From the President

From the President

Collegiality and 

By Vilia B. Hayes
2-25-15 Hayes This is my first contribution to the Federal Bar Council Quarterly, and I would like to say how pleased and honored I am to serve as president of the Federal Bar Council.  It has been many years since I was introduced to the Council by Judge Charles L. Brieant, Jr., while I was his law clerk.  Judge Brieant encouraged me to join and, over the years, I learned personally why his suggestion was such a good idea.

One of the goals of the Council is to promote collegiality among federal practitioners and between the Bench and the Bar.  That goal is advanced through the many opportunities the Council provides for both cutting-edge CLE programs jointly presented by lawyers and judges and social interactions, whether they are CLE programs held at the courthouse, at the weekend Fall Retreat, or at the week-long Winter Conference in February.  Cordial relations are also in evidence at the Council’s signature events, such as the Thanksgiving Luncheon and the Law Day Dinner.  It is impossible in a short column to describe the many activities in detail, but I thought I would highlight one.

Inn of Court

The Federal Bar Council Inn of Court joined in the celebration of the 225th anniversary of the Southern District of New York on January 15, 2015 by presenting a reenactment of the Pentagon Papers case.  An Inn of Court team led by Second Circuit Judge Denny Chin and including Michael Hess, who had represented the government in the Pentagon Papers case against The New York Times, presented a fast-paced recreation of the court proceedings during the 17-day period from the first Times column publication on Sunday, June 13, 1971 to the Supreme Court decision on June 30, 1971.

The reenactment captured the history and times by presenting actual excerpts from the arguments before Southern District of New York Judge Murray Gurfein in what was his first case as a judge. It also presented the proceedings before the Second Circuit and the Supreme Court, as well as an audio recording between President Nixon and Attorney General John Mitchell.  The presentation was so well done and gripping that I was carried along and almost forgot that I knew the outcome.

The other members of the team were Ron Fischetti, Joshua Geller, Laurence Hasson, Elisheva Hirschman, Elana Katcher, Albert Mitchell Levi, Daniel Michael, Yasuhiro Saito, Tracy Sivitz, Alixandra Smith, and David Weinberg of Jurygroup, who provided the powerful audiovisuals.

I encourage you to participate in the remaining events celebrating the court’s anniversary, which are posted on the Council’s website.  In particular, I invite you to attend the Council’s Judges Reception, to be held on March 11, 2015, at the Union League, where we will be honoring the district judges of the Southern District of New York.  Please feel free to contact me or Joan Salzman, the Executive Director of the Federal Bar Council, to find out more about any of our programs.

Asylum Representation Project

Finally, I thought I would highlight one of the pro bono or other public service opportunities available through the Council in each issue of the Quarterly.  The Asylum Representation Project, a collaboration between Human Rights First and the Federal Bar Council’s Public Service Committee, was launched in 2011 to increase high quality pro bono representation in immigration matters.  The program, which was one of the initiatives created by the Study Group on Immigrant Representation led by Second Circuit Chief Judge Robert A. Katzmann, has been funded through the generosity of the Leon Levy Foundation and managed by Gina DelChiaro.

Currently, five law firms have dedicated teams of associates who work with DelChiaro to provide individualized screenings to unrepresented immigrants at New York Immigration Court on a monthly basis.  Through the Asylum Representation Program, hundreds of asylum seekers and other immigrants have received customized screenings about their rights and immigration procedure. For many, these individualized meetings mark the first time that anyone in the United States has ever given helpful information about their cases in languages they understand.  In addition to arming them with vital information, the screenings evaluate the applicants for potential pro bono representation.

Many of the individuals who are screened ultimately become Human Rights First clients whose cases are placed with law firms in New York. The participating firms have the right of first refusal on these cases. Once the cases are placed at the firms, Human Rights First provides guidance and mentoring to associates and partners, from the inception of the case through completion.  The Asylum Representation Project has provided quality pro bono counsel to approximately 100 people facing death, torture, and other forms of harm in their home countries, while giving law firm associates the opportunity to sharpen critical legal skills.  The project has need for additional firms to participate.  Any firms interested in representing individuals in need of protection through asylum or other forms of immigration relief should contact DelChiaro at 212-845-5211 or

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From the Editor

From the Editor

Gender Pay Gap and Other Issues: Some Answers

By Bennette D. Kramer
kramer Over the course of the last several years in this column I have explored workplace inequalities among men and women partners in large law firms and tried to find explanations for those inequalities.  Several recent articles provide some reasons for the imbalance.

Female lawyers still lag in compensation, billing rates, and management roles.  According to a recent Catalyst analysis, 19 percent of equity partners were women in the 50 best law firms for women and in 2013 women lawyers made 78.9 percent of men lawyers’ salaries.  Report from Catalyst Knowledge Center, Women in Law in Canada and the U.S., Dec. 10, 2014.

Similarly, The Wall Street Journal reported that women constituted 17 percent of equity partners in the 200 top grossing U.S. law firms. These women equity partners had lower average billing rates than their similarly situated male counterparts.  The lower billing rates had the effect of lowering gross billings, which reduced origination credit.  Jennifer Smith, Female Lawyers Still Battle Gender Bias,, May 4, 2014.
This is all part of a cycle of subtle discrimination against women partners in large law firms.

Pay Gaps

Women lawyers are not the only women confronting pay gaps – pay gaps exist in other high paying professions as well.  According to Claudia Goldin, a Harvard University labor economist, women doctors and surgeons earn 71 percent of men’s wages; women financial specialists make 66 percent of what men make; and women lawyers make 82 percent of what men make.  On the other hand, occupations that offer workplace flexibility in terms of hours and location have narrowed the pay gap: women pharmacists make 91 percent of what men make and computer programmers make 90 percent.  Male and female tax preparers, ad sales agents, and human resources specialists make similar salaries.  Claire Cain Miller, Pay Gap is Because of Gender, Not Jobs,, April 23, 2014.

An op-ed piece in The New York Times by Sheryl Sandberg, Facebook’s chief executive officer, and Adam Grant, a professor at the Wharton School at the University of Pennsylvania, discussed new studies of women who spoke up in a business context. Sheryl Sandberg and Adam Grant, Speaking While Female, N.Y. Times, Jan. 11, 2015, p. 3. The studies concluded that women who spoke up were interrupted more frequently, punished for voicing their opinions by lower competence ratings, and could be perceived as too aggressive.  Sandberg and Grant observed:

When a woman speaks in a professional setting, she walks a tightrope. Either she’s barely heard or she’s judged too aggressive. When a man says virtually the same thing, heads nod in appreciation for his fine ideas. As a result, women often decide less is more.

In addition, Microsoft CEO Satya Nadella recently caused a furor when he suggested that women who did not ask for pay raises would be rewarded with “good karma.”  Although he apologized many times over, he let the cat out of the bag by highlighting the fact that women who push for raises are perceived negatively. Men are free to ask for raises but women must be careful when they do so. According to The Wall Street Journal, women’s failure to negotiate for higher salaries, beginning with the first job following graduate school, leads to the career-long imbalance in compensation for women, contributing to significantly smaller retirement savings. Manisha Thakor, The Long-Term Price of the Gender Pay Gap,, Oct. 21, 2014.

The studies cited by Sandberg and Grant highlighting the different perceptions of men and women voicing their opinions and speaking up provides some explanation for the pay gap between men and women partners in law firms. If what a woman says is not noticed or listened to or, worse, contributes to a negative perception of individual women for speaking up, there appears to be a “Catch-22” trap for women:  Do you remain quiet and get negative ratings for not having any opinions or do you speak up and jeopardize your chances for advancement and higher pay?

As Nadella let slip, women who keep quiet should expect “good karma” if they do not seek raises, but the result is lower compensation throughout their careers and into retirement.

Gender Differences

Two articles in The New York Times look at the gender differences in the workplace between male and female graduates of the Stanford University class of 1984 and Harvard Business School alumni in their 20s.  The article about the Stanford alumni focused on why so many male graduates were hugely successful entrepreneurial players in the technology industry, while very few women were.  The conclusion was that the men were more willing to take risks and better able to secure the necessary capital, which was obtained for the most part only through “male-run venture firms.”  Women, instead, took safer routes and entered into law, finance, and medicine.  Jodi Kantor, A Gender Gap More Powerful than the Internet, N.Y. Times, Dec. 23, 2014, p. 1.  There were a few exceptions, but none of the women matched their male classmates’ successes.

The survey of Harvard Business School graduates examined the different expectations for careers and family lives of men and women graduates and how those expectations played out after graduation.  The majority of men expected that their careers would be the most important in the family and their spouses would assume a greater percentage of the child care.  Women expected that their careers would have equal importance to their spouses’ careers and that they would share child care equally.  These differing expectations led to disappointment among women graduates whose expectations have not been met.  Men’s expectations in large part have been met, leaving women with most of the child care.  For example, the highest-earning female executives with small children spend 25 hours per week on child care, while male executives spend 10.  Claire Cain Miller, Even Among Harvard Graduates, Women Fall Short of Their Work Expectations,, Nov. 28, 2014.

Family Friendly

The bottom line is that without family-friendly policies and attitudes generally in the U.S. and particularly in law firms, financial firms, and corporations, women will not achieve equality in pay or management positions.  It must become culturally acceptable for men to assume an equal share of child care responsibilities.  Although there are many factors in law firms that keep women partners from achieving equality, such as the lack of opportunity to serve on management and compensation committees, less success at business generating, and general attitudes about women, the requirement to work long hours at the office handicaps women who have family responsibilities.  Many women leave law firms and other jobs rather than struggle to balance long hours at the office with child care responsibilities. Workplace flexibility for both men and women would enable talented and hard working women to remain in the workplace.  The result would be a workplace that utilizes talented women rather than driving them away.

With respect to the “Catch-22” of whether to speak up or not, one idea that helped women finish their thoughts without interruption was a strict no-interruption policy at meetings.  The plan worked and teams became more effective.  Additionally, the more women in leadership roles in a company, the more the women are heard.

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Senator Blumenthal Honored at Thanks-
giving Luncheon


Senator Blumenthal Honored at Thanks-
giving Luncheon

By Bennette D. Kramer

kramerLuncheon Chair David Brodsky called the attendees at the Federal Bar Council Thanksgiving Luncheon to order.  Following lunch, Brodsky introduced George Yankwitt, chair of the Council Nominating Committee, who presented newly elected officers and members of the boards of the Federal Bar Council and Federal Bar Foundation.  Yankwitt then introduced Vilia Hayes, the newly elected president of the Council.

Hayes thanked her family and Council staff.  She then introduced herself, saying that Southern District Judge Charles Brieant, for whom she had clerked, had encouraged her to join the Council.  She was drawn to the collegial relationships between judges and lawyers and the efforts the members put into CLE programs, the Inn of Court, and the Public Service Committee.   Hayes wants to keep the Council growing and expanding during her tenure as president.  She also wants to enhance pro bono activities.

Hayes introduced President Emeritus Robert Anello. Hayes said the Council appreciated all that Anello had accomplished during his tenure as president.  He expanded the scope of the Council and created new committees, including the Committee on Sentencing and Incarceration, the Criminal Practice Committee, the Bankruptcy Committee, and the Intellectual Property Committee.  Hayes thanked Anello for his service to the Council and presented him with a commemorative award.

Anello said that it had been a pleasure to be Council president. Through the Council, lawyers build bonds with the judiciary.  Anello thanked Brodsky for chairing the luncheon, his friends, law partners, and wife for their support of him during his tenure as president and he gave a special thank you to the Council’s staff.  He said that Hayes will be a fine leader.  She is chair of the Pro Bono Committee at Hughes Hubbard and provides support to an HIV/Aids clinic at Belleview.  Hayes was one of the original organizers of the Fall Retreat and has served as chair of the Winter Bench and Bar Conference.

In the past year, Anello explained, the Council has experienced a budget surplus and grown membership by 15 percent.  Anello also noted that he had overseen expansion of Council committees and the participation of the Council in pro bono activities intended to meet the needs of the community. In October, the Federal Bar Foundation celebrated its 50th anniversary with a reception during which the first Justice Thurgood Marshall Award for Exceptional Pro Bono Service was presented to Alan Schoenfeld of Wilmer Hale.  The Public Service Committee presents opportunities for members to participate in pro bono activities.  As part of a pilot program, lawyers assisted pro se litigants during the discovery phase of lawsuits and lawyers gave non-citizens immigration deportation assistance.  Anello observed that the Council also set up a two year fellowship at the Immigrant Justice Corps, funded by the Federal Bar Foundation.

Emory Buckner Award

Anello congratulated U.S. Attorney Loretta Lynch on her nomination as Attorney General of the United States.  He then presented the Emory Buckner Award for outstanding public service to U.S. Senator Richard Blumenthal of Connecticut.

Anello explained that Senator Blumenthal was born and raised in Brooklyn and had a distinguished career.  His parents worked hard and demonstrated concern for others.  Senator Blumenthal’s father was an immigrant from Germany who established a trading company.  His mother was a social worker from Nebraska.  Senator Blumenthal graduated from Harvard University magna cum laude.  Shortly thereafter, he became an assistant to Senator Daniel Patrick Moynihan and then an assistant to President Richard Nixon.  He graduated from Yale Law School with Hillary and Bill Clinton and clerked in the Ninth Circuit for Judge John T. Noonan and in the Supreme Court for Justice Harry Blackmun.

Senator Blumenthal became the U.S. Attorney for Connecticut.  In private practice, he volunteered with the NAACP Legal Defense Fund and tried capital cases.

He began his political career when he was elected to the Connecticut House in 1984, and to the Connecticut Senate in 1987.

Senator Blumenthal then was elected Attorney General of Connecticut and served five terms.  The Attorney General’s Office handled 50,000 cases a year to protect the rights of the citizens of Connecticut.  Senator Blumenthal was the leader of the lawsuit against the tobacco companies.

In 2011, Senator Blumenthal was sworn in and began serving in the U.S. Senate.  In the Senate, he has worked to protect the environment, for veterans, and against animal cruelty and domestic violence.  He has been the leader in drafting legislation to reduce gun violence and to restrict high capacity magazines.

In accepting the award, Senator Blumenthal thanked Anello for his service to the Council.  He congratulated Hayes and thanked Brodsky for chairing the luncheon.  He also congratulated his friend David Schaefer, the President-Elect of the Council, and Loretta Lynch on her nomination to be attorney general.


Senator Blumenthal said that the honor of receiving the Emory Buckner award was extraordinary for him.  Two of the past recipients have been his mentors, Abe Ribicoff and Moynihan.  He noted that Moynihan, who was not a lawyer, was famous for saying that “everyone is entitled to your own opinion, but not to your own facts.”  Senator Blumenthal said that one problem in Washington today was that everyone seems to have wildly different ideas of what the facts are, which leads to a resistance to compromise and a resulting lack of compromise.

This lack of compromise has a negative impact on our justice system, most visibly in the failure to fill judicial vacancies.  Before the Senate changed the rules, there were 100 judicial vacancies; at the time of the luncheon, there were 60 unfilled vacancies.  These vacancies affect the judicial system, Senator Blumenthal said.

The lack of compromise also has had an impact on the reform of the intelligence surveillance system and the Foreign Intelligence Surveillance Court.  Senator Blumenthal noted that the reform program that failed to pass was intended to make the court more transparent and accountable.  Senator Blumenthal had written a provision into the bill to include an advocate for constitutional rights, which had been endorsed by President Obama and civil liberties groups.  People on both sides of the political spectrum had supported it.  The failure of the bill to receive 60 votes – it received 58 votes – affects the judicial system and the fairness of intelligence and surveillance oversight, Senator Blumenthal said.

The lack of compromise also affects our justice system in other ways:  in immigration courts, undocumented immigrants remain in detention far from their families, often without representation, for an average of 50 days while waiting for their cases to be resolved; veterans wait from 19 to 60 days for mental health care; and veterans denied disability claims wait an average of 1,041 days for the appeals board because of its extraordinary workload.  Senator Blumenthal vowed to continue fighting for justice for veterans.

Senator Blumenthal concluded by stating the Emory Buckner award had a special meaning for him because it came from people who care about the justice system.

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Former N.Y. Court of Appeals Judge Robert Smith

Speaking With:

Former N.Y. Court of Appeals Judge Robert Smith

By Steven M. Edwards, with Andrew Leff

2-25-15 Steven Edwards I always thought Bob Smith would be a good judge. Many years ago, our families would get together every Memorial Day for a softball game at Max Gitter’s farm in Columbia County.   The teams (called the Hotdogs and the Hamburgers) were comprised of players of all ages, and the game was very competitive. Bob was always the umpire.  If you were an adult with some softball experience, you might only get two strikes, but children never struck out. If the count went to strike two, there was a strike two-and-a-half, and then a strike two-and-three-quarters, and then an infinite number of fractions after that until the kid got a hit.  Bob was judicious to a fault.

On December 31, 2014, Bob stepped down after 11 years as a judge on the New York Court of Appeals.  Having reached the Court’s mandatory retirement age of 70, he left the bench, but he has not left the practice of law – he is now a partner at Friedman Kaplan Seiler Adelman LLP.   We sat down with Bob recently to discuss his experience on the bench and life generally.

Robert Sherlock Smith was nominated by Governor Pataki in November 2003 to begin a term on the N.Y. Court of Appeals starting January 12, 2004, and he generally was viewed as one of the most conservative judges on the Court.  He wasn’t always that way, however.  Bob grew up in Massachusetts, the child of classic Franklin D. Roosevelt liberals.  He was a card carrying Democrat for a long period of time but began a gradual shift from liberal to conservative when he travelled with his mother to the Soviet Union in 1961.  He was horrified by what he saw – the Soviet Union was not the workers’ paradise that he had expected; “it was not a free country at all.”  He went to Stanford for his undergraduate years, where he was exposed to conservative thought, but he continued to maintain his credentials as a Democrat while attending Columbia Law School, where he was treasurer of the FDR/Woodrow Wilson Democrats of the 67th AD North (although he allows that he was “in the right wing of that group”).  Bob considered entering politics for a period of time, but that thought quickly ended when he was defeated in a race for the presidency of by a group including (now Representative) Jerrold Nadler. Bob continued to call himself a Democrat until 1984, when he cast his first Republican vote.

At Paul Weiss

Smith09 Bob began his legal career at Paul, Weiss, Rifkind, Wharton & Garrison working for Edward Costikyan, who was well known for having defeated Carmine DeSapio as chairman of the New York Democratic Committee and ending Tammany Hall’s dominance over New York City politics.  They represented the City of Rye and other Westchester County towns in a case against the Metropolitan Transportation Authority, which wanted to build a bridge from Westchester to Oyster Bay.  They argued that the MTA was unconstitutional because it was not created by a special act of the Legislature.  They lost in the Court of Appeals, four to three, but continued to litigate on other grounds and the bridge was never built.

Bob also worked with Judge Simon Rifkind, whom Bob described as “the greatest lawyer I have ever known, which is saying something since I also worked with Arthur Liman, who was a great lawyer.”  Bob described Rifkind as “decent and kind” and also a “very smart man with great judgment.”  At that point in his career, Rifkind focused primarily on appeals, and he could argue them “the old fashioned way.”  When he wanted to make a point, Rifkind would stand up in court, pound on the lectern and exclaim in a booming voice, “The planet appeared where the astronomer had prophesied.” Bob observed that “mere mortals couldn’t get away with that today.”

Bob also worked closely with Liman, whom Bob described as “incredibly intense – he always had 17 things going on at once.” He was such a forceful personality that, even when he was wrong, “he could overwhelm you with arguments to convince you he was right.” Bob credits Liman with teaching him how to cross-examine.  His advice was “figure out what the guy has to give you and make it very tight.”  As a result of Liman’s advice, Bob says he has a tendency to go very fast in cross-examination, which he thinks is good.  Bob recalls working with Liman in the 1970s on a case involving the famous salad oil scandal, where the senior associate representing a co-defendant was his future colleague, Judith Kaye.

We asked Bob about the propensity of Paul Weiss to turn out so many judges.  In addition to Bob himself, Judges Lewis Kaplan, Ed Korman, Coleen McMahon, Allyne Ross, and Sidney Stein all came from Paul Weiss – not to mention Supreme Court Justices Sonya Sotomayor and Elena Kagan, who were summer associates there.  He suggested that Paul Weiss always has had “a political feel” and attracted people who like the law, although he quipped that the Presidents do not seem to be hiring from there lately.

As a partner at Paul Weiss, Bob was known for his work on many complex commercial cases, including a famous case in which the Air Line Pilots Association successfully litigated its right to take over United Airlines, only to fail when it could not get financing.
Death Penalty Cases

Bob is perhaps best known, however, for his work on death penalty cases.  He argued two death penalty appeals in the Supreme Court, winning one and losing one.  He described death penalty cases as “an incredibly fascinating experience” that is “stimulating both intellectually and due to the stakes,” in part because “you are dealing with basic moral questions that are unanswerable.”  In the case Bob lost, the defendant swore that he was innocent to the end.  In the case Bob won, there was no doubt about the guilt of the defendant, Penry, but the question was whether the state could execute a mentally retarded man.  In Penry’s initial appeal, the Supreme Court held that it was permissible to execute a retarded man but remanded to the trial court because the jury was not instructed to consider retardation as a mitigating factor.  After a second trial, Bob successfully argued in the Supreme Court that the jury charge still was inadequate.  During the third trial, the Supreme Court ruled in Atkins v. Virginia that it was unconstitutional to execute a retarded person, but the jury found that Penry was not retarded and sentenced him to death again.   That sentence was overturned by a Texas appellate court after Bob was nominated for the Court of Appeals, and Penry now is serving a life sentence without parole.

Bob worried that his experience in death penalty cases might slow down his confirmation hearing, but a death penalty case was pending in the N.Y. Court of Appeals at the time, and Bob believes that “the Republicans assumed that a weak-kneed Republican was better than none at all,” so he was confirmed.  That case turned out to be unimportant, but in another death penalty case decided in Bob’s first year on the bench, People v. LaValle, the Court of Appeals found the death penalty statute as written was unconstitutional.  Bob wrote a dissent, arguing that the offending provision in the statute could be severed and the death penalty left intact, which surprised some people who thought that Bob opposed the death penalty.

Several years later, the issue arose again in People v. Taylor, where the defendant had been sentenced before the Court had decided LaValle.  In this case, Bob was the swing vote, and he surprised people again by voting to overturn the sentence, which made him a “liberal hero.”  To this day, Bob does not volunteer whether he is in favor of or against the death penalty.

Bob’s most famous opinion is Hernandez v. Robles, where he decided that there is no right to gay marriage under the New York Constitution.  He wrote then, and he thinks now, that the legalization of gay marriage is an issue to be decided by the legislature, and the New York Legislature legalized gay marriage in 2011.  Bob was somewhat surprised by the outrage that was expressed to him over the decision, and he noted that “some of my gay friends quit me as a result.” He told his law clerk that his decision would probably be the subject of “the first sentence of [his] obituary,” but he hopes that no judge would change his or her mind about a case due to the publicity surrounding a case.

Bob wrote more than 300 opinions while he was on the Court, about 200 of which were majority decisions.  When we asked him about his favorites, he said he loves them all and confessed that one of his “guilty pleasures” is to reread his own decisions.  He did offer that dissents were easier to write and more fun.  A judge is less worried about unintended implications when writing a dissent than when everything the judge writes becomes the law.  One of his favorite dissents was his opinion in Bordeleau v. State of New York, where the Court upheld state subsidies for private businesses even though a provision in the New York Constitution expressly prohibits it.  He observed that subsidizing private business “disregard[s] both received economic teaching and common sense,” and he suggested that he was “entitled to be annoyed” because the statute in question “commits the precise folly the provision of our Constitution was written to prevent.”  In another case in which Bob joined a dissent by the late Judge Theodore Jones, the Supreme Court reversed and overturned a state law giving prison guards civil immunity from Section 1983 suits, thereby vindicating him.

Bob feels that the N.Y. Court of Appeals is a “great court with a great history.”  As a court of last resort, it has responsibility for settling New York State law.  It is very “collegial,” and the seven judges who sit on the Court genuinely like each other.  Bob enjoyed sitting with the same six people on every case, and he specifically characterized Judge Victoria A. Graffeo as a “great lawyer” and “great judge” who sometimes caused him to change his mind about how he would decide a case.  Conferences at the Court were sometimes marked by lively debate.  For the conferences, one judge would be assigned at random to report on the case, and the judges would then go around the table, speaking as long as they wanted.  The most junior judge would always start the discussion, presumably so that judge would not be intimidated, but Bob stated that he had never known a junior judge to be intimidated.

Oral Argument

We asked the perennial question about the importance of oral argument, and Bob suggested that it was more important than he expected it would be.  He came in with a skeptical view of the importance of oral argument and kept track for a session of how often he changed his opinion after oral argument, thinking it would happen only five percent of the time.  He was surprised when it turned out to be 10 to 15 percent.  Bob commented, “Invariably, you understand a case better after oral argument.”  Asked what makes a good oral advocate, Bob responded, “just being smart and articulate” and, he added, “a little flair for drama doesn’t hurt every once in a while.”  Among the great advocates who stood out were Donna Aldea, Brian Isaac, Joel Rudin, Paul Shechtman, Kathleen Sullivan, and Barbara Underwood, who is New York’s Solicitor General – and “deservedly so.”

Bob felt that he was well-prepared to serve on the Court of Appeals because his experience at Paul Weiss was very eclectic.  He describes himself as a person who cannot say “no” and, as a result, he received broad substantive experience in a variety of areas.  Bob characterizes his judicial philosophy as originalism or textualism, although he would not go as far as Justice Scalia.  He believes that legislative history should be dealt with carefully, and a judge has to consider whether legislators are deliberately creating legislative history to support legal propositions that the legislature would never adopt.  At the same time, where the legislative history is clear and compelling, there is no reason it should not be relied on.  He cited as an example the decision in Roberts v. Tishman Speyer, where the legislative history made it clear that developments that accept J-51 subsidies are subject to rent control.  He did not like the result but felt that he was duty-bound to interpret the statute as he did. Bob paraphrased Justice Holmes’ famous saying, “If my country wants to go to hell, I’m here to help.”

Summing up his experience on the Court of Appeals, Bob said he loved being a judge. “Nobody yelled at me – what’s not to like?”  He noted that he is treated with somewhat less deference these days, but he enjoys being back in private practice.  As before, he plans to take on a variety of matters and is currently spending a lot of time providing expert opinions on New York law for foreign courts.  He cannot appear before the Court of Appeals for two years, but he hopes to be busy in the many other courts that proliferate in New York.  When he can no longer practice, Bob plans to write.
We suspect that Bob will be very successful because he is that rare person who combines hard work and intelligence with a great sense of humor and an ability to connect with people.   Like Simon Rifkind, he has an uncanny ability to turn a phrase, and like Arthur Liman, the thoughts and ideas come tumbling out until they cannot be resisted because they are overwhelming.  Bob is a lawyer’s lawyer and an unpretentious person – a great guy to hang out with.

As successful as Bob has been, his children may well turn out to surpass him.  His daughter Rosie is an associate at Arnold & Porter and his son Emlen is a classics professor.  Bob’s son Ben is a well-known reporter who wrote for Politico and is frequently quoted during presidential campaigns.  He is now the editor-in-chief of BuzzFeed, an internet news media company.  Ben has come a long way from being the kid who needed at least six strikes before he could get a hit.

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Tom Dewey in the 
Second Circuit

Legal History

Tom Dewey in the 
Second Circuit

By C. Evan Stewart

2-25-15 C  Evan Stewart For most lawyers active today in the Second Circuit, Thomas E. Dewey is a faint memory.  He was, of course, almost President of the United States (twice nominated by the Republicans, first in 1944 and then in 1948), a three-term Governor of New York State (1943-54), instrumental in making Dwight D. Eisenhower President in 1952 (and Richard M. Nixon his Vice President), mentor of many of the 20th Century’s most famous lawyers (e.g., John A. Wells, Frank Hogan, J. Edward Lumbard, Charles Breitel, Lawrence Walsh, William Rogers), recipient of the Federal Bar Council’s Emory Buckner Medal (in 1968), and senior partner of the prominent law firm Dewey, Ballentine, Bushby, Palmer & Wood.  The focus of this article, however, is on his pre-political career in the law, which, because of his success and prominence, catapulted him into the public spotlight, where he remained for decades.

Dewey’s Legal Education

Born in 1902 in Owosso, Michigan, Dewey began his higher education at the University of Michigan.  Besides his studies, his main focus was on his promising singing career, in which his voice was praised for its “velvety texture.”  After winning a statewide competition in his senior year (and, thereafter, finishing third in the national finals), Dewey decided to enroll in Michigan Law School, while continuing his vocal training.

Whether it was because of his divided focus or not, Dewey found his first year studies little more than “scrivener’s work.”  Upon completion of his One L, Dewey shipped off to Chicago that summer for more singing training.  This, in turn, led him to bigger and better things in New York City; with that came Dewey’s transfer to Columbia Law School.  While at Columbia, Dewey augmented his income by singing in churches and synagogues.  A bad performance at a public recital (caused by laryngitis), however, caused him to rethink his future plans.

Focusing more on his legal studies, Dewey’s grades, class rank, and standing among his classmates and peers (e.g., William O. Douglas) began to soar.  When it came time to apply to Wall Street law firms, Dewey visited many of the usual suspects, but found the experience less than dazzling (at White and Case, for example, he was told, “Of course, you … realize that we regard a young man as nothing but a pair of legs the first two years.”)  Ultimately, he received three offers (the going rate: $35 per week); he decided to accept the one proffered by Larkin, Rathbone and Perry, a 36 lawyer firm that focused mainly on corporate leasing work.

Law Practice

For Dewey, who wanted to try cases, the work was tedious and unstimulating.  To make matters worse, he soon found himself at odds with one of the firm’s senior partners.  After one year, his services were terminated.

Fortunately, Dewey was able to find a job at the small firm of McNamara & Seymour, even though Mr. McNamara worried that Dewey might be “a little too bumptious.”  Dewey’s prickly temperament did cause some problems for him in such a small office, but his undeniable talent and thoroughness also were recognized – so much so that McNamara assigned Dewey to handle an important customer lawsuit against one of the firm’s largest clients, Empire Trust Company.  As the case got closer to picking a jury, Dewey was prevailed on to “second chair” the matter in deference to a very experienced trial lawyer, George Z. Medalie.

This “in the trenches” experience proved to be a career altering event for the young attorney.  Not only did Dewey impress his mentor (who soon was calling Dewey a “legal prodigy”), but when Medalie was nominated to become the U.S. Attorney in January 1931, he made a point of telling Dewey he wanted him to join his staff.  Dewey went a step further:  He convinced his boss to appoint him as the U.S. Attorney’s chief assistant.

The U.S. Attorney’s Office

Dewey’s track record in that job was a bit mixed at the beginning.  Everyone was aware of and appreciated his intelligence, attention to detail, and quest for perfection.  At the same time, however, many considered him arrogant and difficult to deal with, especially given that the chief assistant was exercising authority over a number of vastly more experienced lawyers.  Fortunately for Dewey, he was able to shift his focus to actual trial work.  In the first case in which he acted as “first chair,” Dewey prevailed in a criminal prosecution against James Quinliven, a corrupt member of New York City’s Vice Squad.

A particular focus of the U.S. Attorney was the pervasive grip of organized crime over the city. He tasked Dewey to head up a squad to go after those gangsters who might have exposure to income tax evasion charges.  One such target was Joseph Castaldo, who, because of his efforts to illegally corner the market on artichokes in New York City, became known as the Artichoke King.  After one day’s evidence at trial, the King threw in the towel and pled guilty.

In the midst of Dewey’s attempt to systematically assemble evidence and begin to prosecute numerous bad guys in New York City, Medalie took a leave of absence from his post to run for the U.S. Senate in 1932.  That left Dewey in de-facto charge of the office.  Besides his political efforts to help Medalie in a decidedly un-Republican year, Dewey chose to go after Waxey Gordon.  Gordon was a street urchin turned major league bootlegger.  He had earned multiple millions with barely a nod to the Internal Revenue Service (in 1930, for example, Gordon paid the IRS $10.76).  Because Gordon had hidden his wealth in more than 200 bank accounts, none of which bore his moniker, it took a Herculean effort to put all the paper pieces together. While Dewey and his staff were engaged in that effort, various members of Gordon’s gang were found dead on the eve of their grand jury appearances.

Two days into Gordon’s trial in November 1933, Medalie resigned his post.  President Roosevelt, who had been inaugurated in March, had yet to name a new U.S. Attorney; as such, the judges of the Southern District (invoking an 1894 precedent) acted quickly and unanimously named Dewey the interim U.S. Attorney.  Dewey left the courtroom to be sworn in and then returned to continue the prosecution.

A critical witness for the prosecution was Helen Denbeck, a short order waitress at a restaurant near a garage owned by Gordon.  She described in great detail the comings and goings of Gordon’s beer trucks.  How did she know they carried beer?  “I smelled the beer.”  How did she know what beer smelled like? “I drink lots of beer.  I know how it smells, too.”  Denbeck then identified a number of Gordon’s key henchmen when shown pictures:  “Frankie the Chauffeur,” “Joe the Fleabag,” etc.

Exasperated by the level of detail she provided, Gordon’s lawyer blew himself up on cross:  “You know everybody….  Next you’ll be telling us you know an Oscar!”  Denbeck’s answer?  “Sure, Oscar Brockert.  He was Waxey’s brewmaster.”

The jury deliberated for under an hour.  Gordon was sentenced to 10 years and received an $80,000 fine.   The trial judge was effusive in his praise of Dewey and his trial team.  Dewey, in turn, issued a public warning to Gordon and his colleagues not to harm any witnesses who had testified at the trial.

The case made newspaper headlines across the country and Dewey not only made a national radio address broadcast thereafter, he also was prominently featured in news segments in movie theaters.  Five weeks later, President Roosevelt named a Democrat to succeed Dewey.  Dewey exited public life determined one day to head up a leading Wall Street law firm and “make a hell of a lot of money.”

Next Steps: The Special 

Dewey went back to private practice, opening up his own law offices at 120 Broadway.  Not only did his practice flourish, but his ability to remain in the public eye continued.  For example, he was retained by the New York Bar Association to bring proceedings against Municipal Judge Harold L. Kuntsler, who somehow had deposited $166,000 into his bank account over a fairly short period of time.  On Dewey’s cross, Kuntsler’s explanations for the 107 separate deposit slips consisted of “I don’t know” and “I can’t remember.”  Before the trial concluded, Kuntsler resigned on the grounds that “his usefulness had been impaired” by all the brouhaha.  A week later, Kuntsler skipped town with an ex-prostitute, who later accused him of stealing her jewels.

In 1935, a newly appointed grand jury, constituted to investigate the “numbers racket” (a/k/a the “policy racket” – the pervasive corruption that permeated all of New York City), would change Dewey’s trajectory.  The duly elected District Attorney for Manhattan, William C. Dodge, was a Tammany Hall creature (the Democratic Boss, Jimmy Hines, called him “stupid, respectable, and my man”). The grand jury not only excluded Dodge from its deliberations, but went even further:  It demanded a new prosecutor.  After much politicking (including, it would appear, William O. Douglas, then the head of the Securities and Exchange Commission, who vouched for his old law school classmate to President Roosevelt), Governor Herbert Lehman announced that because all of his other choices had turned him down he was amenable to “Thomas A. Dewey” being appointed Special Prosecutor to address New York’s rackets (costing the taxpayers upwards of $100 million per year).  On July 1, 1935, Dewey, after demanding (and getting) complete independence from Dodge, agreed to the appointment.

Initially, he was a general without an army.  Dewey, however, quickly and skillfully moved to consolidate political heft behind his new office, enlisting the support of Mayor Fiorello La Guardia, Secretary of the Treasury Henry Morgenthau, U.S. Attorney General Homer Cummings, FBI Director J. Edgar Hoover, U.S. Attorney for the Southern District Frank Adams, Arthur Sulzberger of The New York Times, and Governor Lehman.  With that support, he was able to get the city’s Board of Estimate to give his office a five month budget of $121,000.  But, he still needed troops.
To that end, Dewey was besieged by thousands of lawyers, hundreds of accountants, investigators, and secretaries, as well as scores of others (e.g., dentists, bricklayers, ex-baseball players) who just wanted to make a difference.  Eventually, Dewey hired a staff of more than 60 individuals, a group that included a number of old hands from the U.S. Attorney’s office (e.g., Murray Gurfein), as well as a number of young, unknown attorneys (e.g., Charles Breitel, Stanley Fuld, Frank Hogan).

Dewey was very stern with his chosen group, advising them not to fall prey to any kind of inducements that might be waved in their direction:  “If you want to have a good time, go to New Jersey!”  To the people of New York, he promised to “prosecute every crime which is part of an organized racket … every crime in the book, from conspiracies and malicious mischief to assault in the first degree, from extortion to perjury, from income tax violation all the way to murder.”

The first order of business was to figure out who was who and what was what in New York City’s rackets.  With incredible diligence, Dewey’s staff assembled a comprehensive chart, listing 25,000 names and covering every conceivable racket.  The Dewey team then proceeded to track down each lead and every tip, following up on each wiretap and every surveillance.  Soon, the office had a mountain of evidence, and its first target was Dutch Schultz (a/k/a Arthur Flegenheimer), New York’s most flamboyant gangster.

Dutch’s reaction to Dewey’s focus was to the point: He decided to assassinate the Special Prosecutor.  Unfortunately for Dutch, he offered the hit to Albert Anastasia, who promptly told Lucky Luciano (a/k/a Salvatore Lucania), the de facto head of the Mafia in New York.  Luciano hated publicity and had not been happy with the negative media hullabaloo that Schultz’s violent tactics had engendered.  When he conferred with his fellow Mafia chieftains, to a man they agreed that Schultz’s assassination plot against Dewey could not be countenanced; with one demurrer, they also agreed that it would be best for Schultz to be hit instead (Meyer Lansky dissented, offering prescient advice to Luciano:  “Right now, Schultz is your cover.  If Dutch is eliminated, you’re gonna stand out like a naked guy who just lost his clothes.”) With the contract thus assigned, Schultz and a number of his gang met their end on October 23, 1935 at the Palace Chop House and Tavern in Newark, New Jersey.  That eliminated one problem, but Lansky proved correct:  with Schultz gone, Dewey turned his focus on Luciano.

Dewey’s means of getting to Luciano? A full-court press against the extensive prostitution operation that was overseen (ultimately) by Luciano.  Luciano’s initial reaction was one of indignation:  “I may not be the most moral and upright man that lives, but I have not stooped so low as to become involved in aiding prostitution.”  After a Rube Goldberg-like extradition from Arkansas, Luciano was arraigned back in New York City, with $250,000 in bail imposed, and a trial set for May 1936.

To the jury, Dewey explained the difficult row he had to hoe:  “Frankly, my witnesses are prostitutes, madams, heels, pimps, and ex-convicts….  We can’t get bishops to testify in a case involving prostitution….  We have to use the testimony of bad men to convict other bad men.”  Dewey’s other challenge was to tie Luciano directly to the acts of others far below him in the underworld’s food chain.

Prostitute after prostitute testified to the degrading life style in which they worked.  Crucial to Dewey’s case, however, was Cokey Flo Brown, who not only knew Luciano but also was able to testify about his direct involvement (including putting madams on salaries).  Equally important, she held up under a withering cross-examination by defense counsel – an ordeal made more difficult by the fact that she was in the midst of withdrawal from addiction to heroin.  Luciano then testified in his own behalf, avowing on direct examination that he knew none of the prostitutes who had testified and had no involvement in such an unsavory racket.  On cross-examination, Dewey tried to skewer Luciano’s reputation for truthfulness by going through his litany of run-ins with the law and his track record for veracity.  As compelling as it was, there was no Perry Mason moment, and certainly no admission of guilt by Luciano.  Indeed, in his closing Dewey had to acknowledge that “he hadn’t proved that Luciano was himself putting women into houses of prostitution.”  But Dewey had proven Luciano to be “the greatest gangster in America,” and he pleaded with the jury to “[c]onvict him, in the name of the safety of the people of this city.” And convict him the jury did.

Having brought down Luciano, Dewey did not rest on his laurels; he continued to press on against the multiple rackets operating throughout the city.  But he was bone-weary, and his personal finances were down to $300.  As a result, when John Foster Dulles offered Dewey a partnership at Sullivan & Cromwell in 1937 worth $150,000 per year, Dewey quickly agreed.  Shortly thereafter, however, in response to Republican overtures and implorings, Dewey also agreed to take on the party’s nomination for Manhattan District Attorney.  (Dewey went back to Dulles, who quickly concurred with this change of plans:  Dewey “had to do it.”)

Politics and the Law

Dewey jumped into politics with both feet, addressing up to 10 audiences a night.  Extremely well-financed by the Republican establishment, his formidable campaign organization helped the new politician become familiar with the ethno-cultural, tribal nature of the city’s electorate.  Dewey soon found that he enjoyed the game and he proved effective at retail politics; ultimately, he outpolled the Tammany Hall candidate by over 100,000 votes.
Shifting his prosecutors and staff just a few blocks to the Manhattan District Attorney’s office, Dewey hit the ground running, first cleaning up the mess at the Tombs and instituting innovations to ensure effective defense counsel to those in need.  Then he turned for another big scalp; this time, however, it was one who wore a white collar.

Richard Whitney, one of Wall Street’s most prominent financiers (and former head of the New York Stock Exchange), was not only in dire straits financially, but he also had engaged in wrongdoing to try to stay one step ahead of his creditors.  On March 9, 1938, Dewey announced Whitney’s indictment for stealing over $100,000 from his wife’s trust fund.  When SEC Chairman William O. Douglas reported the news to President Roosevelt (an old friend of Whitney’s; both had gone to Groton and Harvard), his anguished response was, “No. Not Dickie Whitney! …  I can’t believe it.”  The trust fund turned out not to be Whitney’s only theft; ultimately, he spent several years in Sing Sing.

Dewey next took aim at James J. Hines, the legendary head of Tammany Hall.  Indicted on conspiracy charges involving an illegal lottery and corrupt judges, Hines retained prominent attorney Lloyd Paul Stryker.  Dewey versus Stryker promised to be what the tabloids called “The Battle of the Century.”  And Hines himself was no Luciano-style defendant (famed corruption fighter Samuel Seabury had said, “Jimmy Hines is the most likeable rogue I know.”).

Once the trial began, Dewey encountered another opponent:  Judge Ferdinand Pecora.  The judge hoped for the Democratic nomination for governor in 1938 (which would be open, if Governor Lehman opted to run for the Senate), and was led to believe by White House operatives that President Roosevelt would favor him if he ran roughshod over Dewey (thus, perhaps derailing Dewey’s ambitions for higher political office).  As such, the District Attorney often found himself on the losing end of many rulings during the trial.

But all the pyrotechnics among Dewey, Stryker, and Pecora could not obfuscate the mounting evidence of Hines’ financial arrangements with Dutch Schultz and other mobsters that came in before the jury.  Hines’ former lawyer Dixie Davis (“Kid Mouthpiece”) was a key witness against Hines.  Notwithstanding, Pecora declared a mistrial based on one fairly innocuous question Dewey asked a Stryker witness on cross. The judge’s ruling was on shaky ground (to say the least), but, as Dewey acknowledged, “unfortunately, … the People of the State of New York have no appeal from this or any other of the decisions in this case.”  To his troops, Dewey was not cowed, declaring, “Let’s get to work.  There’ll be another trial.  And we’ll win it.”

The setback did not seem to impact Dewey’s public profile; in September 1938, New York Republicans fell all over themselves to nominate him to run for governor.  Dewey embraced the new role, telling his mother, “I can do so much more for all of the things I believe in and have fought for if I am Governor than if I am merely the District Attorney of one of 62 counties of New York.”  Dewey ran a compelling race against the formidable incumbent, Herbert Lehman (who had been persuaded not to run for the Senate).  Perhaps if President Roosevelt had not interjected himself late into the campaign, contending that the Republicans were waging an anti-Semitic campaign against Lehman, Dewey might have won.  As it was, he lost by only 64,000 votes (carrying every county outside of New York City except one).  This was widely viewed as a victorious defeat; indeed, it set the stage for Dewey’s ambitions at the national level.

While balancing his growing national fame (and calls for him to run for President in 1940), Dewey realized he still had to produce in his day job.  Dewey next took on corruption in the subway system, as well as in the oversight of the city’s taxicabs.  Then, in January 1939, he was back in court to prosecute Hines.  One piece of good news was that Judge Pecora would not preside.  On the negative side:  A key prosecution witness had committed suicide. Dewey’s team solved that problem, however, by reading into the record at the second trial his testimony from the first trial.  All the other evidence from the first trial also was brought before the jury.

Putting his predecessor William C. Dodge through the wringer on the stand, Dewey asked him whether he had a mother-son relationship with Hines.  Dodge retorted, “I’ve never been a mother.  I can’t say.”  That bought guffaws from those in the courtroom, but Dodge had been set up because Dewey then produced prior Dodge testimony where he had in fact described his relationship with the Tammany leader in precisely those terms.  As things went south, Stryker took a gamble and decided not to put his client on the stand.  Presumably, that did not sit well with the jury, which quickly convicted Hines on February 24, 1939.

The national headlines for this latest victory now made Dewey a favorite in the 1940 presidential race (even out-polling President Roosevelt).  With a lot of Republican establishment support, he decided to make a run for the party’s nomination.  Dewey did well on the hustings (and in the primaries), but the growing war in Europe was probably too much of a hurdle for a “38 year old kid” with no foreign policy experience – and there also was the Wendell Wilkie phenomenon, which swept the Republican convention in Philadelphia.

Even though not nominated, Dewey was clearly a political comer.  He was active across the country in speaking against a third term for President Roosevelt.  Thereafter, he decided he would not run for re-election as district attorney, but instead would retire to private practice and then try for the New York governorship again in 1942.  To ensure a smooth transition, Dewey cut a deal with Tammany Hall whereby his able assistant Frank Hogan would be the Democratic candidate to succeed him.  Dewey’s last day in office was December 31, 1941, and he transitioned to private practice at 20 Exchange Place (Charles Breitel came with him).  His return to the law was a mere holding pattern, however, as Dewey focused like a laser on getting the gubernatorial nomination (which came to him at least as enthusiastically as had the 1938 nod).  Running against an uninspiring John J. Bennett (the state’s Democratic attorney general), Dewey won by an overwhelming 647,000 vote margin.

Dewey, Ballentine, Bushby, Palmer & Wood

It would be 12 years until Dewey would return to his original goals of running a prominent law firm and “mak[ing] a hell of a lot of money.”  After two unsuccessful tries for the Presidency in 1944 and 1948, he finished his third term as governor at the end of 1954.  Not interested in any formal role thereafter in public life, Dewey was recruited to be the savior of the Root Clark firm (see, Federal Bar Council Quarterly, August 2012), which, with the death of Emory Buckner and the departure of a number of key partners to start Cleary, Friendly, Gottlieb & Steen, was in serious decline.  Recast as Dewey, Ballentine, Bushby, Palmer & Wood, effective January 1, 1955, the firm took off like a rocket, with Dewey becoming a rainmaker of the first rank.  He never became President, but at least he did achieve his first two goals.


The best Dewey biography is by Richard Norton Smith, “Thomas E. Dewey and His Times” (Simon and Schuster 1982).  Other helpful materials on Dewey’s career include:  Stanley Walker’s “Dewey:  An American of This Century” (McGraw-Hill 1944); Mary Stulberg’s “Fighting Organized Crime:  Politics, Justice and the Legacy of Thomas E. Dewey” (Northeastern Univ. Press 1995); and Richard Hammer’s “Playboy’s Illustrated History of Organized Crime” (Playboy 1975).

Dewey’s showdown with Luciano quickly went Hollywood with Warner Brothers releasing Marked Woman in 1937.  Betty Davis starred as Mary Dwight (in the Cokey Flo Brown role); Mary’s “job” was sanitized a bit insofar as Davis portrayed a “hostess” in the nightclub of vice czar Johnny Vanning (Lucky Luciano), who was played by Eduardo Cianelli.  Humphrey Bogart co-starred in the Dewey role as crusading District Attorney David Graham.  One of the other “hostesses” was played by Mayo Methot, Bogart’s third wife, whom he would later divorce in order to marry Lauren Bacall.
Alice Roosevelt Longworth (Teddy’s daughter) was widely credited in 1944 with calling Dewey “the little man on the wedding cake.”  In fact, Democratic apparatchiks Isabel Kinnear Griffin and Helen Essary Murphy originated those damning words, and then attributed them to Longworth to help publicize them; Longworth never disabused people as to their actual source.  Regardless of origin, the image created was one that hurt Dewey with many voters, and he was never able to live it down.

Dewey appointed his mentor, George Medalie, to the N.Y. Court of Appeals on September 28, 1945, where he served until his death on March 6, 1946.  Gladys Heldman, the prominent tennis promoter (and founder of World Tennis magazine), was Medalie’s daughter.  Julie Heldman, who was once a highly ranked tennis professional (at one point No. 5 in the world), is Medalie’s granddaughter.

Upon joining his new firm in 1955, Dewey insisted not only that his name lead the masthead, but that at no time in the future, for whatever reason, could that status ever be changed.  Thus, when Dewey Ballentine merged with LeBoeuf Lamb, the firm was re-cast as Dewey & LeBoeuf.  With the merged firm’s messy collapse in 2012 and certain of its leadership under criminal indictment and imminent trial, those unfamiliar with Tom Dewey’s imposing career and legacy now only know his name in the media under the most unfortunate of circumstances.

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Council Launches New IP Committee

FBC News

Council Launches New IP Committee

By Peter S. Sloane

2-25-15 Peter Sloane As one of his accomplishments as president of the Federal Bar Council, Robert Anello launched the Intellectual Property Committee before completing his tenure.  As chair of the new committee, along with my vice chair, Michael F. Buchanan, I would like to invite those members of the Council who practice patent, trademark, or copyright law to join us on what promises to be an exciting chance to interact with the federal judiciary in this increasingly important area of practice.

The Second Circuit and its district courts have decided some of the most important intellectual property cases in the country.  In 1961, the Second Circuit decided the seminal case of Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492 (2d Cir. 1961).  It was the first federal appeals court to set forth a list of factors for evaluating the likelihood of confusion in trademark infringement cases.  More recently in Marvel Characters, Inc. v. Lisa Kirby, 726 F.3d 119 (2013), the Second Circuit clarified the definition of a work made for hire under the 1909 Copyright Act.  In terms of patents, many of our district courts recently have instituted local patent rules to facilitate the early exchange of invalidity and infringement contentions and set forth a claim construction briefing schedule. It is fitting, then, that the Council, as an organization dedicated to promoting excellence in federal practice, take an active interest in IP law.

The initial goals of the new committee include developing camaraderie among those of us who practice intellectual property law, putting together CLE training programs relating to the practice of IP cases before the bench, and educating the judiciary about developments in patents, trademarks, and copyrights.

We are considering some exciting activities along the way, including organizing seminars with judges and leading IP commentators, webcasting of programs, writing articles for the Federal Bar Council Quarterly, and holding mixers with other committees.

Our work will extend to all corners of the Second Circuit, from Eastern Long Island to Western New York and Connecticut to Northern Vermont.  We also invite attorneys with all levels of experience to participate, from the newest associates to senior partners and federal judges as well.

Michael Buchanan is heading a program to educate law clerks about intellectual property law.  The committee plans a basic session about the nuts and bolts of patents, trademarks, and copyrights, which will go a long way to prepare clerks for the inevitable IP cases which come before the courts.
We also hope to hold a broader reception where lawyers and the judiciary can meet and socialize.  The warmer weather in spring would be the perfect time to host a mix and mingle event.

We look forward to promoting intellectual property law among the bench and bar within the Second Circuit and hope that you will join us.  If you are interested in participating in the committee, please send an e-mail to me at

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Is the Bombing of ISIS in Syria Legal?


Is the Bombing of ISIS in Syria Legal?

By Steven M. Edwards

2-25-15 Steven Edwards I used to think that if I was anywhere in the world and the bad guys were trying to harm me, the U.S. Cavalry would come to the rescue.  The events in the Middle East have caused me to doubt that proposition.   For a period of time, ISIS appeared to be able to act with impunity.  The U.S. and a coalition of other countries have begun to fight back, but questions have been raised about the legality of that operation.   I decided to do some research in an effort to figure out what’s going on.

The problem stems from Article 2 of the United Nations Charter, to which the U.S. is a signatory.  Article 2 recognizes the “territorial integrity” and “political independence” of each member state and states that “[n]othing contained in the present Charter shall authorize the United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter….”  This means that, absent special circumstances, the U.S. cannot simply send armed forces into a foreign country to keep its citizens out of harm’s way.

There are two major exceptions, however.  Article 42 of the Charter gives the Security Council the authority to take military action “as may be necessary to maintain or restore international peace and security.”   Article 51 of the Charter also recognizes that there is an “inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations….”

A Security Council resolution appears to be out of the question because Russia does not want a U.N.-authorized military force to be roaming around Syria, possibly creating an advantage to the protagonists in that country’s civil war.  As one of the five permanent members of the Security Council, Russia has veto power over everything the Security Council does.   Russia is also undoubtedly concerned that it would be difficult to argue that dispatching a U.N. force to Ukraine would be inappropriate if a similar force is operating in Syria.

Self-defense has also been viewed as an inadequate rationale for permitting unilateral action by the U.S. in Syria.   As brutal as ISIS has been, it is not seen as a threat to the U.S. domestically.  The US is not under attack.

Collective Self-Defense

Of course, one nation can invite another nation to engage in military action within its borders.   This is what Iraq has done in an action that has been characterized as “collective self-defense,” but this does not give the U.S. the right to bomb ISIS in Syria – or so the pundits say.  Secretary of State Kerry has ruled out asking Syria for permission to take action against ISIS within Syria’s borders because that would constitute a degree of cooperation that is inconsistent with this country’s opposition to the Assad regime.

In any system in which rules have been adopted to govern conduct, it is almost inevitable that a common law will develop to fill in the interstices.  In this area, many countries have embraced a concept “Responsibility to Protect” or “R2P.”  R2P arose out of the conflicts in Kurdistan, Kosovo, and Libya and has been recognized by the U.N. Office of the Special Adviser on the Prevention of Genocide.  R2P is based on the following syllogism:

•    states are responsible for protecting populations from genocide, war crimes, and crimes against humanity;
•    the international community has a responsibility to encourage and assist states in fulfilling this responsibility; and
•    if a state is “unwilling or unable” to protect its population from genocide, war crimes, or crimes against humanity, the international community should take collective action to protect them.

This is the approach that the United States took – at least in part – in a letter from U.S. Ambassador Samantha Power to the Secretary General of the U.N. dated September 23, 2014.   In that letter, Ambassador Power pulled out all the stops.  First, she stated that the government of Iraq has asked the U.S. to lead international efforts to strike ISIS in Syria “in order to end the continuing attacks on Iraq.”  Then, she cited the principle of “collective self-defense” to justify the U.S.’s actions.   Finally, she noted that Syria has demonstrated that it was “unwilling or unable” to prevent such attacks.

In an interesting postscript, Ambassador Power stated that the U.S. had initiated necessary and proportionate military action to eliminate the ongoing ISIS “threat to Iraq.” She also noted that the U.S. had initiated military action in Syria against an al-Qaida group to address “terrorist threats” that they posed to the U.S.  The distinction between ISIS threats to Iraq and al-Qaida threats to the U.S. may be quite deliberate.  In addition to legality under international law, the President needs authorization from Congress to take military action against ISIS.  President Bush obtained authorization for the war in Iraq in a joint resolution of Congress in October 2002.   He previously had obtained authority to use military force against al-Qaida in September 2001 following 9/11. The Obama Administration has suggested that both resolutions provide authority for bombing ISIS in Syria, but there is some doubt about that.   In his State of the Union speech, President Obama departed from his prepared script, which suggested that Congress should show support for the ISIS campaign by passing an authorization resolution, and said “we need that authority.”  As of this writing, he has not obtained that authority, but the attacks on ISIS in Syria continue unabated.


Congress has made no effort to stop the ISIS campaign, authority or no authority.   Nor has any country seriously suggested that it is a violation of international law.  Even Syria has remained mute, suggesting that – even if it is a technical violation of the U.N. Charter – Syria has waived it.   The waiver theory also has been used by some to justify the use of drones in countries such as Pakistan.   For political cover, Pakistan takes the position that drone attacks within its territory are not authorized, yet it does nothing to stop them.  The legal authority for the drone attacks, as well as the bombing of ISIS in Syria, may be based on the doctrine of waiver.

I’m not sure where this leaves me if I need the Cavalry to rescue me in a foreign land.   Perhaps the inherent right of self-defense should be construed to include the right to protect U.S. citizens anywhere in the world.  This was the justification given for the Israeli rescue mission at Entebbe.  Notwithstanding its success, a number of people condemned that action as a violation of international law.  Israel did not suffer any adverse consequences, however, and there is little doubt that Israel would do the same thing if confronted with that situation again.  I suspect that the U.S. would do the same thing as well.

Some might be concerned that such a broad reading of the right of self-defense might be used by Russia to justify its actions in Ukraine.   But the risk that someone might use an argument in bad faith does not make the argument less compelling or persuasive.   If the U.S. puts the world on notice that it reserves the right to use military force to protect U.S. citizens from danger anywhere, such situations may be less likely to occur in the future.

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Return to Grenada

Personal History

Return to Grenada

By Pete Eikenberry

2-25-15 Eikenberry, PeterAs depicted in the movie Selma, in May 1965, in Selma, Alabama, Student Nonviolent Coordinating Committee (“SNCC”) President John Lewis and Southern Christian Leadership Conference (“SCLC”) leader Hosea Williams led a civil rights march across the Edmund Pettus Bridge. The marchers were attacked and beaten by men on horseback under the leadership of Sheriff Jim Clark.  As a result of the ensuing publicity, the U.S. Congress passed the 1965 Voting Rights Act.

On June 5, 1966, Columbia University law student James Meredith commenced an iconic solitary “march against fear” from Memphis, Tennessee, to Jackson, Mississippi.  Meredith was shot and hospitalized the next day, after he had crossed the Mississippi state line.  Upon the violent incident, civil rights organizations vowed to take up and continue the march.  On June 14, 1966, the Meredith marchers under the leadership of SCLC leaders Martin Luther King, Jr., and Hosea Williams marched into Grenada, Mississippi, a town with a population of about 8,000 people at the time, 100 miles north of Jackson.  Thousands of African American people from Grenada and its surroundings assembled in the town square to hear King.  He vowed to send organizers back to Grenada.  Out of their activities in Grenada, King and the other SCLC leaders hoped to emulate their 1965 success in getting publicity and having civil rights legislation passed in Congress.  Probably in large part due to the emergence of the “black power movement” led by Stokely Carmichael, who drew legions of reporters to hear his proclamations of “black power” along the progress of the march, whatever happened in Grenada, no new legislation was adopted in Congress.

As a third year White & Case associate from New York, I arrived in Mississippi on the 4th of July weekend of 1966.  One week later, on my second Sunday in Mississippi, I was assigned to work with the NAACP Legal Defense Fund.  I was asked to go from Jackson to Grenada to interview black people who had been beaten in Grenada by local police officers and members of the Mississippi State Highway Patrol.  Most of the victims were merely spectators watching SCLC organizers picket the local jail to protest the arrest of others of their members. Thereafter, I was full time in Grenada for over three weeks, including trying my first jury trial.

While I was in Grenada, Hosea Williams led nightly marches to the Grenada County Sheriff’s Office.  NAACP lawyers Marian Wright and Henry Aronson were able to obtain federal injunctions mandating that the various police organizations protect the marchers from the hundreds of white Ku Klux Klan members and others who were massed at the town square adjacent to the sheriff’s office determined to stop the marchers.  I monitored compliance with the federal court’s orders.

Forty eight years later, in early July 2014, I returned to Grenada in the company of Reverend Jerome Robinson to interview 1966 civil rights activists.  Jerome (married to Kaye Scholer partner Sheila Boston) and I interviewed close to 20 people over four days.  The following stories contain highlights from some of the interviews.

Dianna Freelon-Foster’s Story

Dianna Freelon-Foster stated that she was 14 in the summer of 1966 and was employed hoeing cotton for the summer.  She said, “I put down my hoe, and I never turned back after I heard Martin Luther King.  I joined the marches at night to the sheriff’s office.  I felt better about us as a collective after the night marches happened – we were in a secluded world.  I knew who I was.  I did not need to be with white folks to survive.  My father Felix Freelon was involved. His barber shop was across the street from the church where the activities were centered.  My participation shaped my life as to what I was to become.  In September, I was a member of the ninth grade class who integrated the Grenada high school.  I and the other black students were constantly failed by the white principal and teachers.

“After the ninth grade was integrated, I did not want to be there, but I had committed to do it, so I wanted to ‘see it through.’  Some of the teachers were horrible including one who became superintendent of schools. Once, we walked out of school because of harsh treatment; it was almost unbearable.  Parents led the walk out and we went to court the same day.  We received so many demerits that we often failed.  I went to summer school to pass my senior year – I was one of maybe two black students that graduated in their right year.

“After graduation, I went to Chicago but it was so cold, I came back the next year.  I went to work in industry and read on my breaks, and became a local union organizer. Then I became manager of political campaigns.  In 2004, I was elected mayor of Grenada.  It was a big public event when I became mayor and I served for one and one half years.  Then, a new election was held after an annexation to the town.  Many of the town’s white people had moved to the suburbs and the town was becoming much more ‘black.’  So the town decided to add suburbs to counteract the blacks’ control of the elections.  The town had sought U.S. Justice Department approval from the Clinton Administration to do the annexation, which was denied.  Under the Bush administration, the Justice Department approved and I was not elected thereafter.

“People told me that no one wanted to go to Grenada – it was too ‘tough a nut to crack.’  One of our activists, Annie Lee Stewart, died from injuries she received on what we called Bloody Sunday in Grenada. On one occasion the police used tear gas on the people on their way back from the march downtown.  At that time, another woman had a heart attack and died after the tear gas attack.  I am a believer of non-violence after protesting in 1966-67, but it was very hard to believe in it when we were protesting.”

Toll Stewart’s Story

In 1966, Toll Stewart was 32 years old and employed by the Baily Brothers Laundry together with over 30 other black employees.  His employer “was a racist but did not threaten [his] job when [he] marched.”  “When demonstrators were arrested in Grenada, they were just loaded on cattle trucks and carted away to the penitentiary.  I made sure that my entire squad of 20 in the march was comprised of my fellow workers at Baily Brothers – so if they got arrested we would all have to be released to avoid closing the laundry down.”  (The federal judge had mandated the marchers to be in squads of 20, marching two by two.)

“My mother, Annie Stewart, my sister, and I fed the SCLC organizers every day: pork chops, chicken, and steak – more food than they had seen elsewhere.  Annie opened her house for those who wished to sleep there every night.  I just realized recently that the Lord provided the food because we did not have the resources to buy it.  We bought the food in Greenwood, 30 miles away, because the black people in Grenada were boycotting the white merchants.

“In the summer of ’66 – early on in the first days of the protests – there were often violent events.  Once there was a rally across from my mother’s home.  The Police Chief, Pat Ray, told people to disperse, and Annie invited the people at the rally onto her property.  The police chief said, ‘I told you people to disperse,’ and Annie said, ‘I told them not to, they’re on my land, I pay the taxes.’ The captain cocked his shotgun and Annie said, ‘You are a yellow dog if you do not shoot me.’ I was standing inside the front door in the dark with my shotgun pointed at the chief’s head.  If the chief had brought his gun down to shoot, I would have killed him.  But the chief turned and walked away.          “Everything became better after the 1966-67 civil rights uprising because before, the police could do anything to you they wished, black people did not have the vote, the schools were not integrated, and the economy was worse.  I have never missed a vote in the almost 50 years since the time I received it.”

Gloria Williams’ Story

Gloria James Lottie Williams was 21 in July 1966 and had completed three years of study at Valley College.  “I was trained as a typist in high school and was hoping for a secretarial position at the hosiery mill where I worked that summer in Grenada.  Rather, they employed me as a folder.  That summer, I marched with the demonstrators every night to the courthouse and one morning I was called in by my boss to ask if I had marched.  I told my boss that I had and I was told not to do that again.  I, however, did continue to march and I was not fired or ever even questioned again.”

“My mother, Lottie Williams, was badly beaten on ‘Bloody Sunday.’  Lottie worked for the owners of the Dalton’s Department Store in Grenada and was fired as a household maid for having marched with the demonstrators.  After the marches in July 1966, we all went to the Bell Flower Church for hymn singing, reporters’ interviews, etc.  At some point, Stokely Carmichael came to Bell Flower, where he was interviewed in a room behind the sanctuary by 10 or 12 reporters but he was not permitted to take his ‘Black Power’ message to the assembled throng in the main body of the church. The Bell Flower Church had a very dynamic young pastor at the time, S.T Cunningham (27 years of age), which is the reason that Bell Flower became the center for the movement’s activities in 1966 and 1967.”

Eva Grace Lemon’s Story

king pictureJerome and I interviewed Eva Grace Lemon at the Senior Center in Grenada where she was the receptionist/secretary.  She was one of the black children who integrated the first grade of a Grenada elementary school in 1966 – shown in a historic photograph with Martin Luther King.  She said she was “very scared.”  She said, “Dr. King said, ‘come on little girl, we are going to go inside now.’ I and the other black children were repeatedly failed in our courses for the first few years and after the first year, all of the black children in the school had black teachers and the white children had white teachers.”  Eva reported that the classmate depicted in the photograph is deceased.

Since her photograph has been used repeatedly over the past 48 plus years without any compensation to her, she has some bitterness – especially when her photo was broadcast on television again this year in connection with the 50th anniversary of the Selma march.  I spoke with the photographer Bob Fitch, who said he never made much money from his civil rights photography and that he himself is suffering with Parkinson’s disease.  I could not help Eva very much.

Other Interviews

Other persons interviewed had just as dramatic stories and their lives were affected as substantially.  One man from Dianna Freelon-Foster’s high school class was dismissed from the Grenada high school two months before graduation for starting an African American history club.  He joined the Navy, became a business success after his Navy service and returned to Grenada where he started a “100 Black Men” club to aid young boys.  He, too, ran for mayor, but was narrowly defeated.  Two high school classmates have apologized for throwing rocks at him when he was walking to integrate the school and one has become his friend.  His class does not have reunions although the classes commencing about five years later all have integrated reunions.

Another man was the sixth black person hired into the Grenada police force and the first who was permitted to arrest white people.  Upon being sworn in as a policeman, he insisted on receiving the same training as had the white policemen; thus trained, he was permitted to arrest white people as well as black.  His fellow black officers could arrest only black people although they had not been properly trained.  He later was elected as a county commissioner and was reelected over a period of 12 years.

One of the retired black school teachers said she was never permitted to teach white children and was eventually forced out of her position.  She had no way of knowing whether she was paid less than white teachers but she presumed she was.


In determining to return to Grenada to interview activists from 1966, the biggest question I had was whether all the organizers, lawyers, marchers, court orders, etc., had made a difference in the lives of the citizens of Grenada, especially in the lives of those who participated.  Would they say, on the other hand, that they had been deserted when we collectively left little more than a year later?  The answer was almost universal that the town was better off, that things had changed for the better, and just about all the people interviewed felt that their lives had been changed for the better in a very substantial way.  This was true of Dianna Freelon-Foster, Toll Stewart, and Gloria Williams.

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