Miami Law Magazine: Winter 2013 by University of Miami School of Law

MIAMILAW WINTER 2013

m agazine

WHO IS TO BLAME WHEN ROBOTS KILL? PROFESSOR A. MICHAEL FROOMKIN’S CONFERENCE PROBES IMPLICATIONS OF VIRTUALLY AUTONOMOUS MACHINES

UNIVERSITY OF MIAMI SCHOOL OF LAW

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Photo by Patricia Moya Miami Law Magazine

On the Bricks

Ten to Watch

MIAMI

LAW

Innovation

magazine

Nick Madigan Executive Director of Communications

What’s happening on and around Miami Law’s sunsplashed quadrangle.

Q&A

Now in her fourth year at Miami Law, Dean Patricia D. White reflects on what the school has accomplished in difficult times, and what remains to be done.

Smart Takes

We shine a spotlight on some of Miami Law’s most promising students, such as Tricia Ann Robinson, above.

Law students draw on deep well of talent and inspiration to create exciting programs and reforms.

The Last Word

Notable Alumni

Once in the profession, Miami Law’s accomplished graduates do justice to their school and community.

Human Rights

Scott Sundby wanted to be Superman, but settled — happily — for law professor.

www.law.miami.edu

COVER STORY Editor’s Note

MIAMILAW FALL 2012

magazine

WHO IS TO BLAME WHEN ROBOTS KILL? PROFESSOR A. MICHAEL FROOMKIN’S CONFERENCE PROBES IMPLICATIONS OF VIRTUALLY AUTONOMOUS MACHINES

Miami Law faculty members sound off on art, criminal profiling, health care, social media and immigration law.

Deportees to Haiti suffer abuse and inequity, students report after visits to camps and jails in Port-au-Prince.

Catharine Skipp Director of Media Relations and Public Affairs Michelle Valencia Director of Production Patricia Moya Senior Graphic Designer Magazine Designer Elizabeth Estefan Senior Graphic Designer Project Manager Lauren Beiley Director of Online Communications and Marketing Roland Liwag Manager of Web Services 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

UNIVERSITY OF MIAMI SCHOOL OF LAW

Cover design by Roland Liwag. Photo of Professor A. Michael Froomkin by Jenny Abreu for Miami Law Magazine.

Welcome to the first edition of Miami Law Magazine, a fresh look at the University of Miami School of Law. We will not attempt to cover every aspect of law school life, but rather open a window into the accomplishments and perspectives of the students, faculty and alumni, with a particular focus on some of the scholarly thinking that’s brewing here. As you will see in these pages, we’re very proud to shine a light on the great things going on at Miami Law, and we welcome your comments, suggestions and contributions. Nick Madigan nmadigan@law.miami.edu WINTER 2013

On The Bricks CONGRATULATIONS Laurence M. Rose, professor of law emeritus and director of Miami Law’s Litigation Skills program, was honored by the American Bar Association Tort Trial in Insurance Practice Section with the Robert B. McKay Law Professor Award at the ABA’s 2012 annual meeting in Chicago in August. The award is given to lawyers committed to advancing justice, scholarship and the legal profession. Tina Portuondo, director of Miami Law’s Heckerling Institute on Estate Planning, was appointed chair of the American Bar Association’s Section of Real Property, Trust and Estate Law. The section is the ABA’s third largest, with 25,000 members. Assistant Dean of Career Development Marcelyn Cox was named one of the 100 most influential black lawyers in the country in a list compiled by a media company called On Being A Black Lawyer.

IN GRATITUDE Forty-six adjunct professors at Miami Law contributed all or part of their honoraria to establish the Adjunct Faculty Scholarship Fund. More than $80,000 from the fund has gone toward three $5,000 need-based scholarships to outstanding Litigation Skills students, and 20 scholarships of $2,500 each to deserving third-year students to defer the costs of Florida Bar preparation courses. A group of Miami Law professors in the Robert Traurig-Greenberg Traurig LL.M. in Real Property Development program created the Charles M. Haar Award for Excellence in Planning and Zoning in memory of the late professor, who died on Jan. 10 at the age of 91. The award is given to a student who earns the highest grade in Adjunct Professor Brian Adler’s Planning and Zoning course. The first Haar scholar was Adam Bregman, an associate in the Real Estate practice group of the West Palm Beach firm McDonald Hopkins.

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Professional Responsibility and Ethics Program Wins ABA Award

he American Bar Association has recognized Miami Law’s Professional Responsibility and Ethics Program and its director, Jan L. Jacobowitz, with this year’s E. Smythe Gambrell Professionalism Award, which recognizes programs and projects contributing to the understanding and advancement of professionalism among lawyers. Under Jacobowitz’s guidance, students develop and present ethics training for the legal community. They collaborate in a manner analogous to an ethics law firm, but do not offer legal advice. Instead, they provide education and facilitate discussion of compelling legal ethics issues. Dennis R. Honabach, chairman of the ABA’s Standing Committee on Professionalism, said the panel was particularly impressed with the PREP program’s “unique amalgam of an extraordinary real-world experience for their student instructors and valuable legallearning benefits” for the law firms and legal organizations that participated.

Students Victorious in Court

ith the aplomb of experienced professionals, Miami Law students drafted winning arguments in two important court cases. In one, Olga Izmaylova and Justin Wales wrote an appeal before the U.S. Court of Appeals for the 11th Circuit. It grew out of a 2008 alien-smuggling case in which Eliezer LazoMartinez pleaded guilty and was placed on supervised release. The following year, the defendant and another man were found in the Straits of Florida on a boat, loaded with fuel, that had been reported missing from a Key Largo dock earlier in the Justin Wales, J.D. ’12 day. Lazo-Martinez was charged with grand theft and dealing in stolen property, and pleaded guilty to both. He was given a two-year sentence after a prosecutor asserted that Lazo-Martinez had stolen the boat to engage in alien smuggling — going “straight back to what he was doing before.” But Izmaylova and Wales contested that assertion on appeal, arguing that the District Court had erred when it accepted the allegation without substantiating evidence. (LazoMartinez testified that he had been heading to Cuba to visit his ailing mother.) The appeals court vacated the sentence and returned the case to the lower court for resentencing. Both students, who graduated in May, had studied under Professor Ricardo J. Bascuas in the Federal Appellate Clinic. “In addition to expanding my research and writing skills,” Izmaylova said, “Professor Bascuas taught me how to construct a persuasive legal argument when the law and facts are against your client. Given the amount of time and effort we spent working on the case, winning this appeal is a great reward and accomplishment.” In another case, students in Miami Law’s Immigration Clinic won a victory for a Mexican man whose relatives had been killed by members of a drug cartel. The students, Julia Kosinski, J.D. ’11, and Yaneris Figueroa, who graduated in May, argued in immigration court that he would likely be killed if he were deported to Mexico. The immigration judge initially denied the case, ruling that the man could relocate safely, a decision that Kosinski called “sad and frustrating” because the man faced “a very real threat to his life.” The Board of Immigration Appeals remanded the case back to the immigration judge, who — almost a year after the case had begun — ruled that the appellant could remain in the United States.

On The Bricks

New Faculty

Visiting Professors

Felix Mormann’s scholarly interests lie at the intersection of environmental, energy, and

corporate law. Prior to joining the Miami Law faculty in August, Associate Professor Mormann

David was a Lecturer in Law and the Energy Policy and Finance Fellow at Stanford Law School. Fagundes Previously, he was Stanford’s Kauffman Legal Fellow and a visiting scholar at UC Berkeley

is a professor of law at Southwestern Law School in Los Angeles, and taught copyright and property at Miami Law during the fall 2012 semester. Fagundes went to Harvard for college and law school, where he was an editor of the Harvard Law Review. Before teaching, he clerked for the D.C. Circuit and worked as a Bigelow Fellow at the University of Chicago Law School. Fagundes’s current research projects include efficient copyright infringement, accession and copyright, the relevance of physical copies in the age of digital media, and the interaction between legal personhood and the regulation of bodies.

Stefanie Kürpick

is a Visiting Assistant Professor of Law. Her research interests are cybercrime and information technology law. She worked as a legal intern with the Public Defender’s Office in Miami and in two death penalty clinics. Her field of research is in the area of animal rights, cybercrime, internet crimes and jurisdictional problems, and the comparison between American and German criminal systems. Prior to studying for an advanced LL.M. degree in transnational law at Miami Law, Professor Kürpick worked at the firm of Schwankl, Mankartz & Kürpick in Dorsten, Germany, where she advised clients in criminal and information technology law, drafted contracts, and assisted in company incorporations. She is a member of the German Bar Association, based in Berlin.

School of Law. Professor Mormann’s recent articles include “How to Make Renewable Energy Writings Competitive,” with Dan Reicher, in The NewYork Times, June 1, 2012; “Enhancing the Investor Appeal of Renewable Energy,” in the Environmental Law Review (2012); and “Requirements for a Renewables Revolution,” in Ecology Law Quarterly (2011). Professor Mormann is admitted to the practice of law in Germany and New York. His professional experience includes management consulting for high-tech clients and clerking for the Hanseatic Court of Appeals in Hamburg.

Andres Sawicki joined the Miami Law faculty as an Associate Professor in 2012. A

Miami native, he returns after completing a Bigelow Fellowship at the University of Chicago Law School. And, like South Florida’s most recent sports hero, LeBron James, Sawicki was delighted to trade the shores of the Great Lakes for Biscayne Bay and South Beach. Sawicki researches and teaches in the area of intellectual property. His interest in the field grew out of his undergraduate studies at the Massachusetts Institute of Technology, where he earned degrees in Brain and Cognitive Sciences and Science, Technology and Society. After completing his J.D. at the University of Chicago Law School and a clerkship on the United States Court of Appeals for the Second Circuit, he worked in the IP group at Kirkland & Ellis LLP. Sawicki focuses on the effect that the intellectual property system has on innovators and artists. His forthcoming publication, “Better Mistakes in Patent Law,” provides a relative cost analysis of the patent system’s mistakes. His current work, “Teams, Creativity, and the Firm,” explores the impacts of copyright law on people who work together to produce creative goods.

New Faculty for LComm Mary Teresa “Terri” Doud is a Lecturer in Law for Miami Law’s Legal Communication

and Research Skills Program. Professor Doud was formerly Senior Corporate Counsel for Bacardi U.S.A., Inc., where she provided primary legal support for advertising and marketing to the North American region. Prior to Bacardi, Professor Doud was an Associate with Dow Lohnes and Dechert, in Washington, D.C., specializing in intellectual property law. Professor Doud holds a B.A. from Haverford College and an M.A. from Bryn Mawr College. Professor Doud earned her J.D. in 1997 from the University of Pennsylvania Law School, and studied at La Sorbonne and the Institut d’Etudes Politiques in Paris.

Jennifer Hill is a Lecturer in Law for LComm. She holds a B.A. from Bryn Mawr College, an M.A. from George Washington University, and a J.D. from the University of Michigan. Professor Hill received a Skadden Fellowship to direct the Workplace Justice Project at the Florida Immigrant Advocacy Center, where she worked to address human trafficking. She was a Leadership Fellow of the Florida Bar Foundation, served on boards of the National Domestic Worker Alliance and the U.S./Labor Education in the Americas Project, and has written on guestworker rights and law-and-organizing strategies. MORMANN

SAWICKI

DOUD

HILL

WINTER 2013

Our Dean

Three Years In In this interview with Miami Law Magazine, Dean Patricia D. White assesses her time at Miami Law so far and tells us what she sees coming.

Q. Has this been a particularly

challenging time to be a law school dean?

A. Let me say first that in spite of

various challenges these three-and-ahalf years have been a very enjoyable time for me. People in Miami have been very welcoming. That said, the national economic downturn has made and continues to make many things more difficult. Still, we have moved forward in many ways. Many challenges remain — and more lie ahead — but we are now able to innovate in ways that might have been impossible at an earlier point when the model for legal education was regarded as fixed and not open to major changes.

Q. What was the first issue you had

to confront when you got to Miami in 2009?

A. Even before I arrived I learned

that we were facing a huge overenrollment. The economic crisis had just begun and students apparently thought that going to law school was the best place to sit out the economic storm. Our deposits indicated that the incoming class might be as large as 800, while the admissions people had hoped for a class of about 420. I wrote a letter to everyone who had sent a deposit, emphasizing that going to law school was a major investment of time

MIAMILAW magazine

Dean Patricia D. White

and money, warning that it was far from clear what the legal job market would be like in 2012, and offering to defer admission if they wanted time to think hard about whether they had the right reasons for coming to law school. We ended up with a class of 527 rather than 800 and scrambled to provide additional sections. That year, 2009, was the beginning of a very difficult time in law schools because, nationally, enrollments increased just as the bottom was beginning to fall out of the legal job market.

Q. How has the current economy affected the legal market?

A. Nationally, the largest employers

of newly minted lawyers have traditionally been prosecutors’ offices, public defenders’ offices, and governmental agencies of many sorts. When state and federal revenues go down, the ability of those organizations to hire is reduced. At the same time, law firms both large and small felt very

Photo by James W. Nickel for Miami Law Magazine

strongly the effects of the recession, in part because clients’ budgets for legal services went down. To be efficient, law firms are now finding alternative ways to get work done and to provide legal services. This includes greater use of technology.

Q. What has been done to help Miami Law graduates find jobs?

A. We spend a lot of time thinking

about how to help students improve their credentials and get jobs. Our initial focus in 2009-2010 was the third-year class, whose employment prospects had suddenly dimmed dramatically. An early innovation was to create the Legal Corps, which funds six-month fellowships for recent graduates right after they pass the bar. We place them as lawyers in judicial clerkships and in governmental and non-profit organizations around the country. Since the launch of Legal Corps early in 2010, 137 graduates of the law school have completed the

Our Dean program and have provided well over 100,000 hours of legal assistance. So far, over 90 percent of former Fellows have found permanent legal employment. The program has been enormously successful and there are hundreds of organizations and judges who have informed us that they want to have a Legal Corps fellow. We have strongly encouraged students to increase their training and experience in subjects outside of law that will complement their legal credentials. These subjects may be languages, business and accounting, or science and engineering. In addition, we have strengthened an already-excellent Career Development Office and greatly expanded our externship programs.

Q. What about faculty hiring? A. A very big attraction of coming

here was the opportunity to recruit really good people to our faculty. Although Miami Law has always had a very strong faculty, our student-teacher ratio was too high, and the law school needed to hire additional faculty. We’ve hired a number of distinguished senior people who have added a lot to our reputation. We’ve also hired a fabulous group of young professors. They have really helped energize the school. They are energetic, smart, productive, and great teachers. Because of our hiring, many classes that used to be very large are now much smaller. In fact about 70 percent of our upper-class courses have fewer than 25 students in them. That enables the faculty to give students more individualized attention. Another thing we did was to create a new writing program for firstyear students. We began by hiring 10 outstanding, full-time faculty through a national search and had our Legal Communication and Research Skills (LComm) Program up and running in 2010-2011. The student reviews

of their required LComm courses are glowing and we have been getting a lot of very good responses from employers and judges.

Q. How have you tried to improve the lives of students?

A. This has been one of my highest

priorities. We listen to students and regard them as sources of good ideas. There is now a degree of attention to students here which is unusual for any law school regardless of size. When I came here, this was a big law school with a very lean student services staff.

Since the launch of Legal Corps, 137 graduates of the law school have completed the program and have provided well over 100,000 hours of legal assistance. So far, over 90 percent of former Fellows have found permanent legal employment. Early on, we substantially increased staff size with an eye to giving students a degree of personal attention and counseling that would make their experience as beneficial as possible. We have a student development program wherein every single student meets in the first six weeks or so with a professional who works with them individually and is a resource for them throughout the rest of their time at school. We developed a Student Service Fellow program, which places recent graduates in one-year positions to serve

as resources for new students (perhaps you’ve seen them in their tent on the Bricks). We’ve tried very hard to make students feel that this is a personal and friendly place and that people will work with them to make things happen.

Q. What has been done to generate creative courses and programs?

A. Early on, we hired a person

whose full-time job is to solve the practical difficulties of cross-disciplinary programs and then put together those programs, so that such work is not only encouraged but is made simple and economical. We now have a remarkably successful joint program with our music school — a joint J.D./Master’s in music business. It’s the only one in the country and it has occasioned enormous interest. Our triple-degree program with the business school — I think the only one in the country — is a joint J.D./M.B.A./LL.M. in taxation degree that you do in four years. We have a joint J.D./Master’s degree in Communications and we have just started a joint J.D./M.D. program with the medical school. We have a joint program with the Rosenstiel School of Marine and Atmospheric Science for a Marine Science Master’s degree. We have a Master’s in Public Policy joint program as well. In principle, there is no joint program which makes sense that we couldn’t put together.

Q. How are relations between the

school, the local community and the legal profession?

A. They are very good. We’ve spent

a lot of time trying to become more embedded in the local community. We now have 10 clinics that allow our students to gain experience in legal practice while working with underserved populations. We have made great use of Miami’s talented lawyers as Q & A continued on page 29 WINTER 2013

Smart Takes

Rape of Europa, Titian, after 1559. Isabella Stewart Gardner Museum/Bridgeman Art Library

Single-Founder Art Museums Who’s the Real Donor? By Stephen K. Urice

he American cultural landscape has been enriched by a host of museums created by individuals with often vast personal collections. Los Angeles has the J. Paul Getty Museum and The Huntington; New York, the venerable Morgan Library & Museum, the Frick Collection and, more recently, the Neue Galerie and Rubin Museum of Art; Dallas, the Nasher Sculpture Center; Washington D.C., the Hillwood Museum; and Bentonville, Ark., the Crystal Bridges Museum of American Art, which opened last year. The list could run into the hundreds. The generosity of these museums’ founders provides the American public access to astonishing collections of paintings, sculpture, rare books, manu-

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scripts and decorative arts. Whether Titian’s Rape of Europa in Boston’s Isabella Stewart Gardner Museum is the greatest painting in the United States, as some have said, is a matter of debate. That the public can see the work and judge for itself, however, is a combined result not only of private philanthropy — Mrs. Gardner’s generosity — but also of public financial support. Single-founder museums have blossomed in the U.S. for two main reasons: the privatized nature of the American cultural “system” and public policies, principally in the form of tax incentives, that generate direct and indirect public funding for these institutions. The U.S. cultural system differs from that in almost all other developed countries. European countries, for example, typically have culture ministers overseeing a government funded ministry of culture. Under that structure, the museum system is centralized, bureaucratized and dependent almost

exclusively on government support. Most museum professionals are civil servants. Historically, the U.S. has demonstrated an antipathy to direct government intervention in cultural matters. Thus, the U.S. has no cabinet-level secretary of culture and no department of culture, and direct funding for cultural programs constitutes an almost imperceptible number in the federal budget. U.S. museums, with few exceptions, are privately established, funded, owned, and operated. Our museum system is decentralized and, because few or no governmental approvals are required to create a museum, our system is made up of highly idiosyncratic institutions that reflect the varying tastes and aspirations of individual collectors rather than of the government. Moreover, for more than a century, our public policies have fostered the importation of cultural property into the U.S. and incentivized the migration of those works from individuals to museums. Works of art generally enter the U.S. without incurring customs duties. Once on our shores, our tax system encourages the transfer of cultural property from individuals to museums through the income, gift, and estate tax deductions for such gifts. The government supplements that onetime subsidy of individual philanthropy with a continuing subsidy, paid for by the general public, in the form of tax exemptions.The most important of these is the federal income tax exemption, which, once granted, typically triggers state and local exemptions from income, sales, and property taxes. Thus, U.S. public policies have created the conditions under which individuals have accumulated great collections and donated them — typically at death but often during lifetime — to expand existing museum collections or, in the examples considered here, to establish new single-founder museums. During a century of experience

Smart Takes with single-founder museums, one problem arises repeatedly: how to cope with founder-imposed restrictions on the museum or its collections that time have rendered untenable. Such restrictions, characteristic of these often quirky museums, range widely. They include prohibitions on adding works to or lending them from the collection, requirements on how works are to be displayed, instructions on endowment investment policies, and in some cases even the setting of salary amounts for museum staff. A founder’s restriction, like the founder’s museum, can last in perpetuity. During that time, the world changes. The conflict between a permanent restriction and a world in flux has led many of these museums to court — typically, within a generation or two of their being established — to request changes in founders’ restrictions.

ecently, several such disputes have attracted much media attention and public concern. The fiercest of these involved the Barnes Foundation, an institution founded in the early 1920s as an “experiment in education.” It was created and nurtured by Dr. Albert C. Barnes, born in Philadelphia in 1872, who amassed the greatest collection of late 19th and early 20th century European painting ever gathered in one place. The cultural importance of the collection is difficult to exaggerate. In a building that he constructed in the middle of a botanical garden in the Philadelphia suburb of Merion, Barnes hung 69 paintings by Cézanne (a greater sum than in all the Paris museums combined), more than 120 paintings by Renoir, and the only work by Matisse conceived and painted for a specific location. Dr. Barnes imposed restrictions on the Foundation in the hope that his “experiment” would continue after his death. For example, he forbade the lending of any work in the collection and the copying or photographing of the works

for reproduction. He prohibited “social events” on the Foundation’s grounds and prescribed the exact days when the site would be open to the public. And, in a gesture that led to inevitable conflicts of interest and other difficulties, Barnes vested the power to nominate the Foundation’s successor board members not in the board itself — such self-perpetuating boards being typical for museum governance — but in the board of another institution, Lincoln University, a small school some 40 miles away with no experience overseeing a major collection of art or an arts education program such as the one that stood at the core of the Foundation’s mission. Barnes died in 1951. Fifty years later, after decades of negligent governance, the Foundation was approaching bankruptcy. To meet costs, the trustees had spent down endowment funds to a near-vanishing point. The Foundation’s 2004 federal tax return reported operational expenses of approximately $4 million, equivalent to the Foundation’s total cash and investment portfolio in that year. In short, the Foundation’s trustees had overseen a financial meltdown and had no plan for the institution’s survival. In 2004, the Barnes trustees, under new leadership, petitioned the court for changes to the founder’s restrictions. There were two core requests. The first was to increase the size of the board from Barnes’s limit of five members to 15. Momentously, the board also requested permission to move the Foundation’s collection and most of its programs to a new building in downtown Philadelphia. The petition aroused passionate denunciation. Among other charges, critics decried the trustees for “breaking Dr. Barnes’s will.” (In fact, Barnes’ fourpage will had nothing to do with it: His restrictions were set out in a trust instrument and a set of bylaws that he began writing in 1921 and amended frequently during his lifetime.) From

other quarters, the petition garnered political and financial support. Although the Barnes dispute prompted international press coverage, the situation was not unique. For example, in 2008 the trustees of the Isabella Stewart Gardner Museum petitioned a court to remove an auxiliary building on the museum’s grounds to allow construction of a new entrance. These changes violated Mrs. Gardner’s restriction that the museum be maintained exactly as it was at the time of her death. That petition triggered similar rancor and claims that Mrs. Gardner’s will was being broken. In determining whether to modify a founder’s restriction, the law looks to two legal doctrines and is guided by one overriding principle. First, the cy pres (“sigh-pray”) doctrine permits a court to change a donor’s explicit charitable purpose if that purpose becomes illegal, impracticable or impossible to accomplish. For example, a court confronted today with a request from the trustees of a charitable trust established to care for smallpox patients, a disease now eradicated, could, under the cy pres doctrine, order the trust to be used instead for the care of patients with another disease. However, when a donor’s original purpose can still be accomplished but specific restrictions impede accomplishment of that purpose, a court may alter the restriction under the doctrine of equitable deviation, also known as approximation. For example, a museum whose founder restricted endowment investments to U.S. government bonds could ask a court to expand its investment powers if the restriction were causing a loss of income necessary to run the museum and accomplish its educational mission. (In fact, the Barnes brought such a petition to the court in 1995.) When a court applies either doctrine, the guiding principle is to defer to “donor intent.” Thus, the trustees

WINTER 2013

Smart Takes requesting an alteration carry the burden of demonstrating that a change is necessary and that the relief requested is as close to the original donor’s intent as is possible. In my view, such deference may be inappropriate, at least, and in some circumstances may undermine a museum’s viability. From early and incomplete analysis of data collected from museums’ federal tax returns, it is clear that only a few single-founder museums would be financially viable if they were supported solely by the founder’s original gift. Essentially all these institutions survive today thanks to the public’s direct financial support in the form of gifts, grants, contributions, bookstore sales and admission fees. That direct support is augmented by the public’s indirect financial subsidy provided by taxexempt status. That finding inexorably leads to a fundamental question: when, if ever, should a court consider the

general public, rather than the museum’s founder, to be the “donor” in considering petitions to change a museum’s purpose or to amend a founder-imposed restriction? Asked another way, should the default position for weighing changes be, as it is today, dead-hand control by the founder or the reasonable needs of the public? Unquestionably, people such as Albert Barnes and Isabella Stewart Gardner, acting with exceptional generosity, have provided the public with collections of immense cultural and economic value. But a common thread connects almost all single-founder museums: none would survive without direct financial support from the public and indirect public funding through tax subsidies. The public, therefore, might well be considered “donors” just as much as the original founder — if not more so — when the time comes for a court to alter a founder-imposed restriction on

his or her museum. In fashioning relief, the law’s deference to the founder, rather than to those whose funding sustains the museum, may be the kind of legal impediment that itself needs a deviation order.

Everything But the Gun

in Aurora, Colo., and Oak Creek, Wisc., no doubt wish they lived in such a world. The effective detection and prevention of crime should arguably be the highest priority for any criminal legal system. No process or punishment after the fact, however sophisticated or timely, can restore what is lost when individuals are murdered, raped, or otherwise violently assaulted. But precisely how and when to investigate, apprehend and incapacitate a person who has not yet committed a crime raises difficult questions. A society that values free will, personal freedom, and privacy must carefully balance those values against the need for security. Further complicating the analysis is the danger that social prejudices may unfairly determine both who and what is considered suspicious. Both now and in the past, laws ostensibly aimed at crime prevention have disproportionately

targeted marginalized populations, from vagrancy laws that gave police the right to harass the homeless to current “stop and frisk” policies that single out racial minorities. One of the problems with the way criminal profiling is so often carried out is that it subtly codes the appearance and behavior of certain individuals as suspicious even when there is little or no empirical data to link these characteristics to crime. Thus, the worst of these policies not only perpetuate harmful stereotypes and alienate groups that are already disempowered, but also fail to accomplish the goals of effective crime detection and prevention. For example, according to studies conducted in several major cities, police consistently stop and search black individuals at a much higher rate than white individuals, even though blacks are 42 percent less likely than whites to be found with weapons

Profiling, Prevention, and Crime By Mary Anne Franks

n the 2002 film Minority Report, a specialized “pre-crime” unit in Washington D. C. successfully prevents the commission of crimes before they happen with the help of three psychics who possess near-perfect predictive powers. Because of the unit’s efforts, D.C. remains murder-free for six years. While the film is in many ways a cautionary tale regarding the dangers of overzealous crime control, it also presents a compelling fantasy: a world in which horrible crimes can be halted before they occur. The families and friends of the victims who died at the hands of mass shooters

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Stephen K. Urice, Professor of Law, holds a J.D. from Harvard Law School, a Ph.D. in Fine Arts from Harvard University and a Master’s degree in Biblical archaeology. An internationally known lecturer on art, cultural property, and museum law, Urice is co-author of “Law, Ethics and theVisual Arts” (Kluwer, 2007). He served as director of Philadelphia’s Rosenbach Museum and Library and currently serves on the boards of the Wolfsonian-FIU museum in Miami Beach and American Friends of the Arts in Ireland.

Smart Takes and 25 percent less likely to be found with drugs. In the context of airline security, the Transportation Security Administration has been accused of singling out individuals for questioning based on their race or ethnicity even as it is unable to produce any evidence that its Behavior Detection Program has helped apprehend a single would-be terrorist. The obviously harmful effects of discriminatory profiling are not limited to interactions between individuals and state officials. Stop-and-frisks and TSA interrogations are often public spectacles. While the general public observes racial and other minorities being singled out for increased scrutiny, it is generally not privy to the outcome of subsequent interrogations in which the individual might be found innocent of any crime. This reinforces erroneous assumptions about the link between certain groups and crime — assumptions that affect daily interactions among members of the public. This, combined with already-existing prejudices and media exposure, serves to lend baggy clothes, certain religious attire, and even the way a person walks or talks a vague air of criminality. This does not mean that criminal profiling is doomed. The preemption of violent acts is both a legitimate and plausible object of criminal law. No one is likely to argue that a police officer finding large amounts of industrialgrade fertilizer, pamphlets on bombmaking, and the blueprints to a major governmental building in a person’s car trunk should simply “wait to see what happens.” While many of our current proxies for criminal intent are both racist and inaccurate, they need not be. Profiling cannot be an exact science, and the threat it poses to civil liberties should always be kept in mind, but certain indicators of violence do exist and can be usefully consulted. Ironically, it seems that many such indicators are the

very ones that our society is least able or willing to recognize. To put this another way, who and what does not qualify as an appropriate subject for profiling is as significant as who and what is. Of the 60 perpetrators of mass shootings in the United States since 1982, 42 were white men. Many of the killers had committed at least one act of domestic violence prior to the shootings. Their average age at the time of the shootings was 35. A significant number have military backgrounds. Many school and university shooters in both the U.S. and in other countries had expressed anger toward women (especially women perceived as “rejecting” them) and against racial minorities prior to the shootings. Yet “young white male with anger issues” is not considered a suspicious profile. Indeed, such a profile often inspires admiration instead of scrutiny. Other factors that have been linked to acts of large-scale violence, such as racism, sexism, and military experience, do not trigger the kind of suspicion that often attaches to, for instance, being a racial minority or carrying a Koran. And then, of course, there are the guns.

ownership is an ambiguous characteristic, possibly signifying neutral or positive inclinations, or possibly signifying anger issues and a tendency to resolve stressful situations with violence.

ll profiling characteristics share the problem of ambiguity, however. Both formally and informally, the types of characteristics and behaviors that can suggest criminality may also be innocuous or even positive. Gun ownership’s immunity from profiling is curious given society’s general tolerance of what have been proven to be extremely unreliable characteristics for criminal profiling, such as race, clothing or religion. Not only does gun ownership generally get a pass in profiling policies, it has a very visible and influential lobby to promote its unfettered expansion. The same political demographic that characterizes women’s decisions regarding their reproductive health or same-sex couples’ desire to get married as mere “lifestyle choices” that selfish individuals seek to impose upon a disapproving public acknowledges nothing of the risk involved with gun ownership. The same portion of the population that decries un ownership is a particularly the federal government’s intrusion into curious omission from crimi- states’ rights pushes for mandatory state nal profiling practices. It is, af- reciprocity regarding concealed carry ter all, a chosen behavior, as opposed to laws. This is despite the fact that guns more problematic categories of race or not only have the capacity to cause irethnicity. By definition, all perpetrators reparable physical harm, but also have of mass shootings use guns but, signifi- the capacity to instill fear in those who cantly, more than three quarters of the are much more likely to be on the reweapons used by mass shooters in the ceiving than the giving end of such harm. U.S. since 1982 were purchased legally. The gun’s reputation as “the great equalThere is an extremely close link between izer” is undermined by statistics showing, weapons possession and the likelihood for example, that abused women are five of violent crime, given that it is virtu- times as likely to be killed by their abuser ally impossible for a single individual if he owns a firearm and that in nearly to accomplish a mass killing without a two thirds of households containing a weapon. Advocates of gun ownership as- firearm, one partner has threatened to sert that guns can be used to stop crime use it against the other. More than three and protect families, which is true, but times as many men own guns than womguns can also be used to kill large num- en, and almost twice as many whites own bers of innocent people. As such, gun guns as nonwhite individuals. At least in

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Smart Takes some cases, guns merely exacerbate already existing power imbalances, sometimes fatally. It is sobering to consider that we live in a society in which an unarmed black teenager can be shot dead by an adult male and people will talk more about what the teenager was wearing than about the gun his killer kept in his pocket. It is worth asking why we have become so accustomed to scrutinizing the personal choices of some individuals

and defending the personal choices of others. It is worth asking whether these habits prevent us from seeing what is sometimes right in front of us. To create a society that is both free and safe, the value of a personal choice must always be weighed against its potential harmfulness. We must ensure that it is the actual risk to others, not some vague sense of unease or contempt, that determines which choices we protect and which we treat with suspicion.

Mary Anne Franks, an Associate Professor, earned a J.D. from Harvard Law School and a D.Phil and M.Phil from Oxford University, where she studied on a Rhodes Scholarship. A former Bigelow Fellow at the University of Chicago Law School, she teaches and writes in the fields of criminal law and procedure, family law, free speech, and discrimination.

Wrestling with Health Care Law

substantive authority and its relationship with the states. Even close followers of the ACA litigation would be forgiven for thinking that the only thing to be decided was the fate of the Act’s individual mandate provision. In the media and the scholarly legal community, the provision had become synonymous with the ACA. The only other question addressed by most commentators was whether a finding of unconstitutionality would be severable from the remainder of the statute. Nevertheless, the ACA included another significant provision in its pursuit of near-universal health care coverage — the expansion of eligibility for the federal-state Medicaid program. Though the individual mandate was often framed as the last great battle over the meaning of “Our Federalism,” the Medicaid expansion provision directly implicated the states in the plan to ensure health care for all. The Medicaid Expansion provision required states participating in the Medicaid program — all 50 of them — to expand the eligibility for participation in Medicaid to those whose incomes are at or below the 133 percent of the poverty line. The expansion would increase some state’s Medicaid roles by 20 percent. Attorneys-general in 26 states, led by Florida’s, challenged the expansion as unconstitutionally

coercive.The court’s invalidation of parts of the Medicaid Expansion provision was perhaps the biggest surprise of the otherwise unpredictable decision. By invalidating part of the Medicaid Expansion as coercive, the court became the first to hold a federal spending statute unconstitutionally coercive of state governments. The extent to which the court has transformed the nationalstate relationship is unclear.What is clear is that the court’s position is a sharp break from past precedent, and calls into question the national-state relationship in the administration of one of the central pillars of cooperative federalism. What is also clear from the court’s decision — indeed in both the majority and dissenting opinions — is that the court has attempted to give doctrinal shape to the coercion doctrine by following the path of separation and truncation that marks federalism enforcement decisions, primarily those involving the Tenth Amendment. By separation, I mean that the court has declared that the primary mechanism by which federalism will be enforced is through the separation of national from state authority, with a rigorous policing of the contours to ensure boundary maintenance. By truncation, I mean that the court’s policing is only concerned about a single time period — the time of enactment — and a single institutional

Supreme Court Honors States’ Rights By Charlton C. Copeland

he 2011 term of the United States Supreme Court reached a climax on its final day. The drama surrounding the court’s most anticipated ruling since Bush v. Gore was made all the more significant because it involved the signature legislation of a first-term president in the middle of a closely contested reelection campaign. Unlike the court’s decision in Citizens United, which gained fame (or infamy) only after it was decided, the court’s ruling on the Patient Protection and Affordable Care Act (known derisively by its opponents as “Obamacare”) was the culmination of a very public march toward the court that begin only hours after the historic legislation had been signed. The court’s decision on the ACA was so anticipated that Fox News Channel and CNN, scrambling to be first with the news, reported the ruling incorrectly. Whatever the outcome of the case, National Federation of Independent Business v. Sebelius, it would mark a significant day in the Supreme Court’s assessment of the government’s

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Smart Takes player — Congress — in enforcing federalism. The dominant framework of federalism enforcement does not pay sufficient attention to the role that administrative actors play in the practice of federalism.

hat the court would resort to line drawing in the context of the challenge to Medicaid expansion is not surprising, given the coercion claims roots in the Tenth Amendment. Nowhere is line drawing more apparent than in Tenth Amendment jurisprudence. Throughout the history of judicial enforcement of the Tenth Amendment, courts and commentators have understood it as protecting substantive authority at the state level, whether as authority over particular subject matters or over particular state institutions. Though federalism enforcement has, for the most part, evolved from the protection of specific “traditional” state functions, the “federalism revolution” of the Rehnquist era saw the court resorting to the “economic” v. “non-economic” distinction in constraining federal authority in the context of the Commerce Clause. In the Tenth Amendment context, the court has sought to separate and protect state legislative and executive authority from federal “commandeering.” In the Spending Clause context, the federal courts have sought to maintain the separation of state and federal sovereignty by framing the national-state interaction as contractual. Underlying the contract metaphor is the requirement that a state, as party to a contract, have made the choice to enter into a contractual agreement with the national government with complete voluntariness. This framework has allowed the court to require that states be given “clear notice” of the conditions imposed upon their receipt of federal funds, as the free exercise of choice requires the states’ having been informed of the contractual relationship

at the time of the commencement. What anyone who has read the court’s opinion or heard the arguments of the states or the national government will realize is that this played a central role in the arguments aimed at the court. In fact, of the factors articulated in the court’s most famous spending-clause decision prior to the health care litigation — South Dakota v. Dole — the clear notice factor has been the most instrumental in framing challenges to the national government’s exercise of authority under the Spending Clause. The voluntary choice framework played a crucial role in the court’s analysis of the states’ claim that the ACA’s Medicaid expansion provision was unconstitutionally coercive. That conclusion was reached by Chief Justice Roberts, writing for a “gang of three” but largely representing the views of the four conservative justices, in his assessment of the provision’s delegation to the Secretary of Health and Human Services the discretion to withhold all Medicaid funds from states that opted not to expand their Medicaid eligibility. Where the “gang of three” differed from the “gang of four” was on the question of whether this infirmity should doom the entire provision; Chief Justice Roberts, joined by four other justices, concluded that it should not. What is important for our purposes is the foundation on which the finding of coercion stands. The Chief Justice concluded that the ACA amounted to a “bridge too far” from the original Medicaid contract, and amounted to a new contract. As a result, the legislative reservation regarding changes to Medicaid should not be read as having provided sufficient notice to the state governments. Here, the court pays no attention to the fact that expansions in Medicaid eligibility had often been “negotiated” at the initiative of state governments through the waiver process that takes place between the states and the Department of Health

and Human Services — specifically, the Centers for Medicare and Medicaid Services. Writing for herself and Justice Sotomayor, Justice Ginsburg relied on the congressional reservation of the authority to make changes to Medicaid as the basis for concluding that the Medicaid Expansion provision was simply the latest in a long line of mandated expansions to eligibility for which the states were on notice. Justice Ginsburg’s conclusion suffers from a similar temporal and institutional truncation, as does the Chief Justice’s resolution. Here, she appears to take 1965 as the only date that matters. There is no attention paid to the investments that state governments have made in building up the institutional infrastructure to deliver services to their citizens throughout this period. Again, the conclusion fails to take into account the significant national-state interactions that take place at the bureaucratic level.

oth Chief Justice Roberts and Justice Ginsburg work within a contractual metaphor that elevates the initiation of the contract — notice — as against the evolution of the contractual agreement. This reinforces “freedom” and “disentanglement,” along with separation, as the central governing principles for the exercise of sovereignty. As anyone familiar with Medicaid, the Clean Air Act, or No Child Left Behind would declare, defining a state government’s sovereignty as merely the absence of entanglement is simply a fiction. The majority’s declaration that the ACA represents such a fundamental transformation of the Medicaid contract that it is a new contract is the analytical equivalent of snake oil. Though it appears sensitive to the problem that long-term entanglements raise, its framework fails to take such entanglements seriously in its theatrical deus ex machina resolution of this dispute. In a term during which the court

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Smart Takes decided Douglas v. Independent Living Centers, in which the state emphasized national-state bureaucratic interaction in the Medicaid program, one might have thought that it would have had some impact on the way the court envisioned the challenge to the Medicaid expansion. Though there is legitimate concern about the institutional competence of the federal judiciary in federalism enforcement, such concerns should not undermine the responsibility to take the world, as it exists, seriously. The court’s failure to articulate a framework that

equates sovereignty with “freedom,” and that fails to take state and national administrative interaction seriously, is a form of federalism enforcement that distorts the real nature of contemporary federalism. For this reason, attempts to protect the state governments will always be seen as pitched battles that must constrain congressional authority, as though nothing else matters. Reading federalism jurisprudence, including National Federation, leaves one with the conclusion that this is not far off the mark.

Charlton Copeland, an Associate Professor, has a Master of Arts degree in Religion fromYale Divinity School and a J.D. fromYale Law School. His fields of expertise are federal courts and federalism, comparative constitution law, and race and the law.The above is excerpted from an article on the Medicaid expansion provision and American federalism enforcement to be published by the University of Pennsylvania Journal of Constitutional Law.

The Legal Perils of Social Media

But defense counsel then compels discovery of the closed Facebook account. The widower reactivates his page and deletes sixteen photos, an act of which the trial court in Charlottesville, Va., is later made aware. Although the widower and his attorney ultimately win the wrongful death case and receive a $4.4 million verdict, they are ordered to pay $722,000 in sanctions to the defendants’ lawyers because of the extra work incurred by their “deceptive response” in the Facebook matter, as well as other misconduct. The judge also alerts the Virginia Bar to the defense lawyer’s conduct and refers the widower’s duplicity about his Facebook account to the state attorney’s office. Without social media, would the attorney and his client have simply enjoyed a successful result in what appeared to be a relatively straightforward wrongful death case? It is difficult to know, but one insight emerges from the case: Because social media outlets like Facebook have become ubiquitous, lawyers need to be acutely aware of their potential ethical pitfalls. Technology is evolving so rapidly that state bar associations and courts are continually being confronted with new situations upon which to rule.

Ethics opinions have begun to emerge to provide some guidelines as to the use of social media in the practice of law. Some of the main issues to consider involve client confidentiality, interaction with witnesses and judges, and advertising constraints. Client confidentiality is sacrosanct in the attorney-client relationship, as all law students are well aware. Any information learned in the course of representation is confidential unless it falls under one of the limited exceptions to the rule. But compliance with the confidentiality mandate proved problematic for a public defender in Illinois who referred to her clients on her blog by prison number or on a first-name basis. She lost her job and was disciplined by both the Illinois and Wisconsin Bars. The attorney learned the hard way that regardless of whether her work life blended into her personal life, client confidentiality must not be sacrificed. Just as some attorneys take risks by revealing client information on social media, clients also may compromise their cases by posting information about themselves on social media. Indeed, attorneys report that Facebook often contains treasure troves of evidence. At the same time, attorneys can gain insight about jurors from viewing

Avoiding Landmines in Cyberspace By Jan L. Jacobowitz

n a tragic accident, a cement truck destroys the car of a young married couple. The woman dies, her husband survives. A lawsuit ensues, and takes a surprising turn when counsel for the truck driver sends the husband’s attorney a picture of the supposedly bereaved widower, taken shortly after his wife’s death and posted on Facebook, clutching a beer at a social gathering and wearing a T-shirt with the legend “I love hot moms.” The man’s astonished attorney instructs his paralegal to have the client “clean up” his Facebook page because “we don’t want blowups of this stuff at trial” — a comment revealed later in an e-mail stream. The widower closes his Facebook account. Responding in writing to a request from the defense, he asserts that he does not have a Facebook page “on the day this is signed,” without denying or confirming that an account had existed previously.

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Smart Takes their Facebook pages. Guidelines for using social media in these instances are governed primarily by individual Facebook users’ privacy settings. Ethics opinions to date generally indicate that if an individual’s information is on a public page, then the page is fair game to be viewed and used by anyone. The slope becomes slippery when a page is available only to “friends” of the person whose information is being sought. Generally, the ethics rules allow neither an attorney nor someone on the attorney’s behalf to use misrepresentation or pretense to gain information. Consistent with the rules, ethics opinions have held that an attorney is prohibited from sending a “friend request” to a witness without identifying himself accurately and explaining his reason for contacting the person. In any case, under wellestablished ethics rules, an attorney is not allowed to contact an opposing party who is represented by counsel. Thus, an attorney may not send a friend request to a represented opposing party, regardless of whether the attorney has identified himself. Similarly, because ethics rules prohibit attorneys from contacting jurors, attorneys may not ask jurors to be friends on social media sites. Also under scrutiny is the interaction of judges with social media

sites. Several state Bars have opined that judges may be online friends with lawyers as long as they do not discuss cases that are both pending before the judge and in which the “friending” lawyer is a participant. Other states, notably Florida, have concluded that judges should not be Facebook friends with any lawyer who may appear before that judge. Meanwhile, blogging about judges has spurred disciplinary action against an attorney in at least one notable case in Florida. The attorney had protested that courtroom procedures were violating the defendant’s speedy trial rights, but was reprimanded for impugning the integrity of the presiding judge after referring to her as “an evil unfair witch” who was “clearly unfit for her position” and “seemingly mentally ill.” Blogging may cause additional problems for attorneys. Without an appropriate disclaimer on one’s blog, which would indicate that an attorney is merely providing information and not case-specific legal advice, an attorney may find herself inadvertently in an attorney-client relationship by responding to questions and comments from readers.An attorney’s blog may also prove to be impermissible advertising if it runs afoul of a state bar’s advertising regulations, as was the case of a Virginia

attorney’s blog. In Florida, moreover, the bar has issued guidelines to the effect that social-media pages that advertise an attorney’s services are subject to the bar’s advertising regulations. Whether an attorney is marketing his or her services or actually litigating a case, social media is becoming a regular part of the legal landscape. Awareness of both the advantages and ethical challenges of incorporating social media into the practice of law has arguably become a requirement for the competent and diligent lawyer. One might ponder whether a failure to use social media ethically might one day provide the basis for a claim of malpractice or ineffective assistance of counsel. The technological tea leaves suggest that we are headed that way.

Immigration Law’s Forgotten Past

Arizona, Georgia, Indiana, South Carolina and Utah have been allowed to detain people suspected of being there in violation of immigration law. In response, immigrant advocacy groups argued that such practices inevitably prompt racial profiling of Latinos, farmers have seen a flight of Mexican laborers, and the Obama administration resorted to suing the state of Arizona, claiming that its laws encroach upon federal authority over immigration. In June, the U.S. Supreme Court struck down key parts of the Arizona

law but let stand a provision that permits police officers to check a person’s immigration status while enforcing other laws. Significantly, the court’s 5-3 ruling upheld the federal government’s authority to set immigration laws and policy. We are so accustomed to thinking of immigration as a federal matter that important aspects of immigration history in the United States have been obscured. If it seems that states such as Arizona have trampled upon an exclusive federal

When States Had Power By Kunal M. Parker

ndocumented aliens have been in the crosshairs of legislation in recent years. Law enforcement officials in states such as Alabama,

Jan L. Jacobowitz is a Lecturer in Law and the Director of the Professional Responsibility and Ethics Program, and a 2012 Smythe E. Gambrell Award recipient. Jacobowitz co-developed and teaches Mindful Ethics: Professional Responsibility for Lawyers in the Digital Age. She received her J.D. from George Washington University. Jacobowitz practiced law for 20 years, including a stint as Nazi hunter at the Department of Justice.

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Smart Takes power, the long span of immigration restriction in the United States tells a different story. It illustrates the darker history of constraints imposed by states on foreigners, one that many might find unpalatable. At the time of the founding, the federal government was given the power to naturalize immigrants, but the regulation of outsiders’ entry into and presence within the territory remained in the hands of the states. Compared with the gargantuan federal immigration bureaucracy of today, immigration bureaucracies in the Early Republic and Jacksonian America were puny affairs that emerged from colonial-era restrictions on the movement of the poor, and which sought to restrict the influx and presence of paupers, whether citizens or aliens. Over time, as immigrant pauperism increased and nativist sentiment grew, states increasingly focused their prohibitions on paupers who had arrived from other countries.

n the 1830s, state immigration regimes increasingly came under constitutional attack from shipping companies. The constitutional question was whether state-level immigration restriction was part of the traditional police powers of the states to legislate in matters of health, welfare and safety or whether it was an infringement upon the Congress’ power under the Constitution “to regulate Commerce with Foreign Nations.” Even as the U.S. Supreme Court began to frown upon state immigration restrictions, particularly as immigrant-receiving states such as Massachusetts and New York began to charge head taxes, it hesitated to declare state regimes unconstitutional. The reason was clear: the insistence of the slave states on restricting free blacks’ access to their territories. Restrictions on the movement of free blacks were widespread in the antebellum United States. Long before

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the U.S. Supreme Court ruled in the 1857 Dred Scott case that blacks could not be citizens of the United States, free blacks’ citizenship status had been a matter of vigorous debate (centered only on free blacks; it was clear to all that slaves were not citizens). In no state were free blacks citizens on equal terms with whites. Though born in the United States, their status was ambiguous, suspended somewhere between citizen and alien. When it came to rights of movement across the country, free blacks faced borders at every turn, much as aliens face at international borders today. If free blacks moved into states in violation of state law, they became akin to what we know as illegal immigrants. The U.S. Supreme Court repeatedly endorsed states’ attempts to exclude and remove native-born free blacks on the ground that regulating undesirables’ access to territory was fully part of states’ traditional police power. In Moore v. Illinois (1853), Justice Grier said: “In the exercise of this power, which has been denominated the police power, a State has a right to make it a penal offence to introduce paupers, criminals or fugitive slaves, within their borders . . . Some of the States, coterminous with those who tolerate slavery, have found it necessary to protect themselves against the influx either of liberated or fugitive slaves, and to repel from their soil a population likely to become burdensome and injurious, either as paupers or criminals.” In the North, restrictions on free blacks’ entry and residence were common even in states that saw themselves as bastions of anti-slavery sentiment. States sought to force blacks seeking residence to give sureties that they would not become public charges. In some instances, blacks were barred from moving into a state at all. Fears were especially acute in border states.

Senator Stephen A. Douglas defended the Illinois statute restricting the entry of free blacks on the ground that his state was unwilling to become “an asylum for all the old and decrepit and broken-down negroes that may emigrate or be sent to it.” Indiana indicated its unwillingness to become “the Liberia of the South.”

he paranoia about the influx and presence of free blacks was, of course, much greater in the slave states, where free blacks’ presence was thought to belie the increasingly strident racial justifications for slavery and to increase the possibility of slave revolts. Between 1820 and 1860, the free black population of the South, concentrated in the Upper South, doubled, reaching about 260,000. As the ideological struggle over slavery intensified, the situation of free blacks worsened: They had to produce registration papers, passes, certificates of freedom, evidence of a white “guardian” and proof of support at all times. Slave-state legislation usually barred the entry and residence of out-of-state free blacks. Over time, states extended such prohibition to their own free black residents who sought to return after traveling outside the state. Individual cities placed barriers on the entry of blacks from other parts of the same state. For example, in 1839, the city of Savannah passed an ordinance requiring any free person of color entering the city from any part of Georgia to pay a sum of one hundred dollars on pain of arrest and confinement until such sum was paid. Shortly before the Civil War, several slave states considered forcing their free black populations to choose between enslavement and expulsion, and Arkansas actually passed such legislation. Slave states’ insistence on regulating free blacks’ access to their territories played a critical role in arresting the emergence of a federal immigration order. Even as the U.S. Supreme Court struck down New York’s and

Smart Takes Massachusetts’ taxes on incoming immigrants in the Passenger Cases (1849), the justices were acutely aware of how any decision scaling back states’ rights to control access to their own territories would be read by an evervigilant and increasingly paranoid South. They were thus careful to signal that they were not interfering with the basic police powers of the states to regulate undesirables’ access to their territories. The federal government, they said, did not possess the authority to regulate the immigration of undesirables. Justice Wayne put it thus: “I have said the States have the right to turn off paupers, vagabonds and fugitives from justice and the States where slaves are have a constitutional right to exclude all such as are, from a common ancestry and country, of the same class of men. And when Congress shall legislate … to make paupers, vagabonds, suspected persons, and fugitives from justice subjects of admission into the United States, I do not doubt it will be found and declared that such persons are not within the regulating power which the United States have over commerce.” It is no accident, then, that a federal immigration order emerged only in the 1870s, after a bloody war had laid the slavery issue to rest and quelled the insistence of slave states on regulating free blacks’ access to their territories. Only once citizenship and rights of movement had been extended to nativeborn African-Americans did it become possible for a federal immigration order, its gaze focused outward on immigrants from other countries, to come into being. Slavery thus kept immigration restriction at the state level, even as its demise enabled the emergence of a federal immigration order. The conclusions that one might draw from this relatively little-known fragment of American immigration and citizenship history are, of course,

manifold. On the one hand, it is clear that state immigration regimes are not the anomaly that many Americans today take them to be. They were an integral part of immigration regulation for the first century since the American Revolution. Indeed, until after the Civil War, there was no federal immigration restriction worth the name. On the other hand, state immigration regimes are undeniably tainted by their associations with slavery, the designation of blacks as a species of internal foreigner, and with the undesirability of internal borders and restrictions that only some groups — but not all — have to face as they go about their everyday lives. As America confronts once again the problem of illegal immigrants, we need to think seriously about whether and how we wish to deal with the claims of millions who form an integral part of our communities but whose presence is unauthorized. Do we want to fragment our national space into

a host of different territories, each treating aliens more or less differently? How do we want to address the concerns of states such as Arizona, which claim to be disproportionately burdened by unauthorized immigration? Principled answers to these questions — regardless of election-year politics — are not easy to come by. Kunal M. Parker is a Professor and Dean’s Distinguished Scholar, with a Ph.D in History from Princeton University and a J.D. from Harvard. His first book was “Common Law, History, and Democracy in America, 1790 1900: Legal Thought Before Modernism” (Cambridge University Press, 2011). He is in the process of writing “Immigrants and other Foreigners: A History of American Citizenship and Immigration Law, 16002000.”

“Slaves,” by Thomas Hart Benton, 1924-7. Terra Foundation for American Art, Chicago/Art Resource, NYArt © T.H. Bentonand R.P. Benton Testamentary Trusts/UMB Bank Trustees/Licensed by VAGA, New York, NY

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ROBOTS AT WAR

As Humans Take Back Seat in Combat, Who is to Blame When Machines Kill? By Nick Madigan

Photo by Jenny Abreu for Miami Law Magazine 16 MIAMILAW magazine

rom 25,000 feet in the air, an unmanned MQ-1 Predator drone operated by the Central Intelligence Agency draws a bead on an identified al-Qaeda leader standing with a group of people in a ramshackle village in the mountains of northwest Pakistan. At the touch of a button — pressed by a “pilot” sitting at a control panel more than 6,000 miles away at CIA headquarters in Langley, Va. — a Hellfire missile bursts from the drone and streaks toward the ground, pulverizing the terrorist and everyone around him, including, more than likely, at least a few civilians. The scenario has been repeated hundreds of times in recent years as the United States and its allies press their war on terrorism with an increasingly sophisticated array of weapons, the most effective of which — robotic aircraft like Predator and Reaper drones — enable their human overseers to remain far from the battlefield and its attendant dangers while machines do the work of killing. Continued on next page

At We Robots: Front center, Kate Darling, MIT Media Lab; seated in second row, from left, Kristen Thomasen, University of Ottawa; A. Michael Froomkin, Miami Law; M. Ryan Calo, University of Washington; Markus Wagner, Miami Law; and Richard M. O’Meara, Rutgers University; standing at rear, Lisa Shay, U.S. Military Academy, West Point; Mary Anne Franks, Miami Law; Amir R. Rahmani, University of Miami College of Engineering; and Ian Kerr, University of Ottawa. WINTER 2013

But does sending machines to do the work of soldiers and airmen make war easier to wage, and thus more likely? Does the logistical distance from a scene of carnage lessen any feeling of responsibility for causing it? And, once it is possible to deploy robotic weapons that make decisions for themselves — something that’s bound to happen sooner or later — who will bear the ultimate liability if the robots commit acts of genocide and other crimes of war? Such were the questions pondered at We Robot, a conference at Miami Law in April that addressed the emerging legal and policy issues raised by robots and their uses, not only in military settings but in the home, hospitals, businesses and public spaces. The conference was the idea of Miami Law Professor A. Michael Froomkin, who said the challenge was to “start a conversation now between people who make the robots and those who make the rules.” He called the conference a “very preliminary” discussion but a “big step toward the creation of an interdisciplinary community, perhaps even an academic field.” Miami Law Dean Patricia D. White agreed. In a speech to board members of the Law Alumni Association, she said robotics and their ethical implications represent “a whole new career for lawyers.” The conference — its name inspired by Isaac Asimov’s 1950 book, “I, Robot” — gathered experts on the front lines of robot theory, design and development and those who influence the legal and social structures in which robots operate. “Robotics is like the genie in the bottle,” said Brigadier General Richard M. O’Meara, a professor of International Law in the Division of Global and Homeland Security Affairs at Rutgers University. He predicted that autonomous robots will soon “be

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able to pull the trigger” without input or intervention from humans, and that there will be a “temptation to stretch the rules of war just because robotics enable us to do it.” But robots have “multiple benefits,” Gen. O’Meara wrote in a paper he presented at the conference. “For one thing, they permit militaries to operate with fewer soldiers. As manpower pools for military recruitment shrink, it is expedient to substitute machines for soldiers in order to maintain military advantage. Second, robots are politically convenient. The 21st century, especially in liberal democracies like the United States, exhibits a distaste for large standing armies and casualties. Robots, like private contractors, are not counted in national casualty reports, nor are their wounds the subject of debate or scrutiny. Third, robots cost a good deal less than human combatants.”

Robots are not burdened by human frailty, and cost less. Furthermore, the general went on, robots “don’t carry with them the baggage of human frailty.” He quoted a member of the Pentagon’s Joint Forces Command as saying that robots not only don’t get hungry, but “they’re not afraid; they don’t forget their orders; they don’t care if the guy next to them has just been shot. Will they do a better job than humans? Yes.” Already, unmanned systems and machines are in high demand by combatant commanders for their “versatility and persistence,” Gen. O’Meara reported. He wrote in his paper that by performing tasks such as surveillance, signals intelligence, precision target designation, mine detection, and chemical, biological,

radiological and nuclear reconnaissance, “unmanned systems have made key contributions to the global war on terror.” Since October 2008, he said, unmanned aircraft have flown approximately 500,000 flight hours in Iraq and Afghanistan, while robotic bomb detectors have found at least 15,000 so-called improvised explosive devices. In addition, remote-controlled vessels clear mines and provide security to ports and ships. In 2010, more than 6,000 military robots were sold around the world, in addition to almost 140,000 industrial robots and 2.2 million service and domestic robots, according to statistics quoted at the We Robot conference. “As robotics gets more and more sophisticated, they will take up potentially lethal but non-combat operations like patrolling camp perimeters or no-fly areas, and open fire only when ‘provoked,’” Gen. O’Meara wrote. “The final stage will be when robotic weapons are an integral part of the battlefield, just like ‘normal’ humancontrolled machines are today, and make autonomous or near-autonomous decisions.” But the field of military robotics has grown so fast that there has been little time in which to “consider the legal, ethical, and moral appropriateness” of their use. He suggested “creating new international treaties and practices, amending old ones, and forging new ethics for the use of new weapons.” Others at the conference supported that view. “There’s no chance of banning autonomous weapons systems, but let’s at least talk about the rules,” said Markus Wagner, an Associate Professor at Miami Law who studies the use of technology in armed conflicts. In a paper that he presented at the conference, he said care should be taken “to ensure, with a reasonable degree of certainty, compliance with international legal rules applicable in armed conflict.”

In a discussion about his paper, Professor Wagner said humans make the wrong decision 10 percent of the time, “so if robots are better, the argument goes, then we should use robots.” When political and military leaders consider whether to wage war, or how to wage it, he said, the decision is easier “when no one dies anymore.” On occasion, the fact that it is “easier” to pull the trigger if the target is far away can lead to terrible errors. Professor Wagner cited the downing of a civilian Iran Air flight by missiles from the U.S.S. Vincennes in 1988, based solely on relayed information that it was a hostile craft. All 209 people aboard were killed. Nevertheless, he went on, the increasing use of technologically remote warfare “creates a psychological distance” that is crucial to the Pentagon’s effort to “train out the element of hesitation” inherent in human decision-making. “As distance increases, it becomes psychologically easier to commit an act which an individual would not otherwise be willing to do,” Professor Wagner wrote in his paper, referring as an example to the firebombing of European cities during World War II. “Humans have a reluctance to kill one another, and the physical as well as psychological distance that long-range weapon systems have brought about, combined with the technological nature of today’s combat operations, where the direct impact of an individual’s action is increasingly less visible, has circumvented this innate reluctance.” But relying on autonomous systems, he went on, can create a perception that there is little or no risk for those who no longer have to order troops to fight. “It has the potential of lowering the costs for political decision-makers to engage in armed conflict, given that the political calculus would not have to take into account the number of fallen soldiers,” Professor Wagner wrote.

Not only that, but if remotely operated robots cannot be held responsible for war crimes, there will be “strong incentives” for states to use such weapons in battle, said Oren Gross, Director of the Institute for International Legal and Security Studies at the University of Minnesota Law School. But it may not be so easy to avoid liability for criminal acts even if the weapons are “truly independent,” Professor Gross said in the paper he presented at the We Robots conference. Someone, somewhere, will still have ultimate power over how the robots are used, and “degrees of control will be relevant to determination of criminal liability.” However, if programmed correctly, robotic weapons are far less likely to violate laws than any human being, Professor Gross went on, because the machine would be capable of “assessing the relevant facts with greater speed and accuracy, and is unlikely to be moved by negative emotions such as fear, panic or hatred.” That point was seconded by Dr. Ian Kerr, Canada Research Chair in Ethics, Law and Technology at the University of Ottawa Faculty of Law. In a paper he presented with Katie Szilagyi, a law student at Ottawa who majored in biosystems engineering at the University

of Manitoba, Professor Kerr said socalled robo-soldiers “will outperform human soldiers physically, emotionally and ethically.” “Robots are not vulnerable to the perils that plague humans on the battlefield: exhaustion, elevated emotions, or the need to seek retribution for the death of a comrade,” Professor Kerr and Szilagyi wrote. They added that “advanced sensory capabilities” will permit robots to cut through the fog of war, reducing confusion, friendly fire incidents and other “erroneous responses.” “With Asimovian aspiration,” they wrote, “we are able to program robosoldiers to be fundamentally decent. This, we are told, will reinforce and enhance international humanitarianism and reduce injustice in armed conflict.” Not everyone at the conference was convinced. AJung Moon, a Ph.D candidate in mechanical engineering at the University of British Columbia, who co-wrote a paper on “open roboethics,” said she found it hard “to implement the ideas of ethics into the design of robots.” Not only that, but Moon admitted being unnerved by the notion of robots “that could automatically fire and hurt people.” She told conference attendees that when she heard that South Korea employs sentry robots along its border with North Korea, “it gave me a sense of unease — it kind of scared me.”

Photo by Catharine Skipp, Miami Law Magazine

Amir R. Rahmani, Assistant Professor of Mechanical and Aerospace Engineering at the University of Miami, displays an ArduCopter, a micro aerial vehicle that uses GPS navigation and has lift capacity for a small payload.

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Accomplishment

Students We’re Keeping Our Eyes On

Margarita Tarkalanova, Donnell Wright, Brittany Young, Kevin Cobb, and Karen Chrisman in The Hague.

International Moot Court Completes Terrific Year

hirty-two students in Miami Law’s International Moot Court Program argued hypothetical cases in eight competitions around the world, in places such as Germany, the Netherlands, South Africa and Spain. The cases involved such matters as bribery in international commercial arbitration, state sovereignty, and immunity in civil claims for human rights violations. The students also addressed human trafficking over online dating websites, religious practices, gender discrimination, human rights, indigenous rights, and ethics in international commercial arbitration. In the fourth annual Moot Madrid competition, four students advanced to the semifinals. One of them, Estefania Nasielski, was named best oralist. The international commercial arbitration competition in Madrid is similar to the Willem C. Vis International Commercial Arbitration Moot but the case, memorials, and oral arguments are all presented in Spanish. Many students credit the moot court program for their success at Miami Law. “Through participating in the training, I not only improved my oral advocacy in a tremendous way, but also boosted my confidence greatly as an international student,” said Lin Zhou, a chinese student who graduated in May. “It was such an amazing experience, and the highlight of my life in law school.”

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TRICIA ANN ROBINSON was a law clerk this summer at the Pentagon, in the U.S. Navy’s Office of the General Counsel. She twice participated in the Clinton Global Initiative University and was a HOPE Fellow at the Legal Assistance Centre in Namibia. Robinson has a Bachelor of Science degree in Zoology from Ohio State University, a Master’s in Public Administration and Finance from the Keller Graduate School of Management, and is on the staff of the Marine Mammal Conservancy in Key Largo. Robinson is the Symposium Editor for the National Security and Armed Conflict Law Review, President of the Environmental Law Society, a member of the Public Interest Leadership Board, and a Miami Scholar. She will compete in the Inter-American Sustainable Development Law Moot Court competition in Bogotá, Colombia. SAM WARDLE, from Wilmore, Ky., took the long road to law school. He graduated with highest honors in journalism from the University of North Carolina at Chapel Hill, and spent seven years as a reporter and editor, covering everything from high school sports to congressional elections. He also taught English as a second language in China, and worked as a wilderness instructor in Canada. Wardle is a Dean’s Fellow and a Soia Mentschikoff Scholar, is on the executive board of the University of Miami Law Review, and is a research assistant to Dean White. Wardle, a third year student, is also two-time winner of the Bruce J. Winick Award, given to students who finish an academic year in the top 1 percent of their class. Wardle currently works part-time at Kozyak Tropin & Throckmorton. He worked as a 2012 summer associate at Morgan, Lewis & Bockius, and was a 2011 summer law clerk for the Miami-Dade County Attorney. CATHERINE KAIMAN is Editor-in-Chief of the Race and Social Justice Law Review, and is pursuing a joint J.D./Master of Public Health degree. She has interned in Miami Law’s Children and Youth Law Clinic and is President and co-founder of the University of Miami Chapter of Law Students for Reproductive Justice. Kaiman served as research assistant to Christina Zampas, practioner-in-residence at Miami Law’s Human Rights Clinic. She worked in the Summer Public Interest Fellowship in the Center for Ethics and Public Service, interning at Legal Services of Greater Miami. Last summer, Kaiman also worked for the Southern Poverty Law Center. ARIC WILLIAMS, a 23-year-old native of Livermore, Calif., has a double degree in sociology and political economy from the University of California, Berkeley. At Miami Law, he is pursuing a joint J.D./M.B.A. degree. Williams was a summer intern at Podhurst Orseck and mentors youths for the nonprofit organization Drug Free Youth In Town in Miami. “I strongly believe that having a positive figure in one’s life, encouraging them in the right direction, is monumental,” Williams said. “I know, from my own personal experiences, the impact proper guidance can bring.”

Accomplishment

Over the past two summers, Miami native STEPHANIE SILK has served as an intern for Judge Robin S. Rosenbaum of the U.S. District Court for the Southern District of Florida and as a summer associate in White & Case’s Miami office. She is currently an Executive Editor of the University of Miami Law Review and is working with first-year students as a Dean’s Fellow for Professor Anthony V. Alfieri. She has participated in Miami Law’s Death Penalty Clinic and volunteered with Books & Buddies, which connects law students with elementary school students. Silk is also a member of Phi Delta Phi and Miami Law Women. A Duke University graduate, she majored in political science and French. When CHRISTINE JOB first walked onto the Bricks in 2010, she never imagined that she would one day serve as president of Miami Law’s Student Bar Association, but that’s just what happened last April. A native of Suwanee, Ga., Job earned a business degree from the University of Georgia before coming to the University of Miami to pursue a J.D./M.M., a joint degree in law and music business. Job, a James Weldon Johnson/Robert H. Waters Fellow, served as a first-year senator and became president of the SBA’s Inter-Club Council. Now, as President of the SBA, she wants to strengthen the bonds between students and alumni and cultivate “a culture of leadership and service within the Miami Law community.” Job said students sometimes forget that the law is, above all, a service-based profession. “It’s great that we are nationally known for our public interest programs, and now we have to maximize that image,” she said. “We have a lot to give.” MICHAEL J. GROSS has a B.A. in History from UM and is a Dean’s Merit Scholar at Miami Law. A student ambassador, his interests are litigation, sports entertainment, and public interest law. He has interned for Judge Jorge E. Cueto in the Eleventh Judicial Circuit of Florida and in the Homicide Counseling Unit at the Miami-Dade State Attorney’s Office. Gross is President of Students with Heart Foundation, providing scholarships to graduate and undergraduate students with heart disease. Gross created the organization after his own struggles navigating the hurdles of higher education while dealing with his heart condition. He is a member of HOPE Public Interest Resource Center.

L. CHRISTOPHER SAUNDERS interned for federal Judge Donald L. Graham in the Southern District of Florida, and worked for both the University of Miami’s Office of the General Counsel and the Hallandale Beach City Attorney. Saunders has a Master’s in Administration of Higher Education Administration from Suffolk University. At Miami Law, he has served as Community Relations Director of the Black Law Students Association and Articles Editor of the Race & Social Justice Law Review, and is a fellow for STREET LAW. CAROLINE LAPORTE’s family belongs to the Seven Original Clans (Makwa, or Bear Clan) of the Little River Band of Ottawa Indians. After attending Baylor University in Texas, LaPorte became a Miami Teaching Fellow in Little Haiti and Liberty City. She came to Miami Law because of its unique position near the Seminole and Miccosukee Reservations and the school’s commitment to cultural diversity and pro bono work. LaPorte interned last summer at the U.S. Department of Justice, in the Office of Tribal Justice. This fall at the law school, she worked with the Children and Youth Law Clinic, and hopes to start a chapter of the National Native American Law Students. LOGAN HAINE-ROBERTS, a political science major from St. Mary’s College of Maryland, taught literacy to children in Washington D.C. before moving to Japan, where he became an integral part of a remote mountain village for two years. Returning to the U.S., Haine-Roberts worked as a paralegal at Jackson & Campbell, a 50-attorney firm in Washington D.C. As a law student, he is committed to exploring domestic and international access to justice. Last summer, Haine-Roberts was an intern for Magistrate Judge Alan Kay in the U.S. District Court for the District of Columbia, where he prepared memoranda for the judge and his clerks on criminal cases, administrative appeals and other matters.

WINTER 2013

Momentum2 Campaign Leadership

University of Miami Kicks off $1.6 Billion Fundraising Campaign

he University of Miami has launched its second major fundraising campaign in a decade. Momentum2 will raise a towering $1.6 billion by Dec. 31, 2016, transforming the institution with new buildings, scholarships and a fresh group of talented and ambitious researchers and scholars. The fundraising goal for Miami Law is $25 million. To date, the law school has raised in excess of $12 million. Momentum2 will enable the School of Law to provide scholarships for outstanding students, support brilliant faculty, develop innovative strategies for global legal education, and fund community-based clinics. An infusion of financial resources will also help to develop initiatives that foster entrepreneurial skills and collaborative programs that focus on specialized fields and make full use of new technologies. The law school seeks funds to provide substantial support for its novel Legal Corps postgraduate fellowship program, which makes stipends available to recent graduates who take unpaid posts in the government or in nonprofit sectors. In addition, there will be many naming opportunities. For details, please call the Office of the Dean at 305.284.2394. The Campaign Committee is comprised of distinguished alumni, faculty and friends from around the country, and is chaired by UM Trustee Wayne Chaplin, J.D. ’82. Carolyn Lamm, J.D. ’73, of White and Case, and Larry J. Hoffman, J.D. ’54, of Greenberg Traurig, serve as Vice Chairs.

MIAMILAW magazine

Wayne Chaplin Spirit of Giving

o help offset the rising costs of legal education, Wayne Chaplin, J.D. ’82, has made a generous contribution to Miami Law to create the Chaplin Challenge. Under the terms of the grant, Chaplin has agreed to match, dollar for dollar, each new eligible contribution made to new or existing scholarship funds. Each new gift of between $100 and $50,000 will be matched, as long as matching funds are available. Chaplin is president and chief operating officer of Southern Wine & Spirits of America. He also serves as president of the SWS Charitable Foundation, Inc., and director of the Wayne & Arlene Chaplin Family Foundation. After graduating magna cum laude from the University of Miami with a Bachelor’s degree in Business Administration, Chaplin received a degree from Miami Law. Beyond his day-to-day corporate management responsibilities, Chaplin is active, along with his father, Harvey Chaplin, in overseeing the wide range of national, state and local charitable causes the company supports and underwrites, from education and humanitarian relief activities to corporate social responsibility initiatives. “Since our founding in 1968, Southern Wine & Spirits of America has taken a progressive, active and constructive role in community, state and national affairs,” Chaplin said. “These are fundamental values of the company. At Southern, we want to give back, and we strive every day to be responsible members of the

communities in which we live.” Chaplin volunteers in various leadership activities at the University of Miami. He serves as Chairman of the Momentum2 Law School Campaign, Vice Chair of the University’s Board of Trustees, and as Chair of Miami Law’s Visiting Committee. Chaplin also serves as Chairman and member of the Executive Committee at the Mount Sinai Hospital of Miami Beach, and is on the Board of Trustees at Miami Country Day School. His son, David, is a third-year student at Miami Law.

Carolyn Lamm Mastering the Craft of Lawyering

ince graduating from Miami Law in 1973, Carolyn Lamm has mastered the craft of lawyering — a delicate balance between making your mark and making the right connections. “All throughout my career, from the very beginning, people have opened doors,” Lamm said from the Washington, D.C. office of White & Case LLP, a firm she’s practiced at since 1980. Opportunity, however, is just half of the story. “You have to have a way to meet people and demonstrate what you can do,” she said. This sort of active engagement was integral to every step of her success. Lamm has become widely recognized as one of the world’s leading experts in international commercial litigation, arbitration, and trade. The former President of the American Bar Association, Lamm was named among the nation’s 50 most influential women and the 100 most influential lawyers by the National Law Journal, and the 2002

Momentum2 Campaign Leadership Woman Lawyer of the Year by the Women’s Bar Association of Washington D.C. Currently, Lamm serves as Vice Chairman of the Momentum2 Law School Campaign. While those acclaims are noteworthy, she was also bestowed a high honor when President Bill Clinton appointed her to the U.S. Panel of Arbitrators for International Centre for Settlement of Investment Disputes (ICSID), and later by the Government of Uzbekistan to the Uzbek Panel of Arbitrators for the ICSID. Lamm’s family bleeds orange and green. She is married to Peter Halle, J.D. ’73, who currently practices antitrust law at Morgan, Lewis, Bockius in Washington, D.C. Their son Alexander is a graduate of the University of Miami School of Business, and his brother Daniel is a senior in the School of Education. She also owes her professional ascent to a great work ethic. “I hold no one to a higher standard than I hold myself,” she said. “I work very hard to make sure I’ve done my very best job for any client that I’m representing and while working with any team of lawyers.”

Larry J. Hoffman

Legal Pioneer

or Larry J. Hoffman, J.D. ’54, the University of Miami School of Law is a family affair. He met his wife, Debi, while at Miami Law, and she would later obtain her J.D. at the same time as their son, Kenneth, in 1983. Hoffman, a Vice Chairman of Miami Law’s Momentum2 campaign, served the law school as an adjunct professor for a course that included Securities, Tax, and Corporate Law. Hoffman is a founder of the international firm Greenberg Traurig; he previously served as CEO and is now Chairman. When the firm sought to honor him in 2006, it established the Larry J. Hoffman Greenberg Traurig Distinguished Professorship in the Business of Law. The endowment funds a professorship that focuses on research and on

teaching students about the structure and management of law firms. “Larry is a true visionary of the legal community,” Cesar L. Alvarez, the Executive Chairman of Greenberg Traurig, said at the time. “When I attended the University of Miami School of Law, I never planned to actually practice law,” Hoffman said. His intention four decades ago was to use his legal training as a businessman, but instead developed a practice in the areas of corporate, securities and banking law, lecturing in each of those areas. Hoffman, a former Chairman of the Securities Law Committee of the Corporate, Banking and Business Law Section of The Florida Bar and an expert in public offerings of equity and debt securities, has been involved in hundreds of corporate financings. Hoffman, a well-known authority on law firm management, has devoted most of his time and effort in the last 15 years to participating in the management of Greenberg Traurig. He has been listed in The Best Lawyers in America since 1989, and has been named a Florida Super Lawyer by Super Lawyers magazine.

and DoubleYour Impact

To offset the rising cost of providing a superior legal education, we at Miami Law must increase scholarship support for our students. With funds made available through the generosity of UM Trustee Wayne Chaplin, J.D. ’82, Chair of both the School of Law’s Momentum2 and Visiting Committees, Miami Law is launching the Chaplin Challenge and is seeking the support of its alumni and friends.

THE CHALLENGE The Chaplin Challenge will match dollar for dollar each new eligible contribution to new or existing scholarship funds. Payments made on existing pledges do not qualify for the match. GIFTS TO SCHOLARSHIPS Each new gift of $100 to $50,000 to the Dean’s Scholarship Fund or to a new or existing named scholarship fund will be matched dollar for dollar from the Chaplin Challenge, as long as matching funds are available.

For more details and to ACCEPT THE CHALLENGE visit

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CHAPLIN CHALLENGE Rise to the Challenge www.law.miami.edu/chaplinchallenge

or call 1.888.99UMLAW.

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Momentum2 Campaign

Greenberg Traurig’s Gift Honors Distinguished Alumnus Robert Traurig

he law firm of Greenberg Traurig, one of the largest in the United States, has made a leadership gift to the University of Miami School of Law to name the LL.M. Program in Real Property Development after Robert H. Traurig, J.D. ’50. The one-year LL.M. in Real Property Development provides an advanced law degree for lawyers dedicated to working in the real estate field, either as attorneys or entrepreneurs. The program, designed for practitioners interested in fine-tuning their practice, will be called the Robert Traurig-Greenberg Traurig LL.M. Real Property Development Program. Traurig, who helped establish the Greenberg Traurig law firm in 1967, specialized in land-use matters. He was instrumental in the spectacular growth of the firm and that of Miami and its environs. He was honored last fall by the school’s Law Alumni Association with its Alumnus of Distinction award. At the dinner ceremony, Miami Law Dean Patricia D. White said Traurig had made an “extraordinary contribution to this community,” and that it was essential that Miami have a great university “that produces people like Bob Traurig.” In a video about Traurig’s career that was shown during the Alumnus of Distinction dinner, he was called “the dean of zoning,” someone who “influenced every significant land-use case in Miami.” The term “Magic City” was born in the wake of his efforts.

MIAMILAW magazine

Judge A. Jay Cristol after flying this P-51 Mustang in January 2012.

Judge A. Jay Cristol’s Gift Supports Bankruptcy Clinic

of charity events, Judge Cristol still takes to the air behind the controls of a private aircraft whenever he gets the chance. His office is replete with memorabilia of a life well lived — travel photos with his beloved wife, images of his sons growing up, the judge clad in flight suits and a huge smile in front of all manner of aircraft, and enough model planes hanging from the hen Judge A. Jay Cristol — ceiling to make an enthusiast weep. He has packed several lifetimes into his who graduated from the University of Miami School years, and wears them all with elegance and a good measure of glee. of Law in 1959 and is Chief Judge Judge Cristol served as Special Emeritus of the U.S. Bankruptcy Court Assistant Attorney General of Florida, for the Southern District of Florida — and after 25 years of civil law practice, dons his robes, it is a labor of love. stepped down as senior partner in a firm Among the other loves in his life, he founded to accept an appointment Judge Cristol’s late wife and the laws to the Federal Bench. At Miami Law, of bankruptcy figure prominently. Judge Cristol teaches Reorganization In honor of one and in support of in Bankruptcy, a seminar that studies the other, Judge Cristol has made a principal issues raised by Chapter 11 sizeable donation to Miami Law. Judge of the Bankruptcy Code. Judge Cristol Cristol’s gift will go toward the school’s was President of the Law Alumni bankruptcy clinic, which is to be known Association in 1985, and received the as the Eleanor R. Cristol and Judge Thomas Davison III Memorial Service A. Jay Cristol Bankruptcy Pro Bono Award. He also received the Henry Assistance Clinic. Latimer Professionalism Award at the Between court hearings, teaching law school’s Homecoming Breakfast in at Miami Law and an active schedule 2008.

Momentum2 Campaign

Alma Jennings Foundation Challenge

T Leading South Florida Trial Attorney Endows Scholarship

od Aronovitz, J.D. ’74, a past president of the Law Alumni Association and former president of the Florida Bar, has made a significant contribution to create The Honorable Sidney M. Aronovitz Scholarship Fund at Miami Law, in honor of his late father. The scholarship will be awarded each year to recognize student excellence, and the recipients will be known as Judge Aronovitz Scholars. Judge Aronovitz was nominated to the U.S. District Court for the Southern District of Florida by President Gerald R. Ford. He remained on the court until his death in 1997. Notably, he presided over the claim of treasure hunter Mel Fisher to the Spanish galleon Atocha, discovered in 1985 in the waters off Key West. In 2009, President Obama signed into law the naming of the U.S. Post Office, Customs House and Courthouse in Key West after Judge Aronovitz, a third-generation native of that town. His son is a nationally recognized trial lawyer who specializes in catastrophic injury and wrongful death cases. Many of his cases have set legal precedents in Florida in the fields of defective products, medical malpractice, aviation negligence and class action litigation.

he Alma Jennings Foundation, a private foundation located in Coral Gables, has awarded Miami Law a $100,000 challenge grant to create an endowment to maintain the student lounge at Miami Law, which serves as a central hub for law students. The grant requires Miami Law to raise matching funds to grow this endowment. The Law Alumni Association and the Law Parents and Partners are assisting in the fund raising effort. Established in 1966, the Alma Jennings Foundation has awarded over $1.6 million in grants to the University of Miami. At Miami Law, the Foundation has provided funds for the construction of the student lounge, which is named in the Foundation’s honor. The Foundation also supported the Richard and Jeanette Fuller Hausler Endowed Scholarship Fund and the Richard Hausler Endowed Chair. The Alma Jennings Foundation was led by the late F.W. “Mort” Guilford, a 1956 graduate of the School of Law and Jeff Fine, J.D. ’67, together with Mort’s sons, F.W. “Zeke” Guilford, J.D. ’89 and LLMP ’95, and Michael Guilford, J.D. ’85. Mort Guilford and his son, Michael, served as Presidents of Student Bar Association. “Miami Law students are getting a first-rate education,” said Fine. “It is important to the members of the Foundation that the student lounge remains an inviting space. With these endowed funds, the student lounge will have up to date equipment and furnishings for the law students to enjoy without a desire to leave the campus in between classes.”

Devang Desai Rising Star in the Legal Community

evang Desai attended local public schools starting at a young age and graduated from the University of Miami in 1997 with a degree in political science and, in 2003, a law degree. Today, he is a partner with Gaebe, Mullen, Antonelli & DiMatteo, the Coral Gables litigation practice. Desai’s parents instilled in their sons the importance of education and making the most of every opportunity. Soon after graduating from law school, Desai began contributing to an endowment that he named the Desai Family Scholarship in honor of his parents, Bhalchandra and Pramila, and the high value they placed on education. “I wanted to honor the sacrifices of my parents in a way that will live on,” he said. Desai has been a legal officer for student discipline at UM since 2003, and serves on both the University of Miami Alumni Association Board, as Director, and the Law Alumni Association, as President. He is active with his fraternity, Pi Kappa Alpha, and is its Regional President for Florida. After distinguishing himself as an Eagle Scout, Desai serves on the executive board of Boy Scouts of America. Desai’s firm has established the Gaebe, Mullen, Antonelli & DiMatteo Endowed Scholarship Fund at Miami Law, to be awarded based on financial need, interest in litigation skills, scholarship, community service, and leadership. In addition, Desai has committed to establishing the Devang Desai Scholarship at Miami Law.

WINTER 2013

A family in one of the tent camps visited by the Miami Law team in Port-au-Prince. Many of the people who live there lack even the most basic medical care.

Haitian Deportees Suffer Abuse, Inequity, Exclusion By Drew Aiken, J.D. ’12

s I stepped off the plane last February at Toussaint Louverture International Airport, near Haiti’s steaming, earthquake-battered capital, I could feel the excitement rising. Here was an opportunity to do meaningful human rights work on a project that I — along with other members of the University of Miami’s Human Rights Clinic — had been engrossed in since August 2011.

MIAMILAW magazine

Our task was to document two crucial aspects of conditions on the ground in Haiti — the impoverished country’s humanitarian crisis and the experiences of those forced to return to Haiti by immigration and judicial officials in the United States and other countries. There were four of us on the trip to Port-au-Prince: Associate Professor Carrie Bettinger-López, director of the Human Rights Clinic; Marleine Bastien, director of Haitian Women of Miami; and Erin Lewis and I, who were law students and members of the Human Rights Clinic at the time. We would use what information we gathered to bolster the advocacy and litigation work in which the clinics have

been involved, in the halls of Congress, before Immigration and Customs Enforcement, at the United Nations, and the Inter-American Commission on Human Rights. The latter two organizations have called for a halt to all deportations to Haiti, to mixed effect. Since January 2011 — a year after Port-au-Prince and its environs were pummeled by a devastating earthquake — the United States has deported hundreds of Haitian nationals, many of whom had long been legal permanent residents of the U.S., despite the ongoing humanitarian crisis in Haiti and the impact the deportations have on children and spouses, many of them U.S. citizens, who are left behind. The ultimate goal of our trip was to stop the deportations to Haiti.

Human Rights

As part of this advocacy, Miami Law’s Human Rights and Immigration clinics, along with several partner organizations, filed a petition in January 2011 against the U.S. with the InterAmerican Commission on Human Rights (IACHR).

Families Wrenched Apart

e argued that forcibly sending individuals to Haiti — where there are withering shortages of food, potable water, housing, and medicine and medical care, as well as inadequate security and police forces — violates their human rights, which are protected by the American Declaration of the Rights and Duties of Man, adopted in 1948. We urged the IACHR to issue precautionary measures — similar to an injunction — against the U.S. to stop the deportations. The IACHR agreed, calling upon the U.S. “to suspend deportations to Haiti of persons of Haitian origin who are seriously ill or who have family members in the United States,” and the U.S. responded by halting some deportations. But Haitians and people of Haitian origin continue to be deported, in violation of the U.S.’s human-rights obligations. Many deportees sent to Haiti are legal permanent residents who have been in the United States for long periods of time and have U.S.-citizen spouses and children who are financially dependent on them. Many have no family in Haiti, and some have never even lived there. They are being sent to Haiti because they have criminal records — many for minor infractions — but all have already served their time in the U.S. We spoke with one individual who had lived in the U.S. for 40 years and served in the U.S. military before being deported. We met another who had lived in the U.S. for 36 years and had

two U.S.-citizen children and a U.S. citizen wife, and was deported anyway. Both men are now living in extremely vulnerable situations in Haiti, with no family there and no money for living expenses. While living conditions in Haiti — universally regarded as the poorest country in the Western hemisphere — are deplorable for many of its citizens, U.S. deportees arriving in the Caribbean nation are routinely detained, unjustifiably and without due process, in filthy detention centers. Cells are awash in human excrement, blood and vomit, and have few or no working toilets. Deportees are typically not provided food or water, let alone medical or mental health care. Cholera and other diseases are pervasive in the tightly packed detention centers. Our worst fears became reality when one U.S. deportee, Wildrick Guerrier, 34, died of cholera-like symptoms in February 2011 after being detained in Haiti upon arrival. During our three-and-a-half-day trip to Haiti, we interviewed more than 20 individuals who had been deported from the United States, Canada and the Dominican Republic. The deportees’ stories painted pictures of fear and helplessness. U.S. deportees suffer from discrimination and are routinely stigmatized, with many serving as scapegoats for neighborhood crimes. They say they are often targeted for extortion because people mistakenly perceive them to be rich outsiders. Additionally, many cannot get jobs or benefit from public services since they are generally not issued Haitian identity cards, making it difficult or impossible for them to get food, water, medical care and housing. Many deportees who have lived most of their lives in the country that deported them do not speak Haitian Creole, and have little or no family

support system in Haiti. For some, born in other countries, it is their first time in Haiti. Many deportees told us they had been forced to leave stable jobs in the U.S., where they were the primary breadwinners for their families. Without their financial support, they said, their U.S.-citizen children and spouses have been left to struggle, unable to buy food and pay utility bills and other expenses. Some deportees may never see their loved ones again. Deportations not only threaten the lives of the deportees but, for many, their reason for living. “I don’t think I’m going to make it,” was a common refrain, their hopeless outlook reflected in their eyes. One man sang a mournful, poetic song he had written about being cast off to a country he had never been to before.

Screams from the Cells

ur interviews showed many people being deported to Haiti despite severe medical conditions and strong family ties to the U.S. My colleague Erin Lewis talked to one young man who had a bleeding ulcer. She spoke to another who was disabled from a hit-and-run accident a few years ago in Miami. He showed her a long scar running from his ankle to his thigh. I talked to a man who had an open head wound the size of a golf ball. None of these men had access to medication or treatment. Marleine Bastien and I visited a detention center, the Direction Centrale de la Police Judiciaire, where many U.S. deportees are held after arrival in Haiti.While we were allowed only very limited access, we got a glimpse of the deplorable conditions there. It was night, and the only light in the large cellblock came from one of the cells, separated from the rest. We

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Human Rights were taken to that cell and it became obvious that it was a “model” room, most likely lighted for the benefit of visitors. The cell housed two women who had food and water. Jail officials suggested that the cell was just like the others in the detention center, and yet we heard much screaming and shouting, in various languages, from a long hallway of pitch-black cells. I moved closer to the hallway and was overcome by a powerful stench of urine and vomit. I wanted to see — but was afraid to see — what was happening in the cells just a few feet away, in which detainees cast away by the U.S. and other countries had been taken in chains and locked up, like discarded animals. The close quarters and filthy conditions of Haitian detention centers, and the lack of toilets and proper sanitation, create breeding grounds for diseases like cholera that threaten lives and sometimes consume them — Wildrick Guerrier’s being just one example. I imagined being detained in such terrifying conditions, without judicial process or any of the norms we take for granted in the U.S. I was grateful that I could walk out of the detention center freely, but I felt renewed frustration that the United States and other nations continue to dispatch human beings to wallow in such conditions. Because of the catastrophic earthquake and the lack of a coherent reconstruction plan, more than 500,000 people remain in makeshift tent camps, and tens of thousands more are displaced and homeless, living on the periphery of the tent camps in Port-au-Prince and other Haitian cities. We visited two tent camps to see the conditions in which people — many of them deportees — live. Beyond the wrenching poverty and disease, the tent camps present severe safety concerns, especially for women and girls who become victims of rape.

parents could not afford to send them to school. We also learned that because of the lack of security in the camps, there were “babies having babies,” the result of girls being raped because there was no security to prevent such crimes. Many deportees have no choice but to live in the tent camps — they have nowhere else to go. Miami Law’s Human Rights and Immigration clinics are using the information gathered during our trip to bolster the continuing efforts to halt all deportations to Haiti. One month after returning from Haiti, we went to Washington D.C. to meet with officials from the Inter-American Commission on Human Rights, the Department of State and the Department of Homeland Security. We also met with representatives of the United Nations High Commissioner for Refugees, asking them to continue calling for a halt to deportations to Haiti and sharing with them some of the information we had gathered. We also worked with the U.N.’s Independent Expert on Haiti, Michel Forst, on his report about the problems inherent in deporting people to Haiti. When released in June, the report said that U.N. member countries are still forcibly returning Haitians to the island nation, placing them “in a vulnerable, life-threatening position.” The deportations, Forst wrote, may violate the deportees’ human rights. Our trip to Haiti personalized our advocacy project, allowing us to encounter people who have been left with nothing and who, in some cases, are still somehow making it. To us, they demonstrated the power of their spirit, the importance of international law, and how much more humanrights work there is to do in Haiti, the U.S. and around the world. Drew Aiken graduated from the University of Miami School of Law in May 2012. Erin Lewis, who expects to graduate next year, contributed to this article.

Continuing Our Advocacy

he first camp we entered, Camp Mozayik — known in Creole as Kan Mozayik — was under threat of immediate and complete eviction by the local mayor. The conditions were devastating. As we walked through, we were invited into a tent in which 25 people lived. We were asked into another where several people lay motionless, apparently very sick. Erin and I hesitated to take photos but the camp leader insisted, saying that the outside world should see the conditions. The people who were sick had no access to medicine or medical care, we were told. It was as though they were waiting for a miracle or the end. Even though it was the middle of a school day, children were running around in the camp. We were told that their

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Human Rights Clinic students Erin Lewis, at left, and Drew Aiken in a camp for displaced people in Port-au-Prince, Haiti.

Our Dean adjunct faculty, which ultimately helps our students get jobs. Every week we have speakers from the local legal and judicial community, and I often visit and speak to law firms in South Florida. We have over 60 student organizations that interact with the legal community. We have a huge pro bono program, and we encourage our students to be out in the community doing legal work as volunteers. It’s a very important part of being in law school.

We’ve hired a fabulous group of professors. They have really helped energize the school. They are energetic, smart, productive, and great teachers.

Q. How does this law school use Miami’s unique character and location to its best advantage?

A. To take advantage of Miami’s

international character and proximity to Latin America and the Carribean, we are expanding our course offerings, programs, and contacts. For example, we have formal relationships of various types with at least two dozen law schools worldwide. And our large international LL.M. program attracts students from all over the world. Law is becoming increasingly globalized and it is important that all law students be exposed to the fact that law works across borders and has international implications. Miami has a long tradition of distinction in international law

and we have increased enormously our courses with an international orientation as well as the number of faculty who have international expertise and experience. And we now have clinics in both immigration and human rights.

Q. How is Miami Law handling the problem of exploding student debt?

A. This is a problem that keeps me

awake at night. We are now recognizing that higher education in this country has become overpriced relative to the ability of students and families to pay and that borrowing is a major source of most students’ ability to pay. Seventyfive percent of our students borrow money to come to law school and, of the borrowers, the average law school debt at graduation is nearly $140,000 (and this is often on top of substantial debt from undergraduate study). For my first two years here, we were the only law school in the country that did not increase its tuition. We did raise tuition a year ago but we didn’t raise it for continuing students. At the same time we have increased our scholarship aid to continuing students. I am deeply concerned that the high cost of education is making it very difficult for people to have the educational opportunities that should be available across social and economic lines. The need for scholarship assistance is enormous and this is an area where contributions can make a big difference.

Q. What role can alumni play? A. Luckily, Miami Law has many

generations of very accomplished and generous alumni. Many of the people who have graduated from our school have done very well and they recognize that one of the reasons they did was because they had a very good

legal education. We have had excellent support from our alumni and we are very grateful for this. Scholarship money is the most important. We also need money to run the school’s operations, to reduce the need for tuition increases. Legal education — and particularly clinical and experiential education — is expensive. Miami Law has something like 20,000 living alumni. If each one wrote us a check for $200 each year, that would provide four million dollars of additional scholarship aid. Clearly there are many who write checks for much larger amounts than that, and we are enormously grateful to them and to those who endow programs.

Law schools should take their great strengths and combine them with energy and entrepreneurial spirit. At Miami we are well positioned to do that.

Q. Are you optimistic about the future?

A. Yes! Miami Law will survive and

flourish! I believe very strongly that law school does an excellent job of training people to deal with a whole set of problems. Law schools should be more creative and less hidebound than they historically have been, and should take their great strengths and combine them with energy and entrepreneurial spirit. At Miami we are well positioned to do that. This is a city and a community that inspires that kind of energy.

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Innovation

Students attending the ConPosium gathered in Miami in April.

LawWithoutWalls Kindling the Creative Spirit By Catharine Skipp

icture a global NGO’s online network specifically designed to connect legal, political and community advocates around the world who fight against human trafficking. Or a low-cost website, using widely available web tools, that crunches data and produces valuable information to prospective law students who are unsure whether taking on the debt of attending a particular law school is a wise financial decision, considering the current job and salary prospects for the school’s recent graduates. Or a smartphone app for female lawyers that connects users with other female lawyers to form an online community, while also offering a variety of services, functions and resources. These days, many people earning a paycheck from the law are legal entrepreneurs — without a law degree, a shingle or a wood-paneled office that bills by the hour. They are mining a field that for years was the exclusive province of lawyers and their firms, often at such bewilderingly high cost that many of the potential clients most in need of legal help never received it. Such changes in the legal landscape motivated Miami Law’s Michele DeStefano and Michael Bossone to create LawWithoutWalls, a course that draws students from around the world to discover far-reaching innovations for the legal profession, give birth to new business ideas and address a crucial inquiry — how will law be taught and practiced in the future, and how will lawyers make a living? “The only way lawyers are going to survive is to innovate in order to meet the market’s evolving demands,” Professor DeStefano said. Bossone, special advisor to Miami Law Dean

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Patricia D. White, added that “developing lawyers for a new vision of legal practice requires a new model for today’s legal education, and LawWithoutWalls is one such new model.” Peter Lederer, another of LawWithoutWalls’ founders, said that no matter how much people may dislike it, change is inevitable. “Lawyers will continue to be needed and new lawyers will keep coming along, but they face a world in which getting a conventional job may be impossible,” said Lederer, a former managing partner at Chicago’s Baker & McKenzie, one of the largest law firms anywhere. Embarking on its third year, LawWithoutWalls continues to challenge the talents and vision of law and business students from around the world. Meeting in once-weekly virtual sessions featuring real-time video technology, students from 18 schools — across six continents and many time zones — immerse themselves in the intricacies of legal concepts that question conventional notions of how the law is taught and practiced. “These sessions are a time for open and collaborative exchange among people from different disciplines about hot topics facing the legal marketplace,” the LawWithoutWalls website says. Not every connection is virtual. The course’s opening and closing sessions are face-to-face affairs. For the launch of the 2013 session in January, students and their academic mentors — as well as the legal practitioners, business professionals and entrepreneurs known as “thought leaders” in LawWithoutWalls — will meet for an intensive two-day session at IE Business School’s medieval-meetsmodern campus in Segovia, Spain. “It is exhilarating and inspiring,” Dean White said after attending the kick-off of the 2012 session in St. Gallen, Switzerland. Dean White, whose leadership and support has been instrumental to LawWithoutWalls’ success, said the kick-off weekends provide “a strong foundation for the remarkable collaborative work these teams do.”  One of the primary benefits of the kick-off sessions, according to past participants, is that they enable students to get to know each other personally before returning to their home countries, where they use technology such as Adobe Connect and Google+ to share their ideas and develop their projects. Students then regroup at the University of Miami for the semester-ending ConPosium, a tech playground where they use Prezis — cloud-based presentation software — to explain their projects to Skyped-in judges, while members of the audience live-chat each other in multiple languages. “LawWithoutWalls could not happen without really cool tech tools,” Bossone and Professor DeStefano wrote in an e-mail. “We spent hundreds of hours testing dozens of products to find the ones that would best meet our collective needs, tweaking and customizing them to create a culture of collaboration, and to kindle our innovative spirit.”

Innovation

Hot from Miami Students Produce Fresh Proposals for Immigration Reform By Roxana Bacon and Esther Olavarria

n an immigration class we taught last spring at Miami Law, our goal was to have a group of third-year and LL.M. students propose detailed reforms in the seemingly intractable maze of immigration law. The 15 students, split into teams, not only designed novel proposals, but were eager to break through the decadeslong Congressional stalemate on the matter and establish a fair system that works for the national good. Their ideas are worth our attention. Team 1 chose to tackle a burgeoning, deeply disturbing problem — the rape of undocumented migrants in drop houses, the dingy, crowded places in which migrants await transportation farther inland. Countless women and girls who enter the U.S. without documents are raped, a crime so prevalent that migrant smugglers, called coyotes, often require female migrants to get contraception injections to stave off pregnancies. Team 1 proposed that law enforcement raids on drop-houses include therapists and other professional experts in rape. The pro-bono teams would treat raped women and girls as victims and not wrongdoers. Rather than being incarcerated, they would be granted interim protection while their medical and emotional conditions stabilize. Using Florida as their beta site, Team 2 crafted a new visa category, H-2C, geared to identifying undocumented persons who qualify to fill vacancies in the hospitality industry. The proposed H-2C category targets the largest portion of Florida’s undocumented population to solve a chronic shortage of workers in the industry most vital to the state’s economy. It would also bring those people into state and federal tax systems. The incentive would include $1,000 annual tax credits for workers retained for at least a year of uninterrupted employment. A path to full resident status would be available to H-2C workers through an expansion of quotas for essential workers. The topic for Team 3, interior enforcement, is perhaps the most polarizing. The enforcement of civil immigration law is modeled almost exclusively on criminal law — suspects are arrested, interrogated, jailed and sentenced without the constitutional protections afforded their criminal counterparts. Team 3’s program, dubbed SMART — Securing Migrants’ & Americans’ Rights and Trust Act — would limit local law enforcement’s role in immigration only to those

migrants, whether documented or not, who have been convicted of specific crimes. Local law enforcement would be involved only after a conviction. Team 4 advocated a reform in the area of forced migration, with a novel take on demographics, climate change and the scarcity of potable water. They recommended creating an EB-6(a) immigration category for water scarcity entrepreneurs, and an EB-6(b) category for watery scarcity researchers. The team was driven by the certainty that much of the globe’s midsection will be subject to increasing drought, causing the movement of hundreds of millions of people to countries unable — or unwilling — to absorb them. More than 1,000 counties in the U.S. are already suffering from or at serious risk for water scarcity. Team 4 found that the U.S. is woefully unprepared to develop new water sources, better distribution systems, drought-resistant crops and more efficient conservation techniques. The U.S. produces far fewer engineers and scientists than it needs to address water scarcity. China and India both produce more than nine times more engineers each year than the U.S. — over 1 million to our 10,000 — and that disparity increases each year. The EB-6(a) category would grant permanent residence to entrepreneurs in desalination, water purification, water distribution, drought-resistant crops, waste-water crops, and consumer conservation. The EB6(b) category would be reserved for people who complete a graduate-level degree at an accredited U.S. school and who commit to work in water or food scarcity for at least three years. If they stay in the field for five years, they would be eligible or permanent residence. We were delighted with the spectacular work of the students — Lauren Barnes, Theresa Breslin, Kathryn DeMarco, Charles Haskell, Ashley Matthews, Victor Mayorga, Masimba Mutamba, Anuj Naidu, Luciano Pieri, Elizabeth Rieser-Murphy, Kevin Sincerbox, Iryna Vorona, John Wynn, Fernando Wytrykusz and Brittany Young. They understood the anti-immigrant sentiment that is thwarting reform, and the political barriers to change. In each case, they sought to build on existing policy, moving it ahead without burning bridges. Roxana Bacon, J.D., University of California, Berkeley, is an adjunct professor in Migration and Immigration Policy, with 35 years as practitioner and advisor. She served as general counsel to the U.S. Citizenship & Immigration Service. Esther Olavarria, J.D., University of Florida, is an adjunct professor of Immigration. A counselor at the Department of Homeland Security, she was chief immigration counsel to Sen. Edward Kennedy and co-founded the Florida Immigrant Advocacy Center. This text was adapted from an article in Immigration Daily.

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WORD THE LAST 32

Superhero? Nah. Rock Star? Maybe One Day. Meanwhile, the Law’s the Thing for Scott Sundby By Catharine Skipp arely out of first grade, Scott Sundby realized he couldn’t see through walls and had to ditch the idea of becoming Superman. Later, after weighing in at 145 pounds as a high-school freshman, he figured that a career in the National Football League was out of the question too. So he decided to become a law professor. Still, he took a roundabout path to the lectern as a Dean’s Distinguished Scholar at Miami Law, where he teaches criminal law and procedure — or “bail-to-jail,” as he likes to say. Along the way, he was named Newspaper Boy of the Year, even though it was his brother chucking The Naperville Sun into the neighbors’ rhododendrons (he still feels guilty about it — the award, not the trampled flowers). He lived in Thailand while his father helped launch the psychology department at Chiang Mai University; majored in English Literature at Vanderbilt University; and, finally, on what he admits was a bit of a whim, decided to give Cornell Law School a try. As it turned out, he found the law fascinating. Since he was born of academic stock, that should not have been a surprise. His parents taught at the University of Wisconsin-Eau Claire and both his brothers grew into the professordom. In such heady company, Sundby recalls finding it hard to mesmerize the family at dinner. “We were all so eager to make our point, we tended to talk over each other,” he says, smiling. “I had to go to outside sources to find a captive audience. In high school, I discovered by debating that I enjoyed being in front of a group and talking. Being a professor was one way to make that happen.” For the next mile marker, he went to Savannah, Ga., to clerk for Judge Phyllis Kravitch on the Court of Appeals for the Eleventh Circuit, just as the first death penalty cases were working their way up through the courts in the aftermath of Furman v. Georgia. His passion for capital cases would steer his path. Professor Sundby’s teaching career began at the University of California’s Hastings College of the Law in San Francisco, and he later moved to Washington and Lee University School of Law. While there, he served at various times as Director of the Frances Lewis Law Center and as Director of the Virginia Capital Clearinghouse, a clinic that advises lawyers who represent capital defendants. To get a prosecutor’s view of the criminal justice system, Professor Sundby took a leave of absence from teaching and prosecuted cases as a Special Assistant U.S. Attorney for the Southern District of Florida. “Up to that point, all my experience had been on the defense side,” he said. “I found

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myself falling into the perspective of seeing everything through a criminal defense lawyer’s viewpoint. I worked on a number of cases, and it taught me how difficult it is to be a trial attorney — this was the first trial work I’d ever done — and also how much good the right prosecutor can do, especially in ensuring that the tremendous power of prosecution is used wisely.” He has been a visiting fellow at Griffith University in Brisbane, Australia, and at Universitat Jaume I in Castelló de la Plana, Spain. Professor Sundby’s writings focus on criminal law and constitutional law, and much of his research has been conducted under the Capital Jury Project, a study funded by the National Science Foundation that probed how juries decide whether or not to impose the death penalty. As part of the project, he oversaw interviews of a large number of jurors who served on capital juries, half of whom returned death sentences while the other half opted for life sentences. “I knew death penalty law fairly well from the doctrinal side, teaching courses for judges and working a lot with lawyers,” he says. “But sitting down and listening to jurors was an eye-opener.” His findings on how trial strategy affects jurors’ deathpenalty decisions were cited by the U.S. Supreme Court in its opinion in Florida v. Nixon in 2004. Interviewing jurors who had been faced with wrenching choices of life and death, Professor Sundby was struck by the intensely human nature of jurors’ deliberations as they grappled with moral, legal and personal issues — perspectives that formed the basis of his 2005 book, A Life and Death Decision: A JuryWeighs the Death Penalty. The book was a finalist the following year for the American Bar Association’s Silver Gavel Award, and its Grishamesque storyline would also seem to make it a natural for the silver screen. Have the movie rights been sold? “Not yet,” he laughs, “but I’m open to offers.” In the meantime, Professor Sundby has not ruled out yet another career — as a rock star. “I was a maestro at the air guitar in college,” says the stubble-chinned professor, who is taking acoustic guitar lessons. “The chances of my rock ’n’ roll career taking off are minimal, at this point. But I think I’ll keep at if for no other reason than it keeps me very, very humble.”

MIAMILAW Photo by Richard Patterson

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