UB Law Forum Fall 2008

Briefs

U.S. tax court judge argues for more regulation

In an appearance sponsored by the libertarian-leaning Federalist Society and UB Law's Moot Court Board, a U.S. Tax Court judge played the contrarian, arguing in favor of more government regulation – at least in the tax arena.

Hon. Mark V. Holmes

"Why Tax Regulation Is Good" was the straightforward title of Hon. Mark V. Holmes' address, and Holmes acknowledged he was making a challenging argument.

"Usually for those of us on the right, especially for those of us of a libertarian persuasion, praising regulation seems perverse," he said.

And he recognized widespread suspicions that the complexity of tax law amounts to a full-employment act for tax attorneys. But, he said, many who specialize in tax matters are no fans of the proliferation of tax law. Instead, it is regulations – issued by taxing entities like the Internal Revenue Service rather than by legislative bodies – that tax lawyers prefer.

"Judges have to use some tools to clarify the tax law's ambiguity and apply it to the case at hand," Holmes said. "In tax law in particular, the number of regulations that meet the precision test of a good law is likely to be very large. Precision is a criterion for good law, and it also helps to explain why regulation might be good, even better than case law."

But even as regulation adds clarity to tax legislation, tax specialists are needed more than ever."A tax system that tries to use precision in regulation will always need more regulation to fence in some activities and fence out others," Holmes said."People will shift their behavior in response to a previous round of regulation. Even bright lines will increase the demand for tax lawyers."

What are campaigns for?

The common complaint, Professor James A. Gardner said, is that presidential campaigns are not thoughtful enough, not rational enough, too thin, too superficial, and driven by personality and image rather than substance.

"But the question we like to ask in the Law School is, compared to what?" he said.

Professor James A. Gardner

That comparative critique of campaign styles across the centuries of the American experiment was the basis for a lecture by Gardner to nearly 200 people in the free UB This Summer lecture series. It was called "What Are Campaigns For?" and was based on Gardner's upcoming book of that title.

Sure, he said, modern voters grumble about the quality of campaigns. But a look back shows that each era of American electoral history has had its failings, some of them unthinkable by today's standards: everything from plying the voters with whiskey to rolling giant leather balls inscribed with party slogans across the countryside. Gardner said dissatisfaction with campaigns comes as campaigns fall short of reasoned persuasion and understanding, and voters fail to inform themselves about the issues.

Part of the problem, he said, are the laws regulating ballot access and public campaign financing.

So what are campaigns for?

Mostly, Gardner said, campaigns are not about winning voters over to a candidate's side. Instead, "they are about making sure that people vote the inclination that they brought into the campaign. Campaigns orient voters to select the candidate they should prefer. That does not mean that people are not making up their minds, they are just making them up outside of the campaign." Therefore, he concluded, "we need to worry about something else, and that is how people form their political opinions outside the campaigns. It seems to me that we need to worry much more about inequality of access to the tools of communication and the concentration of mass media ownership."

Our students help New Orleans after the storm

The recent Hurricane Gustav refocused America's attention briefly on the Gulf Coast, but the nation has moved on to other matters. For the residents of New Orleans still struggling to rebuild after Hurricane Katrina, however, "the storm" of three years ago is a continuing and very present reality.

Beyond the city's physical rebuilding, New Orleans' legal system is recovering as well from the devastation that blew in from the Gulf of Mexico in August 2005.And the need for legal services – on issues both civil and criminal – has never been greater.

In January, 29 second- and third-year UB Law students spent a weeklong bridge course getting a firsthand look at the recovery efforts, practicing their legal skills in a fast-paced, high-volume environment, and pitching in to help the New Orleans legal community clear some of its staggering caseload.The students worked with the city's public defender's office,New Orleans Legal Assistance Corp. and the Alliance for Affordable Energy.

"They're still putting out fires in terms of legal work," said third-year student Tatiana Markel. "We were there to do whatever we could to lighten their load," including helping with evictions and title transfers that had gotten "pushed to the bottom of the barrel."

"The biggest shock by far was the devastation still there," Markel said."It was as if Hurricane Katrina occurred yesterday."

"I should have known about all the legal backlog of work that needs to be done so people can rebuild their homes and reacquire their land," said Elliot Kowalski, another third-year student who made the trip.

The three-credit bridge course was the brainchild of Professors Suzanne Tomkins, Margaret Phillips and Sara Faherty. It included two weeks of classes on affordable-housing case law and the government's role in responding to disasters.

Legal fiction

Every so often, Paul Goldstein says, people will approach him at a conference and say, "I read your book, and I loved it." He knows, he says with a laugh, that they are not talking about his four-volume treatise on U.S. copyright law.

Paul Goldstein

More likely those readers passed a pleasant weekend with Errors and Omissions or, now, A Patent Lie (Doubleday), his second novel in the legal thriller genre.

The new novel is a courtroom drama built around Goldstein's continuing hero, Buffalo lawyer Michael Seeley, and his quest to find the truth amid the shifting allegiances of an intellectual property lawsuit. Seeley goes to San Francisco to argue on behalf of his estranged brother's biotech company, which is defending its patent on a high-stakes AIDS vaccine against a Swiss pharmaceutical giant.

As the trial progresses, Seeley begins to suspect that there is corruption all around, and his courtroom life is complicated by romantic entanglements, family drama, political activism and a mysterious murder.

"Never has copyright and intellectual law been so thrilling and so dangerous," the book's publicity enthuses.

Goldstein, who began his teaching career as a UB Law associate professor from 1967 to 1971, is an acknowledged expert in IP law and now teaches at Stanford University. In addition to textbooks, casebooks and other purely academic work, he has written general-interest non-fiction books on IP and copyright law. Errors and Omissions, his first published novel, came out in 2006; he is already at work on the third in the Seeley series.

With his love of literature and the movies, Goldstein said, copyright was a natural fit when he was a student at Columbia Law School. At UB Law he taught survey courses in copyright, patent law, trademarks and unfair competition.

Now, of course, the field of intellectual property has exploded with the advent of the Internet, file-sharing technology and the like. Keeping up is challenge enough, so how does Goldstein find time to indulge his passion for fiction?

"I have not found it overly difficult," he says."I am a lot more efficient in my professional writing today than I was when I started. The first article I published took me a year to write, and I probably threw away three-quarters of it. It took me a while to figure out how to work efficiently."

A light in the Atticus

Harper Lee's beloved novel To Kill a Mockingbird, and the classic 1962 film starring Gregory Peck, got the full legal review in front of an audience at Buffalo's Albright- Knox Art Gallery. Three UB Law School academics were part of a panel discussing the judicial aspects of Mockingbird, whose key conflict revolves around the defense by principled lawyer Atticus Finch of a black man falsely accused of raping a white woman in 1935 Alabama.

Sam Magavern

The program came in conjunction with a National Endowment for the Arts program called The Big Read, which encourages entire communities to read the same book, and it preceded a showing of the film.

UB Law clinical instructor Sam Magavern, moderator of the panel, began by reminding the audience of the book's plot, centered on Atticus' children Scout and Jem, and on their mysterious, reclusive neighbor Boo Radley.

Boo, said Magavern, is a key figure in the book's legal pedigree; he is a recluse because as a teenager he was put under house arrest after falling in with a gang, and at age 33 was briefly locked in the courtroom basement after stabbing his father with scissors. The climax of the story explores the issue of law versus justice, when the sheriff decides not to prosecute Boo for killing a man who was threatening to hurt the children.

Professor Stephanie Phillips spoke of the social and political context in which the novel was released. It was published in 1960, she noted, "at the height of the civil rights movement, and before Civil Rights Act and the Voting Rights Act. It reminded the nation of some of the issues that were on the table right then."

SUNY Distinguished Teaching Professor Elizabeth Mensch went deeper into the character of Atticus Finch, saying that he is "part of a declining Southern gentry culture" who derives his authority from that position of privilege.

Nevertheless, she sees Atticus as a virtuous lawyer."Atticus teaches the children to see in the most unlikely people a possibility, a touch of a better reality that is only partially revealed," she said, quoting Gregory Peck's character as saying," People are nice if you only see them."

New York's clean team

An environmental advocate fighting the good fight with the New York State attorney general's office brought some war stories and some words of inspiration to a UB Law School class on public-service environmentalism.

Katherine Kennedy

Katherine "Kit" Kennedy is special deputy attorney general for environmental protection, and chief of the state's Environmental Protection Bureau. Kennedy detailed the work of that office."It is an incredibly fascinating and challenging job," she said. "The bureau has a broad range of responsibilities and duties that touch on every area of environmental law," including enforcing state and federal environmental laws, and defending the DEC and other agencies when they are the targets of lawsuits brought on environmental grounds.

The work, she said, runs the gamut from very complex nationwide cases – such as a recent challenge by New York and other states that struck down the federal Environmental Protection Agency's toothless regulations on mercury emissions by coal-fired power plants – to small, local law enforcement actions.

Because of the ruling in the EPA case, Kennedy said, the federal agency will need to rethink its system for limiting mercury emissions by power plants."This is a significant case in Buffalo and Western New York," she said, "as well as in other parts of the country, because mercury affects the Great Lakes."

Other recent efforts by the Environmental Protection Bureau include lawsuits to slow global warming, clean up contaminated urban sites, improve water quality in the Bronx River, Hudson River and New York City watershed, and prevent invasive species from gaining a foothold in the Great Lakes.

The power of apology

A new book by Nick Smith '97, I Was Wrong (Cambridge University Press), explores the nature of apologies and the power of a simple statement of wrongdoing. From the apologies of politicians when they misspeak or misbehave, to collective national apologies for past offenses, to issues as intriguing as "Should I apologize to my dog for forgetting to fill his water bowl?," the book examines the theory and practice of this most human custom.

He got into the subject, Smith says, while considering the commodification of law – how harms ranging from racial discrimination to wrongful death are measured in dollar signs. Surprisingly, he found, expressions of contrition have become more common in our justice system, partly because "legal actors do in fact put a price on apologies. Studies suggest that a few words of contrition, regardless of their sincerity, can dramatically decrease the likelihood of costly litigation."

As he worked on the subject, says Smith, who now teaches philosophy at the University of New Hampshire, he came to realize that "apologies are everywhere. Just about every day I was working on the book, someone appeared in headline news apologizing for something.

"Asking a few simple questions can take us to the heart of the meaning of an apology:Did the offender explain what she did with an appropriate degree of specificity? Does she accept blame? Does she make clear why her actions were wrong and identify the principles she violated? Does she promise not to do it again and to redress the problem she caused? These questions tend to lead to further questions about the meanings of any given apology, but they are a good starting point."

So does he really apologize to his dog sometimes? "I do," Smith says, "in part because I think my dog is an important member of my moral community. Likewise, some Native Americans give thanks to killed prey by blowing tobacco smoke into its nostrils, or ask forgiveness from a tree for harvesting its bark. Because such a worldview considers a broad scope of beings within its moral horizons, it extends opportunities for gratitude and contrition beyond most other traditions that strictly delimit the class of moral interlocutors deserving of apologies."

Good for the neighborhood

Four Western New York nonprofits scrambled for a major grant from Buffalo's 21st Century Fund, but only one – the Massachusetts Avenue Project, with strong input from the Law School's Community Economic Development Clinic – went home with the cash.

The $100,000 grant will be used to support the creation of a Community Food Resource and Micro Enterprise Center on Buffalo's West Side, where nearly half of residents live in poverty. The center will make affordable, nutritious food more available to residents, and increase their capacity to earn a living through business and job training.

Among its features: the Rise Up Cafe and catering business, a weekly youth dinner co-op, group meeting space, a commercial kitchen and program offices. The center will function in tandem with the Mobile Market, which was established in February.

"The Law School's Community Economic Development Clinic students have represented MAP for the past 10 years," said clinical instructor Lauren Breen.

"This new center is a very exciting model to build small businesses and, in the process, physically revitalize the West Side."

Compare and contrast

Students' opportunities to study law in a cross-cultural context will grow in the current academic year with the addition of visiting professor Antoni Abad i Ninet, who comes to Buffalo from another UB – the University of Barcelona, Spain.

Dr. Abad, a specialist in constitutional law, will teach a bridge course in Ancient Constitutional Law and a spring-semester course in Comparative Constitutional Law. His term at UB Law School is under the auspices of the Edwin F. Jaeckle Center for State and Local Democracy, and he says it grew out of a meeting of academic minds with Professor and Vice Dean for Academic Affairs James A. Gardner.

"I met Professor Gardner last year in Athens at the World Congress of Constitutional Law," Abad says."After the conference, I wanted to congratulate him on his point of view about federalism and subnational constitutions and to discuss other ideas from the conference. The U.S. federal system is a mature system and a good source for the young Spanish constitutional system as we try to learn and improve it. Professor Gardner is a very open-minded professor and is interested in the Spanish constitutional system and comparative constitutional law, and that makes it easy to find connections between our works. We began an Internet conversation about ways we might collaborate with each other."

The result is a planned joint project by the two professors, "based in a comparison between both constitutional systems but searching for a universal and international application. I am very excited to be in a position to work with someone like Professor Gardner."

Even in his personal heritage, Abad exemplifies the cross-cultural nature of his legal academic work. "I define myself as a Mediterranean," he says."I am a Catalan who was born in Valencia and grew up in Mallorca. My first surname is a Catalan name with Persian, Jewish and Arab origins – like my country, a mixture of ancestral cultures."