From the President

From the President

Fall Events at the Council

By Vilia B. Hayes

 2-25-15 Hayes   As the summer draws to a close and fall arrives, I feel the anticipation of another school year commencing — even though my school days are long over.  This sense of anticipation is enhanced by the wonderful events coming up at the Federal Bar Council this fall.

Judges Reading Poetry

    First, on October 20, the Federal Bar Council is sponsoring a poetry reading and reception at Poets House, 10 River Terrace, Battery Park City (two blocks south of Chambers Street on the Hudson River), that will highlight four judges reading poetry:  Second Circuit Judge Dennis Jacobs, Eastern District Judge William F. Kuntz, Second Circuit Judge Gerard E. Lynch, and Southern District Judge Colleen McMahon.  This is a free event at a beautiful but small venue, which I think you will be happy to learn more about.  Space is very limited so RSVP early.  (Judge Jacobs suggests you stop by and see the nearby Irish Hunger Memorial, if you have time.) Learn more:

Fall Bench and Bar Retreat

    Our 16th Fall Bench and Bar Retreat will be held at Mohonk Mountain House in New Paltz from Friday afternoon, October 23, to Sunday afternoon, October 25.  Mohonk is especially beautiful in the fall and we have a terrific set of continuing legal education programs:  

•    Federal Rules Challenge
•    Data Breach: Now What Do You Do?
•    Cops, Grand Juries, and the Media: Business as Usual or an Explosive Mixture?
•    In-House Privilege for Law Firms: Should It Exist? And How Can You Protect It?
•    Navigating International Waters: Cross-Border and Multi-Jurisdictional
•    Magna Carta

    The following judges will be participating:  Second Circuit Judge Denny Chin, Southern District Judge Vernon S. Broderick, Eastern District Judge Margo K. Brodie, Eastern District Judge Kiyo A. Matsumoto, Southern District Judge Edgardo Ramos, and Eastern District Judge William F. Kuntz.  Consider joining us for 10 CLE credits and great company. Learn more:

Reception to Launch Courthouse Book

    On October 28, there will be a reception for the launch of the publication of Courthouses of the Second Circuit — Their Architecture, History, and Stories.  This wonderful book, which has been in the works for several years, will be provided free of charge to Council Members in good standing as a special member benefit.  Judge P. Kevin Castel proposed the idea and the Second Circuit Courts Committee, Editors Patricia A. McGovern and Michael P. Zweig, Associate Editor Marjorie Press Lindblom, Circuit Executive Karen Milton and her staff, and over 20 contributing writers have brought it to fruition.  We will celebrate the launch of the book with a reception at the Thurgood Marshall Courthouse on October 28 from 6:00 p.m. to 8:00 p.m.  Invitations will go out in early September.  

Thanksgiving Luncheon

    Our 54th annual Thanksgiving Luncheon will be held on Wednesday, November 25, at the Waldorf.  This year the Federal Bar Council is presenting two Emory Buckner Medals for Outstanding Public Service jointly to Chief Judge Carol Amon of the Eastern District of New York and Chief Judge Loretta Preska of the Southern District of New York.   The annual Thanksgiving luncheon is the Council’s signature, best-attended event and this year should be especially collegial. Learn more:

Winter Bench and Bar Retreat

    It is not too soon to sign up to join us at the Winter Bench and Bar Retreat to be held at the Four Seasons Resort Hualalai in Kona, Hawaii, from January 30 to February 6, 2016.  Click here for more information:
Pro Bono

    Our Public Service Committee continues to identify many pro bono cases that need placement, but none more than immigration.  Asylum seekers face torture and, often, death in their home countries.  As the U.S. government works to move their cases through removal (deportation) proceedings, the asylum seekers desperately need the help of pro bono counsel.  The Federal Bar Council Asylum Representation Project was created through the efforts of Second Circuit Chief Judge Katzmann and his Study Group on Immigrant Representation to increase the quality of representation to asylum seekers.  But the current need is immense, as New York remains home to hundreds of unrepresented asylum seekers who are urgently in need of pro bono lawyers.  For more information about available pro bono asylum cases, contact Gina DelChiaro at

    I hope to see many of you at a Federal Bar Council event this fall!

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A Talk with Jessica Neuwirth

From the Editor

A Talk with Jessica Neuwirth

By Bennette D. Kramer

Kramer    Recently I had lunch with Jessica Neuwirth, a friend from my days at Cleary Gottlieb Steen & Hamilton, to talk about her efforts to further national and international women’s rights.  Jessica has written a book — Equal Means Equal -— explaining why it is the time for an Equal Rights Amendment to the Constitution and has established the ERA Coalition to build support to put the ERA into the Constitution.  Jessica is also the director of Donor Direct Action (“DDA”), a newly established organization that generates support for activists for women’s rights around the world.  
Equality Now

    After graduating from Harvard Law School in 1985, Jessica worked at Amnesty International for five years, then worked at Cleary until 1993, when she left shortly after co-founding Equality Now.  Equality Now was established to work to end all forms of violence and discrimination against women.  Using international, regional, and national legal advocacy, Equality Now aims for equal rights under the law.  It focuses on discrimination in law against women, sexual violence, female genital mutilation, and trafficking of women and girls.  Its main purpose is to raise awareness and move the agenda for women’s equality forward through advocating legal and systemic change.  Jessica also worked for the United Nations in the Office of Legal Affairs, as director of the New York Office of the High Commissioner for Human Rights, as an expert consultant to the International Criminal Tribunal for Rwanda on issues of sexual violence, and as special advisor on sexual violence to the U.N. High Commissioner for Human Rights.  Jessica taught a seminar on international women’s rights at Harvard Law School.  

    Jessica is one of the foremost experts on women’s rights in the United States and internationally.  Her interest in the ERA evolved naturally from her interest in international women’s rights.  She is distressed that the United States is one of seven countries that has not ratified the Convention on the Elimination of All Forms of Discrimination Against Women (“CEDAW”), known as the International Bill of Rights for Women.  President Jimmy Carter signed CEDAW in 1977, but Congress has not ratified it.  The other countries that have not ratified CEDAW are Somalia, Sudan, South Sudan, Iran, Palau, and Tonga.

Equal Means Equal

    Equal Means Equal was published on January 6, 2015, and the ERA Coalition was founded in 2014 with Jessica as president to build broad based public support for putting the ERA into the Constitution.  The ERA is a proposed amendment to the U.S. Constitution that would prohibit discrimination against girls and women on the basis of sex.  Representatives Carolyn Maloney (D-NY) and Jackie Speier (D-CA) are sponsoring bills relating to the ERA in the House and Senators Ben Cardin (D-MD) and Robert Menendez (D-NJ) are Senate sponsors; Senator Mark Kirk (R-IL) is a co-sponsor in the Senate and Cynthia Lummis (R-WY) is a co-sponsor in the House.  Many celebrities are committed to passing the ERA, including Meryl Streep, President Jimmy Carter, Chelsea Handler, Rashida Jones, Jane Fonda, Tavis Smiley, Taylor Schilling, Lily Tomlin, Sam Waterston, and Gloria Steinem.  Meryl Streep sent a letter to every member of Congress urging them to support a constitutional amendment guaranteeing equal rights for women.  

    Why now make a push for the ERA?  Polls show that 70 percent of the American people mistakenly think that equal rights for women already is embodied in the Constitution, and 90 percent of the American people support it.  Yet, women are not protected by the Constitution from pay inequity, pregnancy discrimination, or violence.  The ERA should be included in the Constitution as a core value.  The ERA was passed by Congress in 1972 and ratified by 35 states when the seven year deadline expired in 1982, three states short of the 38 states needed for passage.  Although the Fourteenth Amendment provides equal protection of the law, it only applies to state action, and does not cover discrimination through private action, which the ERA could.

    Jessica also views the ERA in light of her many years’ experience in the international human rights forum.  She has fought for equal rights for women all over the world.  She believes that the time has come for this country, which condemns other countries for their human rights records, to announce to the world that it, too, supports a robust legal framework for women’s rights.

Donor Direct Action

    When she is not working to pass the ERA, Jessica is the director of the DDA.  She left Equality Now in 2013 and on March 9, 2015 formally launched the DDA at an event at the Ford Foundation featuring Jane Fonda, Gloria Steinem, Lynn Nottage, and Robin Morgan.  The DDA solicits donors and then funds grants to leading women’s advocacy organizations overseas that have limited access to funding and other support.  Jessica wanted a more direct connection with organizations that were working in these countries rather than advocating as Equality Now does on behalf of women.  With the DDA she has created that connection.  The DDA provides visibility and access to funding to the groups it supports.  The DDA now is partnering with frontline groups in Afghanistan, Syria, Somalia, South Africa, Libya, Democratic Republic of Congo, Latvia, Kenya, Nepal, Palestine, and Nigeria.  The activists that the DDA supports work on a range of issues, including female genital mutilation in Somalia (Galkayo Education Center for Peace and Development) and Kenya (Tasaru Ntomonok Initiative); sex trafficking in Latvia (Marta Resource Centre for Women), South Africa (Embrace Dignity), and Europe (SPACE International); violence against women in Afghanistan (Humanitarian Assistance for the Women and Children of Afghanistan); women and armed conflict in Democratic Republic of Congo (Synergie des Femmes pour les Victimes des Violences Sexuelles and Panzi Foundation) and Syria (Syrian Women’s Forum for Peace); and women’s rights under the law in Nepal (Forum for Women Law and Development), Palestine (Women’s Centre for Legal Aid and Counseling), and Nigeria (Women’s Rights Advancement and Protection Alternative).  

    From her initial involvement with Amnesty International to her current work with the ERA Coalition and the DDA, Jessica has shown a dedication to improving the rights and condition of women all over the world.  She is a passionate advocate and with the DDA she aims to ensure that the organizations on the ground will have the resources to carry out their work.

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Elizabeth A. Wolford in the Western District of New York

New Appointments

Elizabeth A. Wolford in the Western District of New York

By Brian M. Feldman

Feldman    On December 17, 2013, Elizabeth A. Wolford received her commission as a U.S. District Judge for the Western District of New York.  One hundred and forty-one years earlier, less than a mile from Judge Wolford’s chambers in Rochester, New York, Susan B. Anthony entered a polling station to vote in state and federal elections.  Because she was a woman, Anthony was arrested and prosecuted.  

    The district judge sitting in Rochester at that time, Nathan K. Hall, granted the government’s motion to remove Anthony’s prosecution to the circuit court.  There, before Associate Supreme Court Justice Ward Hunt, Anthony protested that neither Judge Hall nor Justice Ward was her peer but that, as men, they lorded over her as “political sovereigns.”  As Anthony eloquently argued, “under such circumstances, a commoner of England, tried before … Lords, would have far less to complain than should I, a woman, tried before … men.”  Justice Hunt, in a tactic that would be deemed unconstitutional years later, directed a guilty verdict against Anthony.

    Judge Wolford’s appointment breaks the last-standing gender barrier among the litany of barriers highlighted by Susan B. Anthony in her famous courtroom argument to Justice Hunt.  Anthony’s speech stressed the wholesale bias of the all-male judicial system with a list of grievances that have slowly been addressed.  
    She cited the inability of women to practice law; in New York, Kate Stoneman first obtained that right in 1886.  

    Anthony’s focus, of course, was securing the ability of women to vote; she succeeded in that aim, albeit posthumously, with the 1920 passage of the Nineteenth Amendment.  

    In her courtroom speech, Anthony also pointed out the systematic exclusion of women from juries; that problem was addressed much later with the Supreme Court’s decision in Taylor v. Louisiana, 419 U.S. 522 (1975).  

    Anthony protested that Justice Hunt was riding circuit as part of an all-male Supreme Court, a barrier Sandra Day O’Connor broke in 1981.  
    Anthony’s last grievance was the gender of her male district court judge, Judge Hall in Rochester, New York.  Only with Judge Wolford’s accession to the bench — on December 30, 2013, exactly 141 years after Susan B. Anthony was placed in federal custody for her crime of voting— has Anthony’s last grievance been addressed.

    Judge Wolford is the first woman to take the bench as a district judge in Rochester, New York, and the first female district judge in the Western District of New York.  Not only does her appointment address the last of Susan B. Anthony’s grievances, but it also means that every federal court in New York can, at last, boast of having had at least one Article III position filled by a woman.  Judge Wolford follows in the proud tradition of Southern District of New York Judge Constance Baker Motley (appointed in 1966), Second Circuit Judge Amalya Kearse (appointed to the Second Circuit in 1979), Eastern District of New York Judge Reena Raggi (appointed in 1987), and Northern District of New York Judge Rosemary Pooler (appointed in 1994).  

    Nearly half a century after the first female district judge was appointed in New York, the Western District of New York finally has a female district judge.

A Rochester Institution

    Judge Wolford is firmly committed to the region.  She comes to the bench following nearly two decades in private practice in Rochester, with strong ties to the area, including roots in Rochester extending back to her great grandparents and beyond.  Her family is an institution in Rochester:  The Wolford Law Firm LLP, where Judge Wolford began her practice, is a highly regarded firm in the city.  And it is where she continued to practice until her appointment to the district court.  Judge Wolford received her undergraduate degree from Colgate University and her law degree from Notre Dame Law School.  

    Judge Wolford enjoyed private practice in Rochester.  She cherished the opportunity to practice alongside her father, Michael R. Wolford, who founded the firm, as well as her brother, James Wolford, who joined her at the firm several years after she started.  Judge Wolford was a litigator — primarily a commercial litigator.  She also handled employment defense and personal injury matters, including the case of Gronski v. County of Monroe, 18 N.Y.3d 374 (2011), which she successfully argued before the New York Court of Appeals.

Timely Decision-Making

    Her perspective on the bench is informed by her past career as a litigator.  In private practice, she dealt with clients who paid significant sums to brief motions and asked, understandably, why they were kept waiting so long.  She thus appreciates the importance of timely decision-making.  As a litigator, she juggled a docket, and, as a district judge, she is sensitive to the stresses of other cases that lawyers are handling.  From her experience as a litigator, she also understands that, oftentimes, placing a trial date on the calendar is a powerful way to bring parties towards settlement.  For that reason, she works hard to keep cases moving.

    Judge Wolford believes that most litigators could learn a tremendous amount from spending even a week on the district court bench.  They would understand, for instance, why it is so critical to listen to the judge’s questions and answer them.  After all, the job of the litigator is to convince the judge.  Judge Wolford cautions that, as litigators, lawyers can sometimes become overly focused on arguing with their adversaries — and fighting with them — rather than trying to persuade the judge.

    Judge Wolford appreciates, and believes juries appreciate, lawyers who act respectfully.  This means never interrupting the judge or one’s adversary, and erring on the side of formality (as Judge Wolford says, “‘May it please the Court’ never offended anybody.”).  It also means showing respect for your adversary by avoiding the use of body language while an adversary is making an argument.  Judge Wolford believes that the best advocates are the ones who maintain their professionalism no matter how exasperated they become with their opponents, never shaking their heads or making facial expressions to convey their position while their adversaries are speaking.

    For her part, Judge Wolford has tremendous respect for her colleagues on the bench, as well as the litigators in her courtroom.  She credits her colleagues for her smooth transition, despite a busy schedule travelling back and forth from Buffalo to Rochester for cases.  She thinks the federal bar within the Western District of New York is excellent and second to none.  So far, she has had five criminal jury trials, three civil jury trials, and three civil bench trials; counsel has been excellent; and the trials have been a highlight for her and her clerks.

    The federal bar is incredibly fortunate to have Judge Wolford on the bench in the Western District of New York.  As the first female judge on the district court bench, her appointment is historic.  Beyond that symbolism however, she is a thoughtful jurist, mindful of the needs of litigants, appreciative of the realities of legal practice, and committed to the aims of justice.  Rochester, which helped birth the women’s rights movement, is proud to have Judge Wolford set this historic precedent.

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Joan M. Azrack Appointed to Eastern District of New York

New Appointments

Joan M. Azrack Appointed to Eastern District of New York

By Stephen L. Ratner and Steven H. Holinstat

 Ratner Holinstat   On September 18, 2014, President Barack Obama, on the recommendation of Kirsten Gillibrand, the junior U.S. Senator from New York, nominated U.S. Magistrate Judge Joan Marie Azrack to serve as a U.S. District Court Judge for the Eastern District of New York.  Judge Azrack’s nomination was subsequently confirmed by the Senate by voice vote on December 16, 2014; three days later, on December 19, Judge Azrack received her federal judicial commission.  Judge Azrack fills the seat vacated by Judge Joanna Seybert, who assumed senior status on January 13, 2014.

    Born in 1951 in Neptune, New Jersey, Judge Azrack received her B.S. from Rutgers University in 1974 and her J.D. from New York Law School in 1979.  She began her legal career at the Department of Justice in 1979, working as a trial attorney in the Criminal Division under its Honors Program until 1981.  In 1982, she started working as an Assistant U.S. Attorney in the Criminal Division of the U.S. Attorney’s Office for the Eastern District of New York.  During her tenure, she served as deputy chief of the Narcotics Section from 1985 to 1986, and concurrently as chief of the Business and Securities Fraud Section and deputy chief of the Criminal Division from 1987 to 1990.  At the same time, in the late 1980s and during the 1990s, she worked as a visiting instructor for trial advocacy programs at Harvard Law School and Cardozo Law School, teaching basic trial advocacy skills to second and third year law students at annual sessions.

A Magistrate Judge

Azrack    In December 1990, following her time as an Assistant U.S. Attorney, Judge Azrack was appointed a U.S. Magistrate Judge for the Eastern District of New York.  She was reappointed to a second term in 1998 and a third in 2006, and from 2000 to 2005 she served as Chief Magistrate Judge for the Eastern District.  Judge Azrack continued to serve until the completion of her third term in 2014, when she was nominated to be a district court judge.  Significant cases over which Judge Azrack presided as a Magistrate Judge include: Singer v. Abbott Labs. (mass tort litigation over birth defects linked to in utero exposure to DES drug); Klezmer v. Camp Cayuga, Inc. (jury trial over injury resulting from all terrain vehicle accident at a summer camp); Flash Elec., Inc. v. Universal Music & Video Distrib. Corp. (video rental market antitrust suit); and Johnson v. West (Department of Veteran Affairs employment discrimination cases).

    Judge Azrack has received numerous honors throughout her legal career, including the prestigious Eastern District Association Award in 2006.  For her work as a former prosecutor, Judge Azrack was honored by the Drug Enforcement Administration, Federal Bureau of Investigation, Bureau of Alcohol, Tobacco and Firearms, and the U.S. Customs Service.  Her work in credit card fraud prosecutions earned particular recognition, including an award from Merrill Lynch for her prosecution of credit card fraud conspiracy in United States v. Jacobowitz in 1988.

    Following Judge Azrack’s confirmation by the Senate, Senator Gillibrand stated that she “is well-suited to serve…. Ms. Azrack is a woman with impeccable credentials, incredible intellect, and exactly the kind of fair-minded judgment we need on the federal bench.  I am confident she will serve the Eastern District of New York well, as a federal judge.”  Senator Gillibrand concluded that Judge Azrack’s appointment will add “yet another superb female jurist to the federal bench.”  President Obama expressed similar confidence when he nominated Judge Azrack in September 2014, stating that she would be a “distinguished public servant[] and valuable addition[] to the United States District Court.”  Likewise, the American Bar Association Standing Committee on the Federal Judiciary unanimously rated Judge Azrack as well-qualified to serve in the Eastern District of New York.

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Robert Bork at Justice

Legal History

Robert Bork at Justice

By C. Evan Stewart

2-25-15 C  Evan Stewart    Robert Bork is a litmus test for most folks over 50 years old.  Either he was a brilliant law professor and jurist who was unfairly denied a seat on the U.S. Supreme Court or he was a rabid, right-wing ideologue who, if put on the Court, would have created an America “in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids…” (Senator Edward M. Kennedy, June 23, 1987).  Less well known is his service to his country as Solicitor General and his role in the Saturday Night Massacre.

Getting Hired By Nixon

    At a 1972 meeting in the White House to discuss possible legislation relating to busing children to school, Bork first met President Nixon.  Being a bearded law professor from Yale, Bork could see Nixon “visibly recoil a step or two” when Nixon was introduced to him (Nixon professed to loathe Ivy League professors).  But when Bork was allowed to weigh in on the proposed bill — stating that the Supreme Court authority upon which it was premised was “corrupt constitutional law” — Nixon immediately reacted:  “I believe the same thing, but I didn’t know there was a law professor anywhere in the United States who agreed with me.”

    The month after Nixon’s landslide reelection, Bork was called at his New Haven home by U.S. Attorney General Richard Kleindienst:  Would Bork accept the job of Solicitor General if it were to be offered?  Bork quickly replied “most certainly.”  The next day, John Dean, the White House Counsel, followed up, requesting that Bork come to Camp David for an interview with Nixon.  Without any irony, Dean also asked Bork whether he had any skeletons in his closet.

    Bork’s interview with Nixon was a pleasant session, with Nixon holding forth on a wide range of subjects.  At one point the President said it was too bad Bork had gone to Yale; Bork responded that in fact he was a Chicago graduate.  Nixon replied:  “That’s almost as bad.”  When the interview ended, the two men had not talked about the Solicitor General position, and Bork left clueless as to why he had been selected by the President.

    On June 26, 1973, after non-contentious confirmation hearings (and having allowed for his predecessor to stay until the end of the Supreme Court’s term), Bork was sworn in as Solicitor General.  “On top of the world,” with what he deemed a “real plum” of a job, Bork had no idea of the tsunami into which he had walked.

On the Job

    No sooner had Bork settled into his office at the Justice Department than Spiro Agnew, Nixon’s Vice President, scheduled a meeting with the new Solicitor General.  Bork, intellectually acute but politically naïve, had no idea what to expect.  After a 20 minute conversation that was “desultory, leading nowhere,” the meeting ended and Bork returned to the Department of Justice “rather confused about the whole episode.”

    The fog began to clear a bit when Nixon’s chief of staff, Alexander Haig, asked Bork to the White House a few weeks later.  The primary purpose of the meeting was to entreat Bork to leave his new post and take charge over Nixon’s legal defense team dealing with the Watergate mess.  At the same time, Haig told Bork that Agnew was under investigation by the U.S. Attorney in Baltimore for taking bribes when he had been governor of Maryland.

    Bork ultimately talked his way out of accepting Haig’s offer (Bork:  “I’ll have to hear the tapes.”  Haig:  “You can’t hear the tapes.”).  As for Agnew, the evidence against him convinced everyone at the Justice Department that Agnew was a common criminal (he also had taken bribes while Vice President).  Nixon’s new Attorney General, Elliot Richardson, brought Bork to a high level pow wow at the White House with Haig and the entire Nixon defense team (now led by Texas law professor Charles Alan Wright) to see how Agnew’s “situation” could or should be resolved.  The team wanted (at least) a delay in any indictment.  When that did not get anywhere, Haig bumped up the pressure:  “Let’s go see the President.”

    In route to the Oval Office, Richardson and Bork ducked into a men’s room.  Fearing it was bugged, Richardson turned on all the water faucets; both men agreed that this was a “resignation issue” (i.e., neither could stay at the Justice Department if Agnew was not indicted).  In the Oval Office, Nixon was “totally relaxed” as he heard the pros and cons debated before him.  After 45 minutes of back and forth, Nixon spoke up:  “I guess you have to indict him.”  

    As the Agnew indictment became imminent, the Vice President played what he thought was a trump card:  Vice Presidential immunity — no one in that post could be indicted and tried before Congress had impeached and removed him from office.  Agnew’s lawyers moved on that basis to close down the Baltimore grand jury, adding as an additional ground the prejudice that flowed from alleged Justice Department press leaks.  Bork was assigned by the Attorney General to respond.  The latter ground was easy to address; the immunity issue, however, was much trickier:  not only was there no definitive law on point, any position taken could have an impact on Nixon’s increasing legal difficulties (e.g., Was there Presidential immunity?  If so, what was the nature and scope of said immunity?).

    While finalizing the Justice Department’s brief (which, among other things, differentiated between the Presidency and the Vice Presidency — the latter essentially a non-functional post that only becomes important if the President leaves office, dies, or is impeached), Bork had to prepare for and then make his first oral argument before the Supreme Court.  Back at the Department of Justice after the argument “went smoothly enough,” Bork learned he would not have to travel to Baltimore to argue Agnew’s motions — the Vice President had that day taken a plea deal and resigned.  Richardson reported to Bork that his brief was one of the reasons Agnew had thrown in the towel.

Bork and the Saturday Night Massacre

Bork    Initially, the Solicitor General had nothing to do with the work Special Prosecutor Archibald Cox was doing vis-à-vis Watergate.  Soon, however, Attorney General Richardson began to task Bork with discrete assignments in that area:  meet with Cox and his staff regarding how to deal with national security matters; rewrite Cox’s open-ended charter to make clear it covered only Watergate-related subjects; and negotiate with Cox and his staff regarding the “proper” role of executive privilege.

    Then came Nixon’s plan to deal with the tapes:  the venerated John Stennis (the very senior Senator from Mississippi) would review Nixon’s recordings and present authenticated versions to Cox.  Stennis was not only very old, however, he was also in poor health and had bad hearing.  Recognizing his limitations (but bowing to the President’s patriotic implorings), Stennis told the White House he would take on the job but would need help to actually do it.  No problem, said the White House, Fred Buzhardt — Nixon’s Special Counsel (and political fixer) — would be happy to pitch in!  Would Cox agree to Nixon’s “take it or get fired” deal?

    Bork went to work Saturday morning (October 20, 1973) with “no inkling that the dispute would in any way involve [him].”  In a televised press conference that day (which Bork watched at the Justice Department), Cox announced that he could not in good conscience agree to the President’s “compromise.”  Directly thereafter, Richardson summoned Bork to his office.

    Bork arrived to find the Attorney General, the Deputy Attorney General, William Ruckelshaus, and a number of Richardson’s staff.  Richardson and Ruckelshaus — both of whom had assured the Senate Judiciary Committee that they would only fire Cox for “extraordinary improprieties” — quickly affirmed they could not axe Cox.  Richardson then asked Bork:  “Can you fire him, Bob?  The gun is in your hand — pull the trigger!”

    Bork would later write that, at that moment, he “was in a welter of contradictory impulses, unable to see clearly what the results would be of a firing or a refusal to fire.”  Clearly, Nixon had the legal authority to fire Cox, and the public defiance of the President by a constitutionally inferior officer of the executive branch (on television yet) was grounds in and of itself.  Bork also worried that if he took the same tack as Richardson and Ruckelshaus, the Justice Department might be reduced to chaos, with mass resignations and a White House operative like Buzhardt put in place as acting Attorney General.  After trying to sort out his “contradictory impulses,” Bork announced:  “I can fire him, but then I will resign.”  Both Richardson and Ruckelshaus urged him not to take the latter step (fearing the same chaos at Justice), assuring him that they would publicly make clear they had urged Bork to stay.

    Ultimately Richardson resigned and Ruckelshaus tried to (Nixon refused his resignation and fired him instead).  Bork was driven to the White House, and with Professor Wright as the principal draftsman, produced this letter to Cox:

    October 20, 1973
    Dear Mr. Cox:
    As provided by Title 28, Section 508(b) of the United States Code and Title 28, Section 0.132(a) of the Code of Federal Regulations, I have today assumed the duties of Acting Attorney General.
    In that capacity I am, as instructed by the President, discharging you, effective at once, from your position as Special Prosecutor, Watergate Special Prosecution Force.
    Very Truly Yours,
    Robert H. Bork
    Acting Attorney General

    Bork then was ushered in to meet with Nixon in the Oval Office.  Bork thought the President was “distraught,” having not anticipated the consequences of his “compromise.”  In a disjointed conversation about what might happen next, Nixon suddenly blurted out:  “You’re next when a vacancy occurs on the Supreme Court.”  As Bork would later write:  “I hadn’t the courage to tell him that I didn’t think he could get anyone confirmed to the Supreme Court, and particularly not the person who fired Cox.”
    That night, Bork and his wife hosted a dinner party for Ralph Winter (a colleague from Yale Law School) and his wife.  All over the rest of Washington (and throughout the nation), the political world was in an upheaval and the impetus for Nixon’s impeachment took on a whole new momentum.  

    Bork was now a national figure; on Monday a crowd stood outside a local diner, pressed against a window, staring at him having breakfast.  One of the first things he did when he returned to the Justice Department was to meet with Cox’s deputies and assure them that their work could (and would) continue without interference.  What about the tapes, they asked.  Bork replied:  “I’ll back you up.  Go to court for any tapes and documents you need.”

    With the political firestorm ignited throughout the country, and with a warning from a White House official that a cornered Nixon “might take desperate actions of which I might not approve,” Bork did his best to ensure that the Justice Department continued to function.  One way he accomplished that was to select a successor to Cox.  All roads quickly led to Leon Jaworski, a former president of the American Bar Association, prosecutor at the war crime trials after World War II, and head of a prominent Texas law firm (Fulbright & Jaworski).  With Jaworski in place, and once the President nominated Ohio Senator William Saxbe to be the Attorney General in December 1973, Bork was able to transition back to his old job.

    That did not end Bork’s interplay with Watergate, however.  With the tapes dispute going up to the Supreme Court, Bork was called into a White House meeting where he was told by Haig that Nixon wanted Bork to argue on his behalf before the Court.  Bork replied that that was an impossibility, given that the special prosecutor was a branch within the Justice Department.  Haig was incredulous, calling Bork’s position a “technicality.”  Bork replied:  “They hang people on technicalities!”  (James St. Clair, Nixon’s latest lawyer, whispered to Bork:  “I think you’re right.”  Bork:  “Tell him that!”  St. Clair:  “Maybe I will … someday.”)

    After the Court ruled against the President, Haig called Bork to report that the White House was debating whether to obey the Court.  Bork’s advice:  “If you don’t, it is instant impeachment.” Shortly thereafter the tapes were produced to Jaworski.


•    Before he died in December 2012, Robert Bork wrote a memoir of his experiences as Solicitor General.  Published in 2013 as a result of his wife’s efforts, “Saving Justice:  Watergate, the Saturday Night Massacre, and Other Adventures of a Solicitor General” (Encounter Books) is a great book for lawyers and non-lawyers interested in the Watergate era.
•    Bork’s principal academic work was in antitrust, and in 1978 he published what many believe to be the seminal work in that field:  “The Antitrust Paradox:  A Policy at War With Itself” (Simon & Schuster).  Oddly, he created a paradox of a different sort two decades later when, as a hired expert on behalf of Netscape in the litigation wars with Microsoft, he took positions 180 degrees different from those he advocated in “Antitrust Paradox” (e.g., profits are not evidence of a monopoly; bundling and restrictive contracts are okay; vertical integration is okay; dominant market share achieved by internal growth is okay).  One might suppose, as Ralph Waldo Emerson once opined, that “[a] foolish consistency is the hobgoblin of little minds.”

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Summer Kick-Off Honors Thurgood Marshall Award Recipients and Nominees

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Summer Kick-Off Honors Thurgood Marshall Award Recipients and Nominees

By Abena Mainoo and Carly Grant

Mainoo    The GrantFirst Decade Committee celebrated its twelfth annual Summer Kick-Off Happy Hour with a sell-out crowd on June 25, 2015 at Battery Gardens.  The event provided a casual atmosphere for newer and seasoned practitioners to hold conversations with judges from the Second Circuit Court of Appeals and the Eastern and Southern Districts of New York.  This year, the First Decade Committee joined with the Public Service Committee to honor the recipients and nominees of the 2015 Thurgood Marshall Award for Exceptional Pro Bono Service.  The Federal Bar Council presented this year’s award to recipients Matthew Benjamin of Gibson, Dunn & Crutcher and posthumously to Steven Kolleeny of Skadden, Arps, Slate, Meagher & Flom.  

     Collectively, the award recipients and nominees have advocated on behalf of asylum seekers, championed civil rights, and defended individuals in capital punishment cases.  They have developed innovative programs to expand access to counsel for litigants who cannot afford representation, obtained reversals of wrongful convictions, and filed amicus briefs in various cases.  The group has done work in each of New York’s federal districts and throughout the country, and includes five attorneys in their first decade of practice.  Through their pro bono work, they have mentored colleagues and law students handling pro bono representations, taken on leadership roles in their communities, and inspired countless others by their example.

  summerkickoff2  The Council presented the 2015 Award to Matthew Benjamin for his establishment of a program to provide pro bono civil legal services to participants in the Alternative to Incarceration and post-conviction drug re-entry programs of the Eastern District, and to Steven Kolleeny for his leadership of Skadden’s pro bono asylum program for over 25 years.  Eastern District Judge Dora Irizarry, who nominated Benjamin, described his efforts to mobilize assistance for participants in the court’s programs who have legal needs relating to housing, employment, immigration, benefits, bankruptcy, and other matters. She explained how the work that Benjamin has led is helping to remove obstacles faced by participants in the court’s programs as they seek to achieve their goals, and the life-changing impact of those interventions.  Eleanor Acer of Human Rights First, who presented the award to Kolleeny’s family, spoke about his involvement in numerous cases, including those in which he personally represented individuals and those that he supervised. Acer discussed the tremendous impact of Kolleeny’s work on the refugees and their families who have been given the opportunity to rebuild their lives in the United States and on the attorneys he has mentored.   

    The Council also recognized the other exceptional nominees for the award:

•    Muhammad U. Faridi of Patterson Belknap Webb & Tyler, whose pro bono work includes defending individuals in capital cases around the country, representing plaintiffs in class action suits against government entities in federal courts in New York and Louisiana, and serving as a court-appointed guardian ad litem in the Bronx housing court;
•    Jodyann Galvin of Hodgson Russ, who helped design and implement a free walk-in limited scope legal clinic in the Western District of New York for pro se litigants in federal civil cases who are unable to afford counsel;
•    Gregory L. Germain of the Syracuse University College of Law, who founded and oversees a pro bono bankruptcy law clinic at the law school and developed a training program to recruit and support attorneys working on pro bono bankruptcy cases;
•    Anthony Gill and Rachel Stevens of DLA Piper, who represent a plaintiff class of over 15,000 African-American and Latino New York City public school teachers in an 18-year-long employment discrimination case;  
•    Robert Hermann of DelBello Donnellan Weingarten Wise & Wiederkehr, whose pro bono work includes representing tenants of a Yonkers housing project in a lawsuit against federal and state agencies and serving as senior counsel for legal affairs at Legal Services of the Hudson Valley in White Plains;
•    Dorothy Heyl of Milbank, Tweed, Hadley & McCloy, who has worked on wrongful conviction cases throughout the country, including a case in which she helped obtain the reversal of a conviction on appeal and won acquittal on re-trial and another case that resulted in a landmark decision on eyewitness identifications;
•    Roberta Kaplan of Paul, Weiss, Rifkind, Wharton & Garrison, for her representation of plaintiffs in marriage equality cases in New York and around the country, including the historic case United States v. Windsor;
•    W. Rudolph Kleysteuber of Sullivan & Cromwell, whose pro bono work includes advocating for the rights of gay families in North Carolina and representing New York state and city government entities;    
•    Avram (Avi) E. Luft of Cleary Gottlieb Steen & Hamilton, who has worked on prisoners’ rights cases, including a case resulting in a jury verdict and punitive damages award for a plaintiff, as well as a federal death penalty case culminating in the reversal of the client’s conviction;
•    Richard Mancino of Willkie Farr & Gallagher, whose pro bono work includes representing refugees, over 20 of whom obtained asylum, defending the civil liberties of public school students, and litigating a successful voting rights case;
•    Matthew L. Mazur of Dechert, who has represented defendants in over a dozen pro bono criminal cases, including one in which he helped obtain the reversal of a client’s conviction on appeal and won acquittal on re-trial, and who serves on the board of trustees of the Neighborhood Defender Service of Harlem;
•    Natalie Fleming Nolen of Morrison & Foerster, who has worked on over a dozen asylum matters, including her successful representation of a student political activist from Cameroon and a Pakistani man who was targeted by the Taliban due to his political and religious beliefs, and represented tenants facing eviction, among other pro bono clients;
•    Edward Sadtler of Kirkland & Ellis, whose pro bono work includes creating a program for summer associates to work with attorneys representing victims of gender-based violence, serving as co-coordinator of his office’s pro bono program, and advising numerous organizations on intellectual property matters; and
•    Scott Wilcox of Cohen & Gresser, whose pro bono work includes helping clients obtain immigration and veterans’ benefits, advising on intellectual property and nonprofit governance matters, and serving as chairman of the board of directors of Wingspan Arts, a nonprofit that provides arts education classes and conservatory programs to students in the New York City area.

    By honoring the recipients and nominees of the Thurgood Marshall Award for Exceptional Pro Bono Service at the Summer Kick-Off, the Council sought to inspire other attorneys, particularly those in the earlier stages of their careers, to maintain a sustained commitment to pro bono work.  Federal Bar Council President Vilia Hayes and Executive Director Joan Salzman, Public Service Committee Chair Lewis Liman, Thurgood Marshall Award Subcommittee Co-Chairs Jennifer Brown and Mark Cohen, First Decade Committee Chair Christopher M. Colorado, Summer Kick-Off Co-Chairs Carly Grant and Mark Hatch-Miller, and many other members of the Council and its staff actively supported the event and the presentation of the award.  The award, given annually, recognizes and celebrates lawyers in private practice who have demonstrated an exemplary commitment to pro bono legal services, and who have provided or facilitated the provision of pro bono services in federal courts or agencies within the Second Circuit.  The inaugural award was presented in October 2014 to Alan Schoenfeld of WilmerHale.

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Inn of Court Ends Year with a Laugh

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Inn of Court Ends Year with a Laugh

By Marjorie E. Berman

Berman    The Federal Bar Council Inn of Court, under the leadership of Sheila Boston, enjoyed another successful year of insightful, thoughtful, and creative programming. At the end-of-year dinner on June 16, 2015, Judge Roslyn Mauskoff was installed as president for 2015-2016 and Peggy Kuo was announced as president-elect.

    The evening concluded with the annual musical production by the Inn of Court Players. This year’s show, entitled Southern District Story, was a takeoff on West Side Story, featuring the amusing feud between two gangs — the Feds (prosecutors) and the Sharks (defense lawyers).  When the prosecution (Steve Edwards, Jane Goldberg, and Larry Krantz) indicted a fisherman (Sheila Boston) under Sarbanes-Oxley for throwing fish overboard (a la Yates v. U.S., 135 S. Ct. 1074 (2015)), her defense team (Margie Berman, Lia Brooks, Jason Canales, and Karla Sanchez) geared up for a win in this very public trial.  Tensions in the courtroom of Judge Phyllis (Phyllis Maglieri) were high from the start.  But when prosecutor Tony (Andrew Mancilla) and defense attorney Maria (Sammi Malek), met in court, their passionate entanglement led to trouble and raised the temperature of the impending trial (and each other).  As each side looked forward to their win at trial (and the public attention) they sang (to the tune of “Tonight”):

    This trial, This trial.
    Won’t be just any trial.
    This trial will make my name, my career

    This trial. This trial.
    I’ll show the world my style.
    What I do, what I am,
    Have no fear

    With this, I’ll make my name forever
    Become a true rainmaker
    It’s what I’ve practiced for

    But more than me
    PROSECUTORS: I know she’ll be convicted
    DEFENSE LAWYERS: She’ll go free

    This trial
    This trial, this trial
    The world will watch beguiled
    The press, the news will cover each phase
    This trial, this trial
    It’s going to take a while
    Many weeks, I’ll be on, I’ll be praised

    My cross, will skewer like an arrow
    My closing just like Darrow
    Will leave them all in awe….
    And here we are
    And one will be a loser, one a star
    This trial

    We do not want to give it all away in case you are able to see the show in revivals.  Rest assured, in the end, as in all corny musicals, justice prevailed and love carried the day.   


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The Public Service Committee

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The Public Service Committee

By Abena Mainoo

    The Federal Bar Council’s Public Service Committee seeks to increase access to counsel and assist the courts and administrative agencies of the Second Circuit in their work of administering justice to all litigants.  The committee brings together an extraordinarily energetic and dedicated group of attorneys in private practice, public interest lawyers, and judges to pursue these objectives.  Under the leadership of Committee Chair Lewis Liman, over the past year the committee has sponsored programs providing pro bono assistance to litigants in Second Circuit courts, conducted trainings for prospective volunteer attorneys, and hosted events showcasing public service work.

    Since the fall of 2014, the Asylum Representation Project (“ARP”), with the assistance of volunteer attorneys, has screened the cases of over 90 immigrants, including asylum-seekers with cases pending in the New York Immigration Court, to evaluate their eligibility for relief.  The ARP was established in 2011 by the committee in conjunction with Chief Judge Robert Katzmann’s Study Group on Immigrant Representation and Human Rights First.  As Chief Judge Katzmann explained on the occasion of receiving the Learned Hand Medal from the Council in May 2012, the ARP aims “to challenge the private bar to take on more pro bono asylum cases and increase firms’ ability to do so by creating a greater capacity to screen potential clients, conduct intake interviews, place new pro bono cases with law firms, and mentor the pro bono attorneys in that representation.”  Since the launch of the ARP, over 90 indigent immigrants have obtained pro bono representation for their cases.  About 20 of those cases have been placed with counsel since last fall, and the ARP currently is seeking to place several additional cases.  

    In the past year, another project sponsored by the committee (the Limited Scope Discovery Project in the Southern District) has provided limited scope pro bono counsel to over 20 pro se plaintiffs.  Through the project, pro bono counsel represents pro se plaintiffs for the limited purpose of taking and defending depositions and conducting related discovery, as well as engaging in settlement discussions if appropriate.  The project seeks to promote early case assessment while increasing pro bono representation by permitting more limited undertakings by counsel.  To date, more than 50 attorneys, including associates and supervisors, have participated in it.  This year, the committee launched a new project in collaboration with Legal Services NYC (“LSNYC”) to provide pro bono representation for appeals in federal district court of decisions by administrative law judges denying Social Security disability benefits.  LSNYC screens and provides mentoring for the cases.  

    The committee and LSNYC held a training in February on Social Security appeals for prospective volunteers with the project.  In May, the committee and the Southern District held their annual full-day trial advocacy training presented by judges in the Southern District and experienced trial lawyers.  Program participants committed to take a pro bono case in the Southern District.

    The committee and the Second Circuit Court of Appeals hosted a lecture on the rewards of public service by former U.S. Attorney for the Southern District of New York and Whitewater special prosecutor Bob Fiske at the Thurgood Marshall Courthouse in April.  Mr. Fiske recounted his time as a government lawyer and spoke about synergies between his careers in private practice and public service.  In June, the committee partnered with the First Decade Committee to recognize the nominees for the second annual Thurgood Marshall Award for Exceptional Pro Bono Service and present the award at the Summer Kick-Off and Happy Hour.  The award was instituted in 2014 to encourage private practitioners to perform pro bono work.

    In July, the committee worked with New York Lawyers for the Public Interest’s Pro Bono Advisory Council to host a panel on transitions to public service careers.  The speakers, including Judge Denny Chin, federal and state government lawyers, and attorneys from legal services providers, discussed their experiences and strategies for navigating transitions to public interest positions.    

    In the year ahead, the Public Service Committee will continue to partner with the courts and private bar to enhance access to counsel and support pro bono work in the Second Circuit.


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Courthouses of the Second Circuit

FBC News

Courthouses of the Second Circuit

By Marjorie E. Berman

    Six years ago, at a meeting of the Federal Bar Council’s Second Circuit Courts Committee, members found themselves in a discussion — not about legal precedent or appellate procedure — but about capturing, through photography, the magnificent architecture of the courthouses found throughout the Second Circuit.  The idea was inspired by Judge Kevin Castel. No one could have imagined the path from that momentary idea to the creation and publication of Courthouses of the Second Circuit — Their Architecture, History, and Stories, a 262 page coffee table book with over 220 illustrations that brings together architecture, history, and jurisprudence.  The stately book, co-published by the Federal Bar Foundation and Acanthus Press, describes and portrays 19 courthouses in the Second Circuit (as well as many historic courthouses no longer in use today) and provides a roadmap of our circuit’s history through discussion of the major cases that took place in each courthouse.  Adding to the stature of the project is a foreword by Second Circuit Chief Judge Robert A. Katzmann, a preface by former Chief Judge Dennis Jacobs, and an inspirational acknowledgment by Justice Ruth Bader Ginsburg.

FRONT COVER    At the helm of this long process of creation — multiple drafts, historical research, courthouse interviews, and capturing images and wading through photographs, legal opinions,  and U.S. General Services Administration records — were its editors, Second Circuit Committee Members Patricia McGovern and Michael Zweig, and its associate editor, Marjorie Press Lindblom.  Their dedication, along with the dedication of Second Circuit Committee Chairs Mary Kay Vyskocil, Vilia Hayes, and Linda Goldstein and Circuit Executive Karen Milton and her staff, succeeded in amassing contributions by numerous additional Council members.   The effort was supported as well by a succession of Council and Federal Bar Foundation presidents and by the assistance of the firms of Loeb & Loeb and Kirkland & Ellis.

    As Vilia Hayes notes in her “From the President” column in this issue of the Federal Bar Council Quarterly, a celebration of the book’s launch is planned for October 28 at the Thurgood Marshall Courthouse, a photograph of which adorns the cover of the book. The Planning Committee for the book is working on other book-related events including CLE programs.

    This book is a remarkable achievement by the Council and a tribute to the power of community effort.  Now here comes the best part: as part of the celebration of our community, all current members will receive a complimentary copy of the publication and new members will receive the book upon joining.  Readers will be astonished by the beauty and variety of the circuit’s courtrooms and the stories — familiar and unfamiliar — that the book tells about them.  We predict that Courthouses of the Second Circuit — Their Architecture, History, and Stories will soon be seen in the reception areas of hundreds of law firms throughout the circuit and serve as a symbol of the work of our courts for years to come.  

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International Arbitration Awards

Invitation to Debate

International Arbitration Awards

Richard W. Hulbert

    In 1970, the United States became a party to the New York Convention of 1958.  The Convention applies not only to foreign awards but also to “arbitral awards not considered as domestic awards in the State where their recognition and enforcement are sought.”  I propose the desirability of a correction in the jurisprudence of the Second Circuit relating to international commercial arbitration and the New York Convention.  Under current Second Circuit doctrine, an international award, if rendered in the United States, can be challenged on grounds not recognized by the Convention, although those non-Convention grounds cannot be raised against that same award, if it is rendered outside the United States.  Eliminating this discrimination against geographically domestic international awards is consistent with the relevant statutory language that all awards “falling under the Convention” are to be given legal effect in the United States unless an objection permitted by the Convention is established.  Eliminating this discrimination would enhance the competitive status of New York as a venue for international arbitration and would conform local practice to international practice elsewhere.

    Chapter 2 of the Federal Arbitration Act was enacted to implement American accession to the New York Convention; it explicitly provided that the Convention “shall be enforced in United States courts in accordance with this chapter.”  (Chapter 2, §201.)  Congress took advantage of the optional “non-domestic” coverage of the Convention to define an award as “falling under the Convention” if it has “a reasonable relation with one or more foreign states.”  (Chapter 2, §202.)  The statute requires the district court to enter as a judgment of the court “an award falling under the Convention unless it finds one of the grounds for refusal or deferral of recognition or enforcement of the award specified in the said Convention.”  (Chapter 2, §207.)  Other provisions of Chapter 2 confirm that the concept of awards falling under the Convention includes awards rendered in the United States.  This was a key point of the 1970 legislation: the touchstone for application of the Convention was no longer the geography of the place of arbitration but the international character of the contract.

    Yet the circuit in Yusuf Ahmed Alghanim & Sons v. Toys ’R Us, 126 F.3d (2d Cir. 1997), concerning a contract for the establishment of retail stores in the Middle East, established a precedent authorizing the losing party in an international arbitration, if the award was rendered in the United States, to challenge the award on grounds provided by Chapter 1 of the FAA.  Toys ’R Us (“TRU”) had commenced arbitration in New York seeking a declaration that its contract with Alghanim, a Kuwaiti entity, had been terminated.  Alghanim counterclaimed for breach of contract.  The arbitrator held that TRU had no right to terminate and awarded Alghanim $46 million in damages for the breach.   Alghanim applied to the district court for confirmation of the award under Section 207, and TRU counterclaimed under Chapter 1 of the FAA to vacate or modify the award as irrational and in manifest disregard of the law and the terms of the contract.  The district court confirmed the award and denied the counterclaim.  TRU appealed.

    The circuit affirmed the confirmation of the award, holding that the terms of Section 207 were exclusive and that no other terms, such as manifest disregard of the law, could be added by implication.  At the same time, however, it held that an application to vacate the award was authorized by Article V(1)(e) of the  Convention.  It reasoned that the Convention did not control what a signatory state might do with an award rendered on its territory, but left that to the state’s domestic law, which in the present case, without explanation, it took to mean Chapter 1 of the FAA.  The court, however, affirmed the district court’s denial of TRU’s counterclaim.

No Useful Purpose

    No federal appellate court decision in the 45 years since American accession to the New York Convention has refused legal validity to an international commercial arbitral award rendered in the United States on the ground of manifest disregard of the law or other judicial add-ons to Chapter 1.  To be sure, the issue has occasioned more than a few lengthy proceedings at great burden to the courts and heavy legal expenses to the winning party in the arbitration, legal expenses not recoverable under the “American Rule,” but it has changed no results.  The doctrine launched by the Toys ’R Us decision has served no useful purpose in international arbitration, whatever may be the argument in favor of merits review of domestic awards.

A Flawed Doctrine  

    The doctrine also lacks support in the Convention or the statute.  There is no discernible purpose in designating awards as “falling under the convention” if they are subject to being set aside as if they were not.  No sensible explanation has yet been offered as to why Congress would have desired so quixotic a result.  The result cannot be squared with Section 208 of Chapter 2, which provides that provisions of Chapter 1 apply to “proceedings brought under this chapter to the extent that chapter is not in conflict with this chapter or the Convention as ratified by the United States.”  Can there be results more in conflict than an award required to be confirmed (that is, made a judgment of the district court) under Section 207 of Chapter 2 but that is required to be vacated under Section 10 of Chapter 1?  Just as in a contract case the validity of the contract does not depend on which party, buyer or seller, goes to court, so, too, the validity of an award should not depend on whether judicial proceedings are initiated by the winning part under Section 207 or by the losing party under Section 10.  In its current project to restate the American law of international commercial arbitration, the American Law Institute in 2012, after a long study of the issue, rejected the doctrine of Toys ’R Us as in conflict with the Convention and the American statute.

    There is no explicit provision of Chapter 2 authorizing the vacating of an award: Section 207 speaks of  “recognition” and “enforcement,” although an award denied recognition and enforcement is of no more legal effect in the United States than if it had been vacated, unless and until the decision denying recognition and enforcement is reversed on appeal.  The material difference is that under Convention Article V(1)(e) a decision by an American court “setting aside” an award rendered in the United States can serve as a sufficient basis to deny  enforcement of that award in another Convention country.  In any event, Section 208 makes applicable in Chapter 2 proceedings the provisions of Chapter 1 “not in conflict” with Chapter 2 or the Convention, so there should be no difficulty in importing from Chapter 1 the procedure to vacate, but to avoid conflict, applying the substantive standards of Chapter 2, that is, those of the Convention.

    In thus aligning the grounds for refusal to enforce a foreign award with those for refusing to enforce (or vacating) domestic international awards, one would be giving effect to the evident intent of the framers of Chapter 2.  In attempting to establish a new framework for dealing with “international awards,” wherever rendered, Chapter 2 took a course that has since become the commonplace standard in international arbitration.  It is thus in the UNCITRAL Model law and in the many national statutes modeled on it or influenced by it.

    The Second Circuit precedent denies to domestic Convention awards the effective protection that other Convention awards enjoy.  New York has all the other attributes that make it a major center for international arbitration.  In the current state of the law, however, prudent counsel may well prefer to initiate arbitration outside the United States and bring the foreign award for enforcement in New York where the doctrine of Toys ’R Us will have no application.  One can hope that the circuit will soon have an opportunity to revisit the flawed doctrine it has proclaimed.

    Editor’s Note: Richard W. Hulbert is a retired partner of Cleary Gottlieb Steen & Hamilton and a former vice chairman of the Court of Arbitration of the International Chamber of Commerce.  This article is based on a longer article, “The Case for a Coherent Application of Chapter 2 of the Federal Arbitration Act,” 22 Am. Rev. Int’l Arb. 45 (2011).

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