MIAMILAW FALL 2013
UNIVERSITY OF MIAMI SCHOOL OF LAW
LL.M. PROGRAMS TAKE YOUR PRACTICE TO THE NEXT LEVEL Full-time / Part-time Options
Select Program Size / Personalized Attention
Highly Ranked / Nationally Recognized
International Perspective and Expertise
Real Property Development
The aging baby boomer generation has created a need for skilled estate planners to handle legal LVVXHVIURPZHDOWKWUDQVIHUVWRHOGHUODZWRĂ€GXFLDU\ administration. The Heckerling Graduate Program is uniquely designed to prepare you for this developing practice area.
Study with world-leading scholars and share ideas with peers from diverse legal backgrounds. Tailor your studies through a specialization:
International Arbitration U.S. and Transnational Law for Foreign Lawyers General International Law Inter-American Law (Law of the Americas)
The Robert Traurig-Greenberg Traurig LL.M. in Real Property Development is widely regarded as the nationâ€™s best. This program, taught by the best minds in real estate law and the top practicing lawyers LQWKHĂ€HOGLVDYDLODEOHRQFDPSXVRULQDQRQOLQH format.
Our top-ranked program focuses on building you into a better tax lawyer who develops the â€œtax senseâ€? QHFHVVDU\WRUHVROYHWD[SUREOHPVZLWKFRQĂ€GHQFH
Taxation of Cross-Border Investment
In response to South Florida becoming one of the worldâ€™s leading centers of international tax planning and asset management, we have launched this unique LL.M.
Ocean and Coastal Law
This LL.M., ideally situated in Miami, a center of maritime law, has outstanding faculty and prepares you to become a legal specialist in the domestic and international use and protection of the marine environment.
STEPHANIE COX Assistant Dean for External Affairs LAUREN BEILEY Director of Online Communications and Marketing ELIZABETH ESTEFAN Senior Graphic Designer and Project Manager PATRICIA MOYA Senior Graphic Designer and Magazine Designer CATHARINE SKIPP Director of Media Relations and Public Affairs MICHELLE VALENCIA Director of Production Services Contributing Editors CARLOS HARRISON ROBIN SCHARD
Miami Law Magazine is published by the University of Miami School of Law. Copyright © 2013 UM School of Law. All Rights Reserved. Address correspondence to Miami Law Magazine University of Miami School of Law 1311 Miller Drive Coral Gables, Florida 33146
2. ON THE BRICKS What’s happening on and around Miami Law’s sun-splashed quadrangle.
6. 10 TO WATCH
We shine a spotlight on some of Miami Law’s most remarkable students.
9. BRUCE J. WINICK AWARD
In honor of the life and legal career of the late Professor Winick, we have established a scholarship that recognizes our top students.
10. CLASS ACTS
Miami Law’s alumni do justice to their school and community.
Alumni and friends make a difference at Miami Law.
14. COVER STORY
2 6 10
Miami Law’s global reach extends across the continents.
A conversation with the remarkable Sonia Pressman Fuentes, J.D. ’57.
20. SMART TAKES
Miami Law faculty share insights about renewable resources, identity in public education, Guantanamo military commissions, the South China Sea, and Dodd-Frank.
32. THE LAST WORD
Criminal Law Professor Tamara Lave lives life in the fast lane.
Distinguished Roster of Legal Luminaries Including Justice Anthony Kennedy Speak at Miami Law
Miami Law Launches New Joint Degree Programs
U.S. Supreme Court Justice Anthony Kennedy teaches a Constitutional Law class
distinguished roster of legal luminaries, including U.S. Supreme Court Associate Justice Anthony M. Kennedy, spoke at Miami Law this past academic year. Justice Kennedy visited Miami Law and taught Professor Caroline Mala Corbin’s Constitutional Law class where he spoke at length about the Framers of the Constitution, the Bill of Rights, the separation of powers and the concept of checks and balances, and frequently tested the students’ knowledge. Justice Kennedy also gave a talk as part of the Robert B. Cole Distinguished Jurist Lecture Series, where he gave gripping insight into the inner workings of the Supreme Court. Professor Geoffrey R. Stone, a leading constitutional scholar and the Edward H. Levi Distinguished Service Professor at the University of Chicago Law School, delved into distinctions between judicial activism and restraint in Supreme Court decisions, as part of the John Hart Ely Lecture Series. Professor Sarah H. Cleveland of Columbia Law School spoke on global human rights as part of the Louis Henkin Lecture on Human Rights. Professor Cleveland, the Louis Henkin Professor in Human and Constitutional Rights, and faculty codirector of the Human Rights Institute at Columbia, lectured on “Rights at War: The Interface Between Human and Constitutional Rights and the Laws of Armed Conflict.” Susan Herman, President of the American Civil Liberties Union and Professor of Law at Brooklyn Law School, took aim at instances of overreaching in the policies of the George W. Bush and Barack Obama administrations during her appearance at Miami Law. The International Law Lecture Series sponsored several lectures throughout the year, and brought renowned legal minds to campus, including Carolyn Lamm, J.D. ’73, a top international litigator and Past President of the American Bar Association, and Dr. Guido Carducci, a law professor at the University of Paris who spoke on the “Recovery of Cultural Property.” Other notable speakers included: Sarah Weddington, who successfully argued the landmark Roe v.Wade U.S. Supreme Court case in 1973; Catharine A. MacKinnon, a renowned lawyer, teacher, and activist on sexual-equality issues; Dale Jamieson, Director of Environmental Studies at New York University, who spoke on “Science and Law for the Anthropocene;” and Mark S. Zaid, a Washington D.C. attorney with a passion for comic books, delivered a lecture on “Superheroes in the Courtroom: Law, Lawyers and Comic Books.” —Michelle Valencia
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n an effort to provide J.D. students with additional professional expertise as well as save them time and money, Miami Law has established three new joint degree programs this year—a J.D. and a Ph.D. in Environmental Science and Policy, a J.D. and M.A. in Law and Arts Presenting & Live Entertainment Management, and a J.D. and a Master of Science in Education in Law, Community, and Social Change. “In today’s job market, it is very helpful to have credentials which more clearly establish the job candidate’s area of expertise,” said Sandra Abraham, Executive Liaison for Interdisciplinary Programs and Initiatives at the law school. In partnership with the University of Miami’s esteemed Frost School of Music, the J.D./M.A. in Arts Presenting & Live Entertainment Management helps prepare students for a career in entertainment law focusing on the concert/performance arena. The intensive six-year program in Environmental Science and Policy is especially suited to students who are interested in environmental policy and regulation at the state or national levels, who want to engage in cuttingedge research in an academic setting, or who are interested in working with international agencies, governments, or organizations. The newest joint-degree program, the J.D./Master of Science in Education in Law, Community, and Social Change, was created in partnership with the University of Miami’s School of Education and Human Development. Graduates of this program will become leaders, activists, advocates, organizers, and program developers who foster social change. “We are delighted to be partnering with the School of Education,” said Abraham. “There is already synergy between our public interest initiatives and the Department of Educational and Psychological Studies, and this joint-degree program will strengthen these ties.” —Michelle Valencia
DEAN WHITE: MOST INFLUENTIAL WOMAN IN LEGAL EDUCATION
M Law Students Selected for Inaugural HNBA/ Microsoft IP Law Institute
oracio GutiĂŠrrez, J.D. â€™98, Corporate Vice President and Deputy General Counsel in charge of Microsoft Corporationâ€™s worldwide intellectual property group, started the HNBA/Microsoft IP Law Institute in partnership with the Hispanic National Bar Association (HNBA). The program is designed to increase the number of Latino lawyers in U.S. intellectual property law. Microsoft has pledged $200,000 over three years to help fund the institute. Two 2L Miami Law studentsâ€” Antonio Hernandez and Jose Vazquezâ€” were selected from among hundreds of law students nationally. â€œI am extremely proud to have two members of my alma mater be among the 25 students chosen to participate in the Institute,â€? said Gutierrez. â€œIt was a highly competitive selection process and I have no doubt that this was a tremendous opportunity for their professional growth.â€? â€œIt was truly humbling to represent Miami Law at the conference,â€? said Hernandez. â€œAs a Cuban-American native of South Florida, being selected from the national applicant pool is particularly meaningful. It was a tremendous opportunity to learn from and meet leaders in the Hispanic Intellectual Property Law community.â€? Innovation is the lifeblood of the U.S. economy and IP law is an increasingly important factor in Americaâ€™s future economic strength. Yet, statistics show that Hispanic lawyers DUHXQGHUUHSUHVHQWHGLQWKHĂ€HOGRI,3 law. â€œThe Microsoft-HNBA IP Law Institute was a once in a lifetime opportunity that will open many doors,â€? said Vazquez. â€œThis exciting program will surely lead my legal career on a path I never imagined.â€? â€”Catharine Skipp
LDPL/DZÂˇV'HDQ3DWULFLD':KLWHLVWKHPRVWLQĂ XHQWLDOZRPDQLQOHJDO education in the United States, according to a poll of her peers by the National Jurist. The magazine said that Dean White and the four men in WKHWRSĂ€YHÂ´DUHLQĂ XHQFLQJWKHRQJRLQJGHEDWHDERXWOHJDOHGXFDWLRQÂľ at a time when applications to many law schools are trending downward and the landscape for legal careers is uncertain. The authors of the article accompanying the list called Dean White a â€œpassionate advocate for improving legal education.â€? The magazine quoted Dean White as saying her focus is on highlighting the â€œspecial training and capacities and obligations that lawyers have to help solve problems and help our society work well.â€? The article went on to describe two of the highly innovative programs she has spearheaded since taking the reins at Miami in 2009: LawWithoutWalls, which draws on the talents of students and faculty from 18 academic institutions around the world, and Legal Corps, a unique fellowship program that places Miami /DZJUDGXDWHVLQQRQSURĂ€WDQGSXEOLFVHFWRURUJDQL]DWLRQVQDWLRQZLGH The National Jurist also drew attention to the fact that Dean White has VLJQLĂ€FDQWO\LQFUHDVHGWKHQXPEHURIFOLQLFVDWWKHODZVFKRROERRVWLQJWKH outreach work that students perform beyond the campus. â€”Nick Madigan
THREE FACULTY MEMBERS NAMED AS DEANâ€™S DISTINGUISHED SCHOLARS FOR THE PROFESSION
hree of Miami Lawâ€™s most eminent faculty members have been named as Deanâ€™s Distinguished Scholars for the Profession. During a reception at the law school last fall, Professors Michael H. Graham, Frances R. Hill, and Elliott Manning were recognized by their colleagues and Dean Patricia D. White. The honor, Dean White said, recognizes the kind of â€œusefulâ€? scholarship that is â€œdeeply important to the practice of law.â€? The work of the three professors being honored, she said, is â€œparticularly distinctive and particularly valuable to the law.â€? Professor Hill teaches and writes extensively in the areas of federal income tax, constitutional law and election law. James T. Oâ€™Hara, the former chair of worldwide tax practice at the law firm Jones Day, said she is â€œa true scholar and an impressive lawyer.â€? Paul C. Giannelli, Distinguished University Professor at Case Western Reserve University, said he had relied on Professor Grahamâ€™s work for more than 35 years: â€œHe is clearly one of the preeminent evidence scholars of this generation. His books and articles are both insightful and practical, a somewhat rare combination today.â€? Leslie B. Samuels, partner at Cleary Gottliebâ€™s New York office, said he worked with Professor Manning on a broad range of projects until academia beckoned in 1980. â€œElliott is and was a deep and careful thinker about a broad range of tax matters,â€? Samuels said. â€œHe richly deserves recognition as a Deanâ€™s Distinguished Scholar for the Profession.â€? â€”Nick Madigan
ON THE BRICKS
Professor Frances Hill, Dean White, Professor Elliott Manning and Professor Michael Graham
Antonio Hernandez, Horacio Gutierrez, Jose Vasquez.
ON Director Karen Throckmorton Steps Aside to Embrace Family and Philanthropy Karen Peterson Throckmorton, J.D. â€™81, LL.M. â€™87, has read to the blind, dedicated years of her life as Cub Scout Den Leader, served as President of her childrensâ€™ school alumni associations, and spent over three decades with the Junior League of Miami. She is from a family of lawyers WKRXJKWKHĂ€UVWIHPDOH LQFOXGLQJ her husband, father, and grandfather who became the Chief Justice of the Iowa Supreme Court. After graduation, she landed two Federal clerkships with then-Chief U.S. Magistrate Peter R. Palermo and U.S. District Court Judge William M. Hoeveler. Throckmorton came back to Miami Law in 2001 as Deputy Director of the Center for Ethics and Public Service. She founded Miami STREET Law, a national outreach program training law students to visit high schools and teach students legal analysis and critical thinking. Rob Collins, J.D. â€™11, a STREET Lawyer from 2009 to 2011, said at the farewell, â€œYou expected us to face our fears, to go into new environments, and to roll with the punches if and when our meticulous planning went up in smoke, which it almost always did.â€? Throckmortonâ€™s newfound freedom is being spent with family and volunteering. She is President of the Junior League of Miami Foundation, and on the Boards of Directors of the Childrenâ€™s Home Society and the 200 Club. â€”Catharine Skipp
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Esteemed Professors Anderson and Casebeer Retire By Catharine Skipp
hen professors retire, especially ones as influential as Professors Anderson and Casebeer, the thousands of students who passed through their classrooms during their cumulative seventy-six years at Miami Law remember their imprint, lessons, words, and books. Professor Terence J. Anderson has enjoyed a long and adventuresome career and attracted the admiration of manyâ€”other scholars, former students, and even opposing counsel. After graduating from the University of Chicago Law School in 1964, he served as the regional courts commissioner in Malawi, Africa during its transition from colonial rule to independence. He then returned to practice law in Chicago and at the â€œsuggestionâ€? of his mentor, Soia Mentschikoff he left private practice in 1973 to teach and serve as Academic Dean at the Antioch School of Law in Washington, D.C.; and then joined Miami Law in 1976. During his storied tenure at Miami Law, he represented the former U.S. District Court Judge Alcee Hastings in various legal matters including Hastingsâ€™ impeachment trial before the U.S.
Senate in 1989. Anderson is the author, with William Twining and David Schum, of a legal reasoning textbook, Analysis of Evidence, now in its 2nd edition. His collaboration with Twining, a leading figure in British legal education and a visiting professor at Miami Law for over 20 years, has lasted a lifetime. They met in 1964 when Anderson was a third-year law student in Chicago, and Twining was a visiting scholar. Their friendship led to their 27-year collaboration on Analysis of Evidence and a mutual but highly competitive love of ping pong. â€œWe are unlikely twins, not only in respect of height and appearance,â€? said Twining. â€œTerry is a Midwesterner, a pragmatic, relentless litigator who is at heart a romantic and an idealist. I am an English intellectual, an unrepentant theorist with a tendency to sit on the fence, and quite skeptical to boot.â€? Friend and evidence specialist Peter Tillers, professor at Benjamin N. Cardozo School of Law at Yeshiva University, was reminded of an incident in the midst of the Hastings Senate hearing: â€œOne afternoon a difficult issue arose. I got a message from Terry. It began with an apology for the shallowness of his analysis of the issue. As I read Terryâ€™s â€˜shallowâ€™ message, I was bowled overâ€Śthat very short message harbored perhaps the most compelling legal argument I have ever seen or heardâ€ŚThat day in 1989 I was taught an important lesson: Terry is a great master of not just one or two hard-to-learn arts, but of many.â€? Andersonâ€™s students were equally grateful for his gifted guidance. â€œI was not a top student during my first year,â€? said Jane Muir, J.D. â€™09. â€œProfessor
THE BRICKS subject, even if I could not embrace his thrill over the then-hit ‘The Way It Is’ by Bruce Hornsby and the Range.” Casebeer did not just have an impact on the students he taught, but also on his colleagues who looked to him for brilliant scholarship. “As a faculty colleague, I will miss Ken’s regular participation in our faculty workshops,” said Lynch. “You could count on him to think through the presenter’s legal arguments and to ask a question, normally in three parts…We will miss not having him as a colleague on a daily basis. Even though Professor Casebeer has retired, I expect him to continue to make major scholarly contributions to our understanding of labor history.” Professors Anderson and Casebeer will surely not see retirement as the joy of not working but as an opportunity to delve more deeply into their long love of scholarly writing.
Professor Terrence J. Anderson
to Miami at the same time, quickly realized the sharp legal mind of his colleague. “After a few opportunities to exchange thoughts on recent legal developments, I realized Ken would be an exceptional scholar and legal educator. His scholarly contributions focused primarily on Constitutional Law and a theory of the state…But what always interested him most is not how law shapes society but rather how the struggles of men and women working for a better life influence law and legal practices. He has made a major contribution to the field in his book American Labor Struggles and Law Histories.” Twining also chimed in about Casebeer: “Ken and I have been colleagues, on and off, for over thirty years. We have been steady friends for almost as long. My first impression was that here was a serious, intelligent, reflective, morally committed scholar. I found him invariably helpful in discussing intellectual issues and in commenting on my drafts, especially about Legal Realism—the formal acknowledgements in footnotes do not do justice to his contributions. “I hope that, freed from institutional commitments and heavy teaching loads, Ken will find ‘retirement’ a liberation and we can look forward to an even faster stream of eloquent essays and books,” Twining said. To Jeremy Paul, now Dean at Northeastern University School of Law and an Associate Professor at UM during the 1980s, Casebeer was a valued mentor. “I had the privilege of co-teaching a seminar with Ken on Critical Legal Studies,” said Paul. “I will always admire his vast knowledge and his passion for the students and the
Professor Kenneth M. Casebeer
Anderson gave me the chance to prove myself, and with his coaching, I became a successful Mock Trial competitor. Had it not been for the faith he showed in me, I might never have had an opportunity to hone my skills. I am extremely grateful for his investment of time and energy in the team.” Travis Robert-Ritter, J.D. ’12, judicial intern to U.S. District Court Judge Alan S. Gold said, “As members of the trial team we had quickly come to learn that he was not only the smartest and quickest thinking in the room, but also the person who cared most about our well being. I am privileged to have had him as a professor and mentor.” Anderson has four children: Kathleen and Andrew in Washington, D.C., and Michael and Jamie in Miami. He has been married to Carolyn Bugh Anderson for 13 years and has two stepdaughters, Rachel in St. Petersburg and Cristina in Washington, D.C. Most important—in his view— are his granddaughter, Tatum, and grandson, Austin, of Miami. rofessor Kenneth M. Casebeer came to Miami Law the same year the Supreme Court unanimously ruled against President Richard M. Nixon limiting the power of that presidency. As an academic, Casebeer was always interested in the connections between law and power. Casebeer had graduated from Harvard Law School that same year, 1974, and earned his A.B. from Georgetown University in 1971. Later in his time at Miami Law he would serve as Associate Dean from 1986 to 1987. Dean Emeritus and Professor of Law Dennis O. Lynch, who came
ON THE BRICKS
By Catharine Skipp The halls of Miami Law are populated with an embarrassment of riches— fine, smart, remarkable students who will truly make a difference to the legal landscape in years to come. To pick just ten is a daunting task; these really do represent an amazing group of Miami Law students. There was never a question of keeping 3L JENNA WINCHESTER down on the Homestead farm. Sharing a childhood with 50 animals, she has seen most of the U.S. and five continents, including safaris in Africa amongst the gorillas. The Miami native sings, taught line dancing, is the student Trustee on the UM Board of Trustees, and is President of the SBA.
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She is a three-time Dean’s Fellow, member of the University of Miami Law Review and of the Charles C. Papy Jr. Moot Court Board, a Student Ambassador, and ranks in the top 10 percent of her class. She graduated summa cum laude from the University of Florida, came to Miami Law on a Dean’s Merit Scholarship, and interned for the Honorable Alan Gold of the Southern District of Florida and for the Miami Dolphins’ General Counsel Office. After graduation, she will clerk for Federal District Court Judge Roy B. Dalton and then join Gunster P.A. in West Palm Beach. It isn’t as if JOHN CRISTE has dreams of fish, but the 2L could give a tarpon a run for the money. Although he didn’t start swimming
competitively until the age of 13, in Santa Clarita, CA, the 24 year old has been to the Olympic trials three times (a finalist in 2004 and 2008) and has his eye on the 2016 Olympics. He is on the 2012-13 United States National Team and in 2012 ranked 22 in the world in the 100 meter breaststroke. Throughout Criste has prepared himself for a post-competitive life. He graduated from Stanford, where he was a four-time All-American and where he holds the school record in the 100-yard breaststroke, with a degree in Political Science. He headed to Miami Law where he received a Dean’s Certificate of Achievement for Legal Research and Communication. He is currently forming a non-profit organization to raise money for breast cancer research in honor of his late mother.
2L John Criste
“Stay humble but stay hungry” are words RICO WILLIAMS lives by. The 31-year-old Brooklyn Heights native has honored that ethos at Miami Law. Williams—his first name is Orbestes, but everyone uses the
middle one—headed to California after graduation this May for a job at iTunes (Apple, Inc.) as in-house counsel. While at Miami Law he was inspired by Dean White’s Elements class and by LWOW. He immersed himself in STREET Law and LawWithoutWalls while working toward a J.D./Masters in the Music Business and Entertainment Industries. Williams maintained a Top Secret Clearance during his time as an IT/ Management Officer at the U.S. Southern Command, receiving the Army Achievement Medal for Civilian Service. He also worked under the Commanding General of the U.S. Army South where he was awarded, among others, the Army Meritorious Service Medal. He graduated from George Washington University in International Relations and from Florida International University in Geography, with a concentration in Latin American and Caribbean Studies. The father of three graduated in the top third of his class. Story on page 8
Paulina Valanty with Trey Dahl
PAULINA VALANTY’s path to Miami Law has been long and inspiring. She came to the U.S. from Chile as a 15 year old, with a tourist visa, not knowing a word of English. Less than five years later, she graduated summa cum laude from the University of Texas at Austin with a degree in foreign languages (she now speaks five). There, while undocumented, she worked at the law school’s immigration clinic, where she would find her calling. She came to Miami as a Miami Scholar and interned at Miami Law’s Immigration Clinic. There she helped a client win asylum. The 3L interned with U.S. District Court Judge Jose E. Martinez and spent the summer with the Executive Office of Immigration Review. Valanty, now a U.S. citizen, is the Eleventh Circuit Editor of the University of Miami Law Review.
she was on the dance team, and then graduated from New York University, Leonard N. Stern School of Business magna cum laude with a double major in Finance and Marketing. She hadn’t set her sights on going into a career in business but as a base for another, yet undecided, career. After two years in consulting and marketing in New York, she focused on law school. The 2L is on the University of Miami Law Review, was awarded the Dean’s Certificate of Achievement in both U.S. Constitutional Law and Criminal Procedure, was on the University of Miami School of Law Dean’s List her 1L year, and received the Dean’s Merit Scholarship. Also the brownies that she bakes to reduce stress are nonpareil.
Dr. Amir Whitaker
The key to 2L AMANDA PARRA’s success may be that she is comfortable with competition. She grew up in Miami, in a Hispanic family of six children. In high school,
10 TO WATCH
ALEJANDRO MIYAR arrived at Miami Law with a very presidential resume. A graduate of Haverford College, he was Press Secretary to the Mayor of the City of Miami, the Florida Democratic Party, and Senator Barack Obama’s presidential campaign in Florida before the age of 28. He also served as a spokesman for the U.S. Department of Justice in Washington, D.C., before returning home to study
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at Miami Law. Miyar was active in moot court and worked during his entire second and third years as a law clerk at Podhurst Orseck, P.A. He graduated cum laude in May 2013 and joined Fox Rothschild LLP as a corporate associate. SHEKIDA SMITH, a selfconfessed foodie with an obsessive sweet tooth, immigrated to New York City as a toddler. Her parents are from Trinidad and Tobago and pushed their children to succeed academically. The 2L has answered the call by graduating from Princeton with a B.A. in French and a minor in African-American Studies, and from UM with a Masters in Education and Social Change. She taught for two years with Teach for America and has been appointed National Student Director for the ABA Law Student Division’s National Appellate Advocacy Competition (NAAC) Subcommittee. Among her honors, Smith won a Shook Hardy & Bacon Writing Fellowship, a Dean’s Honor Scholarship, a Fall 2012 CALI Award for Excellence for Property, a Robert H. Waters Memorial Scholarship, and was the winner of the Best Oral Advocate Competition at the James Weldon Johnson/Robert H. Waters Summer Institute. She will be a 2014 summer associate with Skadden, Arps, Slate, Meagher & Flom LLP in Washington, D.C. ADAM HOOCK, from Columbia, IL, came to law school after completing two years as an AmeriCorps Volunteer Paralegal with Americans for Immigrant Justice in Miami, where he assisted unaccompanied immigrant minors through the Children’s Legal Project.
Hoock graduated with honors from the University of Notre Dame in 2008 and then obtained his M.A. in Spanish Literature from Indiana University. Hoock is a Miami Scholar and a Dean’s Fellow. During summer 2012, Hoock worked as a judicial intern to U.S. District Court Judge Jose E. Martinez and as a research assistant to Professor Caroline Mala Corbin. During his 2013-14 year, 2L Hoock is an intern with Miami Law’s Immigration Clinic. Miami native and 3L PAUL AGBEYEGBE is an American patriot. He recently completed his enlistment as Sergeant in the Florida Army National Guard after a oneyear deployment in Iraq. He was named 2006 Soldier of the Year of his unit and received both the Florida Commendation Medal and the Army Commendation Medal for his service. He interned in the White House during the summer of 2012 in the Office of Public Engagement and Intergovernmental Affairs, where his highest honor was escorting wounded veterans on East Wing tours. He graduated from UM with a double major in Political Science and African Studies. He is a member of the Black Law Students Association and the University of Miami Race & Social Justice Law Review. Paul Agbeyegbe on the White House lawn
Alejandro Miyar with President Obama & his mother and father
DR. AMIR WHITAKER grew up with 14 relatives in his grandparent’s New Jersey home. During his childhood, Whitaker was introduced to the criminal justice system while visiting both his mother and father in prison. By age 15, Whitaker himself was arrested. Problems in school eventually led to Whitaker being expelled. Thirteen years later, a transformed Whitaker will complete his fifth degree at Miami Law this spring. His experiences inspired him to start the non-profit Project KnuckleHead. A week before law school, Whitaker completed a 234page dissertation on how to decrease school dropout and delinquency rates among the most at-risk youth. He received his Ph.D. degree from the University of Southern California where he delivered the keynote address at graduation. The 3L is a STREET Lawyer and a fellow in Miami Law’s Historic Black Church Program.
Bruce J. Winick Award for Academic Excellence Recognizes Top Students
Melissa Coates received her Ph.D. in Biological Sciences from Stanford University before coming to Miami Law. Now a 3L, she is currently participating in the Environmental Justice Project. Coates has worked as a summer associate with Morgan, Lewis & Bockius and as a judicial intern with United States District Court Judge Cecilia Altonaga. She will be joining Morgan, Lewis & Bockius after graduation. Brendan Ryan, a 3L, is a Dean’s Fellow and an Articles & Comments Editor for the University of Miami Law Review. Fluent in Spanish, he graduated from the University of Notre Dame with a B.A. in Political Science and Spanish. He served as a judicial intern for Federal Magistrate Barry Garber and as a summer associate for Hogan Lovells. He will clerk for United States District Court Chief Judge Federico A. Moreno in 2015. Brian Schmelkin is an Articles & Comments Editor for the University of Miami Law Review and a recipient of the Lawrence B. Rodgers—M. Minnette Massey Scholarship. A graduate of Florida International University with a B.B.A. in Finance, Schmelkin, a 3L, served as a judicial intern to United States District Court Judge Marcia Cooke. He is a skilled saxophone player. After graduation he will work in the Miami office of White & Case LLP.
Scott Squires, a 3L, received his M.B.A. from the University of Miami and his B.A. from the University of Pennsylvania, where he was a member of the varsity men’s golf team. Squires is a member of the University of Miami Law Review and a recipient of the Harvey T. Reid Scholarship. He has worked as a summer associate for both Greenberg Traurig and Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. The late Bruce J. Winick
Bruce J. Winick, co-founder of the field of therapeutic jurisprudence, was a beloved teacher at Miami Law from 1974 until his death in 2011. A fervent advocate of social justice, Winick worked extensively in the area of mental health law, studying the effects that the law and legal system had on behaviors, emotions, and on the overall mental health of people. In honor of his life and legal career, Miami Law established a scholarship that recognizes law students whose grades place them in the top one percent of their class at the end of their 1L and 2L years. The following students received the Bruce J. Winick Award for Academic Excellence this year:
Adam Hoock, a Miami Scholar and 2L, is a Dean’s Fellow and a research assistant for Professor Caroline Mala Corbin. He received his B.A. from the University of Notre Dame and his M.A. in Spanish Literature from Indiana University. Hoock is a legal intern with Miami Law’s Immigration Clinic and served over the summer as a judicial intern to United States District Court Judge Jose E. Martinez. Prior to attending law school, he worked as an AmeriCorps Volunteer Paralegal for the Americans for Immigrant Justice. Gina Rhodes is a member of both the Entertainment and Sports Law Society and Miami Law Women. The 2L received a B.A. in Criminology and a B.F.A. in Modern Dance Performance from the University of South Florida. This past summer, Rhodes served as an intern for United States District Court Judge Donald L. Graham and for the Hillsborough County State Attorney’s Office. Lisa Ebenstein, a 2L and a member of the University of Miami Law Review, received her B.A. degree in Economics from Emory University. She worked at Gutter, Chaves, Josepher, Rubin, Forman, Fleisher P.A. this past summer. Amanda Parra is a member of the University of Miami Law Review and a recipient of the Dean’s Merit Scholarship. A 2L, Parra received her B.S. degree in Finance and Marketing from New York University. Proficient in Spanish, she has worked as a research assistant for Professor Marc Fajer. This past summer she worked for the Law Offices of Patrick L. Cordero and is joining Jones Day as a summer associate in 2014. The 2012 – 2013 Winick Scholars included recent Miami Law graduates Jessica Johnson, Jeremy Kahn, Joseph Magrisso, Kamal Sleiman, and Samuel Wardle.
By Carlos Harrison JOE BOGOSIAN, J.D. ’92, never practiced law. He’s been too busy soaring to the top as a lobbyist, entrepreneur, government official and, now, as a Paris-based corporate senior vice president for a 60,000-plus employee, multinational aerospace firm. He credits his success to the University of Miami School of Law. It taught him skills, he said, that are as valuable in a board room as they are in a court room. He learned how to make his point effectively, and he learned to break almost anything down to “its most fundamental elements that you can then analyze and figure out how to regroup in a strategic way.” His connection to the law school also helped him land the interview that got him his first job after graduation, as a Washington D.C. lobbyist. From there he went to a government affairs/public relations firm, then started his own company, then helped another law firm launch its federal government affairs practice. “That’s when I had this idea of reaching out, for political campaigns, to 20- and 30-somethings and involving them in the political process.”
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He wrote a business plan with two friends and pitched the idea to Karl Rove. Rove liked it. “So when the campaign was launched we launched Young Professionals for Bush—YP4W.com,” Bogosian said. That was in 2000. The candidate, George W. Bush, won. When Bogosian saw many of his friends joining the administration, “I thought, ‘Wait a minute! How often during your lifetime do you know the newly elected president well enough to ask for a job?’” He did, and became deputy assistant secretary at the U.S. Department of Commerce, overseeing manufacturing industries, in charge of 140 people in 12 offices. In 2005, he went to the FAA, as assistant administrator of the Office of International Aviation. Two years later, he became president and CEO of Safran USA. His climb continues. In September 2011, he became the company’s senior vice president for certification. The global aerospace, defense, and security company’s business includes building engines for airplanes, rockets, helicopters satellites, and just about any piece of equipment that goes on
an airplane. It makes airport security equipment—baggage screening, detection, and biometrics technology. Again, he said, Miami Law prepared him. “All my legal training comes into play because I deal with airworthiness certification issues, regulatory issues, reading rules and laws and trying to match our regulatory compliance with our business strategy.” What that education did for him—and a potentially fatal blood clot—prompted Bogosian to make a gift that established the Joseph H. Bogosian Student Leadership Award, given to a law student who exemplifies leadership and service to the School of Law. “Basically, it was one of those things where you think, ‘Someday I want to give back to the school I benefited from,’” he said. “And I literally had a pulmonary embolism that turned into a blood clot which could have killed me...and I realized that ‘someday’ is today. It’s one of those things that we’ll regret not doing.” Beatriz Barrionuevo Lamounier, LL.M. ’90
Joe Bogosian, J.D. ’92
Miami Law Alumni Guide Industry Giants
BEATRIZ BARRIONUEVO LAMOUNIER, LL.M. ’90, advised a multitude of international clients as an associate at one of Brazil’s most prestigious law firms and worked directly for one of the largest and bestknown American corporations, as an in-house counsel for Microsoft Brazil.
Still, she practically gushes when she talks about what she learned at the University of Miami School of Law. “What really made the difference for me,” she said, “was the opportunity to understand how American law works, and how American lawyers think.” Getting her LL.M. had been a long-term goal that kept getting put off. She finally got into Miami Law, she said, thanks to a “happy coincidence.” “I love academic life, not as a job. I don’t think I was made to be a professor, to dedicate my life to academics only, but I like to be in the exciting school atmosphere.” After six years at a Brazilian firm, she started thinking about the LL.M. again. Life had other plans. As she started looking into graduate programs, Microsoft invited her inhouse. The master’s waited a bit more after she met her husband. Then, “three years after we got married he was invited to a position in Fort Lauderdale,” she said. “And that’s when I said, ‘now is the time to get my LL.M.’” Miami Law offered exactly what she wanted. “The extent of the curriculum, the breadth of the curriculum—it’s key,” she said.“It’s very interesting because it allows you to focus on your areas of practice or on any specific area you may want to develop because it’s very broad and open. Not all the universities allow students to choose among so many different courses.” Fate struck again after she graduated. Her husband accepted the opportunity to return to Brazil after their decision to be part of
and contribute to the country’s development in a very positive moment. Right after, she received the offer to lead the legal department for a division of Johnson Controls in Sao Paulo. In July, the U.S.-based multinational promoted her to General Counsel for all its Brazil operations. Even though she had worked with, and for, American firms before, she said her experience at Miami Law “really makes a difference for me now in my current role. My report is to a vice president and general counsel based in the United States. He’s my direct supervisor. And learning how to deal with them, how they think, how they approach legal issues made a whole difference to me in my day-today work. It not only made me more prepared because it increased my legal knowledge, but also in how I should, for example, explain a legal situation, a legal matter in Brazil. We are here a civil law system, completely different from the common law system that you have there.” And, laughing, she said Miami Law taught her something more: “How to be more black-and-white and objective, which Brazilians are not.” MAURA ABELN SMITH, J.D. ’82 is a pioneer, with a dream. She was in the first group of women Rhodes Scholars, and among the glass-ceiling shatterers who rose to general counsel of a major international corporation. Now she wants to offer beginning attorneys incentives to help the needy. It’s a long-held passion for Smith, who served on the Tennessee Supreme Court Access to Justice Commission. Smith, though, didn’t originally plan on being a lawyer. “I thought I
Marua Abelin Smith, J.D. ’82
in Paris, Brazil, and Brussels
was going to major in English,” she said. Her parents convinced her not to. “They thought something on the business side, in the banking world, would be more appropriate.” So she studied economics. She got her undergraduate degree at Vassar, then her Master’s from Oxford. She went to the University of Miami School of Law after that, she said, “thinking this would be the way to be a professional and ‘hang my shingle up,’ as my father would say.” After graduation, she joined Steel Hector & Davis, then helped open Baker & McKenzie’s Miami office. In 1990, she moved in-house, as general counsel for GE’s $5 billion plastics division. From there, she took top counsel positions at Corning and International Paper before becoming PepsiCo, Inc.’s Executive Vice President of Government Affairs, General Counsel and Corporate Secretary in 2011. In May, she became general counsel for international food retailer Delhaize Group, in Brussels. “I ended up going to law school and focusing really on a business career after all,” she said. But her time at UM, she said, gave her a lasting advantage. “I think the most valuable part was the critical thinking to which I was exposed. I would say really that the talent of the faculty made all the difference.”
Peter Palermo Donates Gift to Support Legal Training of Ethical Lawyers By Catharine Skipp
Peter Palermo, J.D. ’50.
here are a few things you ought to know about Peter R. Palermo. A Senior U.S. Magistrate Judge, Palermo was one of the first and is now the longest-serving federal magistrate in the United States, at 42 years and
counting. A decorated World War II hero, he fought in North Africa and throughout Italy. And at 95 years of age, he remains a sharp dresser, with jet-black matinee-idol eyelashes. Recently, Palermo made a generous contribution to Miami Law to support the legal training of ethical lawyers. Born in 1918 in Pittsburgh, PA., he was the fourth child of a businessman and a stay-at-home, no-nonsense mother. He excelled in school and graduated from Pennsylvania State University with
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a Bachelor of Arts degree in 1941. His plans for law school at Dickinson University in Carlisle, PA., were dashed when events interceded during World War II and he was drafted as a private into the United States Army Air Corps. He would rise in rank to Sergeant, Staff Sergeant, then Major Sergeant, eventually bringing him to Miami Beach for officer candidate school a few months after the attack on Pearl Harbor. He went on to the invasion of North Africa and the liberation of Naples, Italy. For his service and valor, he was awarded the Bronze Star and six Battle Stars. From his days in Miami Beach during the war, he decided the weather was far better here than in Pennsylvania and enrolled at the University of Miami School of Law. Never one to stay unengaged, Palermo was elected the first mayor of tiny, newly incorporated West Miami as a law student. Palermo was elected three times. He continued to serve as mayor from 1947 to 1953, graduating from Miami Law in 1950. He would go on to serve as an Assistant State Attorney before practicing for almost 20 years with his firm, Palermo and Connelly. In 1971, he was called upon to help create the magistrate system, to help relieve the backlog in the U.S. District Courts. Today, there are more than 500 United States Magistrate Judges in 89 district courts throughout the U.S. He has never strayed far from his legal beginnings at Miami Law. He is an advisory member for the Center for Ethics and Public Service, a recipient of the Law Alumni Association’s Henry Latimer Leadership and Professionalism Award, and the Center for Public Service Leadership Award,
and is a member of Phi Alpha Delta. In 2003, he established the Peter R. Palermo Fellowship Fund, which has supported 18 law students. One of them, Jihan Soliman, J.D. ’12, said that being a Palermo Fellow was a unique honor. “It allowed me to learn firsthand about the experiences of a renowned federal magistrate,” she said. “It was the greatest and most rewarding experience I had at Miami Law.”
Chaplin Challenge Helps to Establish New Scholarships By Michelle Valencia
ong-time donor and alumnus Wayne Chaplin, J.D. ’82, believes in the importance of scholarship support. The President and COO of Southern Wine and Spirits of America made a generous contribution to Miami Law to create the Chaplin Challenge. Under the terms of the gift, Chaplin agreed to match, dollar for dollar, each new contribution made to new or existing scholarship funds between September 1, 2012 and December 31, 2016, as long as matching funds are available. To date, over $700,000 has been matched by the Chaplin Challenge, creating 17 new scholarships. Among these are:
Berger/Loevner Family Endowed Scholarship Fund:
For Steven Berger, J.D. ’76, creating a scholarship fund at Miami Law is a way of giving back to his alma mater. Berger, co-founder of PRG
Weil Gotshal & Manges LLP Endowed Scholarship Fund:
The global law firm of Weil Gotshal & Manges recently established an endowed scholarship for students who have financial need. Several members of the Miami-based office, including seven Miami Law alumni, contributed toward the creation of the fund. “My colleagues at Weil and I have long recognized the leading role the School of Law plays in the legal community of South Florida,” said Edward Soto, partner, who also made a generous donation. “We wanted to give something back to an institution that has served our law firm and our families in so many important ways.” Ellen and Andrew Leinoff Endowed Scholarship Fund:
Family law attorney Andrew Leinoff,
Martin J. Nash Memorial Scholarship: Martin J. Nash, J.D.
Patricia Redmond Scholarship Fund: Patricia A.
Redmond, J.D. ’79, established a scholarship for students who have demonstrated leadership and service to the Eleanor R. Cristol and Judge A. Jay Cristol Bankruptcy Pro Bono Assistance Clinic. Redmond, a shareholder at Stearns, Weaver, Miller, Weissler, Alhadeff & Sitterson, P.A., directs the Bankruptcy Clinic at Miami Law, is the President of the American Bankruptcy Institute and PresidentElect of the Law Alumni Association. “I have watched students struggle with the overwhelming amount of debt associated with legal education and wished to help in some small way,” said Redmond.
’61, passed away in February 2013 after a long and distinguished career as a tax attorney. The Martin J. Nash Memorial Scholarship Fund, established by family and friends, will provide financial assistance to students in the Graduate Program in Taxation. “The law school was important to Marty, and Marty was very important to the Law School and particularly the Graduate Tax Program,” said Patricia A. Brown, Director of the Graduate Program in Taxation. “This wonderful legacy will support some of our best students as they prepare to make their own mark on the practice of tax.”
Other scholarships established with help from the Chaplin Challenge include:
of Judge Lando have established an endowed scholarship in her name. The scholarship will be awarded to a second or third year law student with financial need who has demonstrated an interest in pursuing a career in public service. Judge Lando was a Circuit Judge in the 11th Judicial Circuit of Miami-Dade County, who passed away after a battle with cancer.
Eileen G. Breier Scholarship Linda Dakis, J.D. ’74, Memorial Scholarship Devang Desai Law Scholarship Gaebe, Mullen, Antonelli & DiMatteo Endowed Scholarship Greenstein Family Scholarship Fund Judith Hyman Scholarship Richard L. Lapidus Endowed Memorial Scholarship Law Alumni Association Board of Directors Scholarship Ronkin Family Scholarship Lewis Tein Scholarship JosephWeinberger Endowed Scholarship
Judge Maxine Cohen Lando Endowed Memorial Scholarship Fund: Friends, family, and colleagues
Patricia Redmond, J.D. ’79
Steven Berger, J.D. ’76.
Real Estate Management Inc., and his wife, Dr. Laurie Loevner, a Professor of Radiology at the University of Pennsylvania, have established the Berger/Loevner Family Endowed Scholarship Fund, which will provide financial assistance to deserving law students. “Going to the University of Miami School of Law was one of the best experiences of my life,” Berger said. “We hope, by our contribution, to assist others in achieving the unique educational opportunity offered by the Law School.”
J.D. ’74, and his wife, Ellen, have established a scholarship at Miami Law for students who have an interest in pursuing a career in family law. Leinoff said that he and his wife decided to establish the scholarship not only because he was fortunate enough to have attended Miami Law but also because both their sons, Paul and Max, graduated from the school. “This scholarship is meant to encourage students to pursue the field of family law not only as a job but, more importantly, to help many in their moments of crisis,” Leinoff explained.
GLOBAL Students and faculty at Leipzig, Germany
Miami Law Around the World: Global Perspective. Global Connections. By Carlos Harrison and Vaishali Desai
eyond its regional influence, the University of Miami School of Law has truly global reach and impact. It not only enjoys the inspiration of an international cadre of professors and students who bring their expertise, culture, and language to the Coral Gables campus, but it also leaves its continuing imprint upon the world through scores of transnational legal programs and a worldwide network of graduates and scholars. Its alumni work in law firms, corporations, governments, and universities in more than 90 countries, on every continent except Antarctica. They include ambassadors, a prime minister, deans of some of the most prestigious law schools, and counsel at leading legal enterprises, corporations, and the United Nations. Its professors participate in exchange programs and as experts and consultants in Europe, South America, and Asia; and have been called upon to advise leaders, settle international disputes, and negotiate tax and other treaties between the United States and 43 countries. Its students learn about differences in culture and differences in the law, in international exchange
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programs in Belgium, Brazil, China, France, Germany, Ireland, Israel, Spain, and Switzerland—with more on the way. LawWithoutWalls (LWOW) connects Miami Law with colleges in 12 countries, on five continents, and across 19 time-zones. International externships, International Moot Court, and HOPE fellowships give students hands-on and, often, eye-opening experience in all corners of the globe. It is impossible in this short space to profile every one of the 87 alumni in Germany, the 48 in Thailand, the 27 in Brazil, the 12 in Libya, or the hundreds of others working and making a difference across the planet. It is just as hard to give an inclusive accounting of all of the law school’s international educational opportunities, or to list every one of the multinational endeavors its faculty takes part in. But join us as we take a globehopping overview of the University of Miami School of Law’s connections across the continents:
he first Europeans opened a trade route with Florida 500 years ago.
Today, the University of Miami School of Law continues the connection. “Miami changed me,” said Olga Rubel, LL.M. ’11 , who was born and raised in the Ukraine and came to Miami Law on a Fulbright Scholarship. “Miami is at the center between Latin America, Europe, and the Caribbean. The interaction with different cultures was a good idea for me.” Her fellow Ukrainian Kristina Klykova made the leap from student to Visiting Assistant Professor (VAP) after completing her Master of Laws degree. Klykova began teaching a new course on the European Union and NAFTA in the fall of 2013. “One of the reasons that I really wanted to come to Miami Law was the unique opportunity to teach,” she said. “I wanted to develop a course that really benefited the University by opening the door to educate lawyers who may specialize in this field, as well as help promote UM in a new area.” Previous VAP selectees include Germans Sandra Friedrich and Stefanie Kürpick, Cuban lawyer Joan Martinez Evora, and Colombian
IMPACT Paula Arias, who now directs Miami Law’s International Moot Court Program. Another VAP, Icelandic lawyer Helga Kristin Audunsdottir, who came to Miami Law on a Cobb Family Fellowship, now heads the law department at the Bifröst University in Reykjavík. Several Miami Law faculty members also share deep and distinctive connections with Europe. Visiting Professor Pablo M. Bentes, Director of International Trade & Investment at Steptoe & Johnson’s D.C. office, spent six years as a legal officer in the Appellate Body Secretariat of the World Trade Organization (WTO) in Geneva. In fall 2013, Bentes, LL.M. ’03, began teaching a course on WTO Dispute Settlement. Professor Jan Paulsson, the Michael Klein Distinguished Chair, has served as counsel or arbitrator in over 500 arbitrations in Europe, Asia, the United States, and Africa, and currently serves as president of both the London Court of International Arbitration and the World Bank Administrative Tribunal. In 2011, Professor Paulsson and Visiting Professor Albert Jan van den Berg, Professor of Law at Erasmus University in Rotterdam and a partner in Hanotiau & van den Berg in Brussels, was ranked as one of the world’s top arbitrators in the International Who’s Who of Commercial Arbitration. Associate Professor Markus Wagner brings a world of experience to Miami Law—literally. A graduate of the University of Giessen Law School in Germany, Wagner was a visiting fellow in Vancouver, Canada, earned a J.S.M. at Stanford, and is studying
for his doctorate in international economic law at Maastricht University in the Netherlands. From 2002 to 2005, he worked at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, Germany. He has also been a law clerk in the Supreme Court of Israel, a legal consultant in Brussels, a visiting professor in Colombia, Australia, and at the University of Leipzig in Germany. He is not the only one with a connection to Leipzig. Professors Richard Williamson and David Abraham began the Leipzig-Miami Seminar, dedicated to increasing U.S.-German friendship and scholarly exchange in 2001. The program brings students and teachers from both universities together in Miami in January and in Leipzig in May. “Take two dozen law students and half a dozen law professors,” Professor Abraham said, “have them exchange and debate often-controversial laws and practices day and night for the better part of a week—without sleep—twice a year, supply ample food and beverage, opera, basketball, BMWs and alligators, and you have a sure-fire recipe for engagement, learning, and fun.” At the end of 2012, the School of Law of the University of Leipzig recognized Professor Williamson’s efforts with an Honorary Doctorate. Alumni also are taking Miami Law’s teachings into European universities. Professor Doris König, LL.M. ’82, became president of Bucerius Law School in Hamburg, Germany, in 2012. And Fulbright Scholar Maud Piers, LL.M. ’02, now teaches at the
University of Ghent in Belgium. The successes of the School of Law’s alumni reach beyond academia. Bjarni Benediktsson, LL.M. ’97, became Iceland’s Minister of Finance and Economic Affairs in May 2013. Fellow Icelander Iris Hreinsdottir, LL.M. ’13, took a position with the prestigious Iceland Arion Bank. Her classmate Nikolaos Tsolakidis, a German Fulbright Scholar, accepted a position with the Americas Disputes Section of White & Case’s D.C. office. No matter where they come from, future graduates have the opportunity to forge valuable links to Europe while they’re at Miami Law. This year, the school’s list of exchange programs added ESADE (Escuela Superior de Administración y Dirección de Empresas) in Barcelona, Spain, and Université Cergy-Pontoise in Cergy-Pontoise, France. ESADE is ranked as one of the best business schools in the world. The University of Cergy-Pontoise is a dynamic, statefunded university 18 miles north of Paris. In January, 45 students from 18 universities around the world gathered with professors, academic mentors, and entrepreneurs in the ancient Spanish city of Segovia for the kickoff of the third year of LawWithoutWalls (LWOW). Since its launch in 2011, LWOW has drawn considerable attention for its groundbreaking approach to legal education, combining state-of-theart technology with a far-reaching exploration of what the field of law might look like many years from now. Sean Maye, a Miami Law 2L, said that for him, LWOW was an “unexpected opportunity to merge the seemingly invisible gap between my legal education and its real-world application, as well as a chance to discover and refine my entrepreneurial inclinations.” COVER STORY
frica, too, is feeling the influence of Miami Law. Professor Vinodh Jaichand took over August 1 as Dean and Head of the Oliver Schreiner School of Law at the University of the Witwatersrand, Johannesburg, South Africa. He is only the second black person to be appointed as the Head Dean in the 91year history of the institution. Jaichand, who received his LL.M. in International Human Rights Law in May 1984, said his course in life was decided at Miami Law. “Professor Chris Hall’s seminar on International Human Rights Law set me on the academic path.” Jaichand is not the only scholar with connections to both South Africa and Miami Law. Professor Charlton Copeland served as a law clerk to Justices Richard J. Goldstone and Catherine O’Regan of the Constitutional Court of South Africa. And distinguished foreign visiting faculty member William Twining, a leading figure in British legal education and Fellow of the British Academy, has been involved in work relating to human rights, the preservation of legal records in Africa, and as a consultant in Tanzania and Uganda. Currently, the head of the Law School’s LL.M. program in Ocean and Coastal Law, Professor Bernard H. Oxman, is serving as an arbitrator in a dispute between Ghana and Argentina. Students, too, find rewarding work on the African continent. This past summer, Blair Santaspirt, a 2014 J.D. candidate, prepared a report on human trafficking within Africa while working for the Pan African Lawyers Union (PALU) in Arusha, Tanznia. She also participated
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Blair Santaspirit in Arusha, Tanzania
with the Tanzania Women’s Lawyers Associations (TAWLA), visiting villages to talk about the importance of having wills in a country where laws do not adequately protect women and their children. “Many times when a woman dies, without a husband, strangers or male relatives will take over the woman’s property,” Santaspirt said in an email. “If there is not a will verifying the woman’s ownership of property and her desires for what will be done with the property there is no strong legal argument for her family.” Grant Lyons took on an internship at the Ministry of Justice in Kigali, Rwanda. One of his tasks was to revise the English vers ion of the Rwandan Penal Code. Lyons said the trip “positively influenced most aspects of my life, literally on a daily basis, more than any other major travel experience of mine—and I’ve spent summers in Europe, the Middle East, and China.”
iami Law boasts a number of important links to Asia.
On August 1, a Miami Law alumnus became the United States’ newest ambassador to the Republic of Singapore. A transplant from Canada, Kirk Wagar, J.D. ’93, opened a successful insurance law practice after graduation, and served as President Barack Obama’s Florida finance chairman in 2008 and 2012. In his testimony before the Senate Foreign Relations Committee, he said: “I am blessed to be a citizen of the greatest nation on Earth. I came here as an 18-year-old student—the first member of my family to attend college—and from that time, this country has provided me with family, my education, my career, my home, and numerous opportunities to serve in our political process,” he said. “It would be my distinct honor to serve as ambassador to Singapore on behalf of this great country that has given me everything.” Wagar’s life story is both unique and similar to that of so many other Miami Law graduates, who catapulted to distinguished positions
around the globe. Melissa Muhammad—J.D. ’96, LL.M. Tax ’00—is the first nonJapanese person to work for the National Tax Agency of Japan. “Learning Japanese, working in a Japanese government office every day, and living in the culturally-rich city of Tokyo, has been not only enlightening and challenging, but also quite exhilarating,” Muhammad said. Her adventure continues. She now works for a global think tank on tax policy in Paris. Of course, it is not just alumni linking Miami Law to Asia. Professor Bernard Oxman sits on the International Tribunal for the Law of the Sea. He served as a member of an arbitral tribunal in a dispute between Malaysia and Singapore, and in 2012 helped establish a maritime boundary between Bangladesh and Myanmar. He is the only American to have served as a judge ad hoc on both the International Tribunal and the International Court of Justice. Miami Law also has links with the biggest country in Asia. Not only is the Peking University School of Transnational Law an LWOW partner, but Miami Law’s exchange program there allows J.D. students to spend a semester in Shenzhen, China. No matter where they go, students in exchange programs get the chance to learn about the law and so much more. Her semester at the University of Haifa in Israel let Miami Law 3L Christina Sava learn about the people and the customs of the Middle East. “As a law student, I loved learning about the lives of law students and lawyers in different countries, the issues they face and the policy climates in those countries,” she wrote in an email.
“As a temporary resident, experiencing life in the Middle East first hand was culturally and intellectually enriching—it’s no longer a mysterious place I only hear about in the news.” Miami Law also uses the innovative part-virtual collaboratory LWOW to forge a link with the law— and the land—down under. The first law school established in Australia, Sydney Law School, has been a participating partner in LWOW. The school’s emphasis on international and comparative law dovetails perfectly with Miami Law’s strengths and the role of LWOW in linking students and faculty from the best schools around the world. Miami Law alumna Ashley Matthews “jumped at the chance” to take part in LWOW as a 3L in 2012. “It changes how you view legal education and business,” she said. “It really helps you get a grasp on how to not see problems, but see solutions and opportunity.”
t is hardly surprising that the University of Miami School of Law, located in “the Gateway to Latin America,” would have strong—and ever-expanding—ties throughout the region. Its growing list of offerings includes internships, short courses, and the new LL.M. in Taxation of CrossBorder Investment. Miami Law students can take part in exchange programs at the Fundacão Getulio Vargas School of Law in Rio de Janeiro and, beginning in 2014, at the University of São Paulo Law School. LWOW partners include the University of São Paulo Law School and the Pontifical Catholic University of Chile.
Christina Sava in Haifa, Israel
nal moot In addition, international mpete court participants will compete in Colombia and Argentina.. The or Paula program’s director, Professor no program m Arias, also created a pro bono dents to that allows Miami Law students work at the Human Rights Clinic at the Universidad Pontificia ia Bolivariana in Medellín, ts Colombia. In 2012, students got to simulate litigation in front of an international tribunal. “It was a great experience,” she said, “not only for the faculty involvedd but also for the possibility of exchange of ideas and perspectives on human rights.” hl, HOPE fellow Trey Dahl, J.D. candidate 2015, spent the hing summer in Bolivia, researching the environmental impact essibility off assessment process and accessibility information to the public. “I cannot say yet with certainty
C OV E R S TOR Y
Trey Dahl in Bolivia
how the experiences will shape my existence,” he said, “but I can absolutely say that the influence is a powerful tool for personal growth, an opportunity that should never be overlooked, and will surely lead to other places on the road that I would never have imagined.” Professor Irwin P. Stotzky served as an advisor to then-Argentine President Raúl Alfonsín on human rights issues during the country’s transition to democracy and has worked over three decades to improve human rights in Haiti and the status of Haitian immigrants in the U.S. He directed investigations that led to the first conviction for human rights crimes in the 200-year history of Haiti. Trinidad native Professor Kele Stewart won a Fulbright award in 2011 – 2012 and spent a year in her homeland conducting research and establishing a child advocacy clinic. Professor Stewart, who co-directs the University of Miami Children & Youth
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Law Clinic, also participated in public education and policy development in collaboration with the Children’s Authority of Trinidad and Tobago. “What I saw as one of the biggest shortcomings, and what I focused my policy work on, was getting them to focus on the concept of keeping children with their families, or keeping children in some sort of family setting,” Stewart said. The spring of 2014 could see Miami Law making history in Central America. In Panama, Romulo Roux, J.D. ’92, served as Minister of the Canal of the Republic of Panama, and later as Minister of External Relations. He resigned the latter post in February 2013 to run for president as the candidate for the Partido Cambio Democrático in Panama. If he wins, that would put two Miami Law graduates in the top office of a Central American democracy.
Dean Barrow, LL.M. ’81, served as Belize’s Minister of Foreign Affairs and, later, as Deputy Prime Minister. In 2008, he won a landslide electoral victory, making him Belize’s first black Prime Minister. Other faculty and alumni are making important contributions through Miami Law’s International Graduate Law Programs. On a trip to Brazil during the summer, Director Jessica Carvalho Morris, J.D. ’03, lectured on important human rights issues, established alliances with prominent organizations in Rio de Janeiro, J , Recife,, and São Paulo, and partnered artnered with Brazilian Labor Court rt of Appeals Judge Paulo Marcelo Serrano, no, LL.M. ’05, for a summer 2014 short hort course offering an introduction tion to U.S. S. law for Brazilian judges ges and lawyers. It piggybacks ks on one offered in January ry 2013 to lawyers and law students from adde Pontificia Universidade Catolica de São Paulo. o. Faculty for that program included: Jan Paulsson, Keith Rosenn, and adjunct John H. Rooney and Daniel Vielleville J.D. D. ’03. “We had the opportunity to promote mote the programs and forge rge close connections…in the country. What is truly rewarding,” ding,” said Morris, “is visiting with our alumni and seeing just how much they have accomplished since they hey studied at Miami Law.” —Nick Madigan contributed to this article.
Sonia Pressman Fuentes, J.D. ’57
A Conversation with the Remarkable Sonia Pressman Fuentes, J.D. ’57
By: Catharine Skipp Sonia Pressman Fuentes is a force of nature. Even at the age of 85, she is charmingly combative and endearingly feisty. Her grit and fortitude were forged out of her uprooted childhood. With her immediate family, she fled her birthplace in Berlin, Germany in 1933 to escape the Holocaust, eventually settling in the Catskill Mountains of New York. In 1950, Fuentes, a Phi Beta Kappa graduate of Cornell, could find work only as a secretary, one of the few jobs open to women at that time. In 1954, she decided to broaden her career opportunities by going to law school, a time when about 3 percent of the law school graduates in the U.S. were women. Fuentes came to Miami Law with the goal of going into private practice. But during her 3L year, Professor of Law Minnette Massey intervened and completely changed the course of Fuentes’s life. She signed Fuentes up for an interview with recruiters from the U.S. Department of Justice. As a result, after graduation, Fuentes headed for Washington, D.C. From the Justice Department,
she moved on to the National Labor Relations Board, and in 1965 became the first woman attorney in the Office of the General Counsel at the new Equal Employment Opportunity Commission (EEOC). The EEOC was charged with implementing Title VII of the Civil Rights Act of 1964, which prohibited employment discrimination based on race, color, religion, sex, or national origin. During the first year of its operations, the EEOC paid scant attention to issues of gender discrimination. Most of its employees had come there to fight discrimination against African-Americans and they did not want the commission’s resources diverted to gender discrimination. Also, the gender discrimination prohibitions, unlike the other prohibitions, raised difficult questions of interpretation, which the commission did not know how to resolve. The failure of the EEOC to implement the gender discrimination prohibitions of Title VII caused Fuentes increasing frustration. Fuentes shared her feelings with Betty Friedan, author of the groundbreaking The Feminine Mystique, when Friedan visited the EEOC while doing research for her next book. Fuentes told Friedan that what this country needed was an organization to fight for women like the NAACP (National Association for the Advancement of Colored People) fought for its constituents.
In 1966, 49 men and women, including Fuentes, founded the National Organization for Women (NOW) to bring women into the mainstream of American society, and NOW embarked upon a series of activities to get the EEOC to enforce Title VII for women. As a result, the EEOC began to issue decisions that started a legal revolution in the rights of American women, which continues to this day and has spilled over to the rest of the world. Fuentes says, “The changes that have occurred since the mid-1960s are way beyond what the founders of NOW envisioned. We were basically interested in making sure that women would be treated equally on the job and in academic institutions. We never contemplated that a revolution would happen.” She would go on to write Eat First—You Don’t KnowWhat They’ll GiveYou,The Adventures of an Immigrant Family and Their Feminist Daughter, publish articles in the U.S. and abroad, become a feminist leader and soughtafter speaker, and be showered with honors and awards. On April 21, 2013, the day before she spoke at a Miami Law luncheon, she was one of five recipients of the Glass Ceiling Award, given annually by the Jewish Museum of Florida in Miami Beach to five Jewish professional women in Florida who have broken the glass ceiling for themselves and other women. “Because of my fortuitous escape from the Holocaust, I felt that my life had been saved because there was something I was meant to do in this world,” she said. “I found it when I got into the field of women’s rights.”
South China Sea
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SMART TAKES The South China Sea
A Q&A session with Professor Bernard H. Oxman
he South China Sea? Why should we care? Well for starters, on June 5 the top U.S. military commander in the Pacific, speaking about the South China Sea, is quoted as saying, “We will oppose the change of status quo by force by anyone.” If this doesn’t catch your attention, consider the following: Chinese warships have appeared off the coast of the Philippines to contest Philippine activities in areas claimed by both, and there is a mutual defense treaty in force between the Philippines and the United States. O.K. But what is all the fuss about? The South China Sea is one of the most important seas in the world. It covers an area of about 3 ½ million square kilometers. Navigation routes critical to our allies and friends in the region traverse it. Significant hydrocarbon deposits have been found in some parts of the seabed and more are believed to be there. Some of the richest fisheries in the world are found in the South China Sea—although, sadly, as in too many other places, marine life is threatened by over-fishing and pollution. And everyone wants a piece of the pie? That depends on what you mean. Many countries around the world have an interest in unimpeded navigation in the area for trade and security purposes. That doesn’t depend on how the pie is divided, but rather on respect for navigational rights and freedoms
throughout the South China Sea by all of the states of the region. On the other hand, control of the fisheries and oil resources is an issue mainly for those bordering the South China Sea: China and Taiwan to the north, Vietnam to the west, the Philippines to the east, and Malaysia, Brunei and Indonesia to the south. The United Nations Convention on the Law of the Sea (UNCLOS) is a comprehensive treaty to which a large majority of states are party, including those bordering the South China Sea. Most of the remaining countries regard most if not all of the Convention as reflecting rules of customary international law binding on all. The Convention provides that every coastal state is entitled to sovereignty over a territorial sea extending up to 12 nautical miles from the coast (technically, the coastal baselines). Beyond the territorial sea, the coastal state is entitled to an exclusive economic zone (EEZ) and continental shelf extending up to 200 nautical miles from the coast. In that area it enjoys exclusive sovereign rights to explore and exploit living and nonliving resources in the waters and the seabed and subsoil. Also, if the continental margin extends beyond 200 miles, the rights of the coastal state with respect to the seabed and subsoil of the continental shelf continue to the outer edge of the continental margin, a complex limit that parties to the Convention submit for review by an expert commission (the CLCS for short). As you can see on the map, it would appear that in accordance with the foregoing rules, the living and nonliving resources in most of the waters of the South China Sea, and perhaps all of its seabed and subsoil, are subject to the jurisdiction of one or another of the surrounding states.
So the fuss is about how the countries that surround the South China Sea divide it up where their offshore entitlements overlap? Yes. But we’re not quite there yet. In addition to the territory surrounding the South China Sea, there are numerous islands within the South China Sea. They are very small and almost all are uninhabited. Many of them are claimed by more than one of the states in the region. For example, the Paracel Islands and the Spratly Islands are claimed by China and Taiwan as well as Vietnam; in addition, the Philippines claims many of the Spratly Islands, and some are claimed by Malaysia and Brunei. The total land area of all of the Spratly Islands is less than five square kilometers. But if you have sovereignty over an island, you get to claim a territorial sea, an EEZ, and a continental shelf around it, right? If I remember my geometry, applying U2 to a circle with a 200-mile radius gets you an area of over 125,000 square miles. Maybe. Let’s take this one issue at a time. UNCLOS defines an island as a naturally formed area of land that is above water at high tide. It is not clear that every feature that is claimed satisfies that definition. If the feature is not an island, it is part of the seabed and subsoil, and does not generate any sovereignty or sovereign rights. The fact that it may emerge above water at low tide, or that an installation is built on it that extends above high tide, would make no difference. (There are some technical rules permitting limited use of certain low-tide elevations in drawing coastal baselines off islands and the mainland; those rules are not at the heart of the problem.) In principle, islands have the same entitlements to offshore jurisdiction as any other land territory. But there is an
exception for islands that are so small that they are mere rocks that cannot sustain human habitation or economic life of their own. In that case they are still entitled to a 12-mile territorial sea, but not to an EEZ and continental shelf beyond. That could be the case with respect to a fair number of small islands within the South China Sea. Moreover, even if a small island is not such a rock, the EEZ and continental shelf that it generates may overlap with the EEZ and continental shelf generated by a much longer coast of another state. In that situation, it can be argued that it would not be equitable to divide the overlapping areas by a line equally distant from the small island and the longer coast, and that the maritime boundary should be closer to the small island. This is what the International Court of Justice recently concluded in a case involving overlapping entitlements extending from the Nicaraguan mainland, on the one hand, and from small Colombian islands off the Nicaraguan coast, on the other. In some maritime boundary cases a small island has been given no effect beyond a 12-mile territorial sea, not because it was deemed to be a rock, but because the court or tribunal concluded that it would not be right to give it greater effect at the expense of the other coastal state. I think I understand. But I don’t see how the nine-dash line shown in red on the PDSÀWVLQWRWKLVV\VWHP You are not alone. While the history of the nine-dash line has been traced back to the Nationalist government that preceded the establishment of the People’s Republic of China, the line attracted widespread attention in 2009 when China illustrated it on a map appended to a note verbale transmitted to the Secretary-General of the United
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Nations challenging a joint submission by Malaysia and Vietnam to the CLCS. In the note, China said that it “has indisputable sovereignty over the islands in the South China Sea and the adjacent waters, and enjoys sovereign rights and jurisdiction over the relevant waters as well as the seabed and subsoil thereof (see attached map).” In response, Indonesia questioned the entitlement of remote or very small features in the South China Sea and stated that the nine-dash line map “clearly lacks international legal basis and is tantamount to upset the UNCLOS 1982.” The Philippines declared that the ninedash line map has “no basis under international law, specifically UNCLOS.” Vietnam maintained that China’s claim “has no legal, historical or factual basis.” There have been some attempts in the academic literature to clarify what is or might be meant by the nine-dash line, and to articulate differing views regarding its legal basis and legal effect. One such effort, which it was my privilege to join in introducing, is the Agora on the South China Sea in the January 2013 issue of the American Journal of International Law (AJIL). But it is fair to say that it remains for the Chinese government to decide whether it wishes to clarify the precise nature and object of its claims. Have the competing claimants tried to negotiate a solution? Yes. But as you can imagine, the issues are complex, and the number of claimants adds additional complexity. It appears that China would prefer a bilateral approach while some of the other states would prefer a multilateral approach. The possibility of joint development arrangements that sidestep the legal issues has been mentioned. That is not simple either.
What about some kind of interim arrangement to prevent things from getting out of hand? States that are members of the Association of Southeast Asian Nations (ASEAN) have been working on a possible binding code of conduct to which they and China would subscribe. It remains to be seen whether China is interested and, if so, on what terms. Well then, what about going to court? China apparently does not think this is a good idea. Since the jurisdiction of an international tribunal requires the consent of the parties, in the absence of a special agreement to submit a specific dispute to arbitration or adjudication there must be some treaty or instrument pursuant to which the parties have consented to jurisdiction in advance so that either of them may submit the dispute. UNCLOS is such a treaty. It provides for arbitration or adjudication of disputes concerning its interpretation of application. As I wrote in the AJIL while UNCLOS was being negotiated, I do not believe that sovereignty over land territory is such a dispute. Moreover, China has exercised its right under a specific provision of UNCLOS to file a declaration excluding certain types of disputes from jurisdiction, including delimitation of maritime boundaries between states with opposite or adjacent coasts. On January 22, 2013, the Philippines submitted its dispute with China to arbitration under UNCLOS. But it did so only with respect to certain matters. Its Notification and Statement of Claim states that the Philippines “does not seek in this arbitration a determination of which Party enjoys sovereignty over the islands claimed by both of them. Nor does it request a delimitation of any maritime boundaries. The Philippines is conscious of China’s
Declaration . . . , and has avoided raising subjects or making claims that China has, by virtue of that Declaration, excluded from arbitral jurisdiction.” China declined to participate in constituting the arbitral tribunal. The arbitrators have now been appointed in accordance with the provisions in Annex VII of UNCLOS that apply in such circumstances. In the event that China continues to decline to participate, Annex VII provides as follows: “Absence of a party or failure of a party to defend its case shall not constitute a bar to the proceedings. Before making its award, the arbitral tribunal must satisfy itself not only that it has jurisdiction over the dispute but also that the claim is well founded in fact and law.” Thus, whether or not China participates, the Philippines will need to prepare its case. I am honored to have been asked to help. Can negotiations proceed at the same time? Yes. For example, it would be useful for governments to do what they can to promote progress on an agreed code of conduct. Pending definitive settlement, disagreements need to be managed.
Oxman directs the Ocean & Coastal Law Program and served as Co-Editor in Chief of the AJIL and judge ad hoc on the International Court of Justice and the International Tribunal for the Law of the Sea. ___________________________
Dodd-Frank as Bumper Car Derby By Stanley I. Langbein
ewly re-elected and reinaugurated, President Obama counts as the second of two signal legislative accomplishments of his first term the enactment of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010. The statute promised financial reform to address the deficiencies in the regulatory system thought to be implicated in the near-catastrophic crisis of 2007-2008. But the Dodd-Frank Act left much of substance to be filled in by regulatory action. And nearing the third anniversary of its enactment, the process of implementing the law threatens to become a catastrophe in its own right. Dodd-Frank was an enormously long, amorphous enactment, covering 2100 pages in bill form and incorporating 15 separate “titles.” In terms of its basic thrust, however, the statute really effect four separate initiatives, two of which are directed at the systemic faults revealed by the 2008 crisis, but two others of which, while addressing problems that surfaced during the crisis, really address circumstances that arose 40 years earlier, which generated financial practices and regulatory policies that were poorly understood, poorly defined, and riddled throughout with unresolved policy conflicts. The two initiatives addressing immediately the recent crisis were embodied in Title I of the statute, which establishes a new regulatory structure to regulate financial institutions that are deemed “systemically significant,”
and Title II, which establishes a special bankruptcy law for “resolving” nonbank financial institutions deemed “systemically significant.” One of the two longer standing problems is centered in Title VII of the statute, which sets up a regulatory regime for swap transactions, requiring that swaps be traded on clearinghouse, and requiring registration of swap dealers, execution facilities, and clearinghouses. The fourth initiative, centered in Title X and XI of the statute, involves consumer protection, implicating the transfer of most consumer protection functions from pre-existing agencies, mostly the Board of Governors of the Federal Reserve System and the Federal Trade Commission, to a newly created Bureau of Consumer Financial Protection, as well as the creation of authority in the BCFP to establish new Federal regulation protecting consumers in connection with residential mortgages. Of the first two, Title II, the bankruptcy provisions, has occasioned the least difficulty, but this is largely because the provisions have not had to be invoked, and are not thought likely to be invoked at any time in the foreseeable future. The FDIC is the agency charged with enforcing these provisions, and it has issued sparse, largely uncontroversial regulations. But even here there are problems. The Dodd-Frank provisions are patterned largely on the provisions governing receiverships of commercial banks. Those provisions, detailed and comprehensive in scope, were enacted largely in 1989 as a response to the thrift crisis. They were enacted very hurriedly in a crisis atmosphere, and they are plagued by numerous ambiguous or anomalous provisions, which in the thrift crisis generated an enormous volume of litigation, and a wide range
of conflicts in the decisional law. The Congress in enacting Dodd-Frank took more time and proceeded more slowly than did the 1989 Congress, but it saw fit to resolve virtually none of the interpretive ambiguities spawned by the earlier law. Nor does the FDIC, in its early regulations, make any effort to address the many questions the law poses. The implementation of Title I, governing “systemically significant” institutions, has been more troubled. Dodd-Frank creates a Financial Stability Oversight Council, comprising 10 members, including the Treasury Secretary, eight agency heads, and one specially appointed member with insurance expertise, and the FSOC has authority to designate nonbank companies as “systemically significant.” The FSOC has issued regulations governing the standards for so designating companies, but to date it has not made any designations, although two companies— General Electric Capital Corporation, and AIG—are widely expected to be designated, and were thought likely to be designated before this time. Title I provides that any company so designated—and all bank holding companies with $50 billion or more in assets—are subject to special “prudential standards” governing their operations. There are 23 bank holding companies in the United States that meet this threshold. The Board of Governors administers these standards, after consultation with the FSOC. The Board has issued proposed regulations setting forth the standards. They are inordinately complicated, and pose enormous compliance challenges for the affected holding companies—they require annual “stress tests” conducted by the Board, semiannual tests conducted by the company itself, monthly stress tests of the com-
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pany’s liquidity position, the submission of “living wills,” directing the regulators how to wind up the company if it has to be placed in receivership, the establishment of “risk committees” on company boards, and the appointment of “risk officers,” “concentration limits” on counterparty relationships with other institutions, “liquidity requirements,” requiring the maintenance of certain levels of highly liquid assets. Perhaps most significant, the Board imposed on holding companies in connection with these regulations a restriction not authorized by Dodd-Frank but justified by the Board under pre-existing law, requiring Board approval of any dividend distribution that would affect the capital position of the distributing corporation. These regulations are only in proposed form. On top of them, in September, the Board and other regulatory agencies proposed an overhaul of the capital requirements applicable to all institutions, including small banks, to bring U.S. regulations into conformance with evolving international standards issued by the Basel Committee on Bank Supervision. And those international standards are themselves in something of a state of disorder. Perhaps the most important innovation of Dodd-Frank, and of the so-called “Basel III” rules, are new requirements governing the liquidity position of institutions. But only recently the Committee was forced to delay for four years the effective date of its requirements. The two principal initiatives of the legislation that address matters whose disquiet long predated the 2008 crisis are the provisions aimed at regulating swaps, and the provisions strengthening Federal consumer protections. The two are related, historically and substantively. Of all of the regulatory initiatives of
the 1960s and early 1970s (civil rights legislation, environmental legislation, health and safety regulation, pension reform), or indeed of the New Deal before it (trade practice, investor protection, labor organization), the initiative that seems to have most bothered (or threatened) the corporate community in general, and the financial community in particular, was the consumer rights movement, and its pinnacle achievement in the enactment of the Truth-inLending Act of 1968. But interpretation and enforcement of that Act, and a succession of enactments emanating from it, were placed in the Board of Governors of the Federal Reserve System, and it is fair to say that, over 40 years, the Board largely gutted the law, or blunted its effect, by restrictive rulemaking and parsimonious enforcement. Moreover, the emergence of that legislation coincided with the breakdown of the global financial system erected in 1945, which President Nixon abandoned, and destroyed, in 1971. But that breakdown and the inflationary pressures the abandonment of the system ushered in gave rise to the legalization and creation of financial “derivatives,” financial instruments whose value depended upon the changes in value of some other “underlying” or reference property. This development reached its culmination with the emergence of “swaps” at the end of the 1970s, and of “credit default swaps” in the mid-1990s. And lack or regulation, if not understanding, of these instruments, is recognized to have played a major role in the near breakdown of the financial system in 2008. So Dodd-Frank addressed both these areas.With regard to swaps, DoddFrank erected a system requiring registration of “swap dealers” and “major swap
participants,” and the reporting of data regarding swaps to “swap data repositories,” and, most important, by authorizing the Commodity Future Trading Commission and Securities Exchange Commission, to designate swaps which will be required to be cleared through derivatives clearing organizations, and executed on derivatives clearing markets or swap execution facilities. The statute also mandates regulation of and reporting by such clearing organizations, markets, and facilities. With regard to consumer protection, the statute enacted few new substantive protections, except for requirements concerning mortgages adopted by Title XIV of Dodd-Frank, but rather transferred virtually all consumer protection responsibilities vested in other agencies, most especially the Board and Federal Trade Commission, to a newly formed Consumer Financial Protection Bureau. This agency is nominally under the Board, but the Board’s authority over it is strictly circumscribed, and its budget is protected from congressional interference. But in both areas implementation of the law has not gone smoothly. The CFTC has identified 38 “areas” in which it will take regulatory initiatives. As of the end of 2012, the CFTC had issued 41 final regulations under Dodd-Frank, but in some of the 38 areas, it had issued more than one final rule, and in others it has yet even to propose any rules. It has encountered particular difficulty in connection with the critical requirement of clearing, which is afflicted with statutory exemptions the Commission has interpreted broadly, adding additional exemptions of its own. It has had special difficulty, too, with the international application of Dodd-Frank provisions. Perhaps nothing has been more controversial or deeply divisive as the
CFPB. As is well known, its startup was delayed when Senate Republicans made clear they would filibuster the nomination of the woman whose brainchild it is widely reputed to be, Elizabeth Warren (who of course responded by running for a Senate seat and winning), and in turn that they would filibuster the appointment of any Chair. President Obama responded with the “recess” appointment of Richard Cordray, but in January, the Court of Appeals for the District of Columbia invalidated similar appointment of NLRB members, in a decision that departs from the rulings of other courts of appeals and is almost certain to invite Supreme Court review. That review is unlikely to be completed before early summer 2014. While the CFPB has been active since Mr. Cordray’s recess appointment, the invalidation of the appointment could undo all that has been done, leaving the law unsettled nearly four years after the enactment of Dodd-Frank. One commentator has likened the regulatory activity under Dodd-Frank to an amusement park game of bumper cars, with toy vehicles constantly colliding and going nowhere. The comparison is hardly exaggerated.
Langbein is Professor of Law at the University of Miami, teaching courses in banking law, commercial law, and international taxation. He is working on a treatise to be titled Federal Regulation of Bank Enterprise. ___________________________
Guantánamo Military Commissions: “Judicial Approval and Guidance” By Christina M. Frohock
he use of military commissions to try alleged terrorists in Guantánamo Bay, Cuba, has attracted worldwide scrutiny and intense criticism. A military commission is a court convened before a military judge rather than an Article III judge, designed to try individuals accused of offenses during war. The U.S. Court of Appeals for the D.C. Circuit recently weighed in on the legitimacy of Guantánamo military commissions, and its opinion in Hamdan v. United States offers both approval and guidance. The D.C. Circuit’s opinion follows an earlier opinion from the Supreme Court concerning the same Guantánamo detainee, Salim Ahmed Hamdan. Hamdan is a Yemeni national who belonged to al Qaeda, transporting weapons and serving as driver and bodyguard for Osama bin Laden from 1996 to 2001. He was captured in Afghanistan and detained as an enemy combatant in Guantánamo. After more than two years in detention, Hamdan learned his charge: one count of conspiracy. Facing trial by military commission, Hamdan filed a habeas petition to challenge the legality of the proceedings. In 2006, the Supreme Court in Hamdan v. Rumsfeld ruled in his favor. The Bush Administration’s military commissions system was sparse at best, as a detainee could be excluded from his own trial
and convicted based on undisclosed evidence. The Supreme Court held that this system lacked congressional authorization and failed to adhere to both the Uniform Code of Military Justice and the Geneva Conventions. Exigency lent legitimacy to a military commission, but did not “justify the wholesale jettisoning of procedural protections.” If the executive wanted to try detainees by military commission, it would have to afford “at least the barest of . . . trial protections.” A plurality of four justices also decided that conspiracy was not an offense against the law of war triable by military commission. Congress quickly responded by enacting the Military Commissions Act of 2006. The MCA restyled the military commissions system by codifying procedural safeguards for defendants and enumerating twenty-eight triable offenses. Among these, the MCA allowed punishment by military commission for anyone who “conspires to commit” substantive offenses and for anyone who provides “material support or resources” for terrorism. With the MCA in hand and a more robust trial structure in place, the government prosecuted Hamdan anew— and added a charge of material support for terrorism to the original charge of conspiracy. This time around, Hamdan was tried by military commission in Guantánamo and received a mixed verdict. He was acquitted of conspiracy but convicted of providing material support for terrorism and sentenced to sixty-six months in prison. In January 2009, he was released to his home country of Yemen. Even after release, he continued to appeal his conviction. In October 2012, Hamdan again prevailed in the American court system. The D.C. Circuit in Hamdan v. United
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States reversed and vacated his conviction. Congress had intended the MCA to be merely “declarative of existing law” allowing prosecution of crimes that occurred before enactment. The court found that the MCA did “codify some new war crimes, including material support for terrorism,” and therefore could not authorize retroactive prosecution of these new crimes. Because the Act passed in 2006, its proscription of material support for terrorism could not apply to Hamdan’s alleged activities supporting bin Laden and al Qaeda between 1996 and 2001. Accordingly, he could be convicted only if a prior law criminalized material support. The court examined the relevant law on the books at the time of Hamdan’s alleged misconduct and found it wanting. Specifically, 10 U.S.C. § 821 provides jurisdiction for offenses that “by the law of war may be tried by military commissions.” Interpreting “law of war” offenses by reference to international law, the court found that certain forms of terrorism, including targeting civilians, are long recognized as international-law war crimes. Not so for material support for terrorism. Because there was no timely proscription of that offense, Hamdan’s conviction could not stand. The vacatur of Hamdan’s conviction triggered an immediate and impassioned reaction in the media. Commentators portrayed the opinion as “the biggest blow yet” to the military commissions system in Guantánamo and “a powerful blow to the legitimacy of those trials.” This “blockbuster opinion” from a conservative circuit served to rein in “executive branch officials [who] stubbornly sought to manipulate the rule of law.” Guantánamo is a sensitive topic.
Contrary to its media depiction, the D.C. Circuit’s Hamdan opinion poses no existential threat to Guantánamo military commissions. Quite the opposite: the opinion is good authority to convene future military commissions. While formal convening authority rests with the Secretary of Defense, courts offer the complementary authority of judicial review.The Supreme Court recognized exigency as lending legitimacy to military commissions. Now, the D.C. Circuit has recognized the trial process as lending further legitimacy. The court upheld the military commissions structure and guided prosecutors to charge defendants carefully for conduct before or after enactment of the MCA. Upon examination, the opinion is a typical appellate disapproval of a trial result— based not on the illegitimacy of the proceedings but on the misapplication of a new law. Like any appellate court, the D.C. Circuit in Hamdan reviewed a lowercourt criminal proceeding and found a fatal flaw. Promptly upon directing that “Hamdan’s conviction for material support for terrorism be vacated,” the court wrote a significant clarification: its opinion does not “preclude any future military commission charges against Hamdan— either for conduct prohibited by the ‘law of war’ under 10 U.S.C. § 821 or for any conduct since 2006 that has violated the Military Commissions Act.” The opinion rejected Hamdan’s conviction on a reasoned basis, but not the process that generated that conviction. Thus, Hamdan invites trials by military commission and provides an appellate-sanctioned roadmap for the proceedings. Should the executive seek to try an individual by military commission for actions that were criminalized before he undertook them, it may do
so—as in the ordinary course in Article III courts. For conduct before 2006, international-law war crimes have long included terrorism, aiding and abetting terrorism, and targeting civilians. For conduct after 2006, the MCA specifies a myriad of crimes including material support for terrorism. Hamdan clarifies the military commissions procedure, and that clarity is legitimating. Yet, clarity should not be mistaken for simplicity. Any MCA charges of “new war crimes,” including material support for terrorism, are vulnerable under the D.C. Circuit’s timeliness analysis. While Guantánamo holds al Qaeda leaders directly involved in terrorist plots against the United States, many of the current 166 detainees are “low-level foreign fighters” who lacked a significant role in terrorist organizations. The task of swearing and proving charges remains difficult, and the stakes for both prosecutors and defendants remain high. The stakes are particularly high in the military commission trial underway in Guantánamo against the September 11th defendants, most notably Khalid Shaikh Mohammad, the self-proclaimed “mastermind” behind the attacks. Mohammad and four co-defendants are charged under the MCA (as revised in 2009) with eight offenses, including conspiracy, murder in violation of the law of war, attacking civilians, and terrorism. The defendants do not face charges of material support for terrorism. Hamdan nonetheless weakens the charge of conspiracy, especially given the Supreme Court’s earlier plurality opinion that rejected conspiracy as a war crime. Indeed, the government chose not to oppose defendants’ motion to dismiss conspiracy, on the basis that dismissal would avoid “additional un-
certainty and appellate risk” and allow the case “to proceed without unnecessary delay.” Dropping conspiracy would reduce the number of charges against the September 11th defendants, but not end the case. Applying the strictest reading of Hamdan and including only offenses that were established international-law war crimes before Congress passed the MCA, serious charges remain. Attacking civilians and terrorism are clear offenses against the law of war, and those charges suffice for trial by military commission. The logic of Hamdan also applies to prior convictions obtained by military commission in Guantánamo: to the extent convictions for pre-2006 conduct were based on offenses recognized as war crimes, those convictions should stand. Seven detainees have been convicted through military commissions; four were subsequently transferred to other countries. In addition to Hamdan, one other detainee was convicted solely of providing material support for terrorism. Australian citizen David Hicks pleaded guilty in 2007 to one count of material support. He was sentenced to seven years, which by plea agreement was reduced to nine months’ confinement in Australia. As part of the agreement, Hicks waived all appeals. Given this waiver, Hamdan undercuts Hicks’ conviction in theory if not in practice. In the end, far from undermining the legitimacy of Guantánamo military commissions, Hamdan fosters a richer understanding of the proceedings. By offering an ordinary appellate analysis in the extraordinary context of Guantánamo, the D.C. Circuit has placed a military commission judgment squarely in line with district court judgments and issued a reminder that prin-
ciples of fairness apply in military and civilian trials alike. This Article is co-published online by the 1DWLRQDO6HFXULW\ $UPHG&RQÁLFW/DZ5HYLHZ at Miami Law. An extended version of this Article appears in the Summer 2013 issue of the NSAC Law Review.
Frohock teaches Legal Communication and other courses on writing and on Guantánamo legal issues. She has published articles on Guantánamo and professionalism in legal practice. Before joining Miami Law, she was an attorney in NewYork City and Miami. ___________________________
Something of Race Remains: Identity in Public Education By Osamudia James
ummer of 2013 brought an opinion in one of the more controversial cases of the Supreme Court’s 2012 term, Fisher v. University of Texas. In the case, Abigail Fisher, a white female who was denied admission to the University in Texas in 2008, challenged the University’s use of race in its admissions process as unnecessary and, thus, unconstitutional, because the Texas Top Ten Percent (TTP) program produces a
significant amount of diversity without any consideration of race. Although the TTP program had succeeded in increasing the number of students from diverse racial and class backgrounds, there was still substantial racial isolation on campus. A study conducted by the university, for example, found that ninety percent of classes with five to twenty-four students enrolled in any one semester had one or fewer students of color enrolled. The use of race at the University of Texas comported with the diversity rationale laid out in the Supreme Court’s 2003 Grutter v. Bollinger opinion affirming diversity as a compelling interest justifying race-conscious admission procedures. Accordingly, despite predictions that the Court granted cert in the case only to dismantle the diversity rationale, the Court ultimately affirmed its use in higher education. The diversity rationale, however, is nevertheless still vulnerable to challenge. Liberal critiques like that of Professor Nancy Leong note that the diversity rationale has encouraged white institutions of higher education to treat racial identity as a commodity, using non-white students to enhance their reputation, and reap the social, political, and economic benefits that accrue to diverse institutions. The University of Wisconsin, for example, photo-shopped a picture of a person of color into an admissions brochure to portray a more racially diverse campus than the reality. When racial identity is commodified in these ways, it results in an alienation of identity, as individuals become distanced from this integral aspect of their personhood that has been traded on a racial market. My own critique focuses on the impact of the diversity rationale on white racial identity. Given its justification as
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integral to improved classroom discussion and training for the workforce, the diversity rationale reinforces a narrative of subordination of people of color, as their racial identity is used to improve social, business, and academic milieus primarily for whites. Moreover, the near exclusive focus of diversity initiatives on racial and ethnic minorities encourages whites to think of themselves as having no racial identity, when just the opposite is true; white racial identity exerts a significant positive impact on life outcomes and confers many privileges on its subjects. Ultimately, even as deployment of the diversity rationale has broadened access to elite education for people of color, it has also hurt whites and non-whites in multiple ways. Challenges to diversity, however, are not isolated. Rather, critiques of diversity fit into a broader academic movement to consider non-identarian legal frameworks through which equality can be pursued. Professor Martha Fineman’s vulnerability theory, for example, encourages us to move beyond thinking of ourselves as members of distinct racial or ethnic classes, and mobilize, instead, around an understanding of shared vulnerability that the state must mediate in different ways. Professor Kenji Yoshino has advanced a new understanding of the equal protection clause that accelerates the move away from group-based equality claims under the guarantees of the Fifth and Fourteenth Amendments, to more universal liberty claims under the due process guarantees of the same. Universal liberty claims attempt to frame rights at a high enough level of generality that even members of the majority can imagine a world in which they are wrongfully denied that right.
The untethering, however, of legal protection from identity is a weakness of more universal frameworks, given how consistently the distribution of valuable social goods is still impacted by racial identity. Take, for instance, public education. Racial minorities are consistently subject to over-identification for special education, independent of their disproportionate representation among the poor. Moreover, black school children are underrepresented in “hard” disability categories like deafness or blindness, that are least stigmatizing and most objectively assessed, while overrepresented in the “soft” categories like educationally mentally retarded (EMR) or emotionally disturbed, which are more stigmatizing and subjectively assessed. Similarly, minorities are overrepresented in public school suspensions and corporal punishment, with schools more likely to implement extremely punitive discipline and zero tolerance policies, and less likely to use mild discipline and restorative techniques, as the percentage of black students enrolled increase. Not only do these relationships operate independent of economic status, gender, crime salience, urbanicity, and teacher training, but the relationship is also stronger when school delinquency and disorder is lower. Finally, majority-minority schools face discrimination that operates independent of poverty levels among the schools. The schools are, for example, disproportionately assigned novice teachers with fewer credentials. And although the success of majority-minority schools and districts in recruiting and retaining teaching talent is impacted by their higher poverty levels which teachers with multiple options can avoid, racial preference still influences teacher
decisions to exit or avoid racially-identifiable schools all together. To be sure, universal frameworks present a much-needed change in perspective that can be responsive to the failure of identity-based frameworks. Poor students, for example, who do not fall into a suspect class protected by equal protection’s identitarian framework, could be better protected under a vulnerability theory that demands equality for poor students because they interact vis-à-vis government under a set of social conditions that, if left unmediated, leaves them at a distinct disadvantage. Nevertheless, the problem with universal frameworks is precisely their post-racial outlook. Unfortunately, race and racial identity pervade all facets of social life, impacting collective identities and social structures, and permeating individual psyches and relationships on conscious and unconscious levels. Identity politics remain necessary because people cannot see past racial identity, making it unlikely that identitarian frameworks should be jettisoned or subsumed into more universal equity frameworks. Recognition that we are all vulnerable would have to override deeply held beliefs that particular racial and ethnic groups are vulnerable due to their own cultural deficits. The intransigence, however, of these types of beliefs have been well documented as central to (white) beliefs about self-worth and superiority. Indeed, as the above examples illustrate, even though public schools exist to educate and nurture the most vulnerable among us, the compulsion to stigmatize and exclude school children on the basis of their race alone would be poorly managed under legal frameworks that do not specifically account for racial identity.
The difficulty of addressing these issues in our academic, business, and social institutions is such that notwithstanding Fisher’s outcome, debate and discussion about the pursuit of diversity, as well as the usefulness of identitarian legal frameworks more generally, will surely continue. The time is not right, however, to yet give up on identitarian legal frameworks in our pursuit of racial inclusion and equity.
James’s interests lie at the intersection of education law and policy, identity, and equal protection. Prior to joining the law faculty, she was a William H. Hastie Fellow at the University of Wisconsin Law School. ___________________________
Rallying Lawyers to Join the Race to Renewables By Felix Mormann
awyers are natural racers. At least, that is what some of the terminology surrounding our great profession suggests. Just think of the famous “race to the courthouse” to secure prior-
ity of a mortgage, lien or judgment, or consider the infamous “ambulance chaser” who hopes to find new clients by following screaming sirens to the emergency room. However one may feel about the role of lawyers as racers in these and other circumstances, it may come as a surprise that lawyers have to date remained relatively uninvolved in one of the greatest speed contests of our time—the Race to Renewables. The challenge of scaling up technologies to generate electricity from renewable sources is often compared to the 1960s “Space Race.” President Obama has referred to America’s pressing energy challenges as “our generation’s Sputnik moment.” Indeed, there are striking parallels between the Space Race and the Race to Renewables, beginning with the shared need for technological innovation on an unprecedented scale. It is no coincidence that the newly established Advanced Research Projects Agency-Energy (ARPA-E), tasked with promoting the necessary energy innovations, is modeled after the Defense Advanced Research Projects Agency (DARPA), which is responsible for the development of many crucial space technologies. As the Space Race was in the 1960s, so is the Race to Renewables motivated, at least in part, by concerns over national security. Maintaining the balance of power with the Soviet Union during the Cold War was a major motivation for the Apollo Project, while one of the key drivers behind the Race to Renewables is the desire to enhance America’s energy security by decreasing its dependence on foreign oil and gas from geopolitically unstable parts of the world. Notwithstanding these apparent similarities, the analogy between the Space Race and the Race to Renewables is, in fact, an understatement. The latter
features many more participants, including virtually all industrially developed and many developing nations. More importantly, the Race to Renewables has considerably higher stakes, adding overwhelming environmental and economic issues to concerns over national security. After all, successful climate change mitigation requires that today’s carbonintensive economy turn low-carbon by 2050. Only a complete and rapid transformation of the energy sector can limit global warming to a temperature increase of two degrees Celsius compared to pre-industrialization levels. Climate scientists around the world consider his two-degree scenario vital to avoiding massive and irreversible disruptions of the earth’s ecosystem. The necessary energy revolution will require massive efforts to improve energy efficiency and to facilitate the timely transition to a low-carbon electricity sector based on renewable sources of clean energy. But the large-scale deployment of renewables is by no means a purely environmental concern; it is also of enormous economic importance. The U.S. electricity generation sector alone boasts retail revenues of more than $350 billion annually. Between 2004 and 2008, global investment in solar energy technology has increased by more than 250 percent per year. Some analysts forecast that by 2030, one out of every four U.S. workers—37 million Americans—could be employed in the renewable energy and energy efficiency industries, assuming there is appropriate public policy support. Others emphasize that a renewables-based energy sector will create more jobs per megawatt of power installed, per unit of energy produced, and per dollar of investment than a fossil fuel-based energy sector.
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The good news is that a timely transition to a low-carbon, renewablesbased electricity sector appears within technological reach. In 2008, former Vice-President and Nobel Peace Prize winner Al Gore announced his plan to “Repower America” with 100 percent clean electricity from renewables within a decade. Since then, more than half a dozen independent studies have confirmed the technological feasibility of meeting the entire electricity demand of a given country, region, or even the world with renewable sources of energy, in some cases as early as 2020. The bad news is that we remain far from harnessing the full technological potential of power generation from renewable sources of energy. Current projections forecast that renewables will account for only about fifteen percent of American electricity generation by 2035. Compared to a renewables share of 10 percent in 2010, the projected growth over the next quarter of a century is relatively modest. Our business-as-usual trajectory, therefore, is too slow to reap the trifecta of environmental, economic, and energy security rewards that await the winner of the Race to Renewables. What does all this have to do with lawyers? Should we not leave it to science and engineering to develop the necessary wind turbines, solar panels, and other technologies to produce power from renewable sources? And once these technologies leave the lab and demonstrate their commercial viability, can we not rely on savvy economists to devise the appropriate policy mechanisms to deploy these technologies at scale? Indeed, many lawyers and legal scholars have been happy to leave the Race to Renewables to scientists, engineers, economists, and other
non-legal professions. There are good arguments, however, for a more active participation by the legal profession in the Race to Renewables, for the benefit of both clients and society at large. From a macroeconomic, societal perspective, the lack of lawyerly participation in the Race to Renewables is all the more surprising given that the vast majority of policy measures for the promotion of renewable energy take the shape of laws, decrees, or similar lawmaking products, whose proper design and implementation require substantial legal expertise. Furthermore, in order to be successful, promotional policies need to overcome not only a number of economic obstacles but also a variety of barriers closely related to regulatory and other legal questions. Of course, it may be possible to simply attach a price tag to such obstacles, but it is doubtful whether convincing renewable energy entrepreneurs to go forward with their projects solely through price incentives is efficient or politically viable in the long run. Already, some of the pioneering nations in renewables are forced to cut support programs so as not to let the cost of their promotional efforts get out of hand. Closer to home, the current U.S. budget crisis requires costefficient policy support for renewables. It is crucial, therefore, that to the extent possible, we eliminate obstacles to the large-scale deployment of renewables rather than compensate for them. In this context, lawyers have a key role to play by, for instance, improving fund structures, streamlining permitting processes, or reducing transaction costs through standardized contractual instruments. From a client perspective, the Race to Renewables offers a multitude of business and investment opportunities.
The “green” in greener energy no longer stands solely for environmental benefits but includes economic profits. While in private practice, an ever-greater interest from clients in renewable energy opportunities led me to eventually shift the focus of my work from corporate to energy law. And it was not just the usual suspects of energy players—utilities, equipment manufacturers, or energy marketers—that sought to engage our services. More and more, renewable energy has begun to attract interest and investment from other players, including institutional investors such as pension funds and retail investors that trade stocks for personal purposes. In all of this, one of the greatest client concerns continues to be the complexity of the regulatory and policy frameworks that govern the energy industry. As lawyers, we are in a prime position to help our clients understand these frameworks as well as the resulting risks and opportunities so that they may make informed business decisions. Let me trade my “recovering law-
yer” and “policy advisor” hats for my “teacher/mentor” hat to point out why the Race to Renewables should appeal not only to seasoned lawyers but also to the next generation of lawyers. As part of the law school curriculum, renewable energy and energy law more broadly offer wonderful opportunities to develop and refine essential skills that help young lawyers succeed in their legal careers. Substantively, energy law cuts across a variety of subjects, ranging from administrative law to environmental law to constitutional law. But to truly master energy law requires a deeper understanding of the underlying economics of complex markets, and how they are shaped by policy choices at the federal, state, and local levels. The energy industry’s inherently interdisciplinary nature helps future lawyers identify and reconcile competing interests. Through advocacy exercises, students can improve their ability to communicate these interests to a wide range of stakeholders. The energy industry’s dense statutory regulation, finally, of-
fers a great arena to practice statutory construction and develop critical drafting skills. The successful shift toward a sustainable energy economy requires a concerted effort by scientists, engineers, economists, and many others, including the legal profession. It is time for lawyers to enter the Race to Renewables—to the benefit of society at large, our present and future clients, and the next generation of legal professionals.
Mormann’s scholarship deals with environmental, energy, and corporate law. Prior to joining the law faculty, he was a Lecturer in Law and the Energy Policy and Finance Fellow at Stanford Law School. ___________________________
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Fast and Furiously Pursuing Her Passions
Tamara Rice Lave’s a Professor in the Fast Lane Professor Tamara Rice Lave
By Catharine Skipp
verything about Tamara (rhymes with CAMERA) Rice Lave is fast—when she is excited about a subject, the words come flying out like a swarm of bees on Red Bull; she is fleet of feet, having represented the U.S. in the marathon at the 2003 Track and Field World Championships in Paris; and is a chop-chop decisionmaker, thanks to learning cost-benefit analysis early in life from her economist parents. Perhaps because she grew up with a twin brother (who with dark hair and dark eyes always insisted she was adopted) Lave developed a powerful competitive streak. She does nothing by halves. Ask her a question about an obscure criminal case and she will have, in no time at all, the case, an opinion, and will often have already spoken with the attorneys involved. As the daughter of two professors, Lave always wanted to be an academic. The pursuit took her from Haverford College, where she earned a B.A. in philosophy, to Stanford Law School. Then, after a 10-year stint at the San Diego County Public Defender’s Office, she continued her academic journey at the University of California, Berkeley, where she earned a Ph.D. in Jurisprudence and Social Policy. “As a very little kid, teaching always looked like the best job. My parents were really happy. They loved what they did. It was truly interesting,” she said. “I remember in sixth grade, sitting on the end of a diving board and saying, ‘I want to get my Ph.D. at this age, get married at that age, be a professor at another age’—it was all mapped out. It always seemed like the best job in the world, and it is.” Lave took a couple of side trips along the way. She taught 10th and 11th grade A.P. English at the American School of Guatemala and volunteered at Casa Alianza Orphanage in Guatemala City helping girls transition from street life to stability. She returned to Guatemala after her first year of law school and worked with Casa Alianza’s Legal Aid office, documenting and disseminating how it had achieved its groundbreaking victory in holding the Guatemalan police accountable for murder. She also worked as a reporter for the Prague Post and Prognosis newspapers in the Czech Republic, and until recently wrote a monthly column, “The Runner’s Witness”, for Running Times magazine. Although Lave always knew she wanted to be a professor, she wasn’t sure at first what she wanted to study and teach. “I remember walking with my dad and talking about studying theory and how to make a tangible difference. Law school seemed more in the world than being a philosophy professor. I thought it would be a better bridge between theory and practice.”
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But always there was running: “We started running when we were very little,” Lave said. “My dad would run every day, and we would run to the end of the street and wait for him to come back again. We would imitate him doing his exercises, and before first grade, we were running and exercising every morning. “The first race I ran in was in sixth grade,” she said, “and it was a county-wide cross country race. I came in third place. Everyone was really surprised because I was never really that fast. But running, like many things in life, is something where if you do it every day, you will get stronger and faster. Running has always been incredibly important to me.” The other theme that runs through Lave’s life is dogs. Her father, after extensive cost-benefit analysis when the twins were 18 months old, determined that standard poodles were the dog for them because they were smart and didn’t shed. “My parents brought us to this place with standard poodle puppies and just put us in the crate and watched until they had found the friendliest one.” And so began Lave’s love affair with big, bouncy dogs. The latest of the legacy: Rodeo—a Texas-born, 70 lb., spring-loaded, black Labradoodle, who spends as much time roaming the halls of Miami Law as the professor who cares for him. Both have found a home. Lave may have the looks of a quintessential California surfer girl, the feet of a runner, and a heart for dogs, but at the end of the day she is all criminal law professor. “The best part of being a public defender is doing the closing argument. That is when all the facts are in, you don’t have to freak anymore about a witness going sideways, or some new piece of evidence; it’s just you spinning your argument and trying to be as persuasive as possible,” she said. “With teaching, I think every class is a bit like doing a closing argument.You want to put on a good show and be fun and exciting and all those kinds of things, but the enterprise of what you are trying to do as a teacher is very different. Instead of trying to get the students to see things in one particular way that benefits your client, you are trying to get them to see things in a way they’ve never thought about before, to understand the world in a way they didn’t previously, to flourish and leave your class, and be more aware, more critical, and more insightful.”
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This issue of Miami Law Magazine focuses on the School’s global reach and impact . Join us as we take a globe-hopping overview of the Unive...
Published on Oct 29, 2013
This issue of Miami Law Magazine focuses on the School’s global reach and impact . Join us as we take a globe-hopping overview of the Unive...