Professor Rudenstine describes (with narrative skill, and legal and political insight) the exciting — and often incredible — events, in the White House, in the newspaper offices, and in court.” —The London Times, August 13, 1996
 
 “[Rudenstine] has not only mustered a fine survey of the legal, political and social effects of the publication of the papers, he has managed to turn what could have been a dry analysis into a vivid and suspenseful thriller.” —San Francisco Chronicle, July 7, 1996
 
 “[T]his book is a rare combination, painstakingly scholarly and also a page-turner.” —The Washington Post, August 4, 1996
 
 “Rudenstine combines excellent writing with new information to create the best book on the subject.” —Publishers Weekly, November 4, 1996 (Best Books of 1996)
 
 “The Day the Presses Stopped is a carefully wrought, thoroughly researched, literate and exciting book . . . .” —The Nation, March 27, 1997
 
 “[T]he most comprehensive account to date of the Pentagon Papers case.” —History: Review of New Books, Fall 1996
 
 “. . . rigorous and engrossing, a rich, textured, balanced, and clear-headed recounting of one of the most important First Amendment cases of our time.” —Columbia Journalism Review, July/August 1996
 
 “[S]uperbly researched and compellingly written . . . .” —Boston Globe, July 14, 1996
 
 “Having conducted dozens of interviews with leading actors in the drama . . . Rudenstine steps beyond pure legal analysis, vividly reconstructing day to day tensions.” —The Philadelphia Inquirer, June 13, 1996
 
 “To say the book reads well is not to say it is light. Rudenstine’s interest is legal as much as it is historical. Every argument, every submission, every opinion, is dissected and analyzed for its legal coherence, its strength and its impact.” —New York Law Journal, July 26, 1996
 
 “What makes Rudenstine’s work the best single study to date of the Pentagon Papers is his ability to tell these stories and tell them well (parts of the book read like a good novel), and to weave them together with a clear and full analysis of the legal aspects of the case.” —Lexington Herald-Leader, June 9, 1996
 
  “Among his interesting insights are his descriptions of the shortcomings of the various lawyers and judges in the case. Rudenstine catches Chief Justice Warren Burger inappropriately scolding the Washington Post for coming into court without ‘clean hands’ because it had published stolen government documents. As every first-year law student knows, this doctrine applies only to the party seeking the injunction . . . .” —Philadelphia Inquirer, June 16, 1996

 

PROFESSIONAL AFFILIATIONS & APPOINTMENTS

 

 Member, Advisory Council on the Attorney Emeritus Program established by Chief Judge Jonathan Lippman (2010 to present)
 
 Member, Board of Advocates, Human Rights First (2010 to present)
 
 Trustee, Wooster School, Danbury, CT (1990–2004)
 
 Association of the Bar of the City of New York: Chair, Labor and Employment Law Committee (1993 1996); Member, AIDS and Prisons Subcommittee (1987-1989); Member, Correction Committee (1986-1989); Member, Committee on Lectures ((1979-1980)
 
 Administrator, Screening Panel of the New York County Democratic Committee for Civil Court vacancies (1985)
 
 Member, Board of Directors, Citizens’ Inquiry on Parole and Criminal Justice, Inc. (1974-83)
 
Correctional Association of New York: Board of Directors (1976-1988); Chairman, Project Committee, report on “The Prison Population Explosion in New York State: A Study of its Causes and Consequences with Recommendations for Change” (1982); Member, Joint Committee for the Criminal Justice Costs Project, “The Price of Punishment: Public Spending for Corrections in New York” (Westview 1980)    
        
American Civil Liberties Union: Member, Free Speech Committee (1987-1989); Member, Due Process Committee (1979-1982)

 

HONORS, AWARDS & FELLOWSHIPS

 

 Honorary Degree: St. Francis College, Degree of Doctor of Laws, 2002
 
Awards: Best Teacher (2002); Best Administrator (2002): Monrad G. Paulsen Award, for Contributions to the Law School (1997 & 2009)
 
Fellowships Law and Public Affairs Program, Woodrow Wilson School, Princeton University (2000 2001)
 
National Endowment of the Humanities Fellowship (Summer 1981): Seminar: Philosophical Underpinnings of Constitutional Law
 
Guggenheim Visiting Fellow, Yale Law School (Fall 1978)

 

 

 

 

Contact Information

212.790.0847

Cardozo School of Law
55 Fifth Avenue, Room 926
New York, NY 10003

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