Yale Law Report Online

Yale Law Report Online is an interactive addendum to the Yale Law Report, published quarterly under the auspices of the Office of the Dean of Yale Law School.
Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms—a book by Professors Judith Resnik and Dennis Curtis ’66

As part of the Yale Law Library Series in Legal History, Yale University Press has recently published Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms by Yale Law School Professors Judith Resnik and Dennis Curtis ’66. The central question of Curtis and Resnik's book is the relationship between courts and democracy. The authors explore the evolution of adjudication into its modern form by mapping the remarkable run of the political icon of Justice and by tracing the development of public spaces dedicated to justice: courthouses.

Resnik and Curtis analyze how Renaissance “rites” of judgment turned into democratic “rights,” requiring governments to protect judicial independence and to provide open and public hearings. Courts developed, alongside the press and the postal services, as mechanisms for building the public sphere and for calling government to account. During the twentieth century, all persons gained access to and rights of fair treatment in courts – which can be seen not only through legal provisions but also by looking at the building of national, regional, and international courthouses around the world.

With more than 220 images, readers can see both the longevity of aspirations for the Virtue Justice and the invention of courts. Reproductions span the centuries from the scales of the Egyptian Maat through St. Michael’s scales and sword to contemporary courthouse architecture sometimes adorned with a Justice. The authors trace that iconographical lineage from Ambrogio Lorenzetti, Raphael, and Peter Paul Rubens to modern variations as well as the innovations of Ellsworth Kelly, Jenny Holzer, and Tom Otterness in the United States and of José Clemente Orozco and Rafael Cauduro in Mexico.

Today, however, private processes are replacing public ones, as public and private sectors promote settlement, devolve decision-making to agencies, and outsource judgments to arbitrators and mediators. Often clad in glass to mark justice’s transparency, new courthouse designs celebrate adjudication without reflecting on the problems of access, injustice, opacity, and the complexity of rendering impartial judgments. Thus, while venerable, courts are also vulnerable institutions that ought (like the post and the press) not be taken for granted. The argument is that the movement away from public adjudication is a problem for democracies because adjudication has important contributions to make to democracy.

In the spring of 2011 and in conjunction with Yale University Art Gallery, Professors Resnik and Curtis will teach a class, Representing Justice: Courts, Democracy, and Contestation. Materials from the Yale Art Gallery will be displayed in its study galleries. In fall 2011, students from that class will, working with Yale’s Rare Book Room Librarian Mike Widener, guest-curate a display for that collection.

More images from and information about Representing Justice:

Visit the Lillian Goldman Law Library where you can find  images from the book, depictions of Justitia from the Rare Book Collection, articles about the book, and a full course description.

Watch a slideshow featuring some of the related images of justice on display at the Yale Art Gallery.

From Fool’s Blindfold to the Veil of Ignorance,” Yale Law Report, Winter 2011.

That Lady With the Scales Poses for Her Portraits,” by Randy Kennedy, The New York Times, December 15, 2010.
Alumni Weekend 2009 — The Regulatory Debate: Whether, What, and How?

 

Alumni Weekend 2009 saw the return of more than 1,000 alumni and their guests to Yale Law School for a reunion that was both social and substantive. At the heart of the weekend’s schedule were panels on the regulatory system. The theme for the Weekend, “The Regulatory Debate: Whether, What, and How?,” prompted discussions about courts and regulation, the regulatory process, and regulation in health care, the economy, and the environment. In addition to reunion lunches and dinners, alumni packed the seats of Woolsey Hall to hear a Q&A with Supreme Court Justice Sonia Sotomayor ’79. Former Dean Harold Hongju Koh (who is now serving as State Department Legal Adviser) was honored with the Yale Law School Association Award of Merit. Tribute was also paid to the late Professor Thomas I. Emerson ’31. And alumni had a chance to meet and ask questions of Dean Robert Post ’77 in settings formal and informal as he visited with graduates and their guests during his first Alumni Weekend as Dean of Yale Law School.

 

Alumni Weekend 2009 included several panels devoted to the regulatory debate. The quotes below give a peek into some of those discussions. Videos and photo galleries from Alumni Weekend are available at www.law.yale.edu/alumniweekend09.

 

 

The Honorable Brett M. Kavanaugh ’90 

U.S. Court of Appeals for the D.C. Circuit

from the panel “Do Courts Play a Productive Role in the Regulatory Process?”
 

“With respect to judicial review of agency interpretation of statutes—I think we are doing a fairly good job there. Courts are playing a productive role in enforcing the limits that are set by Congress with respect to agency action. Not always—but I think we’re generally keeping the agencies within the bounds set by Congress… Statutory text really matters ... If you sat for a week in the D.C. Circuit—and heard panel after panel, case after case…you would hear judges from all across the so-called ‘philosophical spectrum’ saying, ‘But what does the statute say? But what do the words of the law say?’… I think we’re doing a good job of making sure that when Congress passes a statute… that agencies aren’t able to free form their way out of it.”

 

 

 Dr. Ellen Wright Clayton ’79

Rosalind E. Franklin Professor of Genetics and Health Policy, Professor of Pediatrics, Professor of Law, Vanderbilt University

from the panel “Health Regulations in Transition”

 

“…this is just a microcosm of the larger issue that we face in medicine today. We have a lot of new technology coming online. There is a lot of enthusiasm about it...If we are actually to pay attention to things like clinical utility and whether things are actually effective, to say nothing of comparatively effective, then we are going to have to get a lot more serious about regulating access to this than we have been to date. That’s where I would leave our discussion of regulating clinical genomics. We are going to be flooded by information that we don’t know how to use and that our clinicians are not going to be able to tell us how to use. The FDA really needs to step up to bat and play a role in this area.”

 

 

 

 

Reed Hundt ’74

Senior Adviser, McKinsey & Company

from the panel “The Regulatory Process: Problems—Potential Solutions”

 

“The experience that I’ve had of regulation—as a regulator and as a litigator about a regulator and being in businesses that have been regulated—my experience is that, to a very large degree, regulation actually isn’t part of a meaningful pattern of cause and effect in society... And secondly, where there are exceptions to that, the effects that it generates are not those that are intended by the people who are the parties to shaping the regulations. As a professor at the Harvard Business School wrote in a slightly different context, the problem with regulation is that when you push button A you end up ringing bell B and you cause effect C. Why is this the case? One reason is the tremendous delay between the concept of what is going to be accomplished by the regulation, and then the ultimate impact of the regulation. There is no question in my mind… that the [courts] contribute monumentally to the delay, and therefore there is no question that they contribute to this tremendous gap between that what is intended and that which occurs.”

 

 

 

E. Donald Elliott ’74

Professor (adjunct) of Law, Yale Law School, and Partner, Willkie Farr & Gallagher

from the panel “Does Clean and Green Require Mean? New Directions in Energy and Environmental Regulation”

 

“The regulatory approaches— including cap and trade—that are on the table, even if they were enacted, are too weak to deal with the problem…If you build an integrated gasification and combined cycle plant with carbon capture and storage, it won’t run under today’s regulatory system because it will be more expensive than the competing plants, even with the cap and trade program. ...Most of the people who are working on climate change legislation recognize that it’s just a down payment ....”

 

 

 

 

 

Eugene A. Ludwig ’73

Founder & CEO, Promontory Financial Group

from the panel “The Global Financial Crisis and the Future of Financial Regulation”

 

“The economic crisis we’re living through is an indictment, it seems to me, of our financial regulatory system… What the financial crisis is not about is an industry or regulatory mechanism of knaves or fools. On the contrary, our regulatory agencies and financial services companies have been filled with decent people of talent. Nor is it about too little regulation. We have as many tough rules in the United States in terms of finance as anywhere in the world. Nor is it the case that these crises just happen, or that every country is affected… These crises have not been the result of a bad actor or a bad financial firm…rather we have a governmental system that fails to identify and deal with financial problems early and cannot supervise institutions correctly by reason of an alphabet soup of a regulatory structure that is a product of history, not deliberation.”

 

 

View photos and videos of Alumni Weekend 2009.

This article is also available as a pdf.

 

photographs by William K. Sacco, Yale University Media Services

Posted: Jan 19 2010, 01:03 PM by YLR Editor
Filed under:
Studying Corporate Law in an Uncertain Time

 

Yale Law School’s Center for the Study of Corporate Law Marks Its 10th Anniversary With a Full Agenda

As the financial markets tumbled and businesses across the country filed for bankruptcy, Yale Law School’s Center for the Study of Corporate Law was busier than ever this past year, hosting events to assemble some of the nation’s top corporate leaders, academicians, and financial experts to help make sense of the global financial crisis.

Yale Law School has had a long history of scholarship in corporate law, beginning in the 1800s with Simeon E. Baldwin who taught Constitutional and Mercantile Law and Corporations and Wills at Yale Law School from 1869–1919. But it wasn’t until 1999 that corporate law’s place at the Law School was formalized with the establishment of the Center for the Study of Corporate Law. As best can be determined, the Yale Center was the first corporate law center established in the United States, although such centers are now ubiquitous in American law schools.

The Center was inspired by conversations between then Dean Anthony T. Kronman ’75 and Robert Todd Lang ’47. “Every year, Yale Law School has many programs that address questions of public law, as befits a school with as strong a tradition as ours in this field,” said Kronman. “But many of our graduates work in the area of private law, and in that of corporate law in particular, and the contribution they make to this field is a large one. The same is true, of course, of the corporate law scholars on our faculty.”

“I wanted to create a program that would give the practically important and intellectually fascinating challenges of corporate law a larger place in the day-to-day life of the Law School,” Kronman explained. “My friend Todd Lang agreed, and in a series of exciting conversations, we began together to sketch the outlines of such a program. The result was the creation of the Center for the Study of Corporate Law, now in its tenth year.

“The Center has gone from strength to strength, and is today a vital part of the intellectual life of the School. Todd’s generosity, deep wisdom about corporate law, and uncanny good sense about what would work and what wouldn’t, were essential to the establishment of the Center and its subsequent flourishing.”

Today, under the leadership of Oscar M. Ruebhausen Professor of Law Roberta Romano ’80, the Center continues its original mission of increasing students’ exposure to and engagement with business law with a greatly expanded set of programs. The Center’s focus of study includes corporate law and the law of other nongovernmental organizations; the regulation of financial markets and intermediaries; the legal framework of finance, including the law of bankruptcy, corporate reorganization, and secured transactions; and antitrust law and the law of regulated industries. Center programs consist of lectures, roundtables, a workshop in law and finance, a colloquium series, an alumni breakfast program, panels and symposia, in which academics, government officials, and members of the bar and business community participate.

“The increasing specialization and technical sophistication in business law practice and academic scholarship has increased the importance of Corporate Law Centers, which are terrific mechanisms for keeping students and faculty connected with new developments in scholarship, business law, and business,” Romano said. “They intermediate between the profession and the school. This has made for a much livelier intellectual community in the Law School.”

The past two years have been the Center’s busiest. During the 2008–2009 academic year the Center continued with initiatives begun the year before —including career panels for students (cosponsored by the Career Development Center and the Yale Law and Business Society, a student organization), an expanded alumni breakfast program, and the Bert W. Wasserman Workshop in Law and Finance.

This year’s newest lecture series, “Industry Perspectives on the Global Financial Crisis,” brought leaders from the financial services industry to YLS to discuss the changing landscape of financial market regulation. In informal, off-the-record talks, leaders hailing from financial giants Bank of America, BlackRock and Morgan Stanley, among others, shared their thoughts on the mortgage crisis, the financial markets, and the future of corporate law.

“The ‘Industry Perspectives’ lectures have been fantastic because they’ve given everyone in the corporate law community at Yale—including students—some insight into the economic crisis,” said Caitlin Hall ’09. “It’s fascinating (and phenomenally reassuring) to have direct access to the people who have been running these financial institutions for the past decade, and also to get a lot of different takes—corporate lawyers’, investment bankers’, hedge fund managers’— on what’s happened in the last year and a half.”

In February, more than 130 YLS alumni, students, and faculty from throughout the country attended the Center’s Weil, Gotshal & Manges Roundtable on the Future of Financial Regulation, which was co-sponsored with the Yale Journal on Regulation. Panelists and audience participants explored the origins and causes of the crisis, historical comparisons, and possible plans for reforming the regulation of financial institutions and subprime mortgage contracts.

Many of the presentations will be published in the Journals summer issue.

In a move to encourage students interested in corporate law to earn both MBA and JD degrees, the Law School and School of Management have collaborated to create an accelerated joint degree program. During the 2009–2010 academic year, the schools will officially begin a JD-MBA program that will allow students to earn both degrees in three years without taking summer courses. Y

YLS and SOM to Offer Accelerated JD –MBA Program

In March, Yale Law School and the Yale School of Management (SOM) announced the creation of an Accelerated Integrated JD-MBA program that will enable students to earn both degrees in three years.

Geared to students interested in business law-related practice, entrepreneurs, or managers in business and nonprofit organizations, the new combined program in law and business is unique in that it offers the two degrees in three academic years (six semesters), without the need for summer classes. It is designed primarily for students interested in business law but will be useful in a variety of settings involving business and management.

“The program will prepare students for the increasingly complex intersection of business and law,” said Yale Law School Dean Harold Hongju Koh in March. “Students will master analytical and quantitative skills that will be of value for a business law-related practice but also more broadly for careers as entrepreneurs and managers in business and nonprofit organizations.”

Students in the Accelerated Integrated JD-MBA program will be fully immersed in the required curriculum and community life at each school and will graduate with their entering class at both the Law School and SOM. During the two summers, students are free to gain valuable experience in law or business-related positions.

Students can apply to enter the Accelerated Integrated JD-MBA program during their first year of Law School or when applying for admission to both schools. After spending the first year at the Law School, the second year will be spent at SOM, and the third year at the Law School.

Yale School of Management Dean Sharon M. Oster commented, “We are excited to be partnering with Yale Law School to provide this accelerated JD-MBA program. Both schools have a strong reputation for developing leaders for business and society, and this program allows us to draw more efficiently on the unique strengths of each institution to continue to train such leaders.”

Yale Law School and the School of Management will continue to offer the existing four-year joint degree program as an option. The accelerated program will initially be offered for a provisional term of two years, after which both schools will jointly assess the program’s success factors and future course.

For more on the program, visit www.law.yale.edu/JDMBAoverview

The Weil, Gotshal & Manges Roundtable on Corporate Law and Governance was held on February 13, 2009. The daylong event focused on the future of financial regulation. Panelists evaluated the causes of the evolving subprime mortgage crisis, following credit crunch, and financial panic of 2007 –08; the government reaction to the crisis; and proposed solutions, including reform of the regulatory architecture for financial institutions.

Session 1
Crisis Origins and Historical Comparisons
Charles Calomiris, Henry Kaufman Professor of Financial Institutions, Columbia Business School

"The banks themselves had, I think, an internal buy-side agency problem. The people making those decisions were not acting in the interests of their own stockholders. Second, the insurance companies, pension funds, mutual funds, the regulated buy-side institutional investors, had a somewhat different, but related buy-side agency problem. And the point is, all of these people had a strong incentive to pretend that the risk was much lower than they knew it was. I’m arguing that ... part of the story that’s quite interesting and new is that this was done on purpose, in a sense.”


Session 2
Causes of the Crisis: Conflicts, Compensation and Reputation
Edward J. Kane, James F. Cleary Professor of Finance, Boston College

"If we’re going to fix things properly, we have to understand the fundamental cause of crisis mismanagement traces to the way the safety-net subsidies are produced and delivered. The pursuit of these subsidies is what made securitization become incentive-compatible. Bad deals went forward because regulators and investors had blind trust in the reputational bonding of key firms despite compensation schemes at these firms that communicated gypsy ethics to their employees. The gypsy ethic entails never giving a sucker an even break. Outsiders closed their eyes to the predictable consequences of volume-based compensation schemes. People were paid the same for originating bad deals as they were for originating good ones. This reinforced the shortcutting of due diligence and the outsourcing of due diligence in markets for synthetic credit transfers. Bad incentives passed up and down the line. As long as some sucker stood ready to pay good money for garbage, why should anyone throw garbage away?”

Session 3
Reforming Financial Institution Regulation
Richard J. Herring, Jacob Safra Professor of International Banking, Professor of Finance & Co-Director, Wharton Financial Institutions Center, Wharton School, University of Pennsylvania

"Secretary Geithner seems determined to avoid nationalizing banks, but the determination to socialize losses while privatizing profits is not sustainable. It’s only going to lead to greater moral hazard and more banks that are too big, too complex and too interconnected to fail. Without a coherent resolution policy, inevitably more and more reliance will be placed on regulatory discipline, which has proven to be wholly inadequate to the challenge. We need to supplement regulatory discipline with market discipline and improve our techniques of resolving financial institutions so that no financial institution is too big to resolve without tolerable spillovers.”


Session 4
Reforming Subprime Mortgages
Susan P. Koniak ’78, Professor of Law, Boston University School of Law

"But why are so many homes being foreclosed upon when lenders can expect so little in recovery on a foreclosed home? When someone gets thrown out of their house, the value that’s recovered in foreclosure is 25 percent of the original loan, if the lender or lenders are lucky. Why is that? Well, that’s pretty easy to explain. It takes about 18 months to get someone out of their house. That’s lost revenue. Then there are back taxes. Then there are payments to realtors. Empty houses get stripped and trashed while they’re waiting to be resold in our now glutted housing market, which further diminishes their worth. So, for all those reasons lenders are lucky to get 25 percent at foreclosure. So, what would a reasonable lender do to avoid that paltry return and maximize his return? A reasonable lender would modify the mortgage whenever modification would bring in more than what could reasonably be expected upon foreclosure. This is not rocket science. But this rational response is not happening. The question is, why?”


Reading materials discussed during the Roundtable, videos of the panels, and a transcript of the proceedings are available at www.law.yale.edu/cbl/roundtables.htm.

Honoring Key Figures … and Celebrating Forty Years of Clinical Legal Education

   

 

In March, Yale Law School, with support from the Oscar M. Ruebhausen Fund, hosted the twelfth annual Arthur Liman Public Interest Colloquium. The Colloquium analyzed the development of clinical education in the United States and globally, and considered its impact and contemporary challenges. The event, “Forty Years of Clinical Education at Yale: Generating Rights, Remedies, and Legal Services,” marked the 40th anniversary of the founding of Yale Law School’s clinical program and honored the contributions of clinical professors Dennis Curtis ’66, Frank Dineen ’61, Carroll Lucht, and Stephen Wizner. Clinical Professor Emeritus Daniel Freed ’51, who was Yale’s first clinical professor, was also recognized.

For videos and photos of the Colloquium, visit www.law.yale.edu/liman.

 

 
LSO Today: An Update on Clinical Education at YLS

 

Today eighty percent of YLS students take advantage of clinical offerings at some point during their time at Yale, working beside faculty members and supervising attorneys on real cases. YLS now has a robust clinical program, with students working in more than twenty distinct clinics that marry theory with practice.

Many of the clinical courses at Yale Law School fall under the umbrella of The Jerome N. Frank Legal Services Organization (LSO). With more than fifteen separate clinics, LSO offers students a range of clinical experience while providing legal representation to individuals and organizations unable to afford private attorneys. Unlike many other law schools, Yale Law School students can engage in clinic activities after the first term.

The following update about LSO clinic activities is excerpted from a letter by Director of Clinical Studies Bob Solomon. The update refers to work undertaken in 2008.

Jean Koh Peters continues to teach The Sol and Lillian Goldman Family Advocacy for Children and Youth Clinic, whose students this semester appeared in the Superior Court for Juvenile Matters in New Haven, Torrington and the Child Protective Session in Middletown. Domestic violence issues have factored prominently in our caseload over the past semesters, and we continue to struggle with the eternal dilemmas of expanding protection for victims while safeguarding family privacy against harmful intrusion. Our recent cases have led us into school discipline proceedings, emancipation, and the Interstate Compact on the Placement of Children. We also continue to experience the tensions between the Adoption and Safe Families Act timelines for filing termination of parental rights petitions within fifteen months of placement and the needs of parents recovering from drug use. We are also actively grappling with Connecticut’s case developments, including some expansion in the notion of “predictive neglect,” which appears to us to be providing a lower threshold for neglect filings. We have been representing more teenage clients and many infant clients, in the dual capacity of lawyer and guardian ad litem.

The Immigration Legal Services clinic continues strong, with Jean, Steve Wizner and Carroll Lucht supervising over two dozen indefatigable students continuing to represent clients from Africa, the Middle East, Central America, South America and Europe in asylum and post-asylum work. We are most active in the New Jersey Asylum Office and the Hartford Immigration Court, but have cases also currently pending in the Boston and New York Immigration Court, the Board of Immigration Appeals and the Second Circuit Court of Appeals as well. Our clients continue to astound us with their experiences, their resilience, their trust in us, and their strength amid adversity, both in their home country and in the immigration bureaucracy here. We are still actively collaborating with Howard Zonana, Madelon Baranoski, and their forensic fellows on many of our cases. Recently, our caseload has included a number of gender-related cases, including those involving domestic violence and female genital cutting, as well as children’s asylum claims.

Steve and Carroll are continuing their outreach to Fair Haven, but within the framework of a new clinic. The Legal Services for Immigrant Communities clinic began in Spring 2008, in an effort to expand direct legal services to the immigrant communities of New Haven. For many years, LSO has partnered with Junta, a Latino social services agency in Fair Haven, to conduct outreach and provide legal advice and assistance to their clients. In the spring, we also began to reach out to clients of IRIS (Integrated Refugee and Immigrant Services), which serves the refugee community of New Haven. In the past year, we have helped many clients bring small claims court cases to recover security deposits and unpaid wages; we have advocated for clients seeking legalization through USCIS and for those who have had removal proceedings initiated against them; we have helped clients find subsidized housing and apply for public benefits. One of our most exciting cases began when we walked into Junta and were immediately greeted by 15 women who had not been paid for their work as homecare workers and companions. We have filed suit against their employer in federal and state court and are currently awaiting judgment. We hope to have more exciting news in our second year as a clinic!

Brett Dignam and her students continue to represent clients in two clinics: Students who represent prisoners in Prison Legal Services focus on state cases and students in Complex Federal Litigation focus on federal work. After a decade of representation by at least eleven students, two rounds of state habeas, one Connecticut Supreme Court decision establishing the legal principle but refusing to grant retroactive relief to our client, a resident of Connecticut Valley Hospital was ordered released on a federal writ of habeas corpus finding that his plea of Not Guilty by Reason of Insanity was not entered knowingly and voluntarily. Another team achieved a $400,000 settlement for a Danbury inmate, whose acute glaucoma was not properly monitored or treated, that enabled her to purchase a home and begin a new life. Other students are leading an ABA project to study and develop solutions for the myriad challenges faced by women in the criminal justice system who suffer from mental illness.

After many years of advocacy and hard work by students dedicated to addressing legal issues faced by survivors of domestic violence, the Domestic Violence Clinic was finally introduced by LSO in spring 2008. Bob Solomon and Cover Fellow Camille Carey have developed a curriculum focused on holistic representation of clients, informed by feminist and critical race legal theories. Currently there are 16 students in the clinic, and they represent clients in family matters, immigration applications for DV-based relief such as the U visa and VAWA self-petitions, public benefits advocacy, housing matters, and a variety of other civil cases. In addition, students have continued to engage with the New Haven community through outreach at the Coordinating Council for Children in Crisis and JUNTA, community education presentations on topics such as pro se divorce and dating violence, and community investigation into areas of law enforcement, criminal courts, and public benefits.

Bob and Robin Golden and the students in the Education Adequacy Project are representing a broad-based coalition and individual clients who are challenging Connecticut’s school financing system on state constitutional grounds. Last April, two clinic students argued the claim before the state Supreme Court. They did a spectacular job, before a packed courtroom. You can watch the argument on the Connecticut Public Television web site. Meanwhile, we are anxiously awaiting a decision.

Bob and Robin also stayed busy in Community and Economic Development, formerly known as Housing and Community Development, nee the Workshop on Shelter for the Homeless. Newly combined with the Community Development Financial Institutions (CDFI) clinic with Sameera Fazili and Chuck Muckenfuss, the clinic currently engages 38 students from the law school and the School of Management, Divinity School and Forestry School. CED and CDFI joined forces this year to tackle mortgage foreclosure in New Haven, where Robin and Sameera supervised students working with a coalition of nonprofits and the City. This collaborative effort—called The ROOF Project—has the students lobbying for new state legislation to help homeowners get loan modifications and creating a real estate development nonprofit to combat the blight that will ensue post foreclosure in New Haven’s most vulnerable neighborhoods. Meanwhile, Bob is working with a team of students in mortgage foreclosure litigation. Other students represented an African-American church which built elderly housing, a community development corporation refinancing a shopping center, a community coalition reviving a home bequeathed in 1866 by an African-American woman to house elderly women, and a farmer’s market. The Small Business Legal Services group within CED-CDFI is busier than ever with such varied clients as a local fishery, daycare provider, web-based start up businesses and a workers’ cooperative. Research and advocacy projects have taken students into new areas such as the development of innovative products to provide access to New Haven’s unbanked, model smart growth zoning, and progressive federal legislation to expand fresh fruits and vegetables in public schools. We continue to represent First City Fund Corporation in its efforts to develop a community development bank. This effort started five years ago, when we represented the City of New Haven is its opposition to the demutualization of New Haven Savings Bank, which ultimately paid $25 million to establish FCFC. This semester, we finally filed our application for a state bank charter. (Yes, we are aware of our exquisite timing!)

In his 45th year as a legal services attorney, Frank Dineen continues to inspire students through the provision of legal services to the New Haven community. The Legal Assistance clinic brings students into contact with the diverse array of direct legal services that the New Haven Legal Assistance Association provides to the area’s indigent residents. The work of both the office and the clinic is always changing and expanding to meet the needs of the community, from fighting evictions in housing court hearings to appealing the denial of Medicaid or food stamps to appeals to the Connecticut Appellate Court in criminal cases.
 
Frank and Jay Pottenger continued their supervision of the Landlord/Tenant Clinic, representing tenants who are facing eviction from their homes in the New Haven area. Over the past two semesters our students have argued motions, handled mediation sessions, negotiated settlements and drafted numerous filings in the New Haven Housing Court. Given the current state of the housing market, the clinic has recently seen an increase in evictions resulting from foreclosures, and the clinic is currently working on three of these cases. Clinic students have also been involved in legislative advocacy work. This work has centered around a recently passed Connecticut law that increases protections for Connecticut tenants who are caught up in foreclosure proceedings.

Jay is continuing his work with the Legislative Advocacy Clinic, with the assistance of Shelly Geballe and state Representative Cam Staples. As you read this letter, you will notice that LSO has been in the center of New Haven’s response to mortgage foreclosures. The Legislative Advocacy Clinic played an important role, as students helped achieve passage of enhanced rights for tenants caught up in foreclosure proceedings at the November 2008 Special Session of the Connecticut Legislature, and signed into law just before Thanksgiving. The new legislation, among other provisions, requires banks (or other foreclosing owners) to pay departing tenants a minimum of $2,000.00 or double their security deposit, whichever is greater, as part of any “cash-for-keys” agreements. The Clinic is working with the Judiciary Committee to improve protections for victims of domestic violence by correcting abuses in the service of restraining orders as part of the upcoming Spring 2009 Legislative Session.  We are also coordinating with a statewide coalition of advocacy groups to develop and present progressive proposals -- particularly involving “revenue enhancement” – as a preferred approach to solving the State’s budget crisis.

Last year saw the introduction of the Health Law Partnership for Families (“HeLP”), an effort to team lawyers and clinic students with doctors to provide comprehensive and related medical and legal services to the pediatric patients and their families at the Hospital St. Raphael. HeLP provides direct assistance to children and their families to ensure they obtain safe housing, access to healthcare, and appropriate education services. HeLP advocates, who are stationed at the Pediatric Primary Care Clinic on a twice a week basis, are in direct contact with patients and their families as well as their medical providers. Students are stationed at the hospital weekly to meet with doctors and patients, and undertake representation of clients under NHLAA attorney supervision. Additionally, HeLP seeks to address root causes by educating medical staff on their patients’ legal rights and by advocating for policy change at the local, state, and national level. This year, HeLP is also focusing on the food insecurity of many pediatric patients, focusing on everything from food stamp applications to ensuring the availability of a healthy breakfast and lunch for children in New Haven’s public school system.

Under Mike Wishnie’s supervision, along with Ramzi Kassem, Chris Lasch, and Hope Metcalf, the Worker & Immigrant Rights Advocacy Clinic (WIRAC) has been busy this semester. The Fair Haven raids defense team argued and won the right to a hearing for their motion to suppress evidence unlawfully obtained during the ICE residential raids of 2008. As a result of this unprecedented ruling, all seventeen plaintiffs testified about how they were uniquely impacted by ICE’s illegal tactics. Thus far, student teams representing other individuals arrested in the New Haven area raids have been successful in challenging pre-existing orders of deportation. One team argued and won a motion to reopen an old removal order before the Second Circuit. Another team, also before the Second Circuit, won vacatur of a past deportation order, which enabled their client to pursue an asylum claim. WIRAC FOIA teams have been active this semester, and their vigor and tenacity have generated substantial documentary evidence to support cases on the docket, including claims for civil rights damages. In a particularly complicated criminal case, students devised a strategy for relief for a long-detained client by reviving a little-used writ, which could serve as a model for future litigation. Students are also handling three federal wage-and-hour cases on behalf of thirteen different clients, and a major civil rights suit arising from the illegal round-up of the “Danbury 11,” a group of day-laborers wrongfully arrested, as well as immigration appeals for the Danbury clients. On the non-litigation front, WIRAC students have pursued clients’ interests through legislative campaigns, public education, and media outreach. Advocacy with the Hartford Common Council has resulted in a resolution to raise the living wage for Hartford workers and a municipal ordinance that ensures confidentiality of immigration status for Hartford residents, which is the strongest legislation its kind in the nation. Through Know Your Rights presentations at two local immigration detention facilities, students have identified new clients and particular problems affecting immigration detainees.

It is extraordinary to think how far clinical education has come in forty years. It is very much a shared journey, from the earliest prison and mental health work to the many projects in which we are currently engaged.

 

Stemming the Spiral of Foreclosures

As the mortgage crisis deepens, legal assistance attorneys and Law School clinics fight to change big bank policy and Connecticut law

 

In a brick building on New Haven’s State Street, a small group of lawyers with a continually shrinking budget and staff have been working overtime, going head-to-head with banking giants in an attempt to keep New Haven county residents in homes that have been foreclosed on. It reads like a modern day David vs. Goliath story. An underfunded but feisty group of attorneys, students, and tenants have taken on some of the biggest names in banking. And they’re beginning to win.

The story began last year when the staff at New Haven Legal Assistance Association (NHLAA) — among them staff attorneys Amy Marx ’00 and Amy Eppler-Epstein ’86 — started seeing an increased number of renters facing eviction from foreclosed properties. In Connecticut, more than 2,000 families were evicted from foreclosed properties in the last two years. Hundreds of those houses were in New Haven, and many of the foreclosures have resulted in the eviction of tenants. Marx and Eppler-Epstein started meeting family after family faced with eviction: A single mother who just wanted to keep her kids in the same school for a few more months; an elderly couple who had lived in the same apartment for thirty years, treating it as their own home; a man with muscular dystrophy whose family had spent thousands of dollars retrofitting his apartment with ramps and handles and special devices that allow him to live independently.

“These people had paid their rent on time, they were good tenants, and now they were getting eviction notices — many without ever having known that the property had been foreclosed upon,” Eppler-Epstein explains. Many times the tenants were told they needed to move out of their apartments within fifteen days. Sometimes they were offered small sums — $500 or $1,000 — in cash-for-keys offers they were told would expire within twenty-four hours.

In her office, Eppler-Epstein points to a poster showing “before” and “after” photos of a four-family New Haven home foreclosed on in August 2007. Prior to foreclosure, the property was appraised at $160,000 for a 90–120 day sale. Within days of the property being foreclosed and the tenants evicted, it was vandalized and everything of value — from the copper piping to the aluminum siding — was stripped. The house eventually sold, seventeen months later, for $16,000.

With eviction come vacant properties, Eppler-Epstein explains, which often results in vandalism, which leads to plummeting property values in surrounding neighborhoods, which leads to more foreclosure — a spiraling effect of neighborhood depreciation and home foreclosures.

The question for NHLAA became what to do to enable renters to remain in their residences. “The great thing about legal assistance is that we can see this problem and its effects on individuals and try to help them,” Marx says, “but we can also stand back and do the bigger picture advocacy work.” Fannie Mae, Freddie Mac, and other privately held banks had policies of automatic and immediate eviction for any foreclosed property. Eppler-Epstein and Marx tried to intervene on behalf of their clients, pleading their stories without success.

The turning point came with the federal bailout legislation passed in October 2008. At the time, dozens of Fannie Mae and Freddie Mac evictions were pending in court, and legal aid attorneys were having a hard time finding a foothold to keep their clients in their apartments. Then an attorney at Greater Hartford Legal Aid found a sentence buried in the Economic Stabilization Act’s 400 pages, requiring that Fannie Mae and Freddie Mac “permit bona fide tenants who are current on their rent to remain in their homes under the terms of their lease.”

Marx wrote a letter to Fannie Mae, pointing out that the government- sponsored enterprise was in violation of the conditions of the bailout — and threatened to take legal action. Fannie Mae’s legal department quickly responded, halting all eviction proceedings in Connecticut and across the country.

“We found that they might not have been interested in the human stories,” Marx says, “but they were interested in the legal ramifications and the financial implications of what they were doing.”

Next NHLAA went after Freddie Mac — again, successfully.

While getting two of the mortgage giants to stop automatic eviction proceedings was a huge success, NHLAA wanted to do more. Of the 2.5 million homes in foreclosure nationwide this past spring, ten percent of those homes were backed by Fannie Mae or Freddie Mac mortgages, with the remaining ninety percent being held by private banks. That’s exactly where NHLAA set their sights next.

About the same time as NHLAA was beginning to recognize the extent of the impact of the mortgage foreclosure crisis on renters, students in the Law School’s Community and Economic Development Clinic (CED), under faculty supervision, helped launch the ROOF (Real Options, Overcoming Foreclosure) Project in New Haven. This response to the mortgage foreclosure crisis was planned and implemented by a collaborative group including the City of New Haven, the Greater New Haven Community Loan Fund, Neighborhood Housing Services, and the CED Clinic. ROOF’s focus for the first year was on helping homeowners avoid foreclosure through counseling and court-ordered mediation and, when foreclosure could not be prevented, planning for how to stabilize neighborhoods with high foreclosure rates.

After hearing about the enormous success that NHLAA had in getting Fannie and Freddie to change their eviction policies, a sub-group of CED students, together with other students in the Landlord-Tenant Clinic, saw an opportunity to collaborate with NHLAA to address the plight of renters.

Without the legal leverage of the bailout agreement, negotiations with the private banks — including Bank of America, Bank of New York, Citigroup, Deutsche Bank, HSBC, JP Morgan Chase, US Bank, and Wells Fargo — have taken a bit more persuasion. The clinic students and faculty helped with research and cowrote and co-signed (in collaboration with NHLAA) a demand letter to private banks.

They are getting results: Deutsche Bank helped set up an April meeting for all of their loan servicers with NHLAA, the Yale Law School clinics, and the Mayor of New Haven to address the treatment of tenants after foreclosure as well as a host of other related issues. The meeting made progress in getting other servicers to adopt similar policies to those being used by Fannie Mae, and the advocates hope to work with the servicers to negotiate solutions that can be a model for other areas of the country.

The clinic students and faculty also worked collaboratively with NHLAA to craft proposed legislation. In February, several Law School students, along with YLS Clinical Lecturers Robin Golden ’98 and Sameera Fazili ’06, joined Eppler-Epstein and Marx at the state Capitol to testify on behalf of a bill that would prohibit banks from evicting tenants after foreclosure without “good cause,” or without a sales contract requiring the building to be vacant as a condition of sale.

Clinic student director Suneela Jain ’10 was among the students who testified on behalf of the bill, stressing to lawmakers that the bill does nothing to empower bad tenants. “Part of what we’re trying to do in the clinic is develop a coherent framework for working through what’s best for New Haven,” Jain explains. “We operate as a clearinghouse to hear different points of view and try to help determine what’s best for the community as a whole.”

Clinic students have been approaching the crisis from different angles. Ben Rogers ’09 brought his experience working directly with tenants facing eviction, Sai Mohan ’11 contacted property managers and researched legislation in other jurisdictions, and Rogers and Matt Barabella ’10 have been looking at pooling and servicing agreements and the legal and economic constraints involved in the proposed bill.

Jain has been inspired by the commitment and determination of the community and is grateful to have had hands-on experience working in New Haven and with the legislative process. “My interests have always tended toward a focus on other places; what is needed to support a better quality of life at an international level. This project has been great because I’ve been able to work with people who are dedicated to improving their own spaces. It has made me think more about how I can pursue my goals by supporting the development of a community that I am proud of,” she explains.

“I didn’t want to come to New Haven and not spend any time having worked in the community in some way,” adds Mohan. “Working in the clinic has shown me parts of New Haven that I might not have experienced otherwise.”

In April, Golden and her students accompanied Marx and Eppler-Epstein to Hartford to advocate once again for the bill. The group met in the House Caucus room with the co-chair of the Housing Committee and the co-chair of the Banking Committee to work toward a shared understanding of the importance of the bill and how, if necessary, they could compromise with the banking industry.

“It was an experiential lesson for the students in how government works,” Golden said.

Meanwhile, as NHLAA has been fighting to keep clients in their homes, it is also fighting its own battle to stay afloat. In the past year, the organization (which draws much of its funding from the interest earned on IOLTA accounts) has lost more than a quarter of its budget and thirteen employees. The remaining staff members have taken a twenty-percent pay cut.

“Our project is full steam ahead, and our staffing is less than half of what it should be,” Marx says. “At this point, we’re just trying to keep our doors open.” Y

As the Law Report was going to press, an amendment was added to federal law, providing some important new protections for renters whose landlords have been foreclosed upon. “It is heartening to see that our advocacy, combined with the work of many other housing advocates around the country, has helped to get this issue of what happens to tenants after foreclosure onto the national political agenda,” Eppler-Epstein said.

This foreclosure work is just one example of how NHLAA and the law school have successfully joined forces to provide essential legal services to the New Haven community. Whether by YLS students interning in the office as part of Frank Dineen’s Legal Assistance Clinic or TRO Project students volunteering daily at the local courthouse, NHLAA’s program has been energized by the students’ presence while its ability to address the legal needs of local clients has been expanded. These collaborative efforts are also part of a much larger picture. Other YLS graduates are having an impact on legal services throughout Connecticut. For example, Mildred Doody ’85 is heading up NHLAA’s new Children and Youth Advocacy Project and Steve Eppler-Epstein ’83 is the Executive Director of Connecticut Legal Services; Rafie Podolsky ’72 of the Legal Assistance Resource Center of Connecticut, Inc. (LARCC) lobbies for the interests of low income state residents — including the tenants impacted by the very legislation described above.


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Commencement 2009

 

View a gallery of Commencement 2009 photos.

 “So we graduate together, you and I.”

Those were the first words Yale Law School Dean Harold Hongju Koh spoke during his commencement address to the class of 2009 on Memorial Day, May 25. It was a role reversal for Dean Koh, who, in his five years leading the school, was accustomed to bidding the graduating class good luck and Godspeed as they embarked on their journeys into an unknown future. Today, it would be farewell for Dean Koh, too, as he anticipated heading to Washington as Legal Adviser to the U.S. State Department.

Yale Law School Acting Dean Kate Stith opened the festivities shortly after noon, recognizing the “great effort and long hours” the families and friends of the 229 degree candidates and members of the Yale Law School family had sacrificed to make the day possible. In keeping with the holiday, she paid tribute to the veterans of the nation’s armed services and asked for a moment of silence in their honor.

Soon into the ceremony, Acting Dean Stith announced a surprise guest—Secretary of State Hillary Rodham Clinton ’73 —who entered to a standing ovation.

Secretary Clinton, who had earlier in the day received an honorary degree from Yale University, spoke for about five minutes, noting that when she arrived at the Law School in the fall of 1969, she never could have dreamed where the experience would lead her.

Next to speak was Justus S. Hotchkiss Professor of Law Michael Graetz, who is retiring after more than twenty-five years on the faculty. He reminded the graduates that the pursuit of happiness is an inalienable right and encouraged them to navigate their paths “with energy and laughter.”

The announcement of degree candidates followed, after which Acting Dean Stith introduced Dean Koh as “an outstanding scholar; a challenging and beloved teacher; a champion of the rule of law and of human rights; and a compassionate and insightful adviser to countless colleagues and former students around the country and around the world.”

Dean Koh spoke of his life’s passion, international law, saying that following international law is in America’s interest. “If we don’t obey international law, we squander our moral authority and shrink our capacity to lead.”

He shared three important lessons he learned at Yale Law School: stick to your values, don’t shy away from taking risky stands, and remember that when you make the tough choices, you are likely to be criticized.

The final speaker was social entrepreneur William Drayton ’70, founder of Ashoka: Innovators for the Public. Drayton had also received an honorary degree from the University earlier in the day.

Acting Dean Stith ended the ceremony by encouraging the graduates to pursue the highest ideals and reminding them that ensuring the public interest is not limited to serving in government or in nonprofit organizations.

“Those who enter the honorable practice of law in any organization, public or private,” she said, “contribute to the public interest by advising clients on how to conduct their affairs within the law, and by counseling them how to do so in a way that causes the least harm.”

Selected Quotes from Commencement 2009

See www.law.yale.edu/news for videos and speeches from Commencement 2009

Secretary of State Hillary Rodham Clinton ’73
“In this time of great challenge and opportunity, we need the very best we can possibly recruit into public service.”

Justus S. Hotchkiss Professor of Law Michael Graetz
“Throughout your career ahead, ask yourself ‘Do I like my work?’ and ‘Is what I’m doing helping at all to preserve liberty and promote justice?’”

Dean Harold Hongju Koh
“Some of you aren’t sure exactly what comes next. Neither am I. But on this beautiful day, full of hope, we put aside uncertainty for optimism.”

Acting Dean Kate Stith
“We know that you have the ability, the education, and the ambition not just to successfully navigate the world of law and legal practice as they evolve in the future — but actually to influence their evolution. We look forward to the better profession, and to the better world, that you will help create.”

 

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View a gallery of Commencement 2009 photos.

The Next Generation of Environmental Law: A Conversation with Professor Dan Esty

 

More than thirty years ago, one of the cornerstones of environmental law was laid at Yale Law School when Gus Speth ’69 (now dean of the Yale School of Forestry & Environmental Studies) and a group of his classmates gathered in the Law School dining hall and started sketching out what would become the Natural Resources Defense Council. Today, Yale Law School continues to build on its strong tradition of environmental law. 

At the forefront of this next generation is Dan Esty ’86, Hillhouse Professor of Environmental Law and Policy at Yale Law School and the Yale School of Forestry & Environmental Studies. Recently the Law Report sat down with Professor Esty to learn more about the direction of environmental law today, and its study at Yale. In the Q & A that follows, Professor Esty discusses, among other things, the new data-driven approach to environmental law and his belief in putting innovation and the resources of the private sector at the heart of the search for clean energy.

YLR: Why is going green such a hot topic right now?

Esty: Top executives across the business world have come to the conclusion that going green is essential to being competitive in today’s marketplace…Society faces significant environmental challenges with climate change, availability of water, air and water pollution, and exposure to chemicals and heavy metals. I think companies now understand that those who can provide solutions to these issues stand to profit.

There are also big potential payoffs from investments in what we call “eco-efficiency.” Specifically, efforts to reduce energy consumption and cut waste and inefficiency improve resource productivity, which lowers costs and improves profitability.

There are also a lot of companies looking at ways to reduce environment-related risks as a point of competitive advantage. For example, if Mattel had better managed its supply chain, it would not have had to recall 18 million toys, some of which were coated in lead paint, at a cost of hundreds of millions of dollars.

All of this signals a shift to a new approach to environmental regulation focused on promoting innovation and engaging the private sector in driving technology development. Under the old model of “command and control” mandates, the government not only sets a standard that has to be complied with, but in many cases, dictates the precise technology that a producer has to deploy, such as a particular kind of scrubber on a smokestack or effluent filter. We’re evolving now toward a new approach that relies much more on economic incentives and market mechanisms. Under the new approach, the government tells you how much you pay for the harm you cause. This creates a logic for businesses to think about what they’re doing and to try to reduce emissions. This “pay for harm” model also creates a very important incentive for innovation because companies begin to think not only about how to bring their own emissions down, but also how to come up with the very best solutions to sell to their customers and everyone else.

In your book Green to Gold, you discuss the role of the private sector. What exactly makes the private sector so important?

It turns out that the business world is better placed to do technology development than the government. When you throw a challenge to the private sector, people approach it with hundreds of different points of view and lots of options are tried out. That diversity enriches the search for innovation. The private sector is also willing to take risks that the government often can’t or won’t. A government official balks at an innovative solution with a one in ten chance of a successful payoff. But in the venture capital world, a one in ten chance of payoff is expected…The government might spend a few million or, if we get really ambitious, a few billion dollars to fund potential solutions. But over the last year alone, more than 100 billion dollars of private capital has been injected into the “clean-tech” arena. The scale of the private sector’s capacity to innovate is just much greater than the government’s, and frankly, the private sector rewards success in a way that the government is unable to match.

This move toward an innovation-focused approach to environmental protection creates opportunities for companies of all sizes and types—from giant conglomerates to garage-based inventors. This creative process promises to move us toward a “clean energy” future in the next couple of decades. Innovators are currently experimenting with various kinds of solar power, more efficient wind energy, and electricity from waves, tides, and ocean currents. Some companies are even exploring algae as a potential fuel source. Others are working with second-generation biofuels, moving beyond corn-based ethanol to prairie grasses and agricultural waste that provide the foundation for cellulosic ethanol.

Given all that, what do you think the government’s role should be? What can the government do?

Let me be very clear: when I say the government shouldn’t be doing the technology development, it doesn’t mean that government doesn’t have a role. To the contrary, the government has to be all the more adept at crafting incentives to engage the private sector in this innovation process. There needs to be a carefully constructed portfolio of incentives that draws the business community into the search for solutions—attracting venture capitalists, private equity, and other investors to put significant resources into the environmental solutions arena. We need to lure the creative spirits that exist across the United States and around the world to focus time and talent on addressing pollution control and natural resource management challenges. Our goal should be to attract the best and brightest talent away from developing the next video game and toward meeting our energy and environmental needs.

What do you see as the biggest environmental or sustainability issue facing the new administration?

Frankly, the next President will need to employ a multi-pronged agenda to make up for the painfully slow progress made across the spectrum of environmental challenges over the last decade. Climate change looms largest among the immediate problems we face. It has such broad consequences and affects decisions made by every individual, household, and company across our society. U.S. leadership is essential if we are to have a successful global climate regime. Of course, the nation’s economic troubles overshadow everything else. So I expect the new administration’s initial environmental focus to be a “green economy” initiative designed to help stimulate growth.

This is probably the million-dollar question: how do we extract ourselves from fossil fuels?

I think there is bad news and good news in terms of getting beyond fossil fuels. The bad news is that our energy structure has been dependent on fossil fuels for a very long time so it’s going to take time and tremendous effort to remake the infrastructure on which our society and economy is built. To move to a clean energy future will require a broad base of incentives and really transformative thinking.

The good news is that the public is ready for change in a big way. I think the public is very frustrated by the war in Iraq and more broadly believes that the Middle East is a very complicated part of the world—one that we don’t understand very well. Having the energy supply lines of our country run through that part of the world, for many people, seems unwise. And the next tier of oil suppliers—Russia, Kazakhstan, Nigeria, and Venezuela—are also unattractive places to be dependent on. Research we have conducted at the Yale Center for Environmental Law and Policy suggests that the public wants to break this dependence on foreign energy sources. Americans are ready for the alternative energy future, willing to pay a premium for clean energy that also meets our security and strategic interests.

Beyond that, people are frustrated by the budget pinch of high energy prices. Fundamentally, we face a structural imbalance between energy supply and demand. We just don’t have a lot of new fossil fuel sources to tap. Investments in conservation and energy efficiency can ramp down demand. But the real solution lies in new sources of supply, which means alternative energy. We must move toward a clean energy future and embrace the commitment and effort that comes with figuring out the specifics of which renewable energy options can be made cost effective.

Could you talk a little bit about the history of environmental law and put it in context for us as far as this next generation of environmental law?

Modern environmental law was invented, in many ways, by people at Yale. In the early 1970s, we had a crew of folks here who sat in the Law School dining hall contemplating the deteriorating environmental situation across our country. They became convinced that something needed to be done. Gus Speth, who is now the dean of the School of Forestry & Environmental Studies, and some of his classmates decided to write a proposal to the Ford Foundation for money to launch an environmental advocacy group. That group became today’s renowned Natural Resources Defense Council. Speth and his friends were consciously following the civil rights model. Their vision was to get a number of landmark, framework statutes—for air, water, and waste—adopted, and then, through their advocacy group, bring forward test cases to flesh out the details of the law. They were, of course, very successful in using law as a tool for change. And I think if you look across the environmental world more broadly, Yale graduates occupy a significant number of leadership positions. From my point of view as a professor, one of the most exciting things about teaching here is watching the next generation of environmental law come to life here at Yale. Our students are never satisfied with learning what the law is. They always want to think about what it could be and should be.

I hope my work at the business-environment interface has helped people develop a new understanding of the best path forward. Our work at the Yale Center for Environmental Law and Policy, and at Yale in general, has highlighted the importance of innovation as well as being more data-driven and empirical in decision-making. Our Environmental Performance Index ranks 149 countries on 25 different dimensions of their pollution control and natural resource management. These indicators are valuable to decision makers. They facilitate comparative analysis, highlighting leaders and laggards and making it easier to spot best practices.

There is a great deal that Yale has done in the past and is doing now to advance environmental law. Perhaps the most exciting recent development is the renewal of the law school’s core environmental faculty. The addition of Doug Kysar from Cornell and Tom Merrill from Columbia gives us extraordinary depth. Both of them are true leaders in the environmental law and policy arena.

And we are lucky to still have Carol Rose, albeit part-time. She continues to be one of the great thinkers at the interface of environment and property. Dan Kahan is another force with his extensive studies on understanding risk and how people manage risk in their lives. We are also fortunate to have Don Elliott continuing to teach courses. He is one of the pioneers in thinking through the way the economic incentives should play into the legal structure. And, of course, we have inspirational figures like Bruce Ackerman, who has been at the heart of the battle for a new approach to environmental protection for three decades, as well as Susan Rose-Ackerman, whose comparative regulatory analyses have helped to illuminate the strengths and weaknesses of the environmental regimes of the United States and Europe. We’re fortunate to have people who contribute to the broader backdrop that environmental law sits in—administrative law. Jerry Mashaw is, of course, the true leader of the field in many regards. Many of us, including me, have had our own approaches to environmental regulation shaped by Mashaw’s broad-based vision of how administrative law works. Peter Schuck’s thinking about how to refine administrative law further enhances our faculty resources here at Yale.

What is unique about the study of environmental law at Yale Law School?

Yale has great strengths when it comes to studying environmental law. Most notably, the presence of the country’s leading environment school right across campus gives our students a breadth and depth of curricular offerings that really can’t be found anywhere else. Someone coming to Yale with an interest in the environmental arena has the opportunity not only to take Law School courses, but also a wide array of courses across campus. The School of Forestry & Environmental Studies provides courses across a wide range of topics. The School of Epidemiology and Public Health provides a broad-based set of environmental health offerings. Our International and Area Studies program gets people to think from a global perspective about environmental challenges. Yale’s Divinity School has provided a platform for discussing ethics and the environment, so people can explore the moral underpinnings of a commitment to environmental protection. This is important because it is becoming increasingly clear that spirituality has a significant role to play in motivating people to address environmental challenges. And we have an economics department with fabulous faculty resources, as well as the School of Management, where the interface between business and environment, and economics and the environment, comes together. This interdisciplinary convergence is fundamental to good public policy and sound environmental decision-making more generally.

For more information about Environmental Law at YLS, visit www.law.yale.edu/environmentallaw.


 

Green Grads

Yale Law School counts among its graduates a great number of leaders in the environmental arena. The following profiles highlight just a few of the alumni involved in the “green” arena.

 

Calling for Transformative Change
James Gustave Speth ’69

Dean, Yale School of Forestry & Environmental Studies

As a boy in the rural South Carolina low country, James Gustave “Gus” Speth grew up hunting, fishing, and swimming the Edisto River. Each summer he visited his grandparents on Lake Junaluska in the North Carolina mountains. The year he turned thirteen, Speth arrived for his summer in the mountains to find the lake wiped out—dead—due to a major pollution incident.

In Speth’s words, “That did it.”

The death of that lake propelled Speth toward a lifetime devoted to environmental advocacy. Now, with more than forty years of work as an environmental advocate and adviser to his credit, Speth is calling for a radical departure from the environmental movement’s strategy as he urges Americans to rethink our very way of life.

Speth’s work got its first real foothold during the late 1960s when, as a student at the Law School, he and several of his classmates began planning out what was to become the Natural Resources Defense Council, America’s most well-endowed and well-respected environmental organization. After NRDC, as the principal White House adviser to President Carter on environmental affairs, Speth was responsible for the development and coordination of the Carter Administration’s environmental program. Speth again advised the White House about natural resources, energy, and the environment when he was tapped to be senior adviser on President Clinton’s transition team in 1992. For much of the 1990s, Speth led the United Nations Development Programme, the principal arm of the United Nations for funding and coordination of international assistance for development.

Since 1999, Speth has been at the School of Forestry & Environmental Studies, where he now serves as the Carl W. Knobloch, Jr. Dean and Sara Shallenberger Brown Professor in the Practice of Environmental Policy. He is the author of several books, including most recently, The Bridge at the Edge of the World: Capitalism, the Environment, and Crossing from Crisis to Sustainability and Red Sky at Morning: America and the Crisis of the Global Environment.

In The Bridge at the Edge of the World, Speth details the deterioration of the planet. He writes, “Half the world’s tropical and temperate forests are gone. The rate of deforestation in the tropics is about an acre a second. Half the planet’s wetlands are gone. An estimated 90 percent of the large predator fish are gone and 75 percent of marine fisheries are overfished, fished to capacity or depleted, up from 5 percent a few decades ago. Twenty percent of the corals are gone; another 20 percent severely threatened. Species are disappearing about 1,000 times faster than normal. The planet has not seen such a spasm of extinction in 65 million years, since the dinosaurs disappeared. Each year desertification claims a Nebraska-sized area of productive capacity worldwide. Toxic chemicals can be found by the dozens in essentially every one of us.”

Speth is now calling for a transformation in American society as he points to American “affluenza” as one of the root causes of the escalating deterioration of the planet. In order to save the planet, Speth argues, we must challenge our own consumption and move from a “consumer to conserver society.”

 “All we have to do to ruin the planet is keep doing exactly what we’re doing today,” Speth said while serving as a panelist at the Law School’s Alumni Weekend in October.

“Working within this system alone is not going to solve the problem,” he continued. “What we really need is transformative change within the system itself if we’re going to save this planet.”



Redeveloping Brownfields
Thomas Darden ’81
CEO, Cherokee Investment Partners

Fifteen miles north of Montreal, a former General Motors manufacturing site is gaining new life. Until recently, the 232-acre industrial site was a ghost town, plagued with soil contamination and littered with abandoned debris. Now more than a thousand housing units, shops, offices, a recreation center, and an urban town square are starting to rise on the once discarded site. The project, known as “Faubourg Boisbriand,” is one of some five hundred redevelopment sites taken on by Cherokee, a firm headed by Tom Darden ’81.

Under Darden’s leadership, Cherokee invests in the acquisition, remediation, and sustainable development of underutilized or contaminated properties (called “brownfields”). Darden sees opportunity in properties where most other people would see only difficulties. Many of the projects are developed in or in close proximity to urban centers. Faubourg Boisbriand, for example, will be in walking distance to a regional commuter rail line that connects the site to downtown Montreal.

The same story of redevelopment is repeating itself at other Cherokee project sites. Southwest of Houston, a mixed-use community will be built on the site of a former Imperial Sugar Company plant—the oldest continuously operating business in Texas before it closed in 2003. In San Francisco, Cherokee is completing remediation work and building on a site once plagued by lead contamination.

Darden’s inspiration for redevelopment work came years ago, while on a business trip in Spain where he was purchasing brick manufacturing equipment. He noticed workers building on walls that were close to two thousand years old. “It was so compelling,” he remembers, “it gave me a new mental construct for how growth could happen in the U.S.”

Redevelopment and urban infill projects are low-hanging fruit in the mission to green the planet, according to Darden. Buildings, he explains, use 30 to 40 percent of all energy consumed in the U.S. The location of buildings accounts for another 20 percent of energy consumption. Taken together then, buildings and their locations make up half of the energy problem in the country.

“Americans need to think more about where we build,” Darden says. “If you build the right kind of buildings, in the right places, you can address half of the energy equation.”

Darden attended the Law School before an environmental law program was in place. He took property law courses that touched on some of the work he would do in the future, but the real benefit of law school, he says, was that it helped establish a way of thinking.

“It was a great place for me to rethink how to make a positive contribution to the environment,” he says. “I went in as kind of this bomb thrower…and came out with a sense of how to approach things differently, how to make a difference from within the system.”

After graduating from YLS, Darden went to work for Bain & Company, where he did energy efficiency cost reduction work in the steel industry. He soon branched out on his own, purchasing what would become Cherokee Sanford Group, the largest privately-held brick manufacturing company in the United States. Darden’s environmental bent and ingenuity came into focus when he converted the plant’s fuel source from fossil fuels to sawdust. In 1985, Cherokee took on the work of cleaning up contaminated soil. That arm of the business eventually led Darden to redevelopment work.

Today, one of Cherokee’s biggest challenges is changing public perception about urban infill and redevelopment. Trying to convince the American public that urbanization is positive for the environment-—that densely populated areas are less resource-intensive than the more superficially “green” suburbs—is a tough sell. “The public at large is not as aware [as policy makers] of the environmental impact of real estate on the environment,” Darden says. “There is nothing less green than big houses built on grassy lots around golf courses.”

In addition to having a business mission focused on advancing sustainability, Cherokee has also funded or helped to raise more than $30 million for philanthropic works. The company’s outreach program operates in the U.S. and internationally, helping those who have been affected by environmental disasters. In India, “Cherokee Gives Back” is committed to addressing problems stemming from the Union Carbide pesticide plant disaster that killed thousands in 1984. Closer to home, Cherokee is tackling the aftermath of the Katrina disaster as a principal partner in actor Brad Pitt’s “Make It Right” project, which is building a neighborhood of affordable, energy efficient and sustainable homes in New Orleans’ Lower 9th Ward.

“It’s great to be involved in any kind of building position, whether it’s a new idea, a physical structure or a company,” Darden says. “Seeing change happen is a cool thing.”



Advocating for the Environment
Liz Barratt-Brown ’91
Senior Attorney, International Program,
Natural Resources Defense Council

Liz Barratt-Brown ’91 is passionate about Canada’s Boreal Forest—and about stopping the strip mining that has already forever changed the forest’s landscape.

“Oil from this region—called tar sands—is literally scraped out of what was previously part of a beautiful forest of green, slow-growing trees and winding rivers, and the nesting ground for nearly 40 percent of our songbirds and waterfowl,” explains Barratt-Brown.

As an attorney in the International Program with the Natural Resources Defense Council (NRDC), one of the nation’s top environmental action groups, Barratt-Brown has spent twenty-five years working tirelessly on a number of key issues. Among the projects she has worked on: building and implementing the global warming, biodiversity, and ozone layer treaties; strengthening international institutions; and instituting corporate purchasing policies around forest conservation and energy use.

Barratt-Brown, who worked for the NRDC and in the U.S. Senate for six years prior to law school, was happy to rejoin the group after graduating from Yale.
“I love the organization and its mission,” she says.

“We have more than one million members and activists. I’ve seen the organization grow tremendously, but it still has at its core a commitment not only to the environment, but to people and equality. I appreciate that NRDC works for every American and for people and places around the world.”

Currently, Barratt-Brown is working on slowing the development of a new, high-carbon synthetic fuels industry in North America, focusing her efforts on the strip mining for oil taking place in the Boreal Forest. Starting in the Yukon Territory, the Boreal Forest forms a band more than 600 miles wide sweeping southeast to Newfoundland and Labrador. The forest is one of the planet’s last large intact ecosystems and the largest terrestrial storehouse of carbon.

“Boreal Forest-derived oil now makes up nearly eight percent of our daily oil use and its production releases three times the global warming pollution per barrel than conventional oil,” she says.

She points out that while protecting the forest is a major goal of NRDC work, the group is also contrasting the strip mining of oil with cleaner alternatives, such as fuel efficiency, improved public transportation, and renewable energy.

“This is a very real example of the fork in the road we find ourselves at the turn of the 21st century. We can use American ingenuity and policy to move us to a different energy path or we can scrape the bottom of the barrel and lose irreplaceable natural resources.”

Barratt-Brown spends a great deal of her time educating members of Congress and large oil-using corporations about the Boreal Forest, as well as about cleaner alternatives.

“I also work to put in place low carbon fuel requirements, again both at the governmental level and within corporations,” she explains. “We just launched, for example, a Sustainable Aviation Fuel Users group with Boeing and Virgin Atlantic Airways and ten other airlines that will use, as its basis, research from a team at the School of Forestry & Environmental Studies on jatropha, a potential fuel source.”


Fighting Pollution and Poverty
Van Jones ’93
Founder, Green for All

Van Jones graduated from Yale Law School more concerned with vulnerable people than a vulnerable planet. Social justice and civil rights were his main focus and, to that end, in 1996 he founded the Ella Baker Center for Human Rights. Jones’s main mission was to get kids out of jail and into jobs.

Fast-forward to 2000. Burned out from what Jones describes as “too many funerals and too many court hearings that ended badly,” he crossed the bay from his hardscrabble home base of Oakland, California, to glittering, New Age Marin County to attend a meditation retreat.

“Everyone was doing yoga and eating these things called salads and tofu,” Jones remembers with a laugh. It was the first time he saw clearly what he has now come to call the “eco-apartheid.” While the mostly white, affluent Marin County was embracing all things green, the predominantly African-American city of Oakland was mired in unemployment and industrial pollution.

“I had this kind of epiphany,” Jones remembers, “that Oakland needs green jobs, not jails.”
As Jones saw it, there were two ways to proceed. “On the one hand, we have the opportunity for more work, more wealth, and more health,” he says. “On the other hand, we have an eco-apartheid.”

Jones soon founded Green for All, a national organization dedicated to building a “green economy” connecting the environmental movement with the work for social justice.

Jones sees a growing green movement as part of the recipe for improved economic health for the United States, and a cornerstone of the next economy. “We can simultaneously create an economic and environmental renaissance,” he says. “The problem with the U.S. economy is that we’ve been borrowing rather than building—our consumption, ecological destruction, and economic downfall are all interrelated,” he adds. “We have to start producing something in the United States.”

Wind turbines—too heavy to be shipped from overseas—have been one new American product gaining ground thanks to increased environmental awareness. “One thing that we can produce here is clean energy,” Jones says. “We have a Saudi Arabia of wind and solar energy in our Plains States.”

Green for All works to train people who need jobs—many of them minorities—in the “green collar” sector. Beyond being about greening the planet, Jones sees the movement as central to the 21st century civil rights agenda.

“Everything that is good for the environment is also a job or a business or an economic opportunity,” he says. “Buildings don’t weatherize themselves. Solar panels don’t install themselves. Gardens don’t plant themselves.”

“It would be very easy to create eco-apartheid jobs,” Jones adds. “The trick is to create green collar jobs that are regulated in some way. We don’t want to create a solar sweatshop… We need to do this in a way that would make Dr. King proud.”

 
Protecting the Environment at Work and at Home
Michael Fisher ’94

Environmental Protection Agency lawyer Michael Fisher ’94 grew up in a small town in the Midwest, where he spent a lot of time outdoors with his parents. They weren’t backpackers or campers, says Fisher, but they passed on to him their appreciation for nature.

Fisher started thinking about environmental issues as a career after graduate school, when he traveled through Eastern Europe, the U.S.S.R., and China and saw remarkable examples of environmental destruction, caused by the lack of political accountability.

Today, he works to achieve environmental accountability in the U.S., as head of the legal division of EPA’s criminal enforcement office. He and his wife Christy ’94 are also personally committed to protecting the environment. They made a conscious choice to live where they can walk to work or take public transit, and their home runs on 100% wind power. Still, says Fisher, he doesn’t focus too much on the “personal virtue” aspect of environmental decisions.

 “Each of us should do what we can to protect the environment,” he says, “but individualized action can’t keep the air safe for our kids to breathe or ensure that our tap water is safe to drink. And more complex problems like climate change are even further beyond our individual ability to address. Environmental protection ultimately depends on the public paying attention to these issues and educating themselves, then voting their environmental principles.”


Examining Climate Change and Energy Policy
Robert Sussman ’73

Robert Sussman ’73, a senior fellow at the Center for American Progress in Washington, D.C., is a leading expert on climate change and energy policy. During the Clinton administration, he served as deputy administrator of the Environmental Protection Agency and, as second in command, played a lead role on Superfund, global warming, science policy, and the environmental aspects of NAFTA.

Sussman most recently lent his expertise to the Law School during Alumni Weekend 2008: Imagining the Future, where he participated in a fascinating discussion on the Next Generation of Environmental Policy. Sussman, a former partner at Latham & Watkins and head of its environmental practice, discussed the Supreme Court’s landmark 5-4 decision in Massachusetts v. Environmental Protection Agency in 2007, which he said “changed the environmental policy landscape in a very profound way.” In the case, twelve states and a number of cities brought suit against the EPA to require it to regulate greenhouse gases as pollutants under the 27-year-old Clean Air Act. Sussman said that the favorable decision resulted in the current Supreme Court “basically deciding that the scientific evidence on global warming was too compelling to ignore.”

“When I went to law school, there were no environmental law courses,” Sussman recalled. “But interest in the environment was definitely building and we had the first Earth Day in 1970. Charlie Reich ’52 had already written The Greening of America, which was a formative book for me. So I think the atmosphere of the times—and the early commitment of Yale Law grads to public interest environmental law—were key influences for me.”


Winds of Change
Steve Vavrik ’96

Steve Vavrik ’96 is a farmer—but you won’t find him driving a tractor, milking a cow, or baling hay.

Vavrik, vice president of origination, and his colleagues at their company First Wind focus exclusively on the development, ownership, and operation of wind farms.

“At First Wind, we create wind power plants from just an idea,” Vavrik explains. “Successful development requires the combination of wind resource, revenue, equipment cost, and creative financing.”

“What I enjoy most is seeing how this all comes together from the perspective of the owner. In addition, I feel a tremendous sense of pride when one of our projects starts operating. While all projects are challenging, renewable energy projects help create a positive legacy for future generations.”

First Wind is currently focusing its efforts on developing wind farms in the northeastern and western regions of the U.S. and in Hawaii, and is already producing energy through three operating wind farms. The company is looking to develop wind energy projects in other markets as well.

According to the American Wind Energy Association, wind power is now one of the largest sources of new electricity generation of any kind. Wind projects accounted for about 30% of all new power-generating capacity added in the U.S. in 2007.

Vavrik joined First Wind after a stint with GE Capital as a financial associate. He has ten years of energy industry experience under his belt and is in charge of creating and executing the revenue plans for First Wind’s power projects. This involves identifying the key market opportunities and risks, developing relationships with the power buyers, and then negotiating and executing the power purchase agreements.

Alumni Weekend 2008—Imagining the Future: Challenges and Opportunities for the Three Branches of Government

 

Videos of panels and galleries of photos from Alumni Weekend 2008 are available at www.law.yale.edu/alumniweekend.

Alumni Weekend photographs by William K. Sacco, Yale University Media Services
President Clinton photographs by Robert A. Lisak


Hot-button issues of national security, health care, the economy, immigration, and the environment were the subjects of discussion when more than one thousand graduates and their guests gathered at the Law School for Alumni Weekend this past October. Former classmates became reacquainted and new friendships were formed as alumni gathered for panels, meals formal and informal, receptions, tours of the Law School, and a special breakfast with students. Panels focused on the challenges and opportunities for the next administration. President Bill Clinton ’73 introduced the subject of global challenges to the weekend’s discourse as he spoke to an audience of YLS graduates, faculty, staff, students, and others in the University community.


Charles Reich ’52 and John Simon ’53 received the Award of Merit during this year’s Alumni Weekend. Michael A. Varet ’65 presented the Award to Reich, who served as a professor at YLS from 1960–74, and as a visiting professor at the Law School in both the mid 1970s and early 1990s.


Ernest Rubenstein ’53 presented the Award to Simon, who is now Professor Emeritus of Law, having served as Professor from 1962–2003.


Reich and Simon were also celebrated during a panel titled, “In the Groves of Academe and Beyond: The Lifetime Labors of Charles Reich ’52 and John Simon ’53.”


Honored posthumously during Alumni Weekend 2008 were John T. Baker, the first African-American professor on the YLS faculty, and Catherine Roraback ’48, a pioneering civil liberties lawyer.


Toward the Next Generation of Environmental Policy
Both brass tacks talk of “greening the grid” and more philosophical discussion of the ethical and spiritual aspects of sustainability were part of an Alumni Weekend panel on the future of environmental policy. Daniel C. Esty ’86, Hillhouse Professor of Environmental Law and Policy, served as the panel’s moderator. Panelists included Liz Barratt-Brown ’91, Senior Attorney, International Program, Natural Resources Defense Council; Douglas Kysar, Professor of Law, Yale Law School; J. Gustave Speth ’69, Dean, School of Forestry and Environmental Studies, Yale University; and Robert M. Sussman ’73, Senior Fellow, Center for American Progress.


Barrett-Brown began the discussion with an overview of what the next administration can do to improve environmental policy. “We need to put science back into our decision making,” she said, while also stressing the need to reduce oil use and to move transportation to a grid and then “green” that grid. “We are at an incredible crossroads right now on global climate and energy,” she said.


Sussman spoke about the Supreme Court’s decision in Massachusetts v. EPA and the Bush administration’s reaction to that ruling. In Sussman’s view, the Bush administration has stonewalled the Supreme Court—a tactic that he believes will not hold for the next administration. “The Supreme Court was very clear,” he explained, “and an administration which is legally honest will have no choice but to move forward.”


Kysar took up what he called “an unfashionable argument”—that environmental law’s future lies in its past. “Before we write the next chapter, let’s try to enforce the environmental laws we already have,” he argued.


Speth took a slightly different tack, arguing that nothing short of transformative change and transformative thinking, more government regulation, and a strong grassroots movement will save the planet.


“I have a simple message,” he said, “that despite historic efforts by the environmentalists—of which I am one—we are, in fact, steadily losing the battle to save the planet and have been for some decades. I think that it follows that doing more of the same, perhaps even a lot more of the same, is not going to work in the end.”

 

The following quotes are excerpted from comments made by panelists during Alumni Weekend 2008. For videos of Alumni Weekend, visit www.law.yale.edu/alumniweekend.

David D. Cole ’84
Professor of Law, Georgetown University Law Center
“I think the regular courts have an obligation to check abuse when they see it, and I think actually one of the nice surprises of the post-9/11 era is that the courts have been more willing to do so than in any prior period in American history. And it’s not just the U.S. courts. If you look around the world, the courts of last resort in the U.K., in Germany, in Israel, in Canada, have stood up for human rights and the rule of law in the face of claims of national security and the need to fight terrorism.”

from Liberty and Security in the Next Administration: War, Rights & Antiterrorism panel



Bruce Morrison ’73
Chairman, Morrison Public Affairs Group

“The good thing about immigration and the United States is that we believe in immigration. All over the world, people have migrated…but you will search long and hard to find societies in which they actually believe in immigration, as opposed to guest workers or some other form of temporary tenure…That has not been the building block of American immigration. Our basic idea of immigration…has been that you come to become an American. And I think that’s a very powerful and important idea. It’s given us great strengths that we should defend and build upon.”

from Immigration Policy in the 21st Century panel

 

Robert C. Pozen ’72, ’73 JSD
Chairman, MFS Investment Management

“In my view, the first thing the Fed needs to do is to guarantee loans between banks. It is unbelievable that banks like Citigroup are unwilling to lend to Bank of America. Now that we’ve seen what’s happened to banks like Wachovia, people are just afraid to do it. Well, if we can’t get these banks lending to each other, we will never get liquidity in the system. If we start to have guaranteed loans between banks, then you will see money market funds being willing to buy commercial paper-—and commercial paper is essentially the lifeline of the economy. Commercial paper is short-term debt which finances inventories—for people in business, it finances their cash flow. If we don’t revive this commercial paper market, we are going to have a level of liquidity crisis that’s very, very serious.”

from Is This Just a Normal Downturn — or Is Something Badly Broken? Panel


Brent L. Henry ’73
Vice President and General Counsel, Partners HealthCare System

“The reality is a lot of people have signed up in Massachusetts. And so right now, the percentage in Massachusetts of uninsured has really declined significantly. It’s now the lowest state in the nation with respect to uninsured…And so when people look at Massachusetts, the view is, it was a win-win for everybody. The downside is that it has cost more…and the waiting time to see physicians has skyrocketed. As a result, there’s a lot of pressure to increase the number of primary
care physicians in Massachusetts. The other thing is that there is a tremendous pressure now on cost in Massachusetts…people see that if this is going to be effective nationwide, there have got to be other alternate focuses on how we control costs.”

from Health Care Reform in the Next Administration: Promises and Perils? panel



 

Posted: Jan 30 2009, 10:55 AM by YLR Editor
Filed under:
Dreams from Obama

Revised version of a lecture presented at the Gardiner Program in Psychoanalysis and the Humanities, Yale University, October 22, 2008


by Robert A. Burt
Alexander M. Bickel Professor of Law, Yale Law School

Like all political leaders, Barack Obama offers an idealized image through which supporters can see their own hopes, their “best selves,” reflected through an  identification with him. Freud depicted this bond between leader and followers in his wonderful little monograph, Group Psychology and the Analysis of the Ego, with his characteristic flair: “A group,” he wrote, is clearly held together by a power of some kind: and to what power could this feat be better ascribed than to Eros, which holds together everything in the world?” (p. 92) It is especially illuminating to view Obama’s hold on the imagination of his followers through Freud’s lens – that is, as essentially erotic.

The speed of his ascent to the presidency is one clue to this characteristic. Obama appeared on the national stage only four years ago when he was a virtually unknown state senator running for his first national office, as United States senator from Illinois. This first appearance – the keynote address to the Democratic National Convention in 2004 – is, I think, a defining starting point for understanding the cultural meaning of his victory. Obama’s keynote speech was not merely good; it was thrilling. From nowhere, he was immediately seen as a potential presidential candidate.  

The sudden way that he captivated public attention resonated throughout his candidacy. It was the basis for the playful designation of him as “the One,” sometimes offered with awe, sometimes with jealousy, sometimes with disdain as in “That One.”  At the Al Smith dinner in New York in mid-October, Obama himself did a riff on this, saying that he wanted to rebut rumors that he had been born in a manger and revealing that he had actually been born on the planet Krypton and sent here by his father, Jor-El, to save the world. Whether he is seen as Superman or Jesus Christ Superstar, there is something quite out of the ordinary about the original impetus for Obama’s candidacy and his rapid rise from nowhere. Beginning with his keynote speech in 2004, Obama’s relationship to his followers was, in the familiar phrase, love at first sight.

Now I must quickly add, this was not everybody’s response – and for many of those who were smitten, this love was not without ambivalence (what love is?) nor has it been easily sustained with the same intensity over the long electoral campaign. But I think it is helpful, in understanding the phenomenon of his candidacy, to see its fundamental erotic charge from its outset – especially because I think this erotic quality is interwoven with and reinforced by the fact of his race, that he is an African-American who, when examined attentively, is also half-White. In his person, Obama both invokes and unites the deepest, most bitter division in our national experience. He both invokes our Civil War and holds out the promise that we can finally, at long last, end that Civil War – or put another way, that we can finally recognize that the War has in fact already been ended.

In this sense, Obama’s candidacy represents the climax of the Civil Rights revolution of the 1950s and 60s – the so-called Second Reconstruction, following the aborted efforts after Emancipation a century earlier. Although Obama has not explicitly claimed this, he has implicitly offered us a return to the ideal that was at the core of whites’ sympathetic identification with black claims at the high point of the civil rights movement in the early 1960s. This claim was to be included in a mutually supportive communal relationship from which blacks had been excluded – first through enslavement and then through the forced subordination of racial segregation.  The injustice of this exclusion only became clear to a majority of whites when they themselves felt alienated from an inclusive communal identity; this was whites’ understanding not simply of blacks but of themselves in the 1960s. This empathic identification faded after the racial and social turmoil of the late 1960s; but Obama’s election signifies the possibility of renewed sense of shared membership in a mutually supportive relationship – not only with blacks but more generally. I can illustrate the erotic connection at the core of this communal bond from a moment in my own life when the personal meaning of the Black Civil Rights movement came into focus for me.

Here is my memory. In 1968, I was legislative assistant to U. S. Senator Joseph Tydings, a liberal Democrat from Maryland, and had worked for him to enact the Fair Housing Act, forbidding race discrimination in the sale or rental of housing. During the crucial vote in the Senate in March 1968 to end the Southern filibuster on this measure, I sat in the Senate gallery next to Clarence Mitchell, Jr., the head of the NAACP Washington office. I had seen Mitchell many times before in strategy meetings convened by the Democratic manager of the bill, Senator Philip Hart; but we had never spoken, and I was not sure that he even recognized me. But when cloture was voted and the cheering in the Senate chamber had subsided, I turned to look at Mitchell and saw that he was weeping just as I was weeping. And we hugged one another.

This embrace might seem unremarkable today, when so many whites and blacks have comfortable social relations, even intimate relations, with one another and when two men of whatever race routinely hug one another in public settings. But in March 1968, our public embrace was unusual on both scores, race and gender. I was deeply moved by it, in ways that I could hardly understand.

Mitchell and I left the Senate gallery together. It turned out that his office and my home were close by one another on Capitol Hill. As we walked together, he told me about his grandfather who had been born a slave, how grateful he had been to this country for his freedom, how proud he would be now that America was redeeming its promise by this extraordinary public law, and how proud he would be that his grandson had played some part in bringing this about. I in turn told Mitchell about my grandfathers who had been Jews in Tsarist Russia and had fled to America in order to avoid pogroms and forced conscription, how thankful they were for the freedoms they had found here, and how proud they would be that their grandson had played some small role in helping toward the enactment of this law.

This momentary coming together – our weeping, our embrace, the similar passage of our grandfathers from enslavement to freedom, our shared love for our country – was about more than enactment of this new law. Our joining together felt to me like a liberation from some oppressive struggle, in which racial differences, gender identities and age differentials (Mitchell was old enough to be my father) were transcended by a sense of shared possibilities.

I don’t think I was unique among whites in feeling that my own sense of personal liberation was somehow linked to the cause of Black people’s liberation from racial subordination. This linkage was widely felt at the time. It was given especially powerful acknowledgment in Lyndon Johnson’s speech – many would say his greatest speech – to a joint session of Congress in March 1965, urging enactment of the Voting Rights Act in immediately response to the Selma, Alabama march. In that speech, Johnson stated, “What happened in Selma is part of a far larger movement which reaches into every section and state of America. It is the effort of American Negroes to secure for themselves the full blessings of American life. Their cause must be our cause too. Because it’s not just Negroes, but really it’s all of us, who must overcome the crippling legacy of bigotry and injustice. And we shall overcome.”

Johnson thus appropriated the rallying cry of the Black civil rights movement – “we shall overcome.”  But this was not plagiarism, it was not an act of theft. It was an assertion of identification between blacks and whites – “their cause is our cause” and our sense of freedom depended on theirs. But why should this be? How could it be when the country had been so deeply divided, so racially polarized for so many years as whites systematically degraded and suppressed blacks, as whites built their own sense of social identify on a perceived difference – a rigidly enforced difference – between themselves and blacks?

I don’t have a complete answer to this question. But I do believe that something happened in American culture in the years immediately following the Second World War that eroded the dominant sense of an unbridgeable difference between blacks and whites and that put in its place a growing conviction that blacks and whites were brothers and sisters under the skin, so to speak – not simply that blacks and whites were fundamentally alike but even more powerfully that blacks’ historic oppression had become mirrored in whites’ growing sense of their own vulnerabilities.

This sense of commonality – not simply recognition of the injustices imposed on blacks but a sense of shared oppression among blacks and whites – was rarely acknowledged in explicit terms. I don’t have enough time in this lecture to do anything more than suggestively sketch the underlying bases for this shared sense, the parallels with the social circumstances of blacks that whites came to sense in the aftermath of Second World War and the Great Depression that had immediately preceded it. The brief evidence I offer is literary but to my eyes quite revealing.  

First, regarding the social condition of blacks as they saw themselves, consider the title of Ralph Ellison’s classic novel Invisible Man. This self-depiction of invisibility poignantly expressed blacks’ sense of exclusion, of living in America but not belonging here or anywhere else. Ellison published his novel in 1952 but the sense of isolation, of aloneness, to which he testified was deeply embedded in the Black experience from their original entry into this country, as captives torn from their homes and transported to an alien and enslaving land.

Ellison’s depiction was not new. But the new element in his portrayal was an underlying belief that a white audience now existed, an audience that was prepared to listen, even to extend understanding, to his plight. In 1952, Ellison sensed, as many black leaders sensed, that whites were prepared to see them clearly, as if for the first time since Emancipation. Ellison’s public complaint of “invisibility” was somehow belied by the very fact that he and other black leaders were ready to make a visible, public presentation of that complaint. And 1952, of course, was the year when Thurgood Marshall, on behalf of the NAACP Legal Defense Fund, argued Brown v. Board of Education before the United States Supreme Court.

What was the common chord of feeling with whites that emboldened blacks to go public with their complaints of wrongful oppression? Again I offer you suggestive literary evidence to support the proposition that, notwithstanding the considerable differences between the social experiences of whites and blacks, blacks’ fear of “invisibility” – of  “not belonging” anywhere – was also felt by whites on their own behalf around 1952.  This fear among whites was captured by the phrase “the lonely crowd,” the title of David Reisman’s 1950 study of American character, which became the best-selling sociological text in American publishing history.  It was similarly expressed in William Whyte’s 1956 best-seller, The Organization Man – a portrait of the soulless conformity, a kind of personal inauthenticity and consequent “invisibility,” in American corporate life.

For most whites, this was a new fear.  Their sense of “belonging” had been buttressed by the apparent dominance of the White Anglo-Saxon Protestant Establishment in this country. In fact, the WASP sense of their unassailable ownership of America had been eroded by successive waves of immigration into this country and almost entirely undone by the experience of the Great Depression. By 1952, the fragility of the reparative efforts toward restoring WASP hegemony was increasingly apparent. The claims of blacks for admission into “mainstream America” reflected, and at the same time appeased, many whites’ growing sense of the fragility of their own sense of belonging (as if blacks’ petition for admission in the previously all-white club demonstrated that the club still existed and was prized even more by those excluded than by their increasingly uneasy charter members).

The vocabulary to describe this fear for whites did not immediately translate into claims for justice and equality as it did for blacks.  But by the mid-1960s, this sense of “loneliness” – of social isolation and disrespect, of belonging nowhere – became articulated as claims for justice and equality of other groups newly united in their sense of grievance. Thus came the campaigns, propelled by the example of the black civil rights movement, for the equal rights of women, of disabled people, of gays and lesbians.

In this proliferation of grievances by various groups, however justified in their own terms, something became lost from the underlying ethos of the original black civil rights movement.

The claims for inclusive equality became transmuted into mutually exclusive demands – as if including one group necessarily meant excluding some other, as if honoring the equality of one meant diminishing another. This combative premise came to characterize the polarized public debates over affirmative action quotas for blacks (at the expense of excluded whites), of women’s free choice for abortions (at the expense of fetal life), of marriage for same-sex couples (at the expense of traditionalists for whom marriage is inextricably tied to their own sense of gender identity). 

Obama, however, signifies an effort to return the country to the original impetus of the black civil rights movement. He does not say this explicitly; he may not even clearly grasp this connection himself. But the sense of himself that he offers to the public takes us back to this root fear of loneliness, of exclusion, of not belonging anywhere. In his eloquently unpretentious book, Dreams from My Father, Obama testified to the persistent fear that had driven him for much of his life: “the constant, crippling fear,” he said, “that I didn’t belong somehow, that unless I dodged and hid and pretended to be something I wasn’t I would forever remain an outsider, with the rest of the world, black and white, always standing in judgment.” (p. 111). This fear, as he presents it, arose from his biographical experience that is not typical in American life, either for blacks or whites – that is, his mixed racial identity as the child of a black father and white mother, his father’s virtual absence from his life, his visual appearance as a black man simply because of his skin tone but his experience of being raised entirely by a white mother and white grandparents.

In Dreams from My Father, Obama describes the path that took him toward a self-definition as an African-American. He relates discussions with his black friends about their own color consciousness: “good hair, bad hair; thick lips or thin; if you’re light, you’re all right, if you’re black, get back.” But he observes that these conversations “rarely took place in large groups, and never in front of whites.”  To admit our “doubts and confusions” to white people, he said, “seemed ludicrous, itself an expression of self-hatred – for there seemed no reason to expect that whites would look at our private struggles as a mirror into their own souls, rather than yet more evidence of black pathology.” (p. 193)  But this is precisely what Obama offers in his book and in his candidacy: not that whites should ignore black experience and treat him as if he had no racial identity, but that whites and blacks alike should see his “private struggles” – as a mixed-race child who had not known his father – “as a mirror into their own souls.”

Obama’s electoral victory indicates that a substantial number of whites have responded to this offer. This response, I believe, was propelled by social forces at work in our society today that lay the ground for whites to see themselves in the mirror that Obama holds up for them, to identify with him rather than reject him as irredeemably different and threatening. For the past thirty years or so, we have been gripped by an ideology that takes our social isolation as a fact and tries to elevate it as a positive good – as rugged individualism – rather than as a vulnerability. I think we have come to an end-point in this celebratory myth-making – not, I emphasize, a permanent end but a moment of at least temporary exhaustion. The sudden collapse of our financial system and its imminent spread to our entire economic life is only the most visible expression of this exhaustion – though this current crisis gives vivid validation to the sense of vulnerability that has spread throughout our population with the vast expansion of economic inequality and the decline of economic opportunity.

Will we now self-consciously turn to one another for mutual support? Will a majority of the country follow Obama’s leadership to create a new identity with one another as this fatherless misfit appears to have forged a strong identity for himself? We will find a partial answer to this question in concrete programmatic terms during the next four years of Obama’s presidency: whether enough Americans are prepared to trust one another by pooling their resources through universal health insurance, through new investments in public facilities (infrastructure, educational institutions, and new sources of clean energy). The challenge in all of these policy matters is to overcome the ethos that has dominated our public life since the 1980s: that is, mutual mistrust and the consequent response of leaving everyone to fend for himself – a response which depicts government as “the enemy” rather than as the organized expression of our common culture, which encourages us to hoard personal assets for fear that they will be “redistributed” without any benefit to us rather than pooling our resources through taxation to accomplish common goals that we cannot reach on our own. Overcoming this intensely individualistic, mistrustful self-portrait means returning to the predominately shared sense of ourselves at the high point of the civil rights movement in the 1960s.

Will this possibility actually be fulfilled? Will this promise have more staying power than the relatively brief reign of the civil rights ethos in the 1960s? The answer is, of course, not yet clear. But I have seen a hopeful harbinger in the response of African-American students at Yale Law School to Obama’s election – of their readiness to see in his victory an offer of a supportive communal relationship that had not previously been available to them. Last spring, when Obama’s nomination for the presidency had been assured, I had long conversations with some African-American students about Obama’s impact on their lives and each described a sense of excitement, almost of disbelief, about the unexpected possibilities that Obama had opened for them. To an outside observer, their status as students at this elite law school might have seemed confirmation that they had joined the American “establishment.” But nagging doubts still accompanied this status for them. In common with all Yale Law students – regardless of race, gender or ethnicity – each of them suspected that there had been an administrative mistake and they would, sooner or later, be unmasked and their admission would be revoked. But beyond this typical misgiving, some further suspicion persisted that their race remained a special demerit, a specific reason that they were not fully accepted, not full-fledged members of the Yale community.

Obama’s success in obtaining the Democratic nomination in itself has already altered these students’ visions of themselves. Possibilities that had seemed remote for them suddenly seemed to be within their grasp – not so much for professional or economic success but for their sense of belonging at Yale specifically and in America more generally.

One student in particular told me about an experience with his father, a humanities professor at a mid-Western university. The two of them had been browsing in a clothing store and the father called his son’s attention to a white clerk who seemed to be following them while ignoring a white shopper in another part of the store.  The father said, “She’s following us because she thinks we’re going to steal something.” My student told me that he had dismissed this thought, and after the clerk approached directly and asked if she could assist them, he said to his father, “You see, she only wanted to help us.”  The father, however, repeated his insistence that the clerk was motivated by racial animosity. This disagreement between father and son was, my student told me, a recurrent theme in their relationship. But just after Obama won the Iowa primary (with overwhelming white support), his father called and told him that he didn’t recognize this country, that in the America where he had grown up it was inconceivable that a black man could be a major party nominee for president. My student said, “My father told me that it was my country now, not his, and that he was glad for that, and happy for me.”

In the America where I grew up, we started on this path toward a shared communal identity. The social turmoil of the late 1960s appeared to derail this effort.  Barak Obama’s election as president may now signify that this long national estrangement was not permanent, that we are further on our way to the “more perfect Union” that our Constitution has always promised.

Posted: Jan 23 2009, 10:25 AM by YLR Editor
Filed under:
Cory Booker is on a Mission

An Interview With The Mayor Of Newark, New Jersey

At 39 years old, Cory Booker '97 is two years deep in his position as mayor of what is considered to be one of the toughest cities in the country. It's a position he fought hard (twice) to get to and that—despite sleepless nights and national media attention that sometimes seems to be waiting for disaster to come his way—he considers both an obligation and an honor.

Newark, New Jersey, has historically been plagued by a triumvirate of problems—violent crime (the city has a murder rate that is five times greater than that of New York City), poverty (nearly a quarter of the population lives below the poverty line), and poor education (in 2003, more than a third of Newarkers had less than a high school education).

As much of the outside world sees Newark as an example of all that can go wrong with urban America, Booker is motivated by what he sees as the possibility of making right.

Born to civil activist parents in Washington, D.C., in the late 1960s, Booker was raised in a northern New Jersey suburb. As an undergraduate at Stanford, he was a standout on the football team, headed a student-run crisis hotline, and did outreach work with youth from East Palo Alto. A Rhodes Scholarship took him to Queens College, Oxford, and a degree in modern history before arriving at Yale Law School in 1994. At the Law School, Booker was active in the Legal Services Organization, the Black Law Students Association, and the Big Brother program.

The world, quite simply, was open to Cory Booker. His choice? To return to New Jersey-to Newark-to fight the "savage inequalities" of urban life. What many might have predicted would be a short-lived, rosy-eyed tour in public service has turned out to be a life choice for Booker who, along his way to being elected mayor, has endured harassment from political rivals, assassination plots from local gangs, and life in one of Newark's worst housing projects.

Booker's leadership style is decidedly hands-on. Beginning with his first campaign, when he literally walked the streets, knocking on thousands of doors to introduce himself to the people of Newark, he has made outreach a key strategy. When a group of teenagers spray painted "Kill Booker" on the side of a school building, Booker decided to mentor them, becoming their "big brother" and taking them out for weekly meals and tutoring sessions. Mayor Booker holds monthly open-house meetings during which Newark residents are able to meet individually with him and voice their concerns about the City. And with violent crime one of his biggest concerns, he's made it a habit to spend time riding the streets with Newark police officers, sometimes spending whole nights getting a first-hand look at the violence behind the statistics that have plagued Newark.

Booker's work has not gone unnoticed. Beginning with the award-winning documentary Street Fight that chronicled his first mayoral run against longtime incumbent Sharpe James, the media has come to love Cory Booker. He's been the subject of stories by major media from The New York Times to The Oprah Winfrey Show. He has achieved almost super-hero status, being called "The Savior of Newark" by TIME Magazine, and named one of America's Best Leaders by U.S. News & World Report.

This spring, the Law Report had a chance to sit down with Mayor Booker and speak with him about his time at the Law School, his path to Newark, his hopes for the City, and what keeps him going.

YLR: When and why did you first become deeply involved in life in Newark?

CB: I had known Newark as a child growing up. It was a city I was very comfortable with through my parents and then I had some friends who were doing exciting things here, really interesting things in the city.

Then I went overseas to study and I came back to Yale...I think what happened during my first year of law school is that some of the experiences I had-eventually starting to run some clinics (there was a community economic development clinic I was involved in), some of the summer job opportunities that I had...definitely pushed me off the ledge and began to make me believe that I could be entrepreneurial in social change and start organizations that could fuel social change. So I got the courage and I thought to myself, ‘What is my wildest dream for myself?' One of my heroes was this guy named Geoffrey Canada ... I was so impressed with what he was doing in Harlem-it now is Harlem Children's Zone—that I said, ‘if I want to see social change, why don't I move into a neighborhood in the city I love, but in a tough neighborhood...and just start a nonprofit and see what we can do?'...

There were a number of fellowship programs out there that began to show me that I could jump and land on my feet, and then Yale had this tremendous program for forgiving loans [COAP] which gave me even more security. So I applied for a Skadden Fellowship with this vision. I got connected with another program which some Yale graduates were involved in—the Urban Justice Center—which was happy to allow me to franchise out, so to speak, their efforts into New Jersey... There is a beautiful statement about faith that says, ‘When you come to the end of all the light you know and you are about to step into the darkness, faith is knowing that one of two things will happen. Either you'll find solid ground underneath you or God will send you people who will teach you how to fly.' I said, ‘I'm going to move to Newark and I'm going to dive into a community and try to be a part of social change within a community.' Once I made that decision, more and more people seemed to appear...to guide me into making things work.

When you first ran for City Council, did you think that you'd eventually end up here as Mayor?

Well, the first revolution really was going from this great nonprofit leader—which was my vision for myself...my journal in 1996 was all spelled out about envisioning this organization, envisioning this nonprofit, what I was going to do in the City of Newark, and within one year I was running for City Council. So for me, it was a very big switch and it was a switch I had to make spiritually because, frankly, I didn't view politicians in all that great a light...

When I got into City Hall it was really the worst year of my professional career so far...when all the stuff started dawning on me about how deep the crisis was in terms of the urgency of the needs of our community—appreciating the incredible potential the city had, and with a great citizenry, but how the politics was just sort of a heavy yoke weighing down the City's potential. And there were so many things that were broken, perverted, corrupted within City Hall. Add to that a City Hall machine that was focused on stifling dissent or stifling reform, and I was sort of the tip of that spear and it was just grinding on me.

The first year I was getting migraine headaches all of the time, I was gaining weight, it was just an awful experience. And every time I thought I came up with some bright idea—like from budgeting, you know, ‘This is how you budget, this is what other cities are doing, activity-based costing' those kind of innovations-nobody was listening to me; I couldn't get enough votes to do anything. It was very problematic. I think it was around that time that I started to form this idea that to really create the leverage to make a difference it would have to be done from the mayor's office.

Around that time you were also inspired to go on a hunger strike?

That was a pivotal turning point for me, personally. It was literally a year after I had been in office. I was having a really bad time. I was even having a bad time justifying being a City Council person because I wasn't feeling like I was making the kind of change that I was elected to make and even people who believed in me thought that by electing me a City Council person I could get things done—I felt like they were losing faith or getting frustrated as well.

It was around that time that a very violent incident happened in a housing complex in the northern part of the ward that I represented and this phenomenal woman named Elaine Sewell was calling me, frustrated, angry, upset about the violence that was going on in front of her complex...and I was responding to her that I couldn't do anything...I remember coming home that day...and running into [Ms. Jones] who was the tenant president of the projects I lived in...and I remember we had this almost comical exchange where she wouldn't let me walk past her. She stopped me and said, ‘What's going on?' And I told her what was going on, very frustrated. And she said, ‘You know, I know what you should do.' And after some back and forth...I said, ‘Come on now, if you know what I should do, then tell me what to do.' And she said, ‘You should do something.' And I'm like, ‘That's it?' And she's like, ‘Yeah, that's it.'

...I'm a very spiritual person, and I love studying faiths and the many manifestations of the divine-Judaism, Hinduism, you name it-and I was reading the Bible at that point. And there is a passage in the Bible that says if you have faith the size of a mustard seed you can move mountains... But it said sometimes you need to fast and pray. And I said, ‘OK. I don't know what to do, but I'm going to go out there and at least make a statement.' And, yeah, I called a hunger strike, and it lasted ten days. And really I just sat as a witness to the world. And to the world responding. And so many people came together. And so much change happened... The one irony of it all is that the Mayor came out finally and promised to put a police presence out there to curtail the drug dealing and to build a park on the concrete where we were. And I think that was the moment I decided I really had to run for Mayor, because he never followed through and built a park. It's something we're building right now. We're actually building a daycare center and a park finally in front of those projects, which will make a big difference.

Can you tell me a little more about how the Law School might have prepared you for this position?

Well, the great thing about Yale as opposed to other law schools is that it really affords you the freedom to explore your own path. What's your passion? What are your interests? And then there are people there that help guide you and cultivate that interest. And that you can express that interest in very concrete ways, in academic ways. It's just such a great environment because it doesn't put you in a cage. And I don't mean to say other law schools are limiting. I think the discipline of other law schools is great, but what Yale does is that it creates an environment where if you are a focused, disciplined person—whatever your passion is—the environment, human rights, corporate law, constitutional law, you name it, whatever it is-if you have a passion, and you are a self-starter you can create an experience for yourself that is not only empowering but is also liberating.

It really was the only law school for me as I look back on my experiences now because it just provided for me the raw materials with which to make a career. And really great people—both my peers and the professors—who were there who did nothing but encourage, assist, help, charge me up almost.

Why didn't you run for Senate in 2002?

...I have very much a clarity of thought with my career right now, which is that if it's not resonant with my goals of being a part of the empowerment of and the strengthening of Newark, of being part of a movement to try to manifest the American dream here in this community, then I don't really want anything to do with it...I remember blunt conversations with people offering me secretary of state positions, county executive positions, secretary of commerce, secretary of labor, a lot of things that were put on the table, trying to pull me away—I felt—from what my purpose was.

...If you took a snapshot of me last year, gosh, when we were facing a massive budget deficit, the murder rate was being incredibly stubborn. As difficult as those days were, I always woke up feeling that I was in the right place at the right time, doing the right things. And there's a solace in that...we're making tremendous success, even beyond the imagination of some stubbornly—you can call them pragmatic, realistic, or cynical-people who said that certain things couldn't be accomplished. And I think that this is the most important fight in America right now, I really do-to make America real for everybody in our urban areas... These savage inequalities that still exist in our nation have to be addressed if we are ever to become real, a country that lives up to its creed, to its spirit, to its ideals.

Given all of that, I know you're facing issues with education, with poverty, with crime, with a variety of things. What's the...

I've got issues! [laughs]

What's the biggest factor that the fate of Newark rests on?

I think you can't untangle them. And everyone wants to do that. If it was easily identifiable, or if there was just one thing, then we could all do it. I mean, the challenge is that all of these things are interrelated, interconnected, interdependent, and you have to take the challenges on in a more holistic way.

So we identified key issue areas. We set a mission statement that we were going to set the national standard in urban transformation, in public safety, in the creating of economic opportunity, and in children and family issues...I pulled my staff together in January and I said, ‘I'm about crime fighting. I know we have a lot of other things that we're doing, but this month I can't have a January 2008 be like a January 2007.' And I poured everything I had into the effort—staying out at night until four o'clock in the morning, riding the streets with police officers, going into police precincts, working one-on-one with our police director—and that began what's now occurring, which is probably one of the most exciting crime turnarounds in this country.

I've learned in my life that I have limited bandwidth, but that's the advantage of having a great team, and I have a tremendous team. You can start with my deputy mayor for economic development [Stefan Pryor], who is another Yale Law grad. I have great people in every area of City Hall who are helping us move forward...

How would you like Newark to remember you in the future?

...Being remembered is just not as important as getting it done and creating a legacy. I'm here because of so many thousands of people who sacrificed to get me here whose names I'll never know and the history books will never write about... I just want to be able to know-inside myself-that five years from now, ten years from now, we achieved the impossible, we expanded people's ideas... we banished cynicism, banished pessimism, and we changed people's conception of who they were, and what's possible within this country, within this city.

You said in an article that ran in The New Yorker recently that even though you're in this position where you're powerful, you feel more vulnerable than ever because your success is dependent on others' success.

...There's a Hebrew phrase gam zu l'tovah, which means in everything-no matter what-there's something good. So in this horrific trial [last] summer, where we had three college kids murdered, it's like I sort of saw the darkest parts of myself in a sense of just feeling, seeing the pain in my community, feeling the agony of these families, and having the national media descend and create this story that was reflecting everything that Newark wasn't-a violent place, a place where there's no safety and security. It was within that moment where I was starting to break inside, where I recognized the strength of so many people around me and I recognized that I'm not in this by myself... from August [2007] to August [2008] I think people are going to see this incredible story of a city that pulled together during that crisis and the following months.

Already you're seeing a record time without a murder in the City of Newark. We're now down about 70 percent on murders, about 40 to 50 percent on shootings in the city, so violent crime is from that point, really taking a dive down.

Is there anything else that you'd like to add?

I feel this profound sense of gratitude, frankly. I've had this life of remarkable blessings. I'm not saying that there haven't been trials or challenges. But I just feel this profound sense of gratitude. You look at an institution like Yale—all that goes into making it what it is—from the students to the staff, from people who through their generosity give to the institution—you know, I'm a beneficiary of those blessings. And I don't know all of their names—but that goes back to the idea that there's an interconnectedness. Somebody did something that afforded me this opportunity.

...I remember that powerful moment in my [Law School] graduation where my grandfather made the same corny jokes as he always made—you know, ‘The tassel's worth the hassle, son' and all this kind of funny stuff—but at the same time, he said to me, ‘Never forget that the degree you are holding is paid for by the blood, sweat, and tears of your ancestors, and that you have an obligation to go out in the world and stand up for who you are, stand up for all those who have stood for you.' It was just this powerful moment that drove home to me that holding that degree was the symbol of a collective sacrifice, collective struggle, and that my obligation as a recipient of that degree was to continue the struggle, continue the fight, to continue that profound purpose.

...The difference of the world that I stand in is the result of an unbelievable amount of love, frankly-wild, reckless, and strong, unyielding love-and there comes with that this tremendous sense of understanding that you must continue. To do anything less is to betray that legacy. Y

Text by Kaitlin Thomas

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From Magnetic Tape to Terabytes

The Evolving Digital Landscape of YLS

As technology has changed in the past thirty years, Yale Law School has changed along with it. Not only have the systems changed (so long, typewriters, card catalogs, and registration punch cards) but so has the nature of interaction at the Law School. As recently as 1999, for example, the Registrar's Office was easily identified by a snaking line of students waiting to sign up for courses. Now it's a place of relative calm—at least physically—as the course selection process has gone online and the queue of foot-shuffling students has become a virtual one. Enter any classroom and there will be nary a pen and pad in sight. Instead, the classrooms of the Sterling Law Buildings are packed with laptops and the click-click-click of keyboards. In the Lillian Goldman Library, fat volumes of legal cases still grace the shelves, but online resources have become the primary vehicle for research.

Traditionalists, take heart. There are still many things that remain the same, and though the transition to the virtual world may seem, on the surface, less personal, it has, in fact, simply shifted the nature of conversation to a different medium.

Information Technology Systems

YLS interoffice memos from 1980 tell of a time when "data processing/word processing consultants" were called into the Law School to help advise administrators about how they might productively use new technology. "Computerization," as it was called, was coming-and Yale Law School was getting ready. Far from the age of terabytes, the memos refer instead to magnetic tape and "Xerox keyboards."

It was in 1985 that then Dean Guido Calabresi '58 announced that the Law School had received approval for its first computer lab, in which twenty IBM PC ATs and twenty IBM Proprinters were made available for student use. Each computer had 640 K of internal memory and two disk drives, one 1.2 MB drive, and one 360 K drive. Four of the machines were "heavy lifters" offering 20 MB of hard disk space. (Compare that to 2008 when each student is allotted 250 MB of storage on the Law School's file server for the purpose of backing up files.)

When faculty members were first given computers in the mid 1980s, the biggest issues the (then-called) "Computer Services" staff faced were with floppy disks. Reminder memos posted in the computer lab relied on analogies between floppy disk drives and "stereo turntables" and were peppered with warnings not to take frustrations out on the hardware.

Spaces frequented at YLS a decade or two ago are now mostly quiet as changes in technology have altered the physical landscape of the computer labs and library. Students in the '80s lined up with floppy disks in hand to wait their turn to print. Today the Law School is completely wireless and email has replaced most paper. Students still print documents, though laser printers have replaced the behemoth dot-matrix machines in the computer lab.

Back in 1988 when she started working at the Law School, Susan Monsen (who is now Director of Information Technology Services) was the only staff member working in Computer Services. Slowly, the department's staff expanded as computers replaced typewriters and word processors and the Internet age began. As of 1998, the staff still numbered five, while a decade later there are now thirteen ITS staff members.

Today the YLS ITS team still works intensively with hardware issues and user support, but their responsibilities extend to application training, networking, audiovisual services, and web application development and support. Three full-time staff members now work solely on networking and web development, supporting student organizations and administrative departments with web applications (see sidebar on page 44). One full-time staff member works exclusively on laptop support, consulting with students and faculty (all of whom have laptops) to sort out pesky technical problems on the more than 600 laptops that are used daily at the Law School.

"The Law School is unusual in the level of support it offers to students and faculty members," says Kevin Bailey, Manager of Network Services and Student Computing. "IT support is now all of the time, all year long." Even exam period is a busy time for ITS staff as most exams are now taken on computers rather than in traditional "blue books."

Though laptops have never been a prerequisite of life as a YLS student, they are strongly recommended-and it seems that every student has one. Public and restricted-access computer clusters provide a total of 95 computers scattered throughout the building—the library hosts four separate areas for computers, including a computer lab, while the Legal Services Organization clinic offices are also home to YLS-maintained computers.

Enter almost any class in session and laptops are fully present; gone are the days of legal pads and binders for most Law School students. There are a few faculty members who prefer having computer-less classrooms, particularly in their small groups, but classrooms filled with computers are now the norm. All classrooms are wired with power outlets, and wireless access is available throughout all of the Sterling Law Building.

When the Law School was renovated in the late 1990s, classrooms were also wired for audiovisual equipment and the old faculty mailroom was converted to a central audiovisual room. Two full-time staff members now handle AV requests and Instructional Technology (which includes everything from PowerPoint support to providing microphones for and taping of large-scale events).

Most recently, the ITS staff has been focused on developing a new password-protected intranet portal site, called YLS: Inside, which brings together a host of internal documents, resource lists and links, calendars, and course information individualized for current students, faculty, and staff.

Of course all of the connectivity means less demand for paper, but more demand for energy. In an attempt to cut down on energy use and costs, the Law School plans to implement a number of procedures including automated power saving on all desktops, the purchase of Energy Star-rated servers, and a move to "server virtualization" by which servers are used more efficiently.

The Lillian Goldman Law Library

The Lillian Goldman Law Library represents the intersection of old and new technology at Yale Law School. While still a home to thousands of books, the library is also the go-to resource for high-tech research.

"Technology has completely changed how we work in reference," says Associate Librarian for Reference and Instructional Services John Nann. "Things that were unimaginable ten to fifteen years ago are now doable with the touch of a button."

The majority of library research has gone online; using resources such as LexisNexis and Westlaw is standard practice while paper-based research has become increasingly unusual. Texts can even be searched word by word, making the quality and efficiency of research better than in years past.

"Not only is most of the commonly used material now available online," says Nann, "but we now have access to very arcane pieces of information and the ability to connect with people whose names you wouldn't have even been able to find ten or fifteen years ago. You want to research water rights law in Botswana? Not a problem—you can even find the name of an expert in that field using an online search."

Paper-based card catalogs have long been discarded. "High technology in those days was an electric eraser. Now you can change 25,000 to 30,000 records in half an hour," says Associate Librarian for Technical Services Mary Jane Kelsey.

Digital cataloging began in the 1970s, with MORRIS (the University's first local online database of titles) launching in 1985. This past year, the library staff has been working to roll out "MORRIS Encore," which Kelsey calls "the new generation of catalog." Designed to be more in-tune with the e-commerce world, MORRIS Encore displays facets and subject clouds, as well as thumbnails of book covers in the Yale Law collection (much like the popular online bookseller Amazon.com). Not just an online catalog, both "Classic" MORRIS and MORRIS Encore serve as portals for research, offering links to library databases and online journals as well as records for the YLS collection. MORRIS also allows users to set up periodic searches and alerts that notify users when there are specific changes to the library collection. Students have access to thousands of databases through the library and University, with Lexis, Westlaw, and the Supreme Court decision database Thomas being just a few of the more frequented sites.

Though much library research has gone online, the switch to a digital format has not made the library an afterthought. Library patronage is up, in fact. It's just that the library staff use different resources to help faculty and students find the information they need.

"What would have taken me five hours to research before can now take me five minutes," Nann says. "But at the same time, the types of questions we get now are much more intricate and obscure. I can still often spend five hours on a question. It's just that questions that were unimaginable, unsolvable before are doable now."

Besides helping students and faculty to acquire resources and perform research, the library also trains the YLS community about how to use available technology.     

"At the level of research that our students and faculty are doing, they really need to be able to utilize the tools the best they can," Nann explains. 

As books become digitized, the library's collection becomes increasingly available to scholars throughout the world. Books, though, will always have a home at the Law School's library where students, faculty, and researchers can work with primary documents and search the pages of books handled by generations of legal scholars.

"We still love the artifact," Kelsey says. "That's our mission—[books] will always have a home here."

The Registrar's Office

Just as the lines of students waiting to print from their floppy disks have disappeared, so, too, have the lines once so well known to the Registrar's Office. Originally designed with an open rectangular layout to accommodate constant student traffic and long lines at course selection time, the office now rarely has a line—at least not a visible one—as much of the student traffic has gone online.

"There are still students who come to the office in person with questions," Registrar Judith Calvert explains, "but their questions tend to be more substantive, and the ‘housekeeping' details are sorted through online applications."

The Registrar's Office joined the University's Student Infor­mation Systems (SIS) soon after the online system was launched in 1998, giving students access to grades, and allowing them to bid for a limited number of courses online. Exams also gradually moved online, beginning with longer, self-scheduled exams.

Initially prompted by the motivation to give students greater flexibility in taking exams, the online system also facilitated the collection of exams from students and redistribution to faculty members by the Registrar's Office. Rather than having to keep track of hundreds of blue books, the online system allows the Registrar to work with digital files that can be more easily tracked, stored, and shared with faculty.

Following the first iteration of online exam taking, the Law School worked with a third-party software vendor to build an exam system specifically created to mesh with YLS policies and procedures. Over the past four years, the Registrar's Office has expanded the system. Today approximately seventy percent of exams are self-scheduled, and the majority of those are available online. Online exam taking is not a requirement however-old-fashioned blue books are still available to those who want to put pen to paper, and students are encouraged to use whatever system suits their comfort level.

"All we've done is add another shape of pencil to the pencil box," Calvert says.

Today virtually all student records are available online via SIS. Course selection and bidding are exclusively online. Grade reports are online. Bills are paid online (paper bills no longer even exist). All contact information is updated online. Unofficial transcripts are available online. And all course evaluations are completed online.

What once took weeks to sort out-namely class rosters and student schedules-is now updated daily. The once time-consuming task of reviewing each student's transcript by hand and tallying standings toward degree requirements is also now automated. Instead of the hand-tallying, degree progress reports are automatically generated and emailed to all third-year students, allowing them to track their progress toward their Law School diploma.

Some things are still very much the same as they've always been, though-official transcripts are still paper based and require an official signature and seal of the Registrar, and the Bar certification process has not yet gone online.

"It's a constantly evolving system," says Calvert, adding that the primary motivation behind all of the office's online systems is increased efficiency. The ability to handle routine requests online has made the office's interactions with students more substantive, she says.

In the summer of 2007, for example, Deputy Registrar Rebekah Melville worked with the Graduate Students Program to develop an online bidding system available specifically for LL.M. students. One hundred percent of the incoming LL.M. candidates used the online system and reported that the ability to select courses online helped in their transition to YLS. Gone was the added anxiety of trying to select courses while adapting to a new environment—a foreign environment for many of the international students in the LL.M. class. And rather than devoting their energy to long lines of frazzled students trying to fill out paperwork, the Registrar's Office was able to focus on students' individual questions.

"The goal is not to say we're a distance learning school," Calvert assures, "but to facilitate the process so that students can concentrate on what they're here to do-to study law." Y

Text by Kaitlin Thomas

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Posted: Jul 24 2008, 02:31 PM by YLR Editor
Filed under:
Commencement 2008

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"When these 232 individuals have completed their academic requirements, they will be, quite simply, the finest new law graduates on the planet this year."

Yale Law School Dean Harold Hongju Koh's pride in the Class of 2008 was evident in his remarks to graduates during Commencement ceremonies on May 26, Memorial Day. He recounted some of their major accomplishments and reminded them "that the role of lawyers is to be leaders; that accomplishment alone, without humility, is tragic; and that excellence alone, without humanity, is worthless." In keeping with the day, he paid tribute to deceased U.S. military veterans who "paid what Abraham Lincoln called that ‘last full measure of devotion.'"

Deputy Dean Jonathan Macey '82, Sam Harris Professor of Corporate Law, Corporate Finance, and Securities Law, spoke of "three of the most critical things every lawyer should have: gratitude, courage, and an understanding of the world we live in today."

The announcement of degree candidates followed-203 Juris Doctor (J.D.) degrees, 25 Master of Laws (LL.M.), 3 Doctor of the Science of Law (J.S.D.), and 1 Master of Studies in Law (M.S.L.). 

Kenji Yoshino '96, Guido Calabresi Professor of Law, delivered the commencement address. Professor Yoshino, who is leaving Yale Law School, urged students to move toward the Promised Land of a society characterized by dignity, equality, and liberty. He ended his remarks on an emotional note, saying it was impossible to sum up what his years at Yale Law have meant to him.

"Today, my heart is full of gratitude," he said. "I thank my teachers who sit behind me for letting me learn from them, and my students who sit before me for letting me teach you. Less intuitively, but perhaps more importantly, I thank my teachers behind me for letting me teach them, and my students before me for letting me learn from you."

Also addressing the graduates was Carla Hills '58, chair and chief executive officer of Hills & Company, International, and former Secretary of Housing and Urban Development during the Ford Administration. Hills, who received an honorary degree earlier in the day from Yale University, had this piece of advice: "Select those opportunities that capture both your heart and mind. Love what you do and you will do it better." Y

To read the Commencement remarks and see additional photographs and a video of the ceremonies, visit www.law.yale.edu/news/7010.htm.

Photographs of Commencement 2008 by William K. Sacco, Yale University Media Services; Text by Kathy Colello

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