Institute of Judicial Administration Newsletter Spring 2015

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t h e n e w s l e t t e r o f t h e i n s t i t u t e o f j u d i c i a l a d m i n i s t r at i o n at t h e n y u s c h o o l o f l aw

IN THIS ISSUE

1

An Unusual Year

2

In Memoriam: Chief Justice Shirley Abrahamson

3

IJA Webinars—US Supreme Court Highlights

4

IJA Co-Sponsors COVID-19 Challenges to Workplace Health and Safety and Dispute Resolution

4

23rd Annual Employment Law Workshop for Federal Judges

5

IJA Oral History of Distinguished American Judges Project—Updates

6

Seventh Circuit Curbs Court-Based Discovery in International Arbitration by Professor Samuel Estreicher

7

IJA Chief Justice Maite Oroñoz Rodríguez Delivers IJA’s 26th Annual Brennan Lecture on State Courts and Social Justice

8

IJA Faculty News

9

News of IJA Advisors and Friends

10

Spotlight on IJA 2020 Summer Fellows

10

IJA’s New Appellate Judges Seminar This issue is published by the Institute of Judicial Administration with special thanks to contributions from Ceirra Ransome, NYU CAS ’21

w inter |spring 2021

An Unusual Year Spotlights The Judiciary 2020

started off typically for the

Thus, 2020 proved an unusual and challenging

Institute of Judicial Adminis-

year. Judicial independence was already being

tration (IJA) with our Annual Brennan Lecture on

tested. There were increasing legal challenges

State Courts and Social Justice. At a post-lecture

to executive actions. Then COVID-19. The judi-

dinner, Chief Justice Rodríguez of the Supreme

cial system at every level reacted quickly and

Court of Puerto Rico shared the challenges and

with flexibility to try to ensure access to justice

herculean efforts to maintain access to justice in

unabated. The use of technology in legal proceed-

the wake of Hurricane Maria. She thanked the

ings accelerated. Now, courts will be asked to

support of the NY State Courts, represented that

interpret new pandemic-related laws, as well as

evening by Judges Michael Garcia and Jenny

to apply existing laws to pandemic consequences,

Rivera ‘85 of the NY Court of Appeals. Her talk

from determining the balance of public safety

soon proved an instructive and inspirational tale.

with religious freedoms, to workplace safety.

By mid-March, COVID-19 caused a shutdown

At the same time as this increased demand

of NY. IJA went remote mid-way through our

on the courts, pressures on independence, and

Employment Law Workshop for Federal Judges.

desire to increase diversity initiatives, some court

Like many organizations, IJA postponed events,

systems, like New York’s, may be facing budget

including our New Appellate Judges Seminar,

cuts due to the fiscal strain of the pandemic. As

which had been held annually for 61 years and

such, the work of the Institute of Judicial Admin-

which 61 judges from across the country had been

istration is more vital than ever.

scheduled to attend. We also put off an event on the Proposed Restructuring of NYS Court System with Chief Judge Janet DiFiore and Chief Administrative Judge Lawrence Marks, who themselves were now tasked with their own herculean efforts to keep the administration of justice running. IJA, also like many, pivoted: preparing new interviews for our recently unveiled IJA Oral History of Distinguished American Judges, redeploying our Summer Fellows to work with IJA faculty directors researching issues in administrative, bankruptcy, and international comparative law, and offering the series of webinars outlined below.

Judicial independence was already being tested. There were increasing legal challenges to executive actions. Then COVID-19. The judicial system at every level reacted quickly and with flexibility to try to ensure access to justice unabated.


In Memoriam:

Late Chief Justice Shirley Abrahamson, Wisconsin Supreme Court

W

e of the Institute of Judicial Administration have sadly lost our longtime colleague and dear friend, Chief

Judge Shirley Abrahamson. She died on December 19, 2020, in California, where she was with her son, Daniel (’91), and daughter-in-law, Tsan

Abrahamson. Shirley was an outstanding judge in many ways: She became the first woman to serve on the Wisconsin Supreme Court in 1976, was chief justice from 1996 to 2015, and retired from the bench in 2019 as the longest-serving justice on that court. In addition to being on the advisory board of IJA at NYU School of Law, she was president of the Conference of Chief Justices; chaired the board of directors of the National Center

summer program in which new appellate judges work

for State Courts; and was a member of the United States

with distinguished federal and state justices. Her long

National Academies Committee on Science, Technology,

experience on the bench and her ability to bring it to the

and Law. She was also a member of the American Law

group was superb. Shirley was a great judge, an excellent

Institute (ALI), where she served on both the Membership

teacher, and a warm friend to all of us at IJA.

and Executive Committees, and was an Adviser on Restate-

In the Wisconsin State Journal, her son Daniel remi-

ment of the Law Third, Property (Wills and Other Donative

nisced, “She had an endless source of energy, a boundless

Transfers) and Principles of the Law, Family Dissolution.

spirit and was always caring, compassionate, optimistic

Shirley was an important friend of IJA for many years.

and funny,” noting she was down to earth and genuinely

She gave the 2001 IJA Brennan Lecture on State Courts

cared for the people she was serving.

and Social Justice on “The Ballot and the Bench,” which

Her obituary also appeared in the New York Times.

was later placed in the 2001 NYU Law Review. She was a

Shirley had an outsized impact on the law and on

thoughtful and helpful member of the IJA Board. Impor-

those who had the honor and pleasure to know her. She

tantly, Shirley was a regular and vital faculty member of

will be missed.

IJA Report / Winter | Spring 2021

our New Appellate Judges Seminar, an annual week-long

2

Late Supreme Court Justice Ruth Bader Ginsburg remarked of Shirley on her 2019 retirement as most “courageous and sage,” noting Shirley had “contributed “enormously to the advancement of women’s opportunity and well-being in legal professions. Among jurists I have encountered in the United States and abroad,” Ginsburg said, “Shirley Abrahamson is the very best.” * Molly Beck, RUTH BADER GINSBURG, JUSTICES AND GOVERNORS PAY TRIBUTE TO SHIRLEY ABRAHAMSON MILWAUKEE JOURNAL SENTINEL (2019), (last visited Jan 19, 2021).


Tuesday, February 23, 2021

US SUPREME COURT HIGHLIGHTS FROM THE CURRENT TERM

IJA Hosts a Webinar Series on US Supreme Court Highlights

Ian Gershengorn

IJA

Sarah Harrington

Troy McKenzie

Rex Heinke

Melissa Sherry

Sam Estreicher

initiated a series of webinars in which

1891 (2020), the Court held that the attempted rescission

seasoned appellate advocates from our

of DACA violated the Administrative Procedure Act.

Advisory Board discuss select issues

The webinar also discussed June Medical Services v.

from the US Supreme Court’s recent and current terms.

Russo, 591 U.S. ___ (2020), in which the Supreme Court

The series explored not just the legal issues presented,

reversed the decision of the Fifth Circuit to uphold a

but also how the practitioners adapted to virtual argu-

law in Louisiana that required abortion providers to

ment; how Chief Justice John Roberts strove to preserve

hold admitting privileges at local hospitals. They also

institutional integrity; how the Court’s new composition

discussed two cases from the current term, California

may impact the analysis of issues presented and likely

v. Texas, No. 19-840, and Fulton v. City of Philadelphia,

future grants; and what issues the lower courts may see

No. 19-123, on the Affordable Care Act. The discussion

as a result of some of these rulings. The series was held

highlighted Chief Justice Roberts’ efforts on upholding

in cooperation with the Supreme Court Forum, a student

institutional legitimacy, guiding the court through this

association at NYU Law.

politicized period, and whether potential 4-1-4 decisions in the future will become binding precedent. Professor

1 in Series: October 29, 2020

Troy McKenzie facilitated the discussion.

The first webinar in the series featured Ian H. Gershengorn (Jenner & Block and former acting US Solicitor General)

2 in Series: February 23, 2021

and Sarah Harrington (Goldstein & Russell), who dis-

The second webinar in the series features IJA board members Rex S. Heinke, Esq. (California Appellate Law Group) and Melissa Arbus Sherry, Esq. (Latham & Watkins), with

(2020) and Trump v. Mazars USA, 140 S.Ct. 2019 (2020)

Professor Samuel Estreicher facilitating. The focus is

and the application of Title VII of the Civil Rights Act of

on cases of import to business: issues of improper work

1964 to sexual orientation in Bostock v. Clayton County, 140

computer use, personal jurisdiction, whether the Federal

S.Ct. 1731(2020). They also discussed Deferred Action for

Trade Commission can seek monetary relief, and corpo-

Childhood Arrivals (DACA), an executive program created

rate liability under the Alien Tort Statute for overseas child

under the Obama administration that President Trump

labor. The panel will additionally touch upon antitrust

tried to curtail by Executive Order. In Dept. of Homeland

issues in compensation of college athletes.

Security v. Regents of the University of California, 140 S.Ct.

law.nyu.edu/centers/judicial

cussed executive privilege and presidential accountability in the Supreme Court cases Trump v. Vance, 140 S.Ct. 2412

3


COVID-19 CHALLENGES

SEPTEMBER 17

O

FOR WORKPLACE SAFETY AND DISPUTE RESOLUTION

n September 17, 2020, IJA collaborated on a webi-

frequent; courts and court administrators don’t want to

nar: “COVID-19 Challenges for Workplace Safety

go through the risk of bringing juries to the courthouse

and Dispute Resolution,” organized by the Center

in the midst of a pandemic; and the lack of deadlines

for Labor and Employment Law. The first half covered

impacts urgency to move cases forward.

how to facilitate dispute resolution in a pandemic. How-

The second half of the event focused on workplace

ard Robbins ’94 (Proskauer) and Allyson Belovin (Levy

health and safety. Frederick Braid ’79 (Holland & Knight)

Ratner) kicked off with collective bargaining in COVID,

and Anton Hajjar spoke about the application of Occu-

followed by a discussion on COVID-related litigation with

pational Safety & Health Administration laws in an

Judge Steven I. Locke (US District Court for the Eastern

unforeseen or unprecedented public health crisis. Steven

District of New York) and Paul Evans (Baker McKenzie).

Swirksy (Epstein Becker & Green) and Shaylyn Cochran

The segment concluded with a look at alternative dispute

(Cohen Milstein Toll & Sellers) surveyed the application

resolution with NYU Adjunct Professor Zachary Fasman

of state tort law liability to COVID-related events. The

(Fasman ADR), Stephen Sonnenberg (JAMS), and Robert

webinar concluded with discussion of workers’ compen-

Whitman (Seyfarth Shaw). The panels noted that COVID-19

sation issues with Professor Samuel Estreicher (NYU Law),

has changed how lawyers get together and manage cases

NYU Law student Chris Ioannou ’22, James Philbin (’92)

with less access to courts, fewer hearings, and less case

(Philbin Law Firm), and Robert Snashall, former chair

management to a great extent. Jury trials are much less

of NYS Workers’ Compensation Board.

23rd Annual NYU Employment Law Workshop for Federal Judges IJA

co-hosted the 23rd Annual NYU Employment Law Workshop for Federal Judges in coopera-

Court for the District of South Carolina, Walter Meginniss

tion with the Center for Labor and Employment Law and

(Gladstein, Reif & Meginniss), and Zach Fasman (Fasman

the Federal Judicial Center, March 9-11, 2020.

ADR) covered Evidence Issues, including “stray remarks,”

IJA Report / Winter | Spring 2021

On the first day, Judge Lee H. Rosenthal of the US

4

On day two, Judge Michelle Childs of the US District

direct evidence, Rule 412, representative testimony, and

District Court for the Southern District of Texas and other

use of experts. Other workshop topics included Boundar-

panelists focused on Case Management, specifically con-

ies of the Employment Relationship, exploring who is an

sidering practical strategies to ensure fair case handling,

employee or joint employer; Gender and the Law, explor-

the best mediation practices, and how to deal with elec-

ing pay equity, sexual orientation, and sexual identity in

tronic and other discovery disputes. Judge Bernice B.

the workplace; Data Science in Employment, in which

Donald of the US Court of Appeals for the Sixth Circuit

Professor Julia Stoyanovich of NYU Tandon School of

led a panel on Implicit Bias, which assessed the empirical

Engineering explained the science and application of

literature measuring this problem of implicit biases and

data and artificial intelligence in employment decisions.

suggesting measures that courts could take to mitigate.

Troy L. Kessler of Kessler Matura and Patrick W. Shea of

The day concluded with Retaliation and Whistleblowers,

Paul Hastings wrapped up the workshop with Remedies,

where a panel with Judge Carl E. Stewart of the US Court of

and did so online, as the workshop quickly pivoted to

Appeals for the Fifth Circuit discussed public policy causes

remote due to COVID closings.

of action, statutory relation, and whistleblower claims.


Updates on IJA Oral History of Distinguished American Judges Project https://www.law.nyu.edu/centers/ija-oral-history The IJA Oral History of Distinguished American Judges Project unveiling was featured in the prior IJA Report 2020 and in this NYU Law article online, in which Professor Estreicher, who conceived the project, notes, “We have a very unusual judiciary… Our judges are not bureaucrats as in Europe, where they follow an academic track to judgeships. Instead, US judges often have varied careers in the law before becoming judges and they’re shaped by those diverse experiences.”

Judge Jack B. Weinstein*

Judge Robert A. Katzmann*

Judge Jack B. Weinstein retired from his position as a senior judge at the US District Court for the Eastern District of New York. Watch Judge Weinstein's interview here. *After initial publication of this newsletter, Judge Weinstein passed away on June 15, 2021 at the age of 99. Jack B. Weinstein: Pioneer in Judging and Justice, a joint webinar of IJA and Columbia Law School, is scheduled for Dec. 2, 2021.

Justice Roderick L. Ireland

Justice Ireland's interview has been deferred to 2022, and will be conducted by his former clerk, Professor Shalanda H. Baker (Northeastern University). Ireland served as a judge for 37 years, first in the Boston Juvenile Court from 1977 to 1990, then on the Massachusetts Appeals Court, and appointed in 1997 as the first African-American to sit on the Supreme Judicial Court. He served as faculty of IJA's New Appellate Judge's Seminar and gave IJA's 16th Annual Brennan Lecture on State Courts and Social Justice, entitled "In Goodridge's Wake: Reflections on the Political, Public and Personal Repercussions of the Massachusetts Same-Sex Marriage Cases." He is currently a professor in the School of Criminology and Criminal Justice at Northeastern Law. IJA is pleased to announce Judge Rosemary Barkett (Iran-US Claims Tribunal, formerly of the US Court of Appeals for the Eleventh Circuit), Judge Lee H. Rosenthal (US District Court for the Southern District of Texas), and Judge Robert A. Katzmann (US Court of Appeals for the Second Circuit) will be interviewed for the IJA Oral History project. *After initial publication of this newsletter, Judge Katzmann untimely passed on June 9, 2021 at the age of 68. He was not only a respected federal judge and legal scholar, but also a long-time friend, advisory board member, and faculty of IJA's Appellate Judge Seminar. A tribute to Judge Katzmann will appear in our next issue. Read NYU Law's In Memoriam.

law.nyu.edu/centers/judicial

IJA was set to conduct interviews in 2020 of the first state court justices to be included in the project: Justice Stewart G. Pollock (NJ Supreme Court) and Justice Roderick L. Ireland (Massachusetts Supreme Judicial Court). Due to the pandemic, Justice Pollock's interview was done online, rather than live, conducted by his former clerk and NYU Law alum, John Sivolella '92. Pollock served as justice of the New Jersey Supreme Court from 1979 to 1999. Following retirement, he has served as chair of the Supreme Court Committee on Professional Rules of Responsibility, as a member of the Court's Commission on the Rules of Professional Conduct, and as chair of the Court's History Advisory Board. He currently practices in litigation, appellate law strategies, alternative dispute resolution, and white-collar criminal defense investigations at Riker Danzig Scherer Hyland & Perretti.

Justice Stewart G. Pollock

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Court-Based Discovery in Aid of International Arbitration In this Arbitration column, Professor Samuel Estreicher discusses decisions that suggest we are likely to witness resort to discovery through the federal courts in a great many international arbitrations where the individual or entity from which documents or other information is sought has sufficient contacts with the United States to satisfy §1782’s jurisdictional standards. Reprinted with permission from the December 21, 2020

Servotronics then filed an application under Section

edition of the New York Law Journal © 2020 ALM Media

1782 in US District Court for the Northern District of Illi-

Properties, LLC. All rights reserved. Further duplication

nois, asking the court to issue a subpoena directing Boe-

without permission is prohibited; contact 877-257-3382 or

ing to produce certain documents for use in the London

reprints@alm.com.

arbitration. The District Court quashed the subpoena

I

on the ground that Section 1782 does not authorize a n its September 20, 2020, ruling in Servotronics, Inc. v.

court to provide discovery assistance in private foreign

Rolls-Royce, the Seventh Circuit has bucked a recent

arbitration. The Seventh Circuit affirmed.

trend in the lower courts holding that parties to private

Noting the issue was one of first impression in the

international arbitrations can obtain court-based discov-

Seventh Circuit, the court observed that while the statu-

ery via 28 USC § 1782. Under Section 1782,

tory phrase “foreign or international

enacted in 1964, a US district court “may

tribunal” did not necessarily exclude

order a person residing or found in the

private arbitration, it did not readily

district to give testimony or produce

connote private arbitration. Canvassing

documents for use in a proceeding in a

dictionary definitions, the court deter-

foreign or international tribunal . . . upon

mined that “[i]n both common legal par-

the application of any interested person.”

lance,” the phrase “can be understood

Although both as a linguistic and histori-

to mean only state-sponsored tribunals,

cal matter, it may be difficult to view a

but it also can be understood to include

private international arbitration panel

private arbitration panels. Both inter-

as a “foreign or international tribunal”

pretations are plausible.”

for purposes of Section 1782, that was

IJA Report / Winter | Spring 2021

the holding of the courts in Abdul Latif

6

Sam Estreicher

The appeals court derived stronger clues to meaning from statutory context.

Jameel Transp. Co. v. FedEx Corp. (In re Application to

In 1964, Congress enacted legislation establishing the

Obtain Discovery for Use in Foreign Proceedings), 939 F3d

current version of Section 1782 and dealing with service

710, 723 (6th Cir. 2019. The Seventh Circuit now disagrees,

of process in foreign litigation (28 USC § 1696) and the

reinforcing a circuit split (along with a recent Second Cir-

“letters rogatory” procedure, a formal request for dis-

cuit decision) that may end up in the US Supreme Court.

covery assistance issued by one court to a foreign court

Servotronics involves an indemnification dispute over

sometimes with diplomatic assistance (28 USC §1781).

an aircraft engine that caught fire during testing in South

All three of the 1964 measures “use the identical phrase

Carolina. Rolls-Royce manufactured and sold a Trent

‘foreign or international tribunal’ to describe the object

1000 engine to the Boeing Company for incorporation

of the district court’s litigation assistance.” The service

into a 787 Dreamliner aircraft. The engine caught fire

of process and letters rogatory measures “are matters

during testing, damaging the aircraft. Boeing sought

of comity between governments,” the court observed,

compensation from Rolls-Royce; the parties settled for

which suggests that the same phrase as used in Section

$12 million. Rolls-Royce then sought indemnification

1782 “means state-sponsored tribunals and does not

from Servotronics, Inc., the valve manufacturer. Unable

include private arbitration panels.”

to settle the case, Rolls-Royce initiated arbitration in

The panel adopted its reading of Section 1782 in part to

Birmingham, England, (subsequently moved to London)

avoid a conflict with the Federal Arbitration Act (“FAA”),

under the rules of the Chartered Institute of Arbiters.

9 U.S.C. §§ 1-15 (amended 1988). The FAA provision for


Noting the issue was one of first impression in the Seventh Circuit, the court observed that while the statutory phrase “foreign or international tribunal” did not necessarily exclude private arbitration, it did not readily connote private arbitration.

to the extent the FAA applies to some foreign arbitrations, a broad reading of Section 1782 would “create[] a direct conflict with the [FAA] for this subset of foreign arbitrations.” The courts that have ruled the other way—holding Section 1782 applicable to private foreign arbitrations— derive some support from the Supreme Court’s statement in Intel Corp. v. Advanced Micro Devices, Inc., 542 US 241 (2004), that “Congress introduced the word ‘tribunal’ to ensure that ‘assistance is not confined to proceedings before conventional courts,’ but extends also to ‘administrative and quasi-judicial proceedings.’” S. Rep. No. 1580, 88th Cong., 2d Sess., p. 7 (1964); see H. R. Rep. No. 1052, 88th Cong., 1st Sess., p. 9 (1963). Needless to say, Intel did not deal with the question whether an international

discovery assistance is much narrower than Section 1782.

arbitration panel is a “foreign or international tribunal”

The FAA requires the arbitration panel, not the parties,

for purposes of Section 1782.

to decide whether to summon witnesses to testify and

The Seventh Circuit’s recent decision suggests a pos-

produce documents, and to look to enforcement of its

sible brake on developments in other circuits where

summons in the court. Adopting Servotronics’ view of

parties to international arbitrations could seek to cir-

Section 1782 would mean that parties in private foreign

cumvent the limited discovery available from the arbi-

arbitrations would enjoy a broader scope of discovery

tration panel by proceeding in federal district court

assistance than parties in domestic arbitrations. Moreover,

under Section 1782.

IJA’s 26th Annual William J. Brennan Jr. Lecture on State Courts & Social Justice: Gender Equality and the Rule of Law

O

n February 25, 2020, Chief Jus-

discussion and education regarding

tice Maite Oroñoz Rodríguez

gender equality as a necessary pre-

delivered IJA’s 26th Annual

requisite for achieving that goal, and

Brennan Lecture on State Courts and

the outsized role of our state courts in

Social Justice on the topic of Gender

advancing gender equality in the adju-

Equality and the Rule of Law. Justice

dication of cases and interpretation of

Oroñoz Rodríguez is the first openly

laws. The chief justice outlined particular incentives and projects of the Puerto

is also the third woman to preside over

Rico court system designed to promote

the Supreme Court of Puerto Rico and

the fair and equitable administration

the youngest to do so. In her address,

of justice regardless of gender identity.

she spoke on the intersection of “gender

Maite Oronoz Rodríguez

Chief Justice Oroñoz Rodríguez’ lecture

equality” and “the rule of law” and how they are inter-

appears in Volume 95, Number 6 of the NYU Law Review,

dependent of one another. She appealed to the need for

and we also published it online in Spanish here.

law.nyu.edu/centers/judicial

LGBTQ chief justice in US history. She

7


IJA Faculty News After 40 years teaching law at NYU School of Law, IJA’s cofaculty director, Professor Oscar Chase, retired as faculty at the end of 2020. He began his legal career as an attorney in the legal services program and was involved in establishing the law reform orientation of the first federally funded program in New York. He initially began teaching at Brooklyn Law School before he went on to join the NYU Law faculty in 1980. He taught courses on specific aspects of civil procedure, such as comparative procedure and professional responsibility. His areas of interest include comparative law, cultural studies, professional responsibility, and state and federal civil procedure. He is a leading authority on New York civil practice, having written two books on that subject. He served as vice dean of NYU School of Law from 1994 to 1999, and co-faculty director of IJA. Professor Chase will continue to serve as co-director of the Institute of Judicial Administration at NYU School of Law in 2021. Oscar Chase has a new book, Civil Litigation in New York (7th ed. 2020). Co-Faculty Director Samuel Estreicher’s recent publications and news quotes include: Another Strike Against § 230 of the Communications Decency Act: Courts Allowing § 230 to Trump Federal and State Public Accommodations Protections, Justia Verdict, December 29, 2020 (with Samantha Zipper ’22) Taking Treaty-Implementing Statutes Seriously, in The Restatement and Beyond: The Past, Present, and Future of the Foreign Relations Law of the United States ch.3 (P. Stephan & Sarah H. Cleveland eds., Oxford University Press, forthcoming) In Defense of International Comity, 93 Southern Calif. L. Rev. 169 (2020) (with Thomas H. Lee) (lead article)

IJA Report / Winter | Spring 2021

The “When” of Chevron: The Missed Opportunity of County of Maui, Justia Verdict, June 26, 2020 (with Daniel Folsom ’21)

8

Impeachment of a President Normally Requires a Crime, Justia Verdict, January 7, 2020 (with Christopher Owens)

Tenth Circuit Holds that Contract Formation Issues are for the Court not the Arbitrator Notwithstanding an Express Delegation Clause, Justia Verdict, January 25, 2021 Co-Faculty Director Troy McKenzie was awarded the NYU Distinguished Teacher Award 2020. McKenzie was one of six NYU professors to receive this year’s award, which was established in 1987 to honor “selected outstanding members of the faculty.” McKenzie recently moderated a panel on Post-COVID: What Innovations Should We Keep? as part of the Center on Civil Justice program on “COVID and the Courts.” The panel looked at what technologies implemented in the pandemic have led to more efficient courts and better access to justice. Recent Amici Curiae Briefs by IJA faculty directors include: Republic of Hungary Magyar and Allamvesutak Zrt. v. Simon; Federal Republic of Germany v. Phillip, Nos. 18-447, 19-351 – Br. of Professors Samuel Estreicher and Thomas J. Lee as Amici Curiae in Support of Neither Party Nestle USA, Inc. v. John Doe I, et al. & Cargill, Inc. v. John Doe I, et al., Nos. 19-416, 19-453 – Br. of Professors of International Law, Foreign Relations Law, and Federal Jurisdiction as Amici Curiae in Support of Petitioners (counsel of record) by Professor Samuel Estreicher and Vincent Levy, Daniel M. Sullivan, and Daniel M. Horowitz of Holwell Shuster & Goldberg Kisor v. Wilkie, No. 18-15 – Br. of Professors of Administrative Law and Federal Regulation as Amici Curiae in Support of Neither Party by Professors Samuel Estreicher and David L. Noll (Rutgers Law School) Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co., Inc., No. 16-1220 – Br. Amici Curiae of Professors Samuel Estreicher and Thomas H. Lee in Support of Neither Party (counsel of record) Ford Motor Company, Petitioner v. Montana Eighth Judicial District Court, et al., No. 19-368 and 19-369- Br. Amici Curiae of NYU Law Professors Samuel Estreicher, Troy McKenzie, and Linda Silberman, along with Professors Edward Hartnett (Seton Hall School of Law) and David Noll (Rutgers Law School), in support of Respondent.


News of IJA Advisors and Friends

Welcome New Advisory Board Members

Robert J. Giuffra, Jr. is Vice Chair and a litigation partner of Sullivan & Cromwell. He joined the firm after serving as a law clerk to Chief Justice William Rehnquist and Judge Ralph Winter of the US Court of Appeals for the Second Circuit. A fellow of the American College of Trial Lawyers, Giuffra has represented corporations and individuals in civil and criminal cases in federal and state courts around the country. He focuses on “betthe-company,” securities, white-collar criminal, products liability, commercial, insurance, banking, tax litigation. A graduate of Princeton University and Yale Law School, he has served in all three branches of the US government. From 1995 to 1996, he was chief counsel to the US. Senate Banking Committee. He also served in the White House. In 2017, Chief Justice Roberts appointed him to the Standing Committee on Rules and Practice and Procedure of the US Courts. A native New Yorker, he has served on New York’s Permanent Commission on Access to Justice, the State Commission on Public Integrity, the State Ethics Commission, the State-Federal Judicial Council, the Commercial Division Advisory Council, the Southern District Magistrate Judge Selection Panel, the Commission to Reimagine the Future of New York’s Courts, and the Commission on Attorney Discipline. He has also served as president of the Federal Bar Council and as a vice president of the Supreme Court Historical Society.

James “Jim” Meza, executive vice president and general counsel, is responsible for all WarnerMedia legal matters and is located in New York. Before his current position, Jim was responsible for AT&T’s defense to the Department of Justice’s lawsuit to block the AT&T/Time Warner merger. Jim joined the company in 2000 and was appointed senior vice president and assistant general counsel in 2012. Since that time, he has been responsible for the legal support of several AT&T businesses, including the AT&T Entertainment Group following the acquisition of DIRECTV in 2015, AT&T Mobility, the AT&T Technology Organization, Corporate Development & Strategy, and the Global Marketing Organization. Jim started his legal career at Jones Walker in New Orleans. He earned his BA from Nicholls State University and his JD from Loyola University of New Orleans School of Law.

Other News

Sarah Harrington from Goldstein & Russell has joined the US Department of Justice as Deputy Assistant Attorney General –Civil Appellate Division IJA Advisory Board Member Rex Heinke has joined the California Appellate Law Group, a boutique appellate practice in San Francisco. Justice Rosalyn Richter, who had been on the faculty of IJA’s New Appellate Judges Seminar, retired from the NY Appellate Division, First Department in July and has joined Arnold & Porter as senior counsel. Her recent article on virtual arguments was published on Bloomberg Law online.

law.nyu.edu/centers/judicial

Travis Lenkner is the Managing Partner of Keller Lenkner, which represents plaintiffs in complex litigation—including class and mass actions, arbitrations, and multi-districtlitigation matters—throughout the US. The firm acts for hundreds of thousands of individual clients in addition to serving as plaintiffs’ counsel in high-stakes class and publicenforcement actions. He and two of his partners at Keller Lenkner previously co-founded the litigation finance firm Gerchen Keller Capital, which grew substantially in assets under management before it was acquired by Burford Capital. Prior to helping launch Gerchen Keller, Travis Lenkner was a Senior Counsel at The Boeing Company and a litigation and appellate attorney in the New York and Washington offices of Gibson, Dunn & Crutcher LLP. Lenkner served as a law clerk for Justice Anthony M. Kennedy at the Supreme Court of the

United States and for Justice Brett M. Kavanaugh when he was a judge on the US Court of Appeals for the DC Circuit. He earned his undergraduate degree from Kansas State University and his law degree from the University of Kansas School of Law, where he was Editor-in-Chief of the Kansas Law Review.

9


Spotlight on 2020 IJA Summer Fellows Each year, IJA selects a few outstanding first- or second-year NYU Law students to serve as IJA Summer Fellows. Selected students have the opportunity to work under the direct supervision of IJA faculty directors to prepare for the New Appellate Judges Seminar. Prior IJA Fellows have gone on to clerk in federal and state courts, as well as the US Supreme Court. The 2020 Summer Fellows, Daniel T. Folsom, Christopher Ioannou, Samuel F. Krauss, and Aaditya Tolappa, supported individual and faculty research in furtherance of the IJA mission. Some of them share their experience below:

IJA Report / Winter | Spring 2021

Chris Ionnau This summer I had the opportunity to coauthor a piece with Professor Estreicher on workers’ compensation claims for COVID-19 infection, and Professor Estreicher allowed me the opportunity to present our findings during a Center for Labor and Employment Law webinar. I also researched administrative law jurisprudence for Professor Estreicher and the relationship between Puerto Rico and the United States for Professor McKenzie. I was also able to play a small role in IJA’s oral history project, which was extremely rewarding. After graduation, I would like to clerk and then pursue a career in litigation. While I’m disappointed that the AJS was cancelled due to the pandemic, I’m so grateful for the wonderful experiences I had working with the IJA team!

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Aadi Tolappa IJA was unable to host AJS this summer because of the pandemic, but as a result, I had the opportunity to work with Professor McKenzie on a research project related to innovations in bankruptcy law. The project specifically focused on the statutory and historical bases of the prepackaged Chapter 11 bankruptcy, and whether the “prepack” was something Congress envisioned or intended when it enacted the Bankruptcy Act in 1978. I also helped the IJA transcribe “oral history” interviews with distinguished judges, which provided me meaningful insight into the personalities and philosophies animating the judiciary. After law school, I hope to clerk with a judge and to work in appellate litigation.” NYU Law students interested in serving as an IJA Summer Fellow should check Simplicity in February 2021when Faculty RA positions are posted, or contact ija.admin@nyu.edu to be put on a list for notification when openings are published.

IJA’s 62nd Annual New Appellate Judges Seminar IJA

’s New Appellate Judges Seminar (AJS) for federal, state, and military appellate judges is

offered in cooperation with the Federal Judicial Center’s orientation program for new Article III appellate judges.

AJS combines training on a range of skills and issues essential to new appellate judges, such as opinion writing and editing, conferencing and group dynamics, judicial ethics and independence, and statutory interpretation. A moot oral argument of a pending US Supreme Court case is used as an exercise in the process of decisionmaking. The seminar affords an informal and interactive training program where attendees gain, not just from the experienced faculty of senior judges and academics, but also from sustained and small group interaction with their judicial peers. Although seven Art III, four US Military, 11 state supreme, and 39 state intermediate judges from around the country were registered for AJS 2020, the seminar had to be deferred due to COVID-19. The 62nd New Appellate Judges Seminar will be held online the week of July 19, 2021. Prior registrants and waitlisted judges will receive priority. For more information, contact ija.admin@nyu.edu


IJA Board of Advisors Sheila L. Birnbaum Dechert LLP

Evan R. Chesler ’75, President Cravath, Swaine & Moore

Michael Kimberly McDermott Will & Emery

Thomas C. Leighton Thomson Reuters

Travis Lenkner

IJA Faculty Directors Oscar Chase Emeritus, Russell D. Niles Professor of Law oscar.chase@nyu.edu

Keller Lenkner

Samuel Estreicher Dwight D. Opperman Professor of Law samuel.estreicher@nyu.edu

Paul D. Clement

Martin Lipton LLB ’55

Kirkland & Ellis

Wachtell, Lipton, Rosen & Katz

John S. Cooke

Judge Raymond J. Lohier Jr. ’91

Federal Judicial Center

US Court of Appeals for the Second Circuit

Troy McKenzie ’00

Robert A. Long

IJA Executive Director

Chief Judge Janet Difiore New York Court of Appeals

John Elwood Arnold & Porter

Meir Feder Jones Day

Ian Gershengorn Jenner & Block

Elaine Goldenberg Munger, Tolles & Olson

Lauren R. Goldman ’97

Covington & Burling

Jeremy C. Marwell ’06 Vinson & Elkins

Deanne E. Maynard Morrison & Foerster

Roy W. Mcleese Iii DC Court of Appeals

James Meza Judge Patricia Ann Millett

Sarah Harrington

US Court of Appeals for the DC Circuit

Victor Hou ’97 Clearly Gottlieb Steen & Hamilton

Robert J. Giuffra, Jr. Sullivan & Cromwell

Rex Heinke California Appellate Law Group

Judge Robert A. Katzmann US Court of Appeals for the Second Circuit

Torrey L. Whitman Executive Director torrey.whitman@nyu.edu

IJA Deputy Director Allison H. Schifini ’95 Deputy Director allison.schifini@nyu.edu

WarnerMedia

Mayer Brown US Dept. of Justice

troy.mckenzie@nyu.edu

Trevor W. Morrison New York University School of Law

Judge Thomas R. Phillips Baker Botts

Chief Justice Stuart Rabner New Jersey Supreme Court

Melissa Arbus Sherry Latham & Watkins

law.nyu.edu/centers/judicial

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Institute of Judicial Administration New York University School of Law Wilf Hall, 139 Macdougal, Room 420 New York, NY 10012

Support IJA!

IJA Report / Winter | Spring 2021

Founded in 1952, IJA’s mission has been to bring judges, practitioners, government officials, and academics together in a nonpartisan forum to promote judicial education, access to justice, and public awareness of issues relating to our nation’s legal system and the administration of justice, including through our IJA Oral History of Distinguished American Judges. Because of the limited resources of the state and federal courts, IJA does not charge judicial participants fees that cover the full cost of its programs. IJA needs the support of its members and friends to carry on its important work in law and legal policy, and for ongoing interviews of distinguished American judges. All donations are tax-deductible to the extent allowable by law.

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Two ways to support the institute today: Online: You can donate online, making sure to select “Other” and typing in “Institute of Judicial Administration.” By mail: You can also contribute to the institute by check. Enclose your name and address and make checks payable to the Institute of Judicial Administration (IJA), then send to: Institute of Judicial Administration New York University School of Law | Wilf Hall, 139 Macdougal, Room 420 New York, NY 10012 | (212) 992.6289 | ija.admin@nyu.edu

Thank you for your support!


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