Vol. XL, No. 11 The Student Newspaper of the New York University School of Law

THE COMMENTATORMarch 8, 2006

Opinions p. 2

Arts p. 3Crossword p. 4

NYU Holds First Immigration Law Competition

Is There A Takings Clause After Kelo?

Infra

JULIA FUMA ‘07On the weekend of February

24-26, the New York UniversitySchool of Law Moot Court Boardsuccessfully hosted its first everinter-school immigration law moot

court competition.“We have accomplished

something [hosting a moot courtcompetition] that is brand new tothe law school and unique amongtop five law schools” said AndyPeterson, the Immigration LawCompetition Editor on the MootCourt Board. “We chose an immi-gration competition because it was

an area that is particularly relevantnow and, being in New York, wehad access to a pool of wonderfulimmigration lawyers.”

The Moot Court Board re-cruited over 70 local lawyers,judges and professors to judge thecompetition. Among the judgeswere 5 immigration judges and rep-resentatives from more than 4 im-migrant service organizations. Thefinal argument was heard by JudgeStephen Reinhart of the 9th CircuitCourt of Appeals, Judge SoniaSotomayor of the 2nd Circuit, andJudge Fortunato P. Benavides ofthe 5th Circuit.

Among the NYU law profes-sors who judged the competitionwere Cristina Rodriguez, MichaelWishnie, Paula Galowitz andNancy Morawetz.

“I wanted to support a newstudent endeavor—one I believeto be extremely important. Immigra-tion law is both technically com-plicated and of great policy signifi-

cance. I hope the competition willprosper. It certainly got off to agood start.” Said Rodriguez.

“I thought that it was well-organized and that the studentsdid a remarkably good job with dif-ficult material,” said Morawitz

The Competition took placeover 3 days, with 9 schools com-peting: Georgetown, Harvard,Michigan State, Boston College,University of California –Hastings, Rutgers-Newark, NYU,North Carolina Central, and theUniversity of Oregon.

“We are happy with thegeographic diversity and the qual-ity of the schools that competedin the Immigration Law Competi-tion” said Peterson.

The competitors were ex-cited for the chance to tackle animmigration problem. “Both meand my partner have worked withimmigration and so this competi-tion appealed to us,” saidEunYung Choi, Harvard, half the

winning team. She was also im-pressed with the relevance of theproblem. “It is an actual, currentcircuit split.”

Magdelena Barbosa ofRutgers-Newark said she is tryingto use this competition to getpeople in her law school ralliedaround the issue of immigration.

The idea for the competition

started 2 years ago with the 2003-2004 moot court board. Last year’sboard drafted an original proposaland created the position of devel-opment editor who would write aproposal and go the administra-tion for funding. The funding wasapproved and last year the boardelected an immigration law com-petition editor, Andrew Peterson,to run the tournament.

“I am so impressed withhow quickly they managed to turnour very preliminary proposal intoa full-blown nationally attendedtop notch competition within lessthan 2 years,” said Amanda Nadel,competitions editor 03-04 andjudge in this year’s immigrationlaw competition.

Once the funding was inplace, it was time to start writingthe problem. The problem waswritten by two members of themoot court board, Lila Acharya andRobert Turner. They looked fortwo active circuit splits in immi-gration law and then created a factpattern that would provide bal-anced arguments for both sides.While both were experienced prob-lem writers from their 2L year onmoot court, the task proved stress-ful.

“First, knowing that theproblem would be central to theimmigration competition added alot of stress. If the problem didn’t

work, the competition would havebeen a disaster. Second, neitherLila nor I had any experience in im-migration law, so we were prettymuch learning on the fly. It wasonly with a lot of help from otherstudents and professors that wemanaged to make the problem rea-sonably accurate,” said Turner.

The resulting problem fo-

cused on two undetermined issuesin immigration law. The substan-tive question asked whether acrime classified as a felony understate law, but as a misdemeanorunder federal law, can be consid-ered an aggravated felony for thepurposes of the Immigration andNationality Act. The second, pro-cedural issue dealt with whethercourts of appeals can review a de-cision by the Board of ImmigrationAppeals to “streamline,” or sum-marily affirm, an opinion by an im-migration judge.

“The authors of the problemdid a tremendous job in identify-ing two difficult issues, the materi-als were extremely well written andcompiled,” said Rodriguez.

The competition itself wentoff without a hitch thanks to thehard work of the moot court board,who in total gave more than 250man hours in the course of theweekend, the support of the fac-ulty who served as judges andhelped with the problem, and thesupport from the administration infunding the competition andreaching out to judges in the immi-gration community.

Next year, Andy Petersonhopes that the new ImmigrationLaw Competition editor will be ableto work with the administration toexpand the size of competition.

ILC’s Best Oralist Winner inAction

The Panel of three Circuit Court judges questioning competitors

Continued on page 2

CHRIS MOON ’06On Monday, March 6, the

Federalist Society hosted a livelydebate on the recent and contro-versial Supreme Court decision ofKelo v. City of New London. Theevent welcomed two leadingscholars on the issue, attorneyScott Bullock, who argued thecase for Kelo before the SupremeCourt, and Columbia Law Profes-sor Thomas Merrill, who filed anamicus brief on behalf of the Cityof New London. The debate wasmoderated by Professor KatrinaWyman.

Scott Bullock, an attorneyfor the Institute of Justice, beganhis allotted time by calling the re-cent decision “one of the mostuniversally despised” SupremeCourt decisions of the last fewdecades. Opinion polls supporthis contention, showing that alarge majority of citizens disagreewith the decision.

Bullock used his remarks toexplain why, after the Kelo deci-sion, there is very little left of thepublic use requirement of the FifthAmendment’s takings clause. Heindicated that one of the ration-ales of the Court’s decision, thatthe City had a plan, is not much ofa limitation at all, as even obvi-ously private development haspublic planning.

One of the major problemswith the Kelo takings were thatthey were for speculative projects,such as future office buildings forwhich the developer had no firmfuture plans. A problem with al-lowing speculative projects is thefact that it is difficult to know whatare the motivations of public offi-cials, whether their interests wereto help the public or to help pri-

vate developers Government offi-cials don’t need to answer whythey acted how they did. A sec-ond problem is that once you saythat all private developmentprojects are public uses, how doyou separate private and publicuses? As Justice Thomas pointedout, much of even the “public” useseemed to correlate with whatPfizer Corp. wanted to happen.

Bullock did feel that statecourts and state constitutionalprovisions could still be used togrant greater protection than thatgiven by the Supreme Court. An-other thing that might provide pro-tection is the reaction of state leg-islators, who want to do somethingabout it. 46 states have alreadyacted, are in the process of acting,or will act on legislation restrictingeminent domain use.

However, the battle in statelegislatures has not been as easyas the polling would suggest.Those who support eminent do-main for private development arefrequently cities that would ben-efit, and those cities are powerfullobbyists.

Professor Merrill began hisremarks by explaining that it is pos-sible that the decision was correct.

The first reason he gave wasone of judicial restraint. Under anypossible definition, it is a very re-strained decision, as Stevens de-fers to the judgment of the statelegislature.

Another way in which Kelois restrained is that it did not dras-tically change the law. Instead, itis in accord with a long line of emi-nent domain cases, and does notdrastically diverge from the origi-nal intent of the Fifth Amendment.

The final definition of re-

straint is a decision that allows ex-perimentation of states. Here,Stevens’ opinion is even more re-strained, as he practically asksstates to experiment with eminentdomain and to enact stricter lawsif they desire.

The second reason thismay be a correct decision, accord-ing to Merrill, is that given the re-alities of decaying inner cities, itmay be necessary to reconsiderproperty rights to allow redevel-opment. These redevelopmentplans take up lots of land, in largepart because of parking lots. And,eminent domain must be used be-cause there are so many landown-ers.

At this point there are twoways to proceed. The dissent ar-gued that government can con-demn the land only if the govern-ment keeps the title to the land. Themajority said you can assemble theland and then re-sell it to privateactors. Under this solution, busi-ness complexes are owned pri-vately. Ironically, the dissentwould lead to more state-ownedcomplexes. Thus, Merrill says that“conservatives should givepause” before entering the fray.

Responding, Mr. Bullock in-dicated that the holdout problemis drastically overstated. For in-stance, New London has over 26acres for redevelopment, plenty ofroom for new growth. The citizensin this area aren’t against redevel-opment, they just want to keep theirhouses as part of this growth. Bul-lock also said that the marketshould decide whether the rede-velopment occurs, not the govern-ment.

Editor In ChiefChris Moon

Managing EditorsJulia Fuma

Ben Kleinman

Arts EditorBrigham Barnes

Photography EditorGillian Burgess

Staff Editors

Editors EmeritusEmily BushnellDave Chubak

The Commentator serves as a forum for news, opinions and ideas of mem-bers of the Law School community. Only editorials and policies devel-oped by the Editorial Board reflect the opinion of the Editorial Board. Allother opinions expressed are those of the author and not necessarily thoseof The Commentator. The Commentator is issued on alternate Wednes-days during the academic year except during vacations and examinationperiods. Advertising rates are available on request. Subscriptions are alsoavailable at a rate of $15 per year. Letters to the Editor should be sent tothe following address, either on paper or via e-mail.

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Commentator OpinionsPage 2 March 8, 2006

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CRAIG WINTERS, ‘07Democracy works because

the responsible, busy voters ofeach state delegate through elec-tions the task of monitoring andadministering the government toother responsible people. Thoseresponsible, duly elected repre-sentatives are duty-bound to usetheir enormous influence to helptheir constituents, and, occasion,to safeguard the greater good. Thisis true, in general, for all levels ofgovernment, but goes doubly forthe U.S. Senate, which prides it-self on being the last great “de-bating chamber,” and is often saidto look askance at its more paro-chial brethren in the U.S. House.

So we are very impressedwith Republican Senator JimBunning’s remarks this past weekregarding the re-authorization ofthe Patriot Act. The great Senatortold the press: “Civil liberties donot mean much when you aredead.”

Congratulations, Senator,on your mindless and head-slap-ping moment of stupidity! Gee, ifwe follow your logic, let’s get ridof all those pesky civil liberties!Why not bug every American and

create a police state? Only un-pa-triotic Americans would need fearthe might of the government’s in-quisitors, right? After all – whatgood are any rights at any time ifwe’re all dead?

We award the Senator a goldstar, and look forward to more tru-isms and utter claptrap from hisdistinguished, thought-provokingmouth. It’s hard to justify the erec-tion of a Soviet-style police state,but you’ve done it! I may com-pletely misunderstand Americanhistory over the last fifty years, butI thought that’s what the Cold Warwas about! Guess I was wrong!

And extra kudos for addinga healthy dose of fear-mongeringto the public chorus. Heck of a job!To Consumption Tax Proponents:

Every now and again, somerich (almost always Republican)firebrand rolls out the tired idea ofscrapping the income tax and re-placing it with a “consumption tax.”One of the highly-touted benefitsof this new tax is that you can al-legedly file your taxes on a post-card-sized piece of paper. What adream! A postcard! And maybethat postcard will be emblazoned

with a tropical scene or some otherappealing picture! Imagine thepossibilities! People would rejoicewhen filing their taxes!

The various efforts to conthe American people into accept-ing this tax usually take the formof two or three Republicans in aninfomercial or on late-night tele-vision patiently explaining thesystem with a couple of handyeasels and charts. Hey, voters, apostcard! Imagine! These effortslook eerily similar to infomercialhosts who hawk home-gym sys-tems (folds under the bed! Imag-ine!) or religious broadcasterswho sell trinkets from the HolyLand (original text of the Dead SeaScrolls! Imagine!).

I’ve read a bunch on theconsumption tax as previouslyproposed to the public, and hadconsigned its benefactors to thesame mental space where I clas-sify Area 51 historians and de-posed “administrators” of Africanstates who want my bank accountinformation so they can wire me$51 million dollars. $51 million!

But it has come to my at-tention that some public finance

LAW WOMENANNUAL ALUMNAE RECEPTION

Wednesday, March 29, 6 PM in Lipton HallLaw Women Annual Alumnae Reception

Honoring Eleanor Fox with the First AnnualAlumna of the Year Award

Come network with NYU alumnae from all careerpaths!

*************************************This event counts towards the pre-EIW event require-

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economists actually view the con-sumption tax as a preferred methodof taxation. These economists arebright, dedicated people, and de-spite the crushing failure of all pre-vious consumption tax proposalsto grab the attention of the generalpublic, they continue to dutifullyplod on, writing, refining and, ingeneral, keeping the hope alive.

I’ll admit at the outset thatsome of the econ-jargon they useis beyond me, so maybe I’m a wal-rus-sized ignoramus who hatespostcards. But what really grabs meis that all of the work and thinkingand writing that the pro-consump-tion tax people do is in spite of thereal political barrier facing this pro-posal: that a consumption tax willnecessarily free trust-fund babiesand the new landed elite from al-most any taxation, at all. Consump-tion taxers dance around this hardtruth by employing the argumentthat money is only worth somethingwhen it is spent – and under a con-sumption tax all spending is taxed– so that, really, all of Paris Hilton’strips to Tiffany’s make her just likethe rest of us. Or so it goes.

This column is usually re-

served for poking fun at our politi-cal establishment, so I feel a littlebad for picking on academics. Buteverything about the consumptiontax flies in the face of the real prob-lems facing our country. Only aprivileged few are reaping the eco-nomic rewards of society, andthey’re doing so at an ever-greaterrate. Those monstrous transfers ofcapital (one hedge fund managercleared $1.2 billion last year) willinsulate their families from everhaving to work again. Do we wantto magnify that effect? Isn’t thatexactly what England looked like,oh, right around the time colonistsshowed up in North America? Dowe want Robber Baron redux?

I, for one, don’t. No goldstars here. Just a statement: exac-erbating the mechanisms whichare distorting our society evermore towards winner-take-all isdeleterious to the common good.Economists, generally, don’t likemessy discussions of “equity”and “fairness” and “principles,”but that’s exactly the conversationthis tax deserves. Postcards bedamned.

Craig’s Weekly Shout-Outs

To the Editor:In your February 8th opin-

ion piece, “Chief Executives GoneWild: NYU Texas Club WantsTexas Justice,” Ian Samuel arguesthat the SBA should support boththe newly proposed Texas Cluband the existing Southern Expo-sure Club because “the SBA spon-sors plenty of groups with paral-lel, even nearly identical, goals.”

Mr. Samuel points to theAsia Law Society (ALS) and theAsian Pacific American Law Stu-dents Association (APALSA) astwo groups with almost identicalgoals. Our goals are actually verydistinct. ALS, for example, fo-cuses mainly on legal and politi-cal issues pertaining to the conti-nent of Asia, and serves as a re-source for those wishing to findwork there. APALSA, on theother hand, generally addresses

the experiences of and issues con-cerning Asian Americans and im-migrants in North America.

In case there is still confu-sion, I encourage all students tovisit our webpages or join our e-mail lists. The differences betweenthe groups should be very appar-ent after doing so.

Jesse Hwang, NYU Asia LawSociety, President

Correction from the same editorialIan Samuel, in his February 8

editorial, wrote that Oliver Carter,SBA President, was a founder ofSouthern Exposure. In fact, Oliverwas not a founding member of theorganization. He did serve one yearas Vice-President of the organiza-tion, which was founded before Mr.Carter began law school, during the2002-2003 academic year.

Letter to The Editor.And A Correction.

KeloContinued from page1

Professor Merrill also re-ceived five minutes to respond. Hetook this time to make the pointthat it is exceedingly difficult for aprivate developer to acquire sucha large amount of land, becausehold-outs would occur. Once thegovernment begins such a projectthough, hold-outs are less likelybecause the threat of eminent do-main is held over the head of thenegotiating landowners.

The debate ended with adiscussion of quasi-public compa-nies.

The Takings discussion wasone of many debates on majorconstitutional issues sponsoredby the Federalist Society of NYU.

Commentator ArtsMarch 8, 2006 Page 3

Belle and Sebastian and the Cult of Twee

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BRIGHAM BARNES, ’06Glaswegian “rock” band

Belle and Sebastian played twosold out shows at the Nokia The-ater in Times Square last week.This may have come as a surpriseto the band’s ardent fans, as each

true lover of Belle and Sebastianlives in an imaginary land wherethey’re the only person in theworld who has ever heard of thisrather popular octet and whereeach song sung by the group issung directly to them.

That may seem like a de-meaning thing to say about theband and its followers, but I thinkit’s actually a spot on assessmentof the world that Belle andSebastian has created for them-selves and followers.

The Belle and Sebastianworld is a world where peopledream of visiting Scotland, a worldof “hard to find” EPs and 7” singlesthat somehow every fan managesto find (but don’t worry if youcan’t, because eventually every-thing is collected and compiled inspecial edition CD sets). It’s aworld of quaint and clever odes toreading books, taking walks, wor-rying about getting enough sleep,and, of course, love gone bad (and,occasionally, love gone good.)

It’s a world where the band’srecords (such as “Dear Catastro-phe Waitress,” and “Fold YourHands Child, You Walk Like APeasant,” “If You’re Feeling Sinis-ter”) and songs (such as “Nice Dayfor a Sulk,” “You Know My Wan-dering Days are Over,” and “IfYou’re Feeling Sinister”) all havetitles like books you’re tempted topick up at book store (a quaint littleused bookstore, that is).

You can’t blame their fans,the world of Belle and Sebastian(a world that also includes a duti-fully maintained website where theband members will personally re-spond to your emails) isn’t such abad place to want to be, the prob-lem is that when the band performsat a sold out and oversized venuelike the Nokia Theater you can feeleach member of the joyful audiencelonging for a bit more space to dothe little dance they’ve inventedfor each song or a bit more of theintimacy found in listening to theband’s music while flippingthrough old photo albums.

That said, a Belle andSebastian concert will soften theheart of even the most skeptical ofattendees. Take me, for instance.I’ve been fairly indifferent aboutthe band for years now and onlyreally started to listen to them dur-ing this last year. However, ayear’s worth of listening had mecurious enough to want to pokemy head in and check out the show,just to see what it was all about.

It turns out that it wasabout eight people having a veryfine time playing their songs forslightly over two hours straight.Although the band has a brand

BRIGHAM BARNES, 06The Oscars used to be ex-

citing, but over the last few yearsthey’ve struck me as increasinglysuperficial and increasingly self-congratulatory, featuring thesame cast of pretty faces over andover again. Although I’ve gottenover almost all the other awardsshows, something keeps mewatching the Oscars every year.It’s like the Super Bowl, it doesn’tmatter who’s playing or whetheror not I’m really that interested,I’m going to wind up watching it,that’s all there is to it.

Sunday’s show wasn’t anyless superficial or any less self-congratulatory than normal. Infact, this may have been one ofHollywood’s smuggest years asthe studios are all so pleased withthemselves for having producedsuch a wide variety of sociallyconscious films in 2005. At leastit was funny though, and a littlefunny goes a long way in a fourhour awards ceremony.

Unless you are sensibleand have better things to do thanto concern yourself with who washosting the Oscars this year, thenyou already know that the Acad-emy was short a host this yearuntil the Daily Show’s Jon Stewartwas tapped to run the show.

It’s a pretty big step fromhosting cable television’s mostpopular fake news program to theworld’s most popular awardsshow and obviously a make orbreak night for Stewart (tabloidsspeculated that a successful nightfor Stewart at the Oscars wouldput him on the fast track to some-day replace David Letterman on

Late Night).The opening video sequence

spoofed the Academy’s difficultyin finding a host. Previous hostBilly Crystal couldn’t make it as hewas too busy sharing a tent at acampsite alongside a river with ex-host Chris Rock, Steve Martin re-fused so he could spend more timewith his silver-haired kids, and evenMr. Movie Phone declines beforeStewart finally accepts, at the urg-ing of bed-mate George Clooney.

Stewart’s Oscar style didn’tdiffer much from his Daily Showstyle; he began by conceding thata man who’s last film role was play-ing the fourth male lead in Death toSmoochie has no place hosting anevent honoring excellence in film,and then proceeded to take good-natured jabs at the film industry andOscar guests for the rest of thenight, offsetting these jabs with theoccasional return to self-deprecat-ing humor.

What really kept the Oscarsenjoyable were occasional DailyShow-like touches, such as alengthy montage of homoeroticscenes from classic Western filmsand a series of smear-campaign adsbetween Best Actress nominees, agag that later spoofed itself with asmear-campaign ad for Best SoundEditing.

When all was said and done,no award at the Oscars was toosurprising and no acceptancespeech particularly moving, butStewart’s turn as host made theshow pleasant enough and enoughto make me want to watch the Os-cars again next year . . . but I prob-ably would even if Billy Crystalhosted.

Oscars with John Stewartnew record (“The Life Pursuit”) topromote, they are a band for theirfans, and the night’s ample setspanned the history of their career.

The band’s infectiouslypleasant music translates perfectlyon stage into something abso-lutely irresistible that will get youto sing along, even if you have noidea what the lyrics are.

It’s the sort of night wherethe serious and obsessive fans ofthe band can say “See, I told youso” to those that don’t share theirfaith, and the unfaithful can onlyreply with a “Yeah, you might havea point . . .”

Commentator ArtsPage 4 March 8, 2006CROSSWORD BY JESSICA GONZALES ’06

Across1. O’Henry title characters5. buddy8. dire12. Ms. Brokovich13. chant when Shani Davis won?14. scintilla15. wax partner16. med. research agency

17. Ming ones are quite valuable18. a Vice Deans21. when doubled, dance clothing22. it can be positive or negative23. you and me25. edible flowers30. Mean Girls’ Tina31. height x width32. by way of

33. Ctrl + S34. little devil35. like Debra Messing & Eric Stoltz37. Phrase of surprise, when re-peated38. your and my39. “the author is”40. railroad magnate45. regular membership require-

ment47. regret48. “Peachy!”50. prefix to viral or body51. were, presently52. stiff wind53. bad acting response54. Chinese food equipment55. drove too fast

Down1. kitten noise2. Middle Eastern ethnic identity3. Gershon & Lollobrigida4. tendency to maintain position5. runt-like6. where Vizzini would avoid a landwar7. snooty (old fashioned term)8. name-type (first)9. engines and lions do it10. NYU tech support

11. West of I’m No Angel19. toupee20. ___ Alamos23. ____ Only Just Begun24. checked out25. injure badly26. “This We Will Defend” is itsmotto27. one bicep curl (abbv.)28. spend more than you have29. eye covering30. trend33. adages35. operate36. in decline38. “Supersonic” band40. a presidential power41. replacement for Finland’smarkka42. smell like a rotten egg43. Neil took one for mankind44. it may be tall45. it’ll do ya46. alternative card game49. United’s cheaper alter-ego