By Sandy Holland

In one month alone (January 2002), GW law professors appeared in the media every day but two. Opining on topics as wide-ranging as business ethics, terrorism, tribunals, societal greed, and the way McDonald’s cooks its french fries, GW’s highly respected law faculty has shown that it knows where of it speaks.

In January and February 2002, GW law professors made 139 print, 50 TV, and 35 radio appearances. That adds up to more than 200 interviews and quotes in the national and international media. Among the international media giants that solicited opinion from GW experts during that time were Reuters, Voice of America, Radio Free Europe, BBC, Channel 5 (France), London Free Press, CBS (Canada), and Nikkei News (Japan).

National exposure included CNN, “ABC World News Tonight,” “Good Morning America,” “Bloomberg News,” “Dow Jones News,” Fox News Channel, The New York Times, The Washington Post, The Boston Globe, Chicago Tribune, Los Angeles Times, Christian Science Monitor, Associated Press, National Public Radio, PBS, and the “NewsHour with Jim Lehrer.”

We include these “credits” only to give you a sense of the quality of media organizations that are seeking out our law professors. However, this is not an article about placement statistics or even about who said what to whom; rather, our focus is on a few GW law professors who have, in the past months, been recognized by the media as experts who have thought hard and reached considered opinions about some of today’s toughest topics. Those the GW Law School Magazine talked with represent their colleagues as well, in that our faculty members are widely recognized by the media as insightful and knowledgeable in their respective legal specialties. Questions we asked them were similar to many asked by the media, and here’s how they responded.

September 11 and beyond

We talked terrorism with Professor Stephen Saltzburg. Compact and brisk, Saltzburg is a highly articulate, no-nonsense lawyer who clerked for Thurgood Marshall and served for a time in the Justice Department. Today he holds the Howrey endowed chair at GW and directs the Trial Advocacy program and the master’s program in Litigation and Dispute Resolution. Saltzburg is clearly sympathetic to the Bush administration’s focus on terrorism; he feels that that we can’t afford to wait around to be destroyed.

“There are countries in the world that have harbored terrorists for too long and there are countries that seem to be stockpiling dangerous weapons—not for self defense but we fear they may use them offensively,” Saltzburg asserts. “I think there’s a genuine concern that we can’t wait, that if Saddam does something like invading Kuwait again, then we’ll have to remove him. We have to get serious now to make sure he can’t unleash an attack like that.”

Saltzburg further worries about increasing risks of biological and chemical warfare, the latter of which Saddam has already used in his own country, and says deterrence is preferable to punishment. And what of the latest Israeli/Palestinian crisis?

“Everybody wants this to stop, it’s a horror, and violence breeds violence,” Saltzburg says. But the news from this perennial hot spot on the geopolitical landscape is not encouraging, although he believes it to be in the interests of all parties to come to a peaceful and enforceable solution built on the two-states concept.

And in an interview that took place before the Israeli incursions into Palestinian towns and camps that preceded and coincided with Secretary Powell’s April visit, he anticipated the incursions: “I don’t see how anybody in power in Israel after the last couple of attacks could fail to respond and maintain a leadership position. There are definitely groups there who don’t want to see peace come because there are clearly factions among the Palestinian groups that want to see Israel destroyed. The question is whether those who want peace can control those who see a continuing benefit to violence. The Saudi proposal is intriguing—the notion is that we’ll normalize relations throughout all these countries. The world hopes we can work out a deal that gets the Saudis and the Syrians and Iranians all on board and we can stop this. Other countries in the Middle East must want the violence to stop if there is to be peace. America must play a leading role, but it cannot achieve peace alone. A serious commitment by Arab leaders to normal relations with Israel would be a most welcome historical move.”

And, if not?

Saltzburg is firm. “It’s got to stop. I don’t know how, but we can’t continue like this, or there won’t be anybody left.”

The new look of terrorism

Professor Sean Murphy’s special expertise is international law; he has won prizes for his scholarship—scholarship buttressed with practical experience. Before joining the Law School faculty in 1998, he was legal counselor at the U.S. Embassy in The Hague, where he argued several cases before the International Court of Justice. He also has argued cases on behalf of the United States in other international tribunals, as well as having worked in the State Department.

Murphy views the current “war on terrorism” as presenting unique issues under international law.

“You’re blending two areas of the law: The one area of international law that would normally deal with international criminal matters and the other area of international law that would deal with regulating actions in a time of war. Here we have a convergence of the two and this raises unique questions,” he points out.

After the capture of Taliban and Al Qaeda fighters in Afghanistan and their transport to a U.S. base in Cuba, the question arose as to whether these people are prisoners of war within the meaning of the 1949 Geneva Convention or are unlawful combatants who deserve no special privileges under international humanitarian law. Murphy observes that our government changed from its originally very tough position declaring that Taliban fighters could not be regarded as within the scope of the relevant Geneva Convention. Likewise the government has pulled back from calling for the creation of secretive military tribunals capable of trying aliens both outside and within the United States under low evidentiary standards and with few procedural protections. He thinks that, at least to an extent, the newly “softened” positions are due to the Bush administration being “caught off guard” by the reaction both from U.S. allies and from human rights organizations and other groups. And he points to history.

“Even as far back as the Middle Ages,” he says, “there was a certain sense that there needed to be some level of humanity in war.” You might want badly to win, but, he says, “you didn’t want to be a person who was inhumane, you wanted to be able to maintain discipline among your troops, and you also wanted to encourage the other side to be humane as well. So that tradition continues to animate international law in this area and probably helps explain some of the pressures that were brought to bear on the Bush administration.”

Yet Murphy agrees that man’s natural impulse for retribution will always play a part in society’s treatment of persons who indiscriminately attack civilians, whether they are soldiers or terrorists. Moreover, he notes that sometimes what looks like a humane act by society may not be what it appears. He cites the case of those Al Qaeda terrorists captured and tried for U.S. embassy bombings in Tanzania and Kenya three years ago. Although the U.S. government sought the death penalty for at least two of those convicted, Murphy says, “The jury actually decided not to give them the death penalty and in interviews with jurors afterwards, some of them said it was because they didn’t want to create martyrs out of these terrorists; that they preferred having these people sitting in a jail for the rest of their lives, trying to deal with the other inmates there who might not be too happy with what they did.”

Of immigrants and immigration, and the many colors of racism

Professor Alberto Benitez, a first-generation U.S. citizen, is professor of clinical law and director of the Immigration Clinic at GW. Earlier he was on the faculty of the legal clinics at Chicago-Kent College of Law and Northwestern University and was a staff attorney at the Chicago Lawyers’ Committee for Civil Rights Under Law. Energetic and ebullient, he joined GW Law School in 1996.

Immigrants, nonimmigrant aliens, and out-of-status aliens—distinctions with a difference—all have a special significance for Benitez. He was raised in Buffalo by parents who had emigrated from Mexico. Benitez’s father is a retired steelworker, and his mother was a municipal employee. Students of Benitez in the GW Immigration Clinics handle a large caseload and a wide variety of cases and, through the students who are trained there, Benitez feels that he participates in the development of other lawyers who can similarly help strangers to the United States. He says that, because of his own background, he is in a sense living the “Dream” held dear by many of those who come to the Immigration Clinic for help.

But what of those who say, after Sept. 11, that we should tighten up the borders? After all, the perpetrators of terrorism that day were foreigners.

“This is not,” says Benitez, “in my opinion, said truly in reaction to 9/11; it is an excuse for those people who hold those sorts of views to cloak themselves in the mantle of patriotism. The people who believed that way on Sept. 12 believed that on Sept. 10. Sept. 11 didn’t change anything for them.”

Benitez thinks that the immediate impact of Sept. 11 is the new Patriot Act, and he says that act is “not that bad” from an immigration advocate’s position because “it really simply legislates what should have been happening long before. Specifically, one aspect of the act is that there needs to be greater information sharing between the U.S. foreign intelligence community and the Immigration and Naturalization Service. That’s long overdue.”

But Benitez is not happy with another development that grew out of the September attacks, the fact that the immigration court (officially known as the Executive Office for Immigration Review) “has instituted secret immigration proceedings, secret removal proceedings. They are not publicized, not open to the public. Secret proceedings where aliens who had been detained by the INS or the FBI or some other federal agency are to be put into removal proceedings—which means they may be removed from the United States.” Benitez continues, “So as I sit here today [March 26, 2002], I don’t know where these proceedings are taking place. If they’re being held in the Arlington, Virginia, immigration court, certainly no alien has ever called me and asked me to represent him or her.”

Wait. That doesn’t sound constitutional.

“I would say so,” Benitez agrees. “And I would think that the legal community would be up in arms about it but I think that since it’s secret, they don’t know more than I do. And even I don’t know, you can’t know if there’s anything to be up in arms about precisely because they are held in secret!” [Ed. note: Just days after we first spoke with Benitez, he told us that a federal judge had ruled the secret proceedings unconstitutional, but that compliance with the ruling had not yet taken place.]

Benitez is facile at explaining the immigration terminology that baffles many of us. “The word ‘aliens’ encompasses three categories—‘immigrant,’ which is a lawful, permanent resident of the United States; ‘nonimmigrant,’ which is a tourist, student, diplomat, journalist, etc., someone who is here legally but temporarily for a specific purpose; and ‘out-of-status alien,’ someone who has no lawful right to be in the United States, who crossed the border illegally or who simply came in as a nonimmigrant and never went home.”

He also believes that there is race-driven bias here. “People who don’t look like a ‘typical’ U.S. citizen—Latin American, Asian, African. We don’t look alike. Certain people in Congress, certain people in the media, certain people who wish to run for president, who say that white Anglo-Saxon protestant males created this country, they believe this.”

And so right now, one of his passions is about not blaming all the ills that face us on one certain group. “It’s hard for anyone to stand up for young Islamic men at this time. It’s a really courageous person who gets up and says ‘Look, these 19 terrorists were bad, evil people. But holding all Islamic men responsible for the events of Sept. 11 is simply wrong. Bad, evil people do bad, evil things, regardless of their immigration status. Timothy McVeigh was born in the United States, and he even served in the U.S. Army during the Gulf War.” Benitez acknowledges that it’s hard when you’re in the middle of a crisis to stop and be judicious. But in fact, he points out, “Listen, we’re not going to become what a lot of these countries are, societies where individual rights are not recognized. We’ve always been a system where you’re innocent until proven guilty, and even the most hated person is entitled to a lawyer and due process.”

The curse of corporate irresponsibility

Lawrence E. Mitchell is welcoming and gregarious. He is also the John Theodore Fey Research Professor of Law, with teaching and scholarly interests in corporate law and finance, and jurisprudence. He joined the GW Law School faculty in 1991. Mitchell’s 1998 book, Stacked Deck: A Story of Selfishness in America, was published by Temple University Press and nominated for the Pulitzer Prize in general nonfiction. His current book, Corporate Irresponsibility: America’s Newest Export (Yale University Press, 2001) coincided with the collapse of Enron, about which we spoke in April.

In a media environment like Washington, D.C., in which often one ‘authority’ is as good as another, Mitchell makes clear that before Enron, he did very few interviews.

“I’m not an actor. I’m not a movie star,” he says firmly. “I’m not an authority on everything. I’m a scholar. Consequently, I’m really only willing to talk about things when I think I’m really expert on them. And so with the media frenzy about Enron about the time my book came out, it gave me an opportunity to both promote the book and to promote some of the ideas in it which, after all, is what we do here. We educate. And so I saw doing media as a form of education. But I turn down requests to comment on things I don’t feel comfortable about. I value my credibility.”

“The thing about Enron that’s very gratifying for a corporate scholar and I’ve talked to enough of my colleagues to know that we all kind of feel we’re finally relevant. We’ve always known that business is important. We’ve always known that the way we govern our corporations and the kind of peculiar structures of American corporate law have very large social consequences.”

But if the scandal has legitimized Mitchell and his colleagues, what about the poor people who’ve lost their life savings?

“I have mixed feelings about all those poor people,” Mitchell admits. “I don’t mean to sound cold, particularly since I’ve made my entire scholarly career as the champion of the ‘little guy.’ But there’s a reason they kept pumping their money into Enron stock and it wasn’t only because the executives were telling them to.”

So, is greed the culprit?

“One of the lessons my tax teacher in law school taught us applies to this as well: ‘You’re fine, unless you’re a pig.’ And a lot of them were pigs.”

Mitchell agrees that Enron is a story people relate to. “There’s a lot of drama in this,” he muses. “It’s the business and dealings. It’s the barely comprehensible capital structures that when you boil them down they’re fairly simple and they’re all about fraud. It’s about Arthur Andersen and shredding documents. It’s about the once beloved Ken Lay, about Jeff Skilling actually testifying and arrogantly defying Congress. …It’s about Sherron Watkins, who I don’t think is anybody’s hero.”

Sherron Watkins, not a hero? Wait. Wasn’t she the whistleblower?

“She was trying to save the stock in the company. If she were a real hero, she would have gone public, but if she had gone public, she would have blown her own investment and her own job.”

This is sounding pretty greedy.

Mitchell agrees. “It is this ‘me-centered’ competitiveness in what essentially amounts to a lifelong tournament, to get ahead of the other guy and you know, none of us—at least most of us—are exempt from ambition. But as to Enron, again, I don’t think it is going to make any difference in the long run. The market is back, people are going to forget about it.”

But Mitchell also is sounding a cautionary note about America’s future.

“If you look historically, different cultures have dominated at different times, even in modern history. You know the Dutch ruled commerce in the 15th and 16th centuries. And even up to the beginning of the 17th. England ruled in the 17th, 18th, and 19th centuries. We Americans have had about half a century so far and there’s no guarantee of sustainability at all, so that if we don’t learn lessons from history, if we don’t stop and examine how we’re doing what we’re doing, we’re going to find ourselves self-destructed before we know it.”

Public interest law, class action and other action

Professor John F. Banzhaf III teaches torts and administrative law, among others, but the course he is world-famous for is “legal activism,” wherein law students learn to become public interest lawyers by bringing their own legal actions. Any article in this magazine that contains the word “media” would be missing a key ingredient unless Banzhaf were included, for he is the acknowledged master of the art of using the press to further his public interest causes. Among these—and we will be selective, the phrase “too numerous to mention” could have been coined with Banzhaf in mind—are his campaigns against the tobacco industry, drug companies, food mislabeling, civil rights violations, and wife beaters. He even sued former Vice President Spiro Agnew to recover the bribes Agnew admitted receiving!

Banzhaf feels strongly that students who are able to choose the subjects of their public interest lawsuits learn the most from the work. So they choose their targets. But first, they learn about publicity.

“Publicity is a tremendously powerful weapon. It is an essential weapon in our arsenal,” says Banzhaf, whose own engaging personality surely lends itself to the endeavor. “I’ve had a few cases where we even won a case just on the publicity alone,” he says. “By going out and getting publicity, you put pressure on the agency or the other side, you can use it to expose wrongdoing on the other side. Usually you don’t have much power or clout on your side, and the whole idea of public interest law is the big, bad guy on the one side and the little guy on the other side.”

Does a public interest lawsuit have to be a class action suit?

“Oh, no, not at all,” replies Banzhaf; “from the narrow point of view of my law students, most legal actions we bring are either complaints before an agency or what we call petitions for rule making, where we ask an agency to adopt a rule. In fact, the great majority of our legal actions aren’t even court suits.”
But the McDonald’s suit is a class action suit?

“True, the McDonald’s suit is a class action suit,” Banzhaf replies. “Here’s how it came up. One of my students was a vegan, which is a very pure kind of vegetarian. We were in class discussing possible targets, and he was very incensed about McDonald’s. He said, ‘you know, for years I couldn’t eat McDonald’s fries because they cooked them in beef fat, and then they came out and said they were cooked in 100 percent pure vegetable oil.’

“Oh boy, so he started eating all these french fries. And then he was absolutely outraged to find that they were precooked in beef fat.”

Did he have any recourse?

“Well, we did two things. The law students formed a legal action group called VLAN (Vegetarian Legal Action Network) and petitioned the Food and Drug Administration for better labeling so that when some food additive is put in food, what it is is clearly stated on the label. The other thing was we formulated how to bring this kind of lawsuit, because how can you say somebody got hurt if it wasn’t a deliberate misrepresentation and because, technically, the statement was true. They did cook them in 100 percent pure vegetable oil. They just didn’t tell you they pre-cooked them in the beef fat.

“Through publicity we contacted a Hindu lawyer up in Seattle. He became interested so he filed a suit there, and then more publicity spread and I think now we’ve got six or eight suits now across the country. And it looks like we’re winning, and we’re up to a settlement of over $12 million.”

“Public interest lawyer” sounds noble. Is there a definition?

“I define public interest lawyer as any lawyer who represents a non-private interest. By this I mean that in our society, under our legal system, we have an adversary system. Usually, both sides are adequately represented, so you’ll have labor versus management, you’ll have a corporation versus the government, etc. The two sides are represented most of the time.”

Most of the time?

“Often there are interests which are not represented, people who are concerned about second-hand smoke, people who are concerned about sex or violence on TV, people who are concerned about the environment, etc. So any lawyer who represents an interest which in our society is not so organized that it can represent itself, in my judgment, in my definition, is a public interest attorney.”

This lawyer could be on either side of an issue?

“All public interest lawyers don’t agree, for goodness sake. I disagree with Ralph Nader and other public interest lawyers on many things, but each is legitimately representing an interest that would otherwise go unrepresented. Also, since we’re not being paid, many of us are able to be pretty impartial. As a matter of fact, I’m one of the few people who’s ever sat on both sides—both liberal and conservative—on “Crossfire”!

Resting our case
All the professors we talked to for this article carve out minutes, sometimes hours, from already loaded schedules, to do media interviews; however, Sean Murphy says:

“I am much more focused right now on my scholarship than I am on speaking with the media. When I take a media call or do an on-camera interview, that always means precious minutes taken away from scholarship that day. On the other hand, I firmly believe that persons, such as professors, who have spent a lot of time studying a particular field or a particular issue, have a civic responsibility to share that knowledge with the public if doing so helps further the public discourse.”

Picking—almost at random—five professors out of a 275 full- and part-time person faculty can hardly be representative of all interests held and all shades of political and legal opinion embodied at GW Law. For there is lively debate, and there are very real differences among the faculty on issues of the day. The idea here was merely to give our readers an idea of our faculty’s quality of thought and of the esteem and trust placed in our faculty by opinion leaders in the media. Whether it is those featured above or James Starrs discussing the new Boston Strangler evidence, Dean Young discussing mission work in Afghanistan, Jerome Barron commenting on a lawsuit filed by Carolyn Condit, Jonathan Weiss discussing sustainable cities, or Paul Butler talking about perjury—and we could go on and on—the message is clear and the point is made:

All is well at GW Law.

Read about other GW Law professors in the media,

We want your input, too. If you have a comment on any of our professors’ positions, please drop us a note or an e-mail for our Postmarks section—e-mail to magazine@gwu.edu or address Publisher, GW Law Magazine, 512 Rice Hall, Washington, DC 20052.