From the President

From the President

Our Events and the Quarterly

By Vilia B. Hayes

2-25-15 Hayes    I recently returned from the Federal Bar Council’s Fall Bench and Bar Retreat where over 160 adults and 35 children spent a wonderful weekend at Mohonk Mountain House.  The weekend was full of interesting CLE programs and an outstanding performance on Saturday night by the Inn of Court players.  The play showed the challenges of criminal trial work in New York federal court through a witty plot set to the music of West Side Story.  There was, of course, also the spa, pool, and a beautiful area to hike and walk, and great activities for the children.  But in reflecting on what made the weekend memorable for me, I must say it was the wonderful camaraderie among the participants, including many interesting conversations and late night singing by more than a few talented members of the Council.  

A Book and Poems

    Despite a very stormy night, more than 200 people came out on October 28 for the book launch of Courthouses of the Second Circuit: Their Architecture, History, and Stories at the Thurgood Marshall Courthouse.  This beautiful book of photographs of the remarkable federal courthouses within the Second Circuit also includes stories of the famous and historical cases heard in those courthouses.  Courthouses can be purchased by individuals, law firms, law schools, and law libraries, from (use promo code FBC for a member discount).  

    We had a smaller turnout but a nice review in the Wall Street Journal of our first “Judges Reading Poetry” event at Poets House, a beautiful facility facing the Hudson River downtown, on October 20.  Inspired by Second Circuit Judge Dennis Jacobs, the Council and Poets House sponsored this wonderful event, at which Judges Jacobs and Gerard E. Lynch of the Second Circuit, Judge William F. Kuntz, II, of the Eastern District of New York, and Judge Colleen McMahon of the Southern District of New York, each read from favorite selections to a rapt audience.  Poetry night was a special treat that was at once thought provoking, touching, and great fun.  We hope to do it again.  

    I wanted to mention these events and take a few minutes in this column to invite anyone who is interested in the Federal Bar Council to consider joining one of our committees and attending more of our events.  Our upcoming events include the Annual Thanksgiving Luncheon on Wednesday, November 25,, our Winter Bench and Bar Retreat from January 30 to February 6, 2016 at the Four Seasons Resort in Kona, Hawaii,, and our Judges Reception on March 3, 2016, where we will honor the judges of the Eastern District of New York, who are celebrating that court’s 150th Anniversary.   Take a look at our website and feel free to contact me ( or Joan Salzman, the Executive Director ( if you want additional information.

The Quarterly  

    Finally, I am very pleased to announce that the Federal Bar Council Quarterly, which is distributed electronically, will be fully restored with this issue to print.  You will be able to find stories online and members can also look forward to your print copy arriving in the mail at your office or at home.


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The Federal Pro Se Legal Assistance Project

From the Editor

The Federal Pro Se Legal Assistance Project

By Bennette D. Kramer

Kramer    The Federal Pro Se Legal Assistance Project of the City Bar Justice Center opened its doors at the Eastern District of New York courthouse in March 2015.  Chief Judge Carol Amon, City Bar President Debra Raskin, City Bar Justice Center Executive Director Lynn Kelly, Eastern District Magistrate Judge Lois Bloom, and Project Director Nancy Rosenbloom participated in a formal ribbon-cutting for the Project offices in the courthouse in June.  A number of Eastern District judges also attended, including Judge Jack B. Weinstein, long a supporter of the Eastern District Civil Litigation Fund and its efforts to support pro bono representation in the Eastern District.

    The Project, headed by Nancy Rosenbloom, provides limited-scope legal assistance advice or consultation to low-income litigants and prospective litigants who appear pro se in the Eastern District.  Magistrate Judge Bloom developed the Project model and then sought an entity that the Eastern District could partner with to provide legal assistance to pro se litigants within the courthouse. The City Bar Justice Center, which has a history dating back to the 1980s of providing justice to those who need it, agreed to hire the Project Director and provide support services.  Funding for the first year was provided by the court and a grant from the Eastern District Civil Litigation Fund.  The court also provided the space in the courthouse which has been renovated to include three offices and a space for the pro se litigants to work on papers related to their cases. The court also provided two public access PACER terminals.  In addition, the City Bar Justice Center has purchased and set up a client computer with limited-access internet capability, which provides clients with access to the court website, forms and information packets, and other legal resources.  Clients can save information and draft documents to flash drives also provided by the City Bar Justice Center.  

    Before becoming Project Director, Nancy Rosenbloom was a Legal Aid Attorney for 25 years working on civil rights, juvenile rights, issues relating to the homeless and general civil litigation in state and federal courts.  She has broad experience representing those who cannot afford attorneys.  Before joining the Legal Aid Society, Nancy was a law clerk for United States District Judge U. W. Clemon of the Northern District of Alabama.  

    In September, after the Project had been in operation for six months, I spoke with Nancy about her background, how the Project was going, and what she envisions for the future.  Nancy said that she has spent her whole career in poverty law helping those who cannot afford lawyers.  She believes that experience such as hers in legal services and federal courts combined are essential to understanding the clients. One of her goals on assuming the management of the Project is to focus on how to build a replicable model that a less experienced lawyer could run.  Anyone managing the Project would ideally have some experience in providing legal services to the poor and in employment cases, which comprise a large part of the docket.

Forms and Information

    With help from the City Bar Justice Center, Nancy has developed forms and information packets.  The hard task is presenting all this complicated information to clients clearly. The City Bar Justice Center keeps information about cases and other Project activities in a database.  Nancy also has undertaken two volunteer efforts.  The first is a pilot volunteer lawyer program using volunteer attorneys from three firms – Cleary Gottlieb, Davis Polk, and Sullivan & Cromwell – who are on site two mornings per week.  As participants in this pilot project, the volunteer attorneys are “of counsel” to the City Bar Justice Center. Nancy conducted two orientation and training sessions for the volunteers, who now assist Nancy with intake interviews, discrete drafting projects, and legal research.  Next, Nancy plans to work with the Federal Bar Council to establish a structure so that Council members may volunteer.

    The six month report on the Project shows that 72 percent of the 201 clients have visited the Project offices more than once.  The types of cases cover a wide range of legal issues, including employment discrimination (29 percent) and civil rights (19 percent) cases.  Other types of cases include other employment (nine percent), state law (12 percent), foreclosure-related (six percent), federal agency suits (five percent), Social Security appeal (six percent), and consumer issues (two percent).  The majority of cases were referred by the Eastern District Clerk’s office (65 percent) and the magistrate judges (14 percent).  The Project provided assistance in the form of review of papers, research, drafting assistance, and strategy advice to 140 clients, and provided advice-only to 29.  The Project has advised and referred 32 clients to nonprofit legal service providers, the City Bar’s Legal Referral Service, and/or pro bono counsel.

    In connection with client representation Nancy has used the City Bar Justice Center in two ways.  First, she has used its extensive pro bono network to place several cases for full representation. Second, she has obtained expert consultations in situations that require specialized expertise such as international trust issues and annuities.  In these two situations, the limited representation model worked well because Nancy needed an answer to a legal question but did not need a lawyer to take over full representation of the client.

A New Model

    For Nancy, the big benefit of the Project is the opportunity to build a new model of legal services to help a large number of people.  The Project should result in increasing access to justice for low income people.  The challenge for Nancy is that while she has spent her career litigating cases from start to finish, here she provides limited representation geared to assisting pro se litigants to prepare a complaint, answer, or motion, without providing full representation.

    Most surprising to Nancy was the number of clients who are pro se defendants.  These clients are mostly involved in small business disputes.  Also, 35 percent of the clients came for help before filing.  Nancy provides assistance in solving problems outside of court or diverting matters to another court.  For those that should be in federal court, she helps to draft complaints and other documents along with providing strategic advice and counseling.

    The Project is off to a strong start, thanks to Nancy’s dedication and expertise.  Pro se litigants have long looked for a place to turn for legal advice, and the project appears to be filling that need.

    Editors’ Note:  The author is a member of the board of the Eastern District Civil Litigation Fund, which has provided some of the first year funding for the Project.

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Celebrating Four Fabulous Nonagenarians for E.D.N.Y.’S 150th

FBC News

Celebrating Four Fabulous Nonagenarians for E.D.N.Y.’S 150th

By Chris Jensen, Steven Flanders, and Bennette Kramer

    On September 8, 2015, the Eastern District of New York and the Federal Bar Council American Inn of Court joined together to present a program in connection with the Celebration of the 150th Anniversary of the Eastern District.  The event was A Conversation with the Eastern District’s “Greatest Generation” – four remarkable Eastern District judges, still extremely active beyond their ninetieth birthdays, who had served in World War II.  Second Circuit Judge Reena Raggi – a former Eastern District judge herself – moderated the panel comprised of Judges Jack B. Weinstein, I. Leo Glasser, Leonard D. Wexler, and Arthur D. Spatt.  Judges Weinstein and Spatt served in the Navy, while Judges Glasser and Wexler served in the Army during the war.  Collectively, these four judges have served on the bench for nearly 140 years.  

War Experiences

    Judge Raggi asked each of the judges a series of questions, starting with questions about their war experiences, which varied considerably.  Judge Weinstein served as a Lt. Commander in the Navy on a submarine that sank a Japanese Cruiser.  Judge Wexler was an enlisted man who was injured by shrapnel fighting in Europe and received two Bronze Stars and a Purple Heart.  Judge Glasser served as an interpreter in the Army and entered into Germany with the U.S. Army.  Judge Spatt was a navigation petty officer on an amphibious attack transport ship.  Judge Thomas C. Platt served on a PT boat, and then as a navigator on a Navy troop transport ship, but was unable to attend the program.

    Judge Raggi’s inquiry as to the biggest change each judge had experienced drew diverse and telling responses.  Judge Spatt focused on sentencing, speaking of the need for judges to recognize that the guidelines are not mandatory, avoiding draconian sentences.  Judge Wexler welcomed the huge increase in women lawyers, now a majority of new lawyers, while his law school class had one woman out of 400 graduates.  Judge Glasser spoke of the “mechanization” of the law: now any lawyer has access to any case anywhere.  Judge Weinstein noted many other changes, among them the huge expansion of the court, and of federal jurisdiction.  Judge Weinstein also observed that our society has become far more open; much was closed to many in the 1920s and 1930s, but the judge also focused on contemporary efforts to close doors, notably regarding class actions.

    All four said that their experiences in the war had a profound effect on their later lives and careers.  Judge Weinstein said that one of the most valuable lessons he learned from his military service was the ability to command and that he uses that experience to command his courtroom today.  Judge Wexler spoke about his experience of being hit by shrapnel and how his military service helped him to mature as a person.  Judge Glasser spoke about entering German homes where everyone denied being a Nazi sympathizer but there were swastikas on the wall.  Judge Spatt was on his way to invade Japan and was only a thousand yards away from the USS Missouri when the Japanese surrendered.

    Next, Judge Raggi asked questions about the panelists’ adjustment to the bench and what had been the most difficult part of the transition.  All of the judges spoke about the satisfaction and privilege of being a federal judge although they discussed the difficulty of criminal sentencing.

    Finally, she asked them what advice they had for current and future judges.  Judge Weinstein reminded the younger judges that they are free to dispense justice.  He also got a big laugh when he described his court as adhering to something that “resembles” the Federal Rules of Civil Procedure.  Judge Glasser said that the most important thing for a younger judge to remember is to talk less and listen more.

An Extraordinary Evening

    This was an extraordinary evening in every respect.  The wealth of experience of these jurists is astounding and the fact that they are still active on the bench in their 90s is inspiring.  All four judges expressed special pleasure both as to the “great job” they occupy, and the outstanding quality of the recent judicial appointees.


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What LBJ Did Not Know and Why He Did Not Know It?

Legal History

What LBJ Did Not Know and Why He Did Not Know It?

By C. Evan Stewart

 2-25-15 C  Evan Stewart   The Cuban Missile Crisis in October 1962 was surely John F. Kennedy’s finest hour.  Although he undoubtedly played a role in encouraging Nikita Khrushchev’s reckless gamble to place nuclear missiles in Cuba (e.g., the Bay of Pigs fiasco, his quite unsuccessful summit meeting with the Soviet Premier, Operation Mongoose – his administration’s covert operation to topple (and even kill) Castro), President Kennedy’s cool hand led to the ultimate resolution of that potential nuclear Armageddon.

    The lesson supposedly learned by the crisis (and that was first detailed in a contemporaneous article by Stewart Alsop and Charles Bartlett in the Saturday Evening Post (“In Time of Crisis”) (December 8, 1962); John and Robert Kennedy were clearly the sources for much of this inside-the-crisis piece) was that President Kennedy had gone “eyeball to eyeball” with the Soviet Union and had prevailed by showing “resoluteness, restraint, and controlled escalation of force,” which caused Moscow “to capitulate.”

    Lyndon Johnson, once he became President, believed that that was indeed the lesson of the Cuban Missile Crisis.  And aided by the same advisors who helped President Kennedy in the Missile Crisis, President Johnson sought to apply that lesson to the Vietnam imbroglio he inherited on November 22, 1963, one month after the overthrow and assassination of South Vietnam’s President Ngo Dinh Diem (which had been aided and abetted by the Kennedy Administration).  In December 1964, for example, powerful Washington columnist Joseph Alsop wrote in the Washington Post:  “For Lyndon B. Johnson, Vietnam is what the Cuban missile crisis was for John F. Kennedy.  If Mr. Johnson ducks the challenge, we shall learn by experience about what [it] would have been like if Kennedy ducked the challenge in October, 1962.”  According to one of President Johnson’s key aides, the just-elected President hit the roof when he read those words; as he later told one of his biographers (Doris Kearns), if he “lost” South Vietnam to communism the person most vociferous in attacking him would be Robert F. Kennedy, claiming that President Johnson had “betrayed John Kennedy’s commitment to South Vietnam….  That I was a coward.  An unmanly man.”

    The Saturday EvenJFKWHP-KN-24670ing Post article later became even more enmeshed in history by Robert F. Kennedy’s Thirteen Days:  A Memoir of the Cuban Missile Crisis (W.W. Norton, 1969).  That book, based upon Robert Kennedy’s diary and written and published posthumously by Theodore Sorensen, is (in the words of the leading historian of the Missile Crisis) “undoubtedly… the most influential book on the missile crisis.”  Unfortunately, it is materially wrong on a multitude of fronts.  The only error this article will focus on is what did President Johnson not know about the Missile Crisis and why he did not know it.

The Trollope Ploy

    Anthony Trollope was a nineteenth-century British novelist.  He employed a plot device in which a woman overly eager to be wed accepts a casual remark by a man to be a marriage proposal.

    At the height of the crisis, on Friday, October 26, Khrushchev sent President Kennedy a letter that was very emotional and appeared to have been penned by the Soviet leader himself; in the letter, Khrushchev offered to remove the missiles from Cuba if America publicly pledged not to invade the island.  The following day, a letter much more formal (and thus likely to have been the product of many hands in the Kremlin) arrived demanding an additional term:  that the U.S. withdraw its Jupiter (nuclear) missiles from Turkey.

  LBJ Photo  According to Alsop, Bartlett, and Thirteen Days, Robert Kennedy supposedly suggested accepting the terms of the first letter and ignoring the terms of the second; the inspired strategy became known as the Trollope Ploy.  And according to Robert Kennedy (and agreed to and promoted by numerous Kennedy men over the years:  McNamara, Schlesinger, Rusk, Bundy, Sorensen, etc.), this strategy worked.  It saved the world from a nuclear holocaust and underlined the “lesson” to be learned from the Missile Crisis.  But that is not what really happened, and so the “lesson” learned was not in fact the right one.

    It is true that almost to a man the famous ExComm (the group of advisers President Kennedy assembled to assist him in the crisis) did not want to agree to the October 27 letter’s additional demand.  But the most important person in the room – President Kennedy – thought differently.   On tape recordings the President made of ExComm meetings, he said:  “most people will regard this [trade] as not an unreasonable proposal.”  The President added that those same “people” would not think the U.S. would be justified in attacking Cuba after Khrushchev had said: “‘If you get yours out of Turkey, we’ll get ours out of Cuba.’  I think you’ve got a very tough one here.”  He went on to say:  “Let’s not kid ourselves.  They’ve got a very good proposal….”  As a result, the President directed the ExComm to be “thinking about what our position’s gonna be on this one [the October 27 letter], because this is the one that’s before us and before the world.”  The man with the ultimate responsibility had already reminded his colleagues (and the Joint Chiefs) that “You’re talkin’ about the destruction of a country” (if the Cuban missiles were fired at the United States and an all-out war began).  

Judges Photo    In the face of the opposition of virtually all of his advisers (except for Adlai Stevenson, who had earlier suggested a missile swap and later was accused of advocating another “Munich” in the Alsop & Bartlett article), President Kennedy convened a rump session of the ExComm at 8 p.m. on October 27 in the Oval Office.  Present were President Kennedy, Robert Kennedy, Dean Rusk (Secretary of State), Robert McNamara (Secretary of Defense), Sorensen (White House Counsel), McGeorge Bundy (National Security Adviser), George Ball (Undersecretary of State), Llewellyn Thompson (former Ambassador to the U.S.S.R.), and Roswell Gilpatric (Undersecretary of Defense); excluded from the rump session were General Maxwell Taylor (Chairman of the Joint Chiefs of Staff), C. Douglas Dillon (Secretary of the Treasury), John McCone (Director of Central Intelligence), and Lyndon Johnson.  President Kennedy informed the group that he was about to send Robert Kennedy to meet with Soviet Ambassador Anatoly Dobrynin.  President Kennedy continued to see a missile swap as the way out, even though all of his advisers in attendance (including Robert Kennedy) were against it.  Finally, Dean Rusk suggested that Robert Kennedy tell Dobrynin that a public quid pro quo for a missile swap was unacceptable, but that the Jupiter missiles would be removed at some future point if the Cuban missiles were removed.  McGeorge Bundy later wrote that Rusk’s proposal was quickly supported by those in attendance and Robert Kennedy was authorized to convey those terms to the Russian Ambassador.  Bundy also later wrote: “It was also agreed that knowledge of this assurance would be held among those present and no one else.”  The secrecy held until 1989.
    Robert Kennedy, even though he still wanted “to take Cuba back,” dutifully delivered his brother’s message that evening.  The deal was quickly agreed to by Khrushchev, who announced to the world on October 28 that the U.S.S.R. would remove its missiles from Cuba.  The next day, Dobrynin delivered to Robert Kennedy a letter from the Soviet Premier detailing the terms of the two countries’ agreement; included was reference to the U.S.’s “secret commitment” to remove the Jupiter missiles.  Robert Kennedy, after consulting with his brother, returned the letter to Dobrynin.

    According to the Russian ambassador, Robert Kennedy told him that “some day – who knows? – [I] might run for president”; as such, he could not “risk getting involved in the transmission of this sort of letter, since who knows where and when such letters can surface or be somehow published – not now, but in the future – and any changes in the course of events are possible.  The appearance of such a document would cause irreparable harm to my political career in the future.”

The Aftermath of the Horse Trade

    President Kennedy publicly cautioned those in his administration not to gloat over the Soviet’s “capitulation.”  At the same time, he sanctioned the Saturday Evening Post article and bragged to his close friends that he had “cut [Khrushchev’s] balls off.”  He also went to great lengths to cover up any suggestion that he had traded the Jupiter missiles in Turkey for the Soviet missiles in Cuba. Furthermore, Bundy publicly denied any trade had taken place; the State Department officially confirmed to the Turkish government that the Jupiter missiles had not been swapped in order to resolve the crisis; and, most tellingly, Rusk and McNamara both lied under oath before the Senate Foreign Affairs Committee (Rusk – in response to a question that he affirm that a “deal” or “trade” had in “no way, shape or form, directly or indirectly been connected with the settlement… or had been agreed to – testified:  “That is correct, sir.”) (McNamara – in response to a similar question – testified:  “Absolutely not … the Soviet Government did raise the issue… [but the] President absolutely refused even to discuss it.  He wouldn’t even reply other than that he would not discuss the issue at all.”)  Notwithstanding, and on McNamara’s October 29 order, the Jupiter missiles were directed to be destroyed (the Defense Department’s General Counsel John McNaughton, implementing the order, barked:  “Those missiles are going to be out of there by April 1 if we have to shoot them out!”); the process was quietly completed within six months.

    In January 1989, at a conference in Moscow on the Cuban Missile Crisis (which the Soviets called the Caribbean Crisis), Dobrynin publicly dismissed the notion that Robert Kennedy had resolved the crisis by giving him an ultimatum on October 27 (the Thirteen Days account), and challenged the U.S. officials who knew better to fess up.  Apparently shamed, Theodore Sorensen stood up and said he had “a confession to make to my colleagues on the American side, as well as to others who are present”:

    I was the editor of Robert Kennedy’s book.  It was, in fact, a diary of those thirteen days.  And his diary was very explicit that this [the missile swap] was part of the deal; but at the time it was still a secret even on the American side, except for the six [sic] of us who had been present at the meeting.  So I took it upon myself to edit that out of his diaries.

Are We Sure President Johnson Did Not Know?

    The answer to the captioned question is:  yes.  Of course, it is not unusual for Presidents and their aides not to share information with vice presidents (e.g., Franklin D. Roosevelt and Harry Truman).  But what about when the vice president succeeds to the presidency by death and the secret information relates to national security?  In April 1945, for example, the first thing Secretary of War Henry Stimson did was to tell President Truman about the top-secret nuclear bomb.

    Robert Kennedy, of course, loathed and detested Lyndon Johnson, even before he became President; and the fact that he succeeded his slain brother only made matters worse for that “relationship.”  So it is hardly a surprise that Robert Kennedy did not tell President Johnson.  But what about the men at the center of American foreign policy – Rusk, McNamara, Ball, and Bundy – all of whom stayed on in the Johnson Administration and (with the exception of Ball) were enthusiastic advocates of escalating the Vietnam conflict into what became known as “McNamara’s War”?

    After Sorensen’s 1989 disclosure, Professor Barton Bernstein interviewed each of those men and asked whether any of them had told President Johnson.  Each said “no.”  And Bundy went even further, telling Bernstein that President Johnson did not know.  Why was Bundy so sure?  Because there are two White House tape recordings of President Johnson and Bundy discussing the Cuban Missile Crisis in the context of the escalating Vietnam conflict.  As President Johnson was openly musing about President Kennedy’s tough brinksmanship in opposition to Khrushchev’s gamble, Bundy (after a few “uh-huh[s]”) said:  “I’ve always thought that the prospect of invasion had more to do with the solution than any other one thing.  I couldn’t prove it, but I just think that it looked awful imminent….”

    So why did these men (and the others privy to the secret deal) not tell President Johnson?  There would appear to be two reasons:  first, loyalty to President Kennedy and the assassinated leader’s Camelot image in history; and second, loyalty to Robert Kennedy’s political ambitions (and certain run for the presidency).  That such notions of loyalty trumped our national security interests is (at a minimum) very troubling.

Would It Have Made A Difference?

    Counterfactual history is just that.  But it is clear President Johnson was concerned about Robert Kennedy coming at him over Vietnam from the right (as opposed to the left).  And in fact, before Robert Kennedy reversed his position on Vietnam (from strong hawk to passionate dove), he invoked the Missile Crisis’s “lesson” when he said, on February 17, 1966, that North Vietnam “must be given to understand … that their present public demands are in fact for us to surrender a vital national interest – but that, as a far larger and more powerful nation learned in October of 1962, surrender of a vital interest of the United States is an objective which cannot be achieved.”

    After the secret deal was outed in 1989, Robert McNamara – as part of his desperate public attempts at saying he was “sorry” for his role in the Vietnam War – contended that it was “highly probable” that President Kennedy would not have escalated Vietnam into a full-scale war, citing his willingness to trade the Jupiter missiles in 1962.  Easy to say, in retrospect (but if President Kennedy “would have,” why would President Johnson (the consummate horse-trader) also not have done so? – If he had known?).  What was Sorensen’s (one of President Kennedy’s principal hagiographers until the day he died) view?:  “Very possibly … an earlier disclosure of JFK’s assurance to Khrushchev regarding the missiles in Turkey would have slowed down LBJ’s … plunge in Vietnam, but I doubt it.”  Of course, we will never know.


•    After Sorensen’s 1989 admission, Bundy acknowledged that “[s]ecrecy of this sort has its costs.  By keeping to ourselves the assurance on the Jupiters, we misled our colleagues, our countrymen, our successors, and our allies.  We allowed them all to believe that nothing responsive had been offered….”  Bundy’s biographer (Kai Bird) thus concluded:  “[P]eople were allowed to think the great lesson of the missile crisis was that ‘unwavering firmness’ had carried the day.  The appearance of uncompromising toughness in facing down a Soviet threat may have aided Kennedy politically, but it also sent a message to the American people that a confrontational policy against communists was necessary at all times.  This, in turn, would make it harder for Kennedy and his successors to have any flexibility in dealing with the Soviets, or for that matter, such other communist adversaries as the North Vietnamese.”

•    Had the non-public quid pro quo not worked, according to Dean Rusk (but unbeknownst to the others), President Kennedy had authorized him to utilize Andrew Cordier (a dean at Columbia University and former U.N. official) to approach U Thant (the U.N. Secretary General) and have the quid pro quo be a U.N. proposal that would allow the Soviets to save face.  Although all of his advisers had opposed a public swap of the missiles, President Kennedy wanted to do everything he could to avoid nuclear war.

•    Many historians have hailed the ExComm meetings as the quintessential exemplar of crisis management; but the White House tapes of the meetings show them to be (in the words of Professor Bernstein) “desultory, spastic, and often inchoate.”  President Kennedy, in fact, later told John Kenneth Galbraith: “You have no idea how much bad advice I received in those days.”

•    The best sources for those who wish to pursue this subject further are:  Sheldon M. Stern, The Cuban Missile Crisis in American History:  Myths Versus Reality (Stanford 2012); Max Holland & Tara Marie Egan, What Did LBJ Know About the Cuban Missile Crisis?  And When Did He Know It? (Washington Decoded October 19, 2007); Eric Alterman, When Presidents Lie:  A History of Official Deception and Its Consequences (Viking 2004).

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What Is A “Whistleblower”?

Second Circuit Decisions

What Is A “Whistleblower”?

By Charles C. Platt

 Platt   The Second Circuit’s recent decision in Berman v. Neo@olgilvy LLC addresses whether the Dodd-Frank Act’s definition of a “whistleblower” limits the retaliation remedies available under that Act. In a 2-1 decision, the court held that it must defer to the interpretation of the statute offered by the Securities and Exchange Commission, which does not so limit the remedies.  The decision creates a circuit split, as the Fifth Circuit concluded that the “whistleblower” definition in Dodd-Frank does restrict the retaliation protections available.

    By way of background, Dodd-Frank protects “whistleblowers” from retaliation. “Whistleblowers” are defined as individuals who provide to the S.E.C. information relating to violations of the securities laws.  A whistleblower’s protection against retaliation is provided in a separate provision of Dodd-Frank. That separate provision prohibits any retaliation not only for providing information to the S.E.C. (as contemplated in the definitional section) but also for making disclosures required or protected under the Sarbanes-Oxley Act.  Sarbanes-Oxley in turn protects employees who blow the whistle either internally or to regulators such as the S.E.C.

Berman’s Suit

    In the case at hand, plaintiff Berman sued his employer under Dodd-Frank, alleging that he was wrongfully discharged for whistleblowing.  His whistleblowing occurred when he reported internally that there were fraudulent accounting practices occurring at the company.  He did not report these practices to the S.E.C. until after he was fired.

    Berman’s employer moved to dismiss, arguing that he had not stated a claim for relief under Dodd-Frank. Specifically, the company relied on the definitional section in Dodd-Frank and argued that Berman was not a “whistleblower” because his whistleblowing was internal; he did not provide information to the S.E.C.  Berman responded by relying on the separate provision of Dodd-Frank that protects against retaliation.  He argued that, under this section, he could not be terminated for making disclosures under Sarbanes-Oxley, which in turn protects employees like him who provide information internally at the Company.

The Circuit’s Decision

    The district court granted the motion to dismiss the Dodd-Frank claims. The Second Circuit reversed and remanded, in a decision by Judge Jon O. Newman, joined by Judge Guido Calabresi. The court noted that there was no “absolute conflict” in Dodd-Frank between its definition of  a whistleblower (i.e., those who report to the S.E.C.) and the separate section prohibiting retaliation against whistleblowing (i.e., any reporting to the S.E.C. or internally at the company). An employee who suffers retaliation after simultaneously reporting wrongdoing both to the S.E.C. and within the company internally has remedies under both Dodd-Frank and Sarbanes-Oxley. However, the court also determined that there was “significant tension” between the whistleblower definition on the one hand, and the separate provision prohibiting retaliation against whistleblowing on the other, both within the same Dodd-Frank statute. In the court’s words, they “do not fit together neatly.”

    In reviewing that tension, the Second Circuit reasoned that limiting Dodd-Frank’s remedies only to whistleblowers who reported wrongdoing to the S.E.C. would leave the Dodd-Frank’s provision prohibiting retaliation with “very limited scope.” Thus, it looked at whether Congress intended to achieve such a result. Finding nothing in the legislative history, the court considered the S.E.C.’s interpretation of this tension. Specifically, the S.E.C.’s Exchange Act Rule 21F-2 provides that even if employees only report wrongdoing internally, they can obtain the retaliation remedies under Dodd-Frank, based on the retaliation protection provision in that statute. The Second Circuit concluded that, under the circumstances outlined above, it was obliged to give deference to the S.E.C..’s interpretation under the Supreme Court’s Chevron doctrine. Plaintiff Berman was found to be entitled to pursue his Dodd-Frank remedies for alleged retaliation as a result.

    Judge Dennis Jacobs dissented, pointing out that plaintiff Berman had statutory remedies under Sarbanes-Oxley for any retaliation that occurred as a result of his internal reporting, and that any lack of remedies under Dodd-Frank for retaliation did not need “patching.”  In Judge Jacob’s view, the Dodd-Frank section unambiguously defined a whistleblower, and expressly stated that this definition “shall apply” anywhere else “in this section.”  This “section” included the separate Dodd-Frank provision protecting against retaliation. As a result, Judge Jacobs saw no reason to defer to the S.E.C.’s interpretation in its Rule 21F-2.  The fact that the Dodd-Frank provision protecting against retaliation might be “limited in scope” did not change the analysis in his mind.

    The debate in the Second Circuit over the Dodd-Frank remedies for whistleblowers may not be over yet. Because the Second Circuit’s majority opinion conflicts with a decision by the Fifth Circuit, this issue may be taken to another level in the near future.

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Images of Harassment: Copyright Law and Revenge Porn

IP Law

Images of Harassment: Copyright Law and Revenge Porn

By Ari Ezra Waldman

    Nonconsensual pornography, commonly known as “revenge porn,” usually occurs when an individual (usually a man) publicly posts online sexually explicit images of his former partner (usually a woman). Although normally the stuff of tort law, revenge porn offers copyright attorneys opportunities to help victims, as well: the offending images are often selfies taken by the victim and thus covered by the victim’s copyright. There is, to date, no Second Circuit case law on the subject, making this area uniquely suited to creative social impact litigation. Until state legislatures or Congress pass well-drafted criminal revenge porn statutes, copyright law remains a necessary though inadequate weapon to combat revenge porn in the Second Circuit and elsewhere.

The Problem of Revenge Porn

    Revenge porn is a particularly devastating invasion into a private, intimate sphere of life not merely because of the sexually explicit content of the images, but because those images are posted online for all to see. In her book, Hate Crimes in Cyberspace, Danielle Citron tells us about Holly Jacobs: In 2011, Holly, then a doctoral student living in Florida, clicked on a link sent to her by an anonymous tipster and found nude photographs of herself and video from a webcam session, which her ex-boyfriend had surreptitiously recorded. A Google search revealed that these images, along with her name, email address, screen shots of her Facebook page, her work address, and other personal information, appeared on hundreds of websites, including one that arranged sexual encounters. She started receiving frightening emails, some of which threatened physical violence while others threatened to send the nude images to her boss unless she paid handsomely. Law enforcement offered no help, telling her that it was her own fault for sending nude pictures to her ex-boyfriend. She tried contacting every website she could find that hosted her images, demanding they take them down. Few complied. She changed her name to escape.

    The digital dimension of Holly’s victimization is salient: the Internet offers perpetrators a free and permanent weapon to harass their victims. Even if images are eventually taken down, links, copies, downloads, and blog posts create an intricate web history that anyone – future employers, future love interests, parents – can find with a simple Google search. It creates, as Holly said, a sense of “terror.”

The Role of the Copyright Attorney

    Current law puts up hurdles in front of victims like Holly. First, Communications Decency Act (“CDA”) Section 230 immunizes revenge porn sites from tort liability. As platforms for content provided by others, websites that host images of revenge porn can take advantage of the broad immunity Congress, as interpreted by the federal courts, has granted to all websites. The few cases to the contrary – Fair Housing Council v. and Sarah Jones v. Dirty World Entertainment – are of little help because they require that websites have a substantial role in creating content themselves. Second, tort law is often inadequate to seek redress from the perpetrators themselves. A successful public disclosure of private facts claim, for example, requires a plaintiff to show that the information at issue (the sexually explicit image) was indeed private. But courts too often confuse sending an image to one person, even a partner in a relationship, with general revelation that extinguishes expectations of privacy. What’s more, tort cases are expensive and pose particular problems of proof when anonymous actors are involved.

    However, reproduction and display of an individual’s copyrighted images constitutes copyright infringement, so copyright law gives revenge porn victims the tools to take down offending images. CDA §230 does not immunize websites from copyright claims, and if victims like Holly want above all else to remove the images from the Internet, the Online Copyright Infringement Liability Limitation Act’s notice-and-takedown procedure (Section 512) may offer a promising avenue for relief.

    Authors of published and unpublished works retain the same exclusive rights under Section 106 of the Copyright Act. By definition, those participating in uploading, copying, and trafficking in revenge porn violate the Section 106 exclusive rights of victims: those who post images on websites create copies; websites make copies to store on servers and display copies of the original images on the web. And, as the Supreme Court stated in Stewart v. Abend, 495 U.S. 207 (1990), the Copyright Act necessarily includes a right not to publish: victims have chosen not to publish their own images, an exclusive right violated by their harassers in the revenge porn business. Victims can also use Section 512 to require removal of sexually explicit images for which they retain a copyright. They can also send de-indexing requests to search engines like Google and Yahoo.

Why Criminalization?

    Still, copyright law is an inadequate response to revenge porn. Often, the sexually explicit images posted online are not selfies and the copyrights do not belong to the victims. Even if they do, following a notice-and-takedown procedure is not easy, either, particularly if the website is hosted abroad and not willing to comply with victims’ requests. Hiring a lawyer to help is prohibitively expensive for most victims. Some argue that using copyright law to combat revenge porn also lacks the necessary expressive effect of either a tort or criminal law response. Revenge porn is an abusive invasion of personal inviolability, a stain on the social fabric of modern digital society. As such, it merits a response strong enough to create and maintain the social norm that revenge porn is not simply wrong because it amounts to stealing. Rather, it is wrong because it devalues, demeans, and subjugates its victims as sexual objects. Copyright law, arguably, does not meet that standard.

    That is why several scholars, advocates, and policy makers have proposed reasonable and narrowly tailored criminal revenge porn laws that will punish harassers and deter future conduct while protecting important free speech rights. Until then, however, copyright law must remain an important tool in what must be a multi-weapon arsenal.

    Editors’ Note: The author is an associate professor of law and director of the Innovation Center for Law and Technology at New York Law School.


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Study Group Develops Solutions for Unrepresented Immigrants

Immigration Law

Study Group Develops Solutions for Unrepresented Immigrants

By Pete Eikenberry and Lindsay Nash

    When the Honorable Judge Robert A. Katzmann, then circuit judge for the U.S. Court of Appeals for the Second Circuit, delivered the Marden Lecture at the New York City Bar Association in February 2007, the statistics he detailed on the dearth of immigrant representation were grim. Immigration courts handled approximately 369,000 cases in 2005, and 186,000 noncitizens were deported from the United States in 2006: 65 percent of noncitizens facing deportation in 2006 were unrepresented. More than 200,000 immigrants were detained while facing deportation in 2006: 90 percent were unrepresented.  Even among the immigration cases that reached the Second Circuit, 22 percent were handled pro se. The upshot of this widespread lack of counsel was that many, many people were forced to represent themselves in complicated legal proceedings in which the stakes could not be higher.  They faced permanent exile, separation from their families, often torture or death, and lacked even the most basic protection – legal counsel – to help them make their cases.  

The Study Group

    Judge Katzmann sensed, based on his experience on the bench, that in many cases immigrants could have prevailed if they had been represented at the crucial initial stages of their case by competent counsel.  With this in mind, he launched the Study Group on Immigrant Representation, a coalition of diverse actors in the field of immigrant representation dedicated to increasing the availability and adequacy of counsel. (The Study Group, which Judge Katzmann launched with the counsel of several other lawyers, is made up of some 75 lawyers from a range of firms; nonprofits; bar organizations; immigrant legal service providers; immigrant organizations; law schools; federal, state, and local governments; and judicial colleagues.) “I didn’t know what to expect,” Judge Katzmann observed, “but the response has been overwhelming, gratifying, and inspiring.”   

    Since its inception in 2008, the Study Group has worked to develop innovative solutions to the crisis in immigrant representation.  Its work began with rigorous study of the systemic obstacles, the areas of greatest need, and models of excellent, efficient legal service delivery.  This work served as the foundation of two models of service delivery that have been piloted in New York City – the New York Immigrant Family Unity Project and the Immigrant Justice Corps – and which, if brought to scale, could avert the disastrous effects of the dearth of counsel for our immigrant community members.  

    The New York Immigrant Family Unity Project is the first public defender-type system for immigrants facing deportation.  It provides universal representation for New Yorkers who are detained and facing removal in New York City.  Peter Markowitz, a clinical professor at the Benjamin N. Cardozo School of Law, has been at the helm of the Project. He credits its success to the collaboration that is the foundation of Study Group work and its relationship with New York City government.  “Judge Katzmann definitely made it possible,” Markowitz recalled.  “He pulled great people together and empowered and credited them and charged them with coming up with solutions to impossible problems.  He expected that they would and gave them space to do it; he required collegiality, and he set expectations that we work together.  These conditions enabled innovation.”  Government allies proved critical, he explained, as the program has benefitted enormously from the support of Speaker Melissa Mark-Viverito, who has “made justice her personal mission.  Because of the innovation of the mayor and the city council, we are able to say that any New York City family member who is locked up will have counsel.”


    Unsurprisingly, this collaboration has borne fruit for actors throughout the system.  Because of the cultural change in immigrant representation, immigration attorneys are collaborating, and the Department of Homeland Security is now put to its burden.  Immigration judges are relieved because they no longer have to try to elicit the relevant facts from pro se defendants.  Immigration Judge Noel Brennan explains that the “improvement in the quality of immigrant representation over just the last two years has had a profound effect on the administration of justice.  For instance, now that all detained persons are represented, the judge does not have to try to wear two hats and be the advocate for the client in addition to being the judge.  Now the lawyers are not only advocates but they provide the paperwork and witnesses necessary for the judges to make informed decisions.”  In the long term, Markowitz predicts, “we will be able to show that, with counsel available from day one, there is a reduction in detention time and court time, and demonstrate improvement of the quality of justice and in the efficiency of ICE itself.”

    Ultimately, Markowitz explains, this work has led to a “sea change” that has occurred in New York City: “Very recently, 60 to 80 percent of detainees had no counsel in deportation proceedings.  There has been astounding change in the quantity and quality of attorneys and in the system.”   In the first full year, the project served approximately one thousand immigrants and the results proved the importance of the project: nearly half of the clients were released from detention, and New York Immigrant Family Unity Project attorneys have won over two-thirds of the merits hearings (which are like immigration court trials) that they have handled.   


    Already, the New York Immigrant Family Unity Project model is being replicated.  There has been a multi-million-dollar program in New Jersey and a smaller model in two locations in upstate New York.  Allies in Boston, Chicago, and San Francisco are taking initial steps to implement public defender programs based on the New York pilot.  One hopes that this effort will grow and provide counsel to the many New Yorkers who still face deportation without counsel and to unrepresented immigrants throughout the nation.

    The other major Study Group-generated initiative, conceived of by Judge Katzmann – the Immigrant Justice Corps – is the nation’s first fellowship program dedicated to immigrant representation.  It is modeled after the Peace Corps and AmeriCorps and followed those models in putting the most excited and capable young law graduates on a career-long path.  As Markowitz, who helped design the program, explained, “[m]any who looked at the plan for the Corps before it happened thought it would be impossible, but, as Nelson Mandela said, ‘It always seems impossible until it’s done.’”  Now, the Immigrant Justice Corps is a well-established source of immigrant legal services in the New York City area and the work of its fellows demonstrates its success.  Markowitz noted that “the quality of people already in these coveted positions is outstanding and the Corps is getting a very high number of new very well qualified applicants. These young people see immigration rights as the civil rights issue of today.  These inspired young attorneys are eager to fight the good fight and we provide that opportunity.  It is public service at its best.”  In addition, graduates of this program, led by Executive Director Rachel B. Tiven, appear likely to stay in the field, which will raise the quality of the immigration bar and the standard of representation for immigrants in New York—and hopefully throughout the nation.  


    The Immigrant Justice Corps’ viability depends on philanthropic support.  In this regard, the support of the New York City legal community is essential.  Judge Katzmann noted the important contributions of the Federal Bar Foundation and the law firm of Fragomen, Del Rey, Bernsen & Loewy, LLP, for each sponsoring an Immigrant Justice Corps Fellow.  Tom Bezanson, President of the Federal Bar Foundation, said that “immigrants have been a proud and necessary heritage of this country.  Supporting immigrant access to the courts is often crucial to the lives and well-being of recent arrivals.  We are delighted to support the role that the Immigrant Justice Corps is fulfilling.”  Michael Patrick, a partner at Fragomen, explained why such support would continue to be so crucial: “Although the past two years have seen remarkable success with the creation and solid start of the I.J.C., there is no question that there will need to be ongoing efforts to support and subsidize this effort.  Over time, the ability of the I.J.C. to continue to positively impact the lives of hundreds – even thousands – of both detained and non-detained individuals facing immigration challenges will depend not only on top organization and recruitment, but on the legal and business communities stepping up with financial commitments.”

    Together, the New York Immigrant Family Unity Project and Immigrant Justice Corps show the way forward: they serve as proof that collaboration among the public, private, and non-profit sectors, in-depth study, and a dedication to justice can generate creative solutions.  These projects provide lifelines to the individuals served and their families.  They also provide hope for the hundreds of thousands of immigrants in this country, many of whom are New Yorkers, who are forced to attempt to represent themselves in what one immigration judge described as “death penalty cases heard in traffic court settings” or otherwise navigate our immigration system alone.  Hopefully, these Study Group projects can expand, replicate, and spur further growth in the effort to address the crisis of representation that affects our immigrant community members and undermines our justice system. 

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