Sustainable Advocacy - Duke University School of Law

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Fall 2007 / Winter 2008 | Volume 25 Number 2
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From the Dean Letters to the Editor
Dear Alumni and Friends,
Having just completed my first semester at this wonderful law
DEAN DAVID F. LEVI
school, I take this opportunity to thank all of you for your warm
welcome, support, and advice as I have settled into my new role as
dean. I have come to appreciate what a strong and vibrant com-
munity we have at Duke Law School. The members of our faculty are
superb teachers and scholars. It is a great learning experience to
hear about their scholarship and various projects. The alumni are
accomplished and have pursued a variety of different career paths.
We have alumni in all corners of the country and the world. Their
loyalty to the Law School, their enthusiasm, and their high expecta- Duke Law School
tions both set a high standard and help us to achieve it. Finally, our
students are just delightful. They are impressively smart, nice, and Selected Events
idealistic. They want to use their law training to make the world a
SSttuddentt proffiille
better place. Spring 2008
brings back memories
Like so many organizations, a law school thrives on leadership.
We have been blessed with able leadership from deans, faculty, and
alumni. Because of this history of strong leadership, we can and 1/18 Second Annual Duke Law Leadership Experience: Re: Chris Murray ’07: Making Duke Law History (Spring ’07) *
Development of Identity and Professionalism
should have ambitious goals for this school. Our overarching goal,
supported by the faculty and our alumni leadership boards, is simply 1/28 Data Privacy in Transatlantic Perspective: Congratulations on a great magazine! I read it cover to cover.
stated: We want Duke Law School to be the most exciting place in 7. Diversity: Expanding the racial, ethnic, and gender diversity of the legal profes- Conflict or Cooperation? Because it was our dear friend and classmate, E. David White, III,
the country to study law, whether as a member of the faculty or the student body. sion is important to the profession’s ability to lead and serve. Efforts to further UNIVERSITY CENTER FOR EUROPEAN STUDIES AND THE CENTER FOR we were all very proud when Dave argued a criminal inmate appeal
INTERNATIONAL AND COMPARATIVE LAW
To do that, and in keeping with the Law School’s most recent five-year plan, we diversify our student body and faculty should be coupled with the development of before the United States Circuit Court of Appeals for the Fourth Circuit
2/8 Sixth Annual ESQ. Career Symposium
must focus on 10 areas: “pipeline” programs to provide academic support and generate interest in legal in Richmond, Va.
1. Faculty enhancement: We should expand our exceptional faculty with new hires careers among young minority students. A more diverse student body also will trans- 2/15 International Tribunals and the Most of the members of the Class of ’73 will no doubt remem-
in the areas of law and business, international and comparative law, law and late — over time and with the right kind of support — into a more diverse faculty. United States Judicial System ber the, uh, spirited discussions between Dave and Ray (Raymond
Duke Journal of Comparative and International Law
economics, jurisprudence, criminal law, and legal history. (See Page 34 for a story 8. Special projects and centers: Our new center on criminal justice and profes- Yasser ’74) emanating from Lenny Simon’s (Class of ’73) main floor
Symposium
about our two most recent hires, Ernest Young, a top federalism scholar, and Jack sional responsibility was announced by Duke President Richard Brodhead last law library cubicle, as Ray assisted Dave in preparation for the big
Knight, a renowned political scientist who studies the judiciary, among other topics.) September; we also are exploring options for new clinics, a judicial institute, and 2/22–23 Family Weekend day. I do not recall if we were cognizant Dave was the first student
Public Interest Law Foundation Auction
2. Scholarship funding: To compete for the very best students in the country and the a “Duke in D.C.” externship program, among other possible initiatives. to so argue before the Fourth Circuit. But I would expect that the
world, we need to offer better scholarship assistance and strengthen our Mordecai 9. The international law school: We must respond to the increasing importance 2/26 Siegel Lecture in Ethics: other members of the Class of ’73 appearing in the Spring ’07 issue,
Scholars program, which provides full-tuition grants to the very top applicants. and centrality of international law and institutions by working to “international- Professor Mark A. Rothstein, Herbert F. Boehl Chair of Law Ken Starr, Dan Blue, Ward Greene, Don Mayer, Jeff Nickloy, and Kenny
and Medicine, Director of Institute for Bioethics, Health
3. Endowment for clinics and support for centers: Our clinical programs offer ize” the Law School. Other parts of the university are establishing new degree- Armstrong, would also recall Dave’s feat.
Policy and Law, University of Louisville
our students the experiential opportunities an excellent legal education demands. granting campuses abroad. We should consider whether to join in such endeavors. By the way, law clinics were just getting going in the mid-70s. I
Our centers fuel the vibrant intellectual life of this law school. Both require con- We should increase the number of visiting faculty from foreign institutions and 2/27 Paul D. Clement, Solicitor General of the United States believe Dave’s effort came from the regular Trial Practice Course so
sistent and ongoing support to flourish. expand upon our summer programs in Hong Kong and Geneva. wonderfully and ably taught by Dean Tom Read ’63.
3/10–14 Southern Justice Spring Break Mission Trip
4. Alumni enrichment: Duke Law should be an institution of life-long learning and 10. Joint degrees and interdisciplinarity: We want to ensure that our students Mike Stewart, Class of ’73
engagement. We want to expand opportunities for alumni to share their experience can take full advantage of Duke’s unique strength in collaborative research 3/25 Brainerd Currie Memorial Lecture McLean, Va.
Pamela S. Karlan, Kenneth and Harle Montgomery
and expertise through participation in conferences and symposia and service as across disciplines by reducing financial and administrative barriers to joint
Professor of Public Interest Law, Stanford Law School
mentors, teachers, and advisers. We also want to provide continuing opportunities degrees and increasing interdisciplinary opportunities more generally. *Editor’s note: Our article stated that Chris Murray, then a student
for our alumni to learn about legal scholarship and developments in the law, par- We can maintain our unique Duke culture while striving for excellence and 4/3 Meredith and Kip Frey Lecture in Intellectual Property in the Appellate Litigation Clinic, was the first Duke Law student to
Suzanne Scotchmer, Professor of Economics and Public
ticularly as they contemplate new career directions and possibilities. service across a broad range of activities and study. With the help of our alumni, argue a case in the Fourth Circuit when he argued on behalf of the
Policy, University of California, Berkeley
5. Curriculum: We will continue to strengthen our legal writing program and faculty and many friends, we can accomplish these goals and help Duke Law petitioner in Lyons v. Weisner on Jan. 30, 2007. Whether or not he was
expand opportunities for practical skills training, leadership, interdisciplinarity, achieve its full potential. 4/10–11 National Security Conference the first, his argument was successful. On Sept. 11, the court issued
and creative problem-solving as we prepare our graduates for law practice. We Thank you, again, for your support and good wishes. I look forward to working CENTER ON LAW, ETHICS AND NATIONAL SECURITY a writ of habeas corpus for the clinic’s client, Carl E. Lyons, who is
PROGRAM IN PUBLIC LAW
also are seeking ways to help them consider what it means to have a satisfying with you in the months and years to come. CENTER FOR INTERNATIONAL AND COMPARATIVE LAW currently serving a 30-year sentence in a North Carolina prison for
career in the law. kidnapping and forcible rape.
4/11–13 Reunion 2008
6. Service and leadership: Our curriculum must give students the skills they need Sincerely,
to become effective, ethical leaders, while instilling in them a desire and sense 5/10 Duke Law School Hooding Ceremony
Speaker: William Neukom, President,
of obligation to serve the community and profession. We will explore permanent Duke Law Magazine welcomes your thoughts. Please send letters to:
American Bar Association
funding sources for public interest fellowships and creative new partnerships with [email protected] or by mail to: Letters to the Editor, Duke Law
community organizations. Magazine, Duke University Law School, Box 90389, Durham, NC
27708-0389
From the Dean Letters to the Editor
Dear Alumni and Friends,
Having just completed my first semester at this wonderful law
DEAN DAVID F. LEVI
school, I take this opportunity to thank all of you for your warm
welcome, support, and advice as I have settled into my new role as
dean. I have come to appreciate what a strong and vibrant com-
munity we have at Duke Law School. The members of our faculty are
superb teachers and scholars. It is a great learning experience to
hear about their scholarship and various projects. The alumni are
accomplished and have pursued a variety of different career paths.
We have alumni in all corners of the country and the world. Their
loyalty to the Law School, their enthusiasm, and their high expecta- Duke Law School
tions both set a high standard and help us to achieve it. Finally, our
students are just delightful. They are impressively smart, nice, and Selected Events
idealistic. They want to use their law training to make the world a
SSttuddentt proffiille
better place. Spring 2008
brings back memories
Like so many organizations, a law school thrives on leadership.
We have been blessed with able leadership from deans, faculty, and
alumni. Because of this history of strong leadership, we can and 1/18 Second Annual Duke Law Leadership Experience: Re: Chris Murray ’07: Making Duke Law History (Spring ’07) *
Development of Identity and Professionalism
should have ambitious goals for this school. Our overarching goal,
supported by the faculty and our alumni leadership boards, is simply 1/28 Data Privacy in Transatlantic Perspective: Congratulations on a great magazine! I read it cover to cover.
stated: We want Duke Law School to be the most exciting place in 7. Diversity: Expanding the racial, ethnic, and gender diversity of the legal profes- Conflict or Cooperation? Because it was our dear friend and classmate, E. David White, III,
the country to study law, whether as a member of the faculty or the student body. sion is important to the profession’s ability to lead and serve. Efforts to further UNIVERSITY CENTER FOR EUROPEAN STUDIES AND THE CENTER FOR we were all very proud when Dave argued a criminal inmate appeal
INTERNATIONAL AND COMPARATIVE LAW
To do that, and in keeping with the Law School’s most recent five-year plan, we diversify our student body and faculty should be coupled with the development of before the United States Circuit Court of Appeals for the Fourth Circuit
2/8 Sixth Annual ESQ. Career Symposium
must focus on 10 areas: “pipeline” programs to provide academic support and generate interest in legal in Richmond, Va.
1. Faculty enhancement: We should expand our exceptional faculty with new hires careers among young minority students. A more diverse student body also will trans- 2/15 International Tribunals and the Most of the members of the Class of ’73 will no doubt remem-
in the areas of law and business, international and comparative law, law and late — over time and with the right kind of support — into a more diverse faculty. United States Judicial System ber the, uh, spirited discussions between Dave and Ray (Raymond
Duke Journal of Comparative and International Law
economics, jurisprudence, criminal law, and legal history. (See Page 34 for a story 8. Special projects and centers: Our new center on criminal justice and profes- Yasser ’74) emanating from Lenny Simon’s (Class of ’73) main floor
Symposium
about our two most recent hires, Ernest Young, a top federalism scholar, and Jack sional responsibility was announced by Duke President Richard Brodhead last law library cubicle, as Ray assisted Dave in preparation for the big
Knight, a renowned political scientist who studies the judiciary, among other topics.) September; we also are exploring options for new clinics, a judicial institute, and 2/22–23 Family Weekend day. I do not recall if we were cognizant Dave was the first student
Public Interest Law Foundation Auction
2. Scholarship funding: To compete for the very best students in the country and the a “Duke in D.C.” externship program, among other possible initiatives. to so argue before the Fourth Circuit. But I would expect that the
world, we need to offer better scholarship assistance and strengthen our Mordecai 9. The international law school: We must respond to the increasing importance 2/26 Siegel Lecture in Ethics: other members of the Class of ’73 appearing in the Spring ’07 issue,
Scholars program, which provides full-tuition grants to the very top applicants. and centrality of international law and institutions by working to “international- Professor Mark A. Rothstein, Herbert F. Boehl Chair of Law Ken Starr, Dan Blue, Ward Greene, Don Mayer, Jeff Nickloy, and Kenny
and Medicine, Director of Institute for Bioethics, Health
3. Endowment for clinics and support for centers: Our clinical programs offer ize” the Law School. Other parts of the university are establishing new degree- Armstrong, would also recall Dave’s feat.
Policy and Law, University of Louisville
our students the experiential opportunities an excellent legal education demands. granting campuses abroad. We should consider whether to join in such endeavors. By the way, law clinics were just getting going in the mid-70s. I
Our centers fuel the vibrant intellectual life of this law school. Both require con- We should increase the number of visiting faculty from foreign institutions and 2/27 Paul D. Clement, Solicitor General of the United States believe Dave’s effort came from the regular Trial Practice Course so
sistent and ongoing support to flourish. expand upon our summer programs in Hong Kong and Geneva. wonderfully and ably taught by Dean Tom Read ’63.
3/10–14 Southern Justice Spring Break Mission Trip
4. Alumni enrichment: Duke Law should be an institution of life-long learning and 10. Joint degrees and interdisciplinarity: We want to ensure that our students Mike Stewart, Class of ’73
engagement. We want to expand opportunities for alumni to share their experience can take full advantage of Duke’s unique strength in collaborative research 3/25 Brainerd Currie Memorial Lecture McLean, Va.
Pamela S. Karlan, Kenneth and Harle Montgomery
and expertise through participation in conferences and symposia and service as across disciplines by reducing financial and administrative barriers to joint
Professor of Public Interest Law, Stanford Law School
mentors, teachers, and advisers. We also want to provide continuing opportunities degrees and increasing interdisciplinary opportunities more generally. *Editor’s note: Our article stated that Chris Murray, then a student
for our alumni to learn about legal scholarship and developments in the law, par- We can maintain our unique Duke culture while striving for excellence and 4/3 Meredith and Kip Frey Lecture in Intellectual Property in the Appellate Litigation Clinic, was the first Duke Law student to
Suzanne Scotchmer, Professor of Economics and Public
ticularly as they contemplate new career directions and possibilities. service across a broad range of activities and study. With the help of our alumni, argue a case in the Fourth Circuit when he argued on behalf of the
Policy, University of California, Berkeley
5. Curriculum: We will continue to strengthen our legal writing program and faculty and many friends, we can accomplish these goals and help Duke Law petitioner in Lyons v. Weisner on Jan. 30, 2007. Whether or not he was
expand opportunities for practical skills training, leadership, interdisciplinarity, achieve its full potential. 4/10–11 National Security Conference the first, his argument was successful. On Sept. 11, the court issued
and creative problem-solving as we prepare our graduates for law practice. We Thank you, again, for your support and good wishes. I look forward to working CENTER ON LAW, ETHICS AND NATIONAL SECURITY a writ of habeas corpus for the clinic’s client, Carl E. Lyons, who is
PROGRAM IN PUBLIC LAW
also are seeking ways to help them consider what it means to have a satisfying with you in the months and years to come. CENTER FOR INTERNATIONAL AND COMPARATIVE LAW currently serving a 30-year sentence in a North Carolina prison for
career in the law. kidnapping and forcible rape.
4/11–13 Reunion 2008
6. Service and leadership: Our curriculum must give students the skills they need Sincerely,
to become effective, ethical leaders, while instilling in them a desire and sense 5/10 Duke Law School Hooding Ceremony
Speaker: William Neukom, President,
of obligation to serve the community and profession. We will explore permanent Duke Law Magazine welcomes your thoughts. Please send letters to:
American Bar Association
funding sources for public interest fellowships and creative new partnerships with [email protected] or by mail to: Letters to the Editor, Duke Law
community organizations. Magazine, Duke University Law School, Box 90389, Durham, NC
27708-0389
FEATURES
14 Sustainable 23 The Next Generation
Fall 2007 / Winter 2008
Advocacy Other Duke Law graduates enter the fi eld
Volume 25 Number 2
Alumni at the forefront of 28 Duke’s Environmental Scholars
DEAN environmental law and policy
David F. Levi
EXECUTIVE DIRECTOR OF
COMMUNICATIONS
Melinda Myers Vaughn
EDITOR
Frances Presma
ASSOCIATE EDITOR
Janse Haywood
CONTRIBUTING WRITERS
Frances Presma
Diana Nelson
Brett Cornwright
Melinda Myers Vaughn
Paula Edelson
Debbie Selinsky
Tricia Horatio
Karyn Ridder
Tanya Wheeler-Berliner
FACULTY NOTES EDITOR
Melanie Dunshee
CLASS NOTES EDITOR
Terry Banfi ch
ART DIRECTION
Marc Harkness
COVER/FEATURE ILLUSTRATION
Ken Orvidas
PHOTOGRAPHY
Don Hamerman
Megan Morr
Frances Presma
Jon Gardiner
Butch Usery
Les Todd Learning from Lacrosse
Mark Dolejs
Chris Hildreth Conference explores practice and ethics
COPY EDITOR of trying cases in the media
Caitlin Cary
2
Duke Law Magazine is published under the
auspices of the Office of the Dean,
Duke University Law School, Science Drive and From the Dean
Towerview Road, Durham, NC 27708 38 50
02 News Briefs
Faculty News
32 Faculty Focus
Duke Law Magazine 13 59 39 Faculty Notes
is printed on
recycled paper Profiles
48 Eric Lieberman ’91
36 12
49 Fatima Hassan LLM ’02
50 Jim Carr ’94
51 Sonja Ralston Elder ’09
52 Charles Becton ’69
32
53 Around the Law School
60 Alumni Notes
34 52 69 In Memoriam
51 53
News Briefs
Still, “demanding that the media behave
like lawyers are supposed to behave is
hopeless,” said Carter. “We must demand
that cops, prosecutors, judges, and all
other organs of justice behave as they are
NEWS VANS AND CROWDS OF REPORTERS
BECAME A COMMON SIGHT ON CAMPUS AS required to do by law and canon.”
THE DUKE LACROSSE CASE UNFOLDED.
The disbarment of a “rogue” prosecu-
tor like former Durham District Attorney
Court of Public Opinion Michael Nifong and the exoneration of
Learning from Lacrosse
individuals wrongly accused of crimes
should be routine, Carter said, but isn’t. He
CONFERENCE EXAMINES THE PRACTICE AND challenged the bar to offer as much “legal
heavy-lifting” on behalf of the many poor
ETHICS OF TRYING CASES IN THE MEDIA
people of color — historically the primary
targets of “media lynching” — as it did
A
LTHOUGH “TRIAL BY MEDIA is along with an in-depth analysis of issues in the Duke lacrosse case, and concluded
as American as apple pie,” it is the raised by the Duke lacrosse case. by quoting the Supreme Court ruling in
responsibility of the bar and the courts, A renowned journalist, former presi- Sheppard v. Maxwell: “‘We must remember
not journalists, to make sure trials are fair. dent and CEO of the Knight Foundation, that reversals are but palliatives.’ We need
Hodding Carter III offered that observa- and now University Professor of Leadership … to prevent prejudice at its source.”
tion in his keynote address, which opened and Public Policy at the University of
“The Court of Public Opinion,” Duke North Carolina at Chapel Hill, Carter The playing field: news 24-7
Law School’s two-day conference on the offered further observations — and chal- High-profile cases play out in a round-the-
practice and ethics of trying cases in the lenges — that helped frame the panel dis- clock media environment. This “24-7” news
media, held Sept. 28–29. cussions that followed. cycle, spawned by cable TV and spurred
Sponsored by the John S. and James L. The lacrosse case was hardly an iso- by the growth of the Internet and “new”
Knight Foundation, the conference brought lated instance of a case being tried in the media, as well as the commodifi cation of
together academics, attorneys, jurists, media, Carter said. Journalists routinely news that blurs the lines between news and
journalists, and bloggers for a series of engage in “pack journalism” and demon- entertainment, were key topics for discus-
roundtable discussions on the professional strate “an arrogant refusal” to acknowl- sion throughout the conference.
and ethical roles and responsibilities of edge that their practices have “real effects Whereas editors used to hold informa-
members of the media, the bar, and the upon real people, often with negative con- tion in order to break it in the morning
institutions involved in high-profi le cases, sequences,” he charged. papers on the premise that they had an
2 Duke Law Magazine • Fall 2007 / Winter 2008
News Briefs
exclusive story, they now post it online
immediately, said Malcolm Moran, who
teaches media ethics at Pennsylvania
State University.
“There’s going to be another [Nifong].
There’s going to be another authority
fi gure who will say something [at a press
conference] that is going to be accepted as
fact,” said Moran. “What we have lost is
the ability to digest [and] to report more …
because of the fear that the ‘bus is
leaving town’ and we’re left behind.” Core
journalistic ethics such as seeking truth
in reporting, minimizing harm, acting
independently, and being accountable “are
hard enough to hold onto when editors and
reporters working on a story have fi ve or six
hours to make decisions,” he said. “When
you have fi ve or six minutes, the strain
becomes even more intense.”
Whether blogs and wikis — the so-called
“new media” — harm or help the cause L-R: JOURNALIST SONJA STEPTOE ’85, DUKE LACROSSE COACH KERSTIN KIMEL, UNIVERSITY OF NORTH CAROLINA
of responsible journalism by increasing VICE CHANCELLOR MARGARET JABLONSKI, AND DEAN DAVID LEVI DISCUSS A HYPOTHETICAL SCENARIO.
the pressure to report was a matter of
considerable discussion. Political bloggers
Marcy Wheeler, who live-blogged the recent “ Demanding that the media behave like lawyers are supposed to
Scooter Libby trial, and KC Johnson, who behave is hopeless.”
— Hodding Carter III
blogged throughout the Duke lacrosse case,
said blogs can serve as an effective comple-
ment to the traditional media in covering
trials and offi cial proceedings in particular. Criminal defense attorneys were advised nicate with reporters in writing in order to
“In one of their most basic forms, blogs to be extremely cautious in dealing with reduce the possibility for misunderstand-
serve as watchdogs on the press, point- the media. “Trying” a case in the media ing. “And once you [make a statement],
ing out contradictions, spin and errors,” can harm the client by alienating potential shut up and go about your business, which
Wheeler said, noting that bloggers often jurors, warned Professor Michael Tigar of is preparing and presenting your case,” he
take on the role of traditional journalists, American University, whose clients have advised. “Ultimately, the jury determines,
sourcing materials and offering open- included convicted Oklahoma City bombing based on the evidence, what happens to
source investigations. Blog postings might conspirator Terry Nichols, Sen. Kay Bailey your client.”
offer timelines, assess public evidence, and Hutchison, R-Texas, and former attorney Prosecutors, too, have to remember that
raise questions that can point out “holes” Lynne Stewart. But a number of his cli- “a criminal defendant has the right to be
in cases, giving readers a way to assess ents, including Nichols, benefi ted from the tried in a courtroom, and the media does
stories for themselves, she said. That was intense media interest in their cases, Tigar not have the right to try the case in the
essentially the function of bloggers as the added. Because witnesses who might press,” said Marsha Goodenow, a veteran
Duke lacrosse case unfolded, according to be reluctant to speak to his defense team assistant district attorney in Mecklenburg
Johnson, a professor of history at Brooklyn were quite willing to speak to reporters County, N.C., who testifi ed against Michael
College. For bloggers to have infl uence, he about Nichols, he was able to gain useful Nifong at his North Carolina Bar hearing.
noted, “you can’t regularly publish incorrect information from reading press reports. They also must be cognizant that press
and slanted things.” Denver attorney Hal Haddon ’66, who coverage has an impact on how the public
represented John and Patsy Ramsey and views the justice system, added Hogan &
Free press v. fair trials defended Kobe Bryant against charges of Hartson partner Loretta Lynch Hargrove,
A series of panel discussions highlighted sexual assault, agreed that media contact a former United States Attorney for the
the challenges of litigating high-profi le cases, is inevitable in high-profi le cases in which Eastern District of New York. “You have to
offering views from prosecutors, defense fi rst impressions are “indelible.” Still, he always stress, even at press conferences,
attorneys, and judges, and contrasting called engaging with the media “a very dan- that the charges are allegations only,” she
the American approach to that of other gerous undertaking” for a criminal defense said. “There is this tendency [in the media]
Western countries. lawyer, adding that he prefers to commu- to pick a victim, to pick a villain, to tell a
Fall 2007 / Winter 2008 • Duke Law Magazine 3
News Briefs
For more information on the
conference, visit
http://www.law.duke.edu/
conference/2007/publicopinion/
story and get an answer. Sometimes there “ If there’s one lesson the world should take from the Duke
is no answer.”
lacrosse case, it’s the danger of prejudgment and our need to
Judges use such tools as protective “gag”
defend against it at every turn.”
orders, change of venue, special jury selec- — Richard H. Brodhead
tion procedures, and jury sequestration to
insulate the trial process from corruption,
outside infl uence, and distortion, observed often are not made in the spirit of public perhaps, this is accompanied by a stubborn
Dean David Levi, introducing a panel of interest, and that protective orders may be refusal, in most American legal discourse,
judges who have presided over high-profi le wholly ineffective. “In the 24-hour news to reassess the current approach to the First
trials. “Are these traditional tools adequate cycle, if the lawyers and witnesses who have Amendment in the light of such appalling
in this era in which we live, when the the information are not allowed to talk to misuses of the license it grants.”
media is no longer traditional? What are the media, who is going to talk? Those who In most Western democracies, noted
judges to do when some of the parties most want to speculate. To what extent is that Phillipson, members of the traditional and
interested in the litigation are not actually counterproductive in terms of informing new media face criminal sanctions if they
before the court and subject to direct super- the public about the trial process so that publish materials that create a “substantial
vision?” asked Levi, who served 17 years as they have confi dence in judicial integrity?” risk” of prejudice to criminal proceedings.
a federal judge before coming to Duke. Hengstler said that his center is attempting “The persistent refusal of U.S. law to pro-
While the judges agreed that there is “to educate judges about the media, how to tect individuals from the effect of media
little they can do to minimize pretrial pub- respond, and how to have a judicial strategy coverage on their trials … [seems] the very
licity before charges are laid, once a case is for the media.” opposite of the American respect for the
in a judge’s hands, he or she has to “take Panelists offering European and individual and individual liberty,” Phillipson
control of the case immediately,” said Judge Canadian perspectives on the tension said. “Rather, it looks very much as though
Reggie Walton, who presided over the trial between a free press and fair trial suggested the individual and his or her freedoms and
of Scooter Libby. “You have to be willing that the American approach too heavily rights are being sacrifi ced to the commer-
to step up to the plate and take a hard-line favors freedom of the press. cial interests of the media and the curiosity
position if you feel things are taking place Gavin Phillipson, a professor of law at of the majority.”
that have the ability to compromise the the University of Durham in England, sug- Institutions can learn and be positively
possibility of a fair trial. … My bottom line gested that in high profi le cases, members transformed by crises, observed Judith
is to make sure that the defendant and the of the media often betray the vital role a Clair, an associate professor at the Boston
government receive a fair trial.” free press plays in a democracy. “Such College Carroll School of Management.
Gary Hengstler, director of the Reynolds examples, to me, represent a betrayal by the Crises offer organizations an opening
National Center for the Courts and the press of the First Amendment’s purpose, as for “issue leadership” — the opportunity
Media at the National Judicial College, lives and liberties are destroyed in the pur- to share those lessons and create broad
expressed concern that editorial decisions suit of stories,” he said. “More importantly, changes beyond the borders of the orga-
4 Duke Law Magazine • Fall 2007 / Winter 2008
News Briefs
nization, she said. “Duke is in a position, and that’s inappropriate,” she said. “This is instant moral certainty, before the facts
because of this experience with the lacrosse an opportunity for the media to take had been established,” said Brodhead.
case, to take leadership around the issues, advantage and fi nd these other stories and “If there’s one lesson the world should
whether they be issues of class, race, gen- bring them to light, to redeem themselves.” take from the Duke lacrosse case, it’s the
der, [or] media relations … in part because The lacrosse case did, in fact, highlight danger of prejudgment and our need to
of its time in the spotlight. [Duke] has a “crucial problems of our culture — prob- defend against it at every turn. Given the
story to tell and people are interested in lems of achieving justice in a media- power of this impulse and the forces that
hearing about that.” saturated society, problems of fundamental play to it in our culture, achieving this goal
For Duke, the conference was part of an fairness to individuals, and problems in will not be easy. But it’s a fi ght where we
effort to do just that: to learn from the crisis the way the American public is informed all need do our part.
of the lacrosse case. During one roundtable and misinformed about the world we live “Much of me hopes the Duke lacrosse
discussion, participants from all relevant in,” Duke University President Richard H. case will be forgotten someday,” Brodhead
disciplines — university administrators Brodhead said in an address. said. “But if it is remembered, let’s hope
and coaches, students, journalists, and Making his fi rst public comments in it is remembered the right way: as a call
community leaders — dealt with an unfold- the case since the disbarment and resigna- to caution in a world where certainty and
ing hypothetical scenario with parallels to tion of former Durham District Attorney judgment come far too quickly.” d
the lacrosse case. Another panel featured Nifong, Brodhead refl ected on the les-
members of the Duke and Durham com- sons he took from the lacrosse case and
munities who had “lived through lacrosse” apologized on behalf of the university
CLE ONLINE
as university decision-makers, reporters, for, among other things, failing to more “The Court of Public Opinion: The
and observers, who shared their refl ections strenuously defend the presumption of Practice and Ethics of Trying Cases in
on the case. innocence and reach out to lacrosse team the Media” is available online for CLE
credit from Duke Law School and
LaTisha Gotell Faulks, an assistant pro- members and their families.
West LegalEdcenter.
fessor at North Carolina Central University “When I think back through the
For a full list of Duke Law online CLE
School of Law, noted that “what happened whole complex history of this episode,
offerings, visit
here happens all the time. Our public policy the scariest thing to me is that actual
www.law.duke.edu/cle
is to ignore the possibility of other [cases], human lives were at the mercy of so much
Annual Fund
Fall 2007 / Winter 2008 • Duke Law Magazine 5
News Briefs
Sixth Annual Frey Lecture in Intellectual Property
Stiglitz discusses economic foundations
of intellectual property
A
CCORDING TO NOBEL Laureate
Joseph Stiglitz, the current inno-
vation system relies too heavily on
patents, and the patent system is poorly
designed, ineffi cient, and prone to
distortion. Delivering the sixth annual
Meredith and Kip Frey Lecture in
Intellectual Property last spring, Stiglitz
argued that intellectual property should
be viewed as just one part of a societal
innovation system that includes a broad-
er portfolio of instruments, such as
prizes and university and government
supported research.
University professor, chair of the
Committee on Global Thought, and execu-
tive director of the Initiative for Policy
Dialogue at Columbia University, Stiglitz
chaired President Clinton’s Council of
Economic Advisers and served as chief
economist and senior vice president of the
World Bank. He received the 2001 Nobel
Prize in economics for his groundbreaking
analysis of markets with asymmetric infor-
mation. In his recent work, he has focused
on the ways in which intellectual property
protections might impede both innovation
and world development.
Intellectual property rights have become
“ Not only does intellectual property cause distortion by
one of the major issues in our global soci-
restricting the use of knowledge, it does something even
ety, said Stiglitz. “Globalization is one of the
most important issues of the day, and IP is worse: It creates monopoly power.”
— Joseph Stiglitz
one of the most important aspects of glo-
balization. As we talk about the knowledge
economy, how we regulate knowledge and impede access to life-saving drugs in Stiglitz further criticized the patent
rights to knowledge becomes the center of developing countries, he said. system for slowing innovation by restrict-
how well this knowledge economy works: This distortion can hamper innovation ing access to knowledge — a critical input
who benefi ts, distributional issues, and effi - by helping leverage further monopoly for the creation of further knowledge. A
ciency issues.” It’s effi cient to have knowl- power, he added. “The most obvious disparity and gap in knowledge, as well as
edge distributed freely to everybody in order example is Microsoft, where it has used resources, separates developing from
to create more knowledge, he added. “The its monopoly power in intellectual prop- developed countries, he observed.
problem is that intellectual property circum- erty in operating systems to generate In addition to calling for a redesign of
scribes its use and, thus, almost necessarily monopoly power in applications,” he said, the intellectual property regime to increase
causes ineffi ciency. likening the monopoly profi ts through its benefi ts and reduce its costs, Stiglitz
“Not only does intellectual property which the system is fi nanced to a sort argued in favor of strengthening other
cause distortion by restricting the use of of distorted tax. “Raising revenues for incentives to innovation. He advocated
knowledge, it does something even worse: fi nance and research through the grant- including a prize system in an innovation
It creates monopoly power,” said Stiglitz. ing of monopoly power is not a method portfolio; if well-designed, prizes could offer
The social costs of this distortion or inef- that can be justifi ed by any principles of innovation incentives as strong as those in
fi ciency are particularly high when they public fi nance.” the patent system, he said. d
6 Duke Law Magazine • Fall 2007 / Winter 2008
News Briefs
challenges may be greater, said Blair, who
served as commander in chief of the U.S.
Pacifi c Command. “Public rhetoric from the
“ ... [T]here are 27 ethnic U.S. must be ‘just right’ around the world.”
communities in Iraq. It is He suggested that an open approach is
best — one that “cannot be characterized as
impossible to think that if
propaganda or public relations, but … [that]
you divide it into three promotes tolerance and individual free-
parts everyone would fall doms.” America’s leaders could do a “better
job,” privately and publicly, of supporting
in line.”
— Prince Zeid Ra’ad moderate Muslim groups capable of
Zeid Al-Hussein
isolating extremists, he said.
There is room for improvement across
the board in America’s current approach to
confronting terrorism, said Blair. “We are
doing good work against terrorist groups.
We will get it right. But the frustration is
Conference explores strategies
that we also have to get it [done] fast.”
for confronting terrorism Prince Zeid Ra’ad Zeid Al-Hussein,
Jordan’s permanent ambassador to the
United Nations, added personal refl ections
N
EW METHODS for confronting 2004, ODNI has budgetary and “task- and an international perspective on con-
terrorism were examined in detail ing” authority over all 16 agencies in the fronting terrorism in his keynote address.
during a two-day conference in April. U.S. intelligence community, along with a “Essentially, there is no ‘neutral,’” he
“Confronting Terrorism Here and Abroad: responsibility to ensure their legal compli- said. “If you don’t move forward, you are
Which Way Forward” brought together ance, which Powell oversees. “We focus our moving backward.”
experts from the top levels of the military, efforts and resources on integration and Al-Hussein likened the war on terror
diplomatic, intelligence, legal and academic collaboration, information sharing, to a chess match. “But while there are
communities to discuss U.S. strategy and acquisition of new systems, and develop- millions of variables in chess, here there
policy in the Middle East, domestic spying, ment of new processes,” he said. are billions,” he said. “We generally are,
the limits of interrogating alleged terrorists, Powell asserted that human intelligence unfortunately, very poor examiners of these
and the detention and trial of alleged terror- is critical to winning the war on terror, add- variables — we don’t know which ones will
ists, among other topics. ing that while ODNI is making “tremen- become paramount when.”
Co-sponsored by the Center on Law, dous increases” in this regard, success is Calling the current challenge facing the
Ethics and National Security (LENS), the incremental. “The learning of new languag- U.S. “absolutely enormous,” Al-Hussein
Center for International and Comparative es and acclimation to new cultures takes cautioned against any “panic-driven” with-
Law, and the Program in Public Law, the time, and fi eld experience is expensive.” drawal of troops as well as any partitioning
conference also featured three prominent Echoing the need for better human intel- of the country into distinct Shia, Sunni, and
keynote speakers who offered their unique ligence in his address, retired U.S. Naval Kurdish areas.
insights into strategic options for the U.S. Adm. Dennis Blair suggested that every “In fact, there are 27 ethnic communities
in these contexts. Navy midshipman be required to study in Iraq,” he said. “It is impossible to think
“We’re placing a greater emphasis the language and culture of a particular that if you divide it into three parts every-
on early prevention and disruption to area, skills that over time would build and one would fall in line. Both practically and
try to stop another devastating attack,” become transferable to other areas of focus. morally it’s just not the right thing to do.”
said Benjamin Powell, general counsel “No longer are our forces split by diplo- Principally organized by Professor Scott
for the Offi ce of the Director of National matic, intelligence, and military categories,” Silliman, executive director of LENS, the
Intelligence (ODNI). “There is a robust con- said Blair, past-president of the Institute for conference also received support from
versation going on about privacy in America Defense Analysis. “We need to ensure that Duke University’s vice provost for
and civil liberties. We want to respect that at across these groups, resources, power, and International Affairs and Development,
the same time that we balance it against the human intelligence are integrated.” the Terry Sanford Institute for Public
need of the American people for security.” Although the organizational and opera- Policy Studies, the Center for International
Created by Congress in the Intelligence tional challenges facing U.S. forces are Business Education and Research, and
Reform and Terrorism Prevention Act of great, ideological and public relations Warren and Faye Wickersham. d — D.N.
Fall 2007 / Winter 2008 • Duke Law Magazine 7