The Student Newspaper of the New York University School of Law

THE COMMENTATORVol. XL, No. 6 November 16, 2005

InfraOpinion p. 2Sports p. 3

Concert Review p. 4

Continued on page 2

Pilon Argues For Expansive View ofFreedom of Association in SolomonAmendment Talk at NYU Law

At a recent event spon-sored by the Federalist Society ofNew York University School ofLaw, Roger Pilon advocated aunique view of the infamous“Solomon Amendment.”

The Solomon Amend-ment allows the United States gov-ernment to cut funds to universi-ties that exclude military recruitersfrom campus. On December 6, theSupreme Court will decide whetherthe law is constitutional.

However, Pilon, the CatoInstitute’s Vice President for Le-gal Affairs, argued for a differentdistinction than the Law Schoolversus Military argument. Insteadof either cutting funds to any uni-versity that excludes military re-cruiters, or letting every universitydo as it chooses, Pilon argued that,“private entities should be free todiscriminate in any way they wish,for public entities, just the oppo-site,” he said.

NYU Law’s Federalist Soci-ety sponsored Pilon’s discussionon the Solomon Amendment. Hespoke Thursday, November 3, to acrowd of about 30 in VanderbiltHall 216.

The Cato Institute is aWashington, D.C. based libertar-ian think-tank. Pilon is also the di-

rector of the Cato Institute’s Cen-ter for Constitutional Studies anda graduate of the George Wash-ington University School of Law.

In 2003, the Forum for Aca-demic and Institutional Rights(FAIR), a group of law schools andlaw school faculties, sued the De-partment of Defense. FAIR wanteda preliminary injunction prevent-ing enforcement of the SolomonAmendment. The SolomonAmendment, as most are aware,conditions federal funding for uni-versities on allowing military re-cruiting on campus to all schoolsin the university, such as the LawSchool at New York University.

As an aside, the law iscalled “Solomon” for RepublicanGerald Solomon, the New Yorkrepresentative who introduced it,not the ancient king.

In litigation, The districtcourt denied the injunction, with

the Third Circuit Court of Appealsreversing and granting the injunc-tion. The Supreme Court grantedcertiorari in what is now one of themost anticipated cases on thedocket this year.

The law schools wanted toexclude military recruiters, sayingthat the military discriminates onthe basis of sexual orientation withits “don’t ask, don’t tell” policy.Other schools not part of FAIRhave also tried opposing theSolomon Amendment. For in-stance, Harvard Law School is nota part of FAIR, but the school didtry to take a stand against theSolomon Amendment. However, itcaved after the Pentagon threat-ened to cut over $400 million in fed-eral funds.

New York University Schoolof Law is part of the FAIR litiga-tion, and would not allow militaryrecruiters on campus if it were notfor the threat of losing funds forthe entire university through theSolomon Amendment.

Pilon said the Cato Institutehas argued for what he called amoderate course, discrimination inturn. “That means if you discrimi-nate on ‘don’t ask, don’t tell,’ thelaw schools can also discriminate,”he said.

The Constitutional right offreedom of association is centralto the case. “The idea is that thisright of freedom of association isone that ought to be protected inthe private sector. But the law doesnot work that way,” said Pilon.

There are many groundsupon which private entities are notallowed to discriminate. Pilon ar-gued that if you are free to associ-ate with whomever you want, thatalso means you should be free tonot associate with whomever youwant.

Public schools should not beable to discriminate, according toPilon, because they are “public.”But if a school is “private,” that

BY NICHOLAS KANT ’06

Attorney for Lynne Stewart, AttorneyConvicted of Aiding Terrorist, Speaks

Roger Pilon argued on November 3rd that private entities shoudl be allowed todiscriminate in accord with their Constitutional Freedom of Assoication

NICHOLAS KANT ‘06There is nothing that pros-

ecutors in the Southern District ofNew York would rather do thanprosecute lawyers, according to aspeaker brought to New York Uni-versity School of Law by lawschool’s chapter of the ACLU.

And in light of that, theissue becomes how zealously de-fense lawyers will represent theirclients, and how much defenselawyers will decide to censor them-selves, argued the speaker, SusanTipograph.

Susan Tipograph is theattorney for Lynne Stewart. Stewartrecently made international head-lines when she was indicted forhelping convicted terrorist SheikOmar Abdel-Rahman send mes-sages from his jail cell.

Stewart has since beenconvicted, and on October 25, U.S.District Court Judge John Koeltlupheld the conviction, finding that,“The First Amendment lends noprotection to participation in a con-spiracy.” Stewart is scheduled tobe sentenced by Koeltl on Decem-ber 22. She faces up to 30 years inprison.

Tipograph spoke and an-swered questions for a crowd ofabout 30 students at lunchtime onThursday, November 10, inGolding West. Tipograph spokeabout Stewart and issues of crimi-nal defense in America today.

The govern-ment cannotforce [someone]to give up con-stitutionalrights in returnfor money he isotherwise en-titled to

school should be able to receivegovernment money while still en-joying freedom of association,which also means freedom to dis-criminate, Pilon said.

“If the government willengage in a program whereby itfunds activities, it must be equal.The government can’t force[someone] to give up constitu-tional rights in return for moneyhe is otherwise entitled to,” Pilonsaid.

But if two schools areboth receiving government money,how do you know which one isprivate and which one is public?That distinction is of paramountimportance, as it dictates whichschool can discriminate. Pilon saidyou can look at a school’s historyand charter to find out. “I don’tcare how much money NYU getsfrom the government, it could begobs of money, it’s still a privateentity,” he said.

“We live in a climate, andmost of you know this, if you readthe newspapers, watch television,use the internet, you know thatthere are thousands of people

who are jailed, held by the UnitedStates authorities in this countryand around the world, who havebeen denied the benefit of coun-sel,” she said.

Tipograph referenced thediscussion to her own experiences.“I had the opportunity to be ap-pointed by the court in the South-ern District of New York to repre-sent Jose Padilla’s mother. JosePadilla was the American citizenarrested in O’Hare Airport and hasbeen held essentially incommuni-cado for the last three or four years.He has some access to counsel,but he has not been charged witha crime and he has never been con-victed of a crime. And when wewould talk to people about thatcase, people would say ‘Well, buthe was coming to the United States

But if private schoolscan discriminate on any basis,does that mean public schoolscan’t discriminate on any basis atall? Of course public schools dis-criminate heavily on the basis ofgrades and test scores.

“You’re in a second-best

world. To discriminate is tochoose, and you choose on thebasis of reasons. We speak of a‘discriminating person,’ someonewho makes good choices. Doesn’tthe kid who doesn’t make it, whodoesn’t even come close, pay taxestoo?” Pilon asked.

Attorney Lynne Stewart

Of course, thepublic schoolsdiscriminateheavily.

THE COMMENTATORThe Student Newspaper of

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Commentator News/OpinionsPage 2 November 16, 2005

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BY CHRIS MOON ’06EDITOR IN CHIEF

In the last couple of weeksNew York University has been theepicenter of labor controversy re-garding Coca-Cola. The StudentsSenate’s decision to ban coke is aseverely misguided approach tothis controversy.

Coca-Cola is accused of la-bor violations by its bottlers inColombia. Judged in its most per-suasive light, apparently, Coca-Cola has a controlling interest inthe ownership of their indepen-dent bottlers, knew of humanrights violations going on in Co-lombia, and should have pres-sured its bottlers to stop these la-bor violations. But make no mis-take about it, Coke is accused ofmuch more than statutory laborviolations such as promising ben-efits to your employees for reject-ing unionization.

Indeed, the campaign tostop “Killer Coke” at http://killercoke.org claims that they are“seeking your help to stop a grue-some cycle of murders,kidnappings, and torture of unionleaders and organizers” in Colom-bia. These are very seriouscharges, and if proven true wouldlead me to reconsider my supportof refreshing Coke Zero and SpriteZero. Hello, Diet Pepsi! Ah, re-freshing Sierra Mist!

However, NYU’s StudentSenate has voted to ban Coke fromcampus not specifically becauseof these charges, but becauseCoke refuses to allow an “indepen-dent” investigation into these ac-tions in Colombia by the WorkerRights Consortium (WRC), an or-

You may be wondering, as Iwas, what Coca-Cola labor rela-tions has to do with clothingmanufacturing in third world coun-tries. Well, there really isn’t ananswer to that question. Near as Ican tell, the Consortium feels likeexpanding its reach to take on anybig company that has any relation-ship with the universities that arerepresented by the WRC, includ-ing NYU.

Not to simplify matters, butwhat began as an attempt to ex-tract concessions from Nike hasnow turned into an attack on othercorporations that have nothing todo with manufacturing of goodswith university names on them. Ihear Dell outsources lots of theirwork, so watch out Dell, you’renext.

Editor In ChiefChris Moon

Managing EditorsJulia Fuma

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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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New York, NY 10012212.998.6518 (phone) 212.995.4032 (fax)

e-mail: chrismoon@nyu.edu

Copyright 2005 New York University

Jessica GonzalezTudor Rus

Craig Winters

Jackson EatonNicholas Kant

Mary Santanello

Commie Opinions: “Killer Coke” CampaignMost Misguided Move of the Semester

More frightening than theexpansion into disputes unrelatedto school logo merchandise is thesheer audacity of the StudentSenate’s and the Consortium’sdemand that they be allowed toinvestigate this incident. Wearen’t dealing with labor condi-tions in a factory that oftentimesare difficult to regulate, we aredealing with charges of murder,torture, and kidnappings. If theyhappened, and if Coca-Cola knewabout it and did nothing, then theargument could be made that atleast morally they should havedone something to prevent it. Butit isn’t the place of the WRC or ofNYU to figure out if Coke is guilty.

That’s what governmentsare for. Last time I looked, therehave been two investigations intothese actions in Colombia, one bytheir version of a grand jury, andanother by the Colombian Attor-ney General’s office. While obvi-ously Colombia’s government hashad problems over the years, it isa functioning democracy whosegovernmental decisions should beaccorded respect and deference.Neither one of these investiga-tions turned up any wrongdoingon the part of Coca-Cola. In addi-tion, Coke was sued here in theUnited States for some of thesealleged acts. They were dismissedfrom the lawsuit.

I find Coke’s position to beimminently reasonable. The WRCwas created to pressure big busi-ness into labor reform. Whyshould Coke have to agree to aninvestigation by an organizationlike this into murders? All theyhave to do is point to all of thealready concluded investigationsto prove their innocence.

I knew even before I cameto law school that you were inno-cent until proven guilty. Sadly, theNYU Student Senate never learnedthat simple lesson. In the end, itturns out Coke is guilty, not ofmurder, but of refusing to under-stand that a Consortium feels thatit knows better than the law.

Continued from page 1with a dirty bomb and wouldn’t wewant to have him in jail for everand ever without any due pro-cess?’ And the answer to that is‘no.’ The answer to that questionis ‘no’ for lots of reasons. The an-swer is ‘no’ because frankly he hasnever been convicted of a crime,”said Tipograph.

Tipograph then stated thatthere is a belief in this country thatpeople shouldn’t be held unlessthey are charged with a crime, andconvicted of a crime. Tipographcontinued by commenting on thehandling of terrorists and sus-pected terrorists.

“The other thing I get is‘Well, it would never happen to mebecause I would never do some-thing like that.’ The answer to thatquestion, sadly, for lawyers is thatit will happen to you. I’m not try-ing to tell you all that you will beswept up off the streets, and

locked away, because they havebeen after me for many years,”Tipograph said.

She expounded what, fromher perspective, the real issuewould be: “It’s not going to be anissue of getting swept up, it willbe an issue of how zealously youwill advocate for your clients.”

Tipograph and a videoshown before she spoke madesure to point out that Stewart’sonly transgression was a state-ment to the press that Abdel-Rahman was withdrawing his sup-port for a cease-fire in Egypt.

While the statement, andStewart’s criminal culpability forreleasing it can possibly be inter-preted in many ways, Tipographhad one rock-solid statement ofher own.

“Do I wish Lynne had notissued the press statement? Yes, Ireally wish Lynne had not issuedthe press statement.”

Stewart’s Attorney Speaks

ganization whose purpose, in theirown words on their website, “is toassist in the enforcement of manu-facturing Codes of Conductadopted by colleges and universi-ties; these Codes are designed toensure that factories producingclothing and other goods bearingcollege and university names re-spect the basic rights of workers.”

BY CONOR FRENCH ’06Neither new venues nor

artificial lights nor coldertemperatures could deter thisSLAP flag football season frompropelling itself further toward afiery finish. Patrolling thesidelines (which I was not), youwould notice how the blitheveneer of beginning-of-the-semester law students has beensupplanted by the steely gaze ofpeople nudged closer and closerto some unseen breaking point.The field now resembles a mildly-formatted Fight Club withplayers taunting and clashingagainst one another. The post-game handshake serves toremind the players that they allroam the same hallways andendure the same cold-calls.

The conclusions of theLess Contact League’s seasonwitnessed a classic case ofyouth prevailing over experience.Perhaps worn down by a fullseason’s play and creaky jointsfrom two-and-one-half years oflegal curricula, mainstay 3Lteams such as Jang and Just theTip limped to decisive Week Tendefeats at the hands of surging1L teams Gans & Co. (some girls)and Pass/Fail. Three nights later,however, Gans & Co. (still somegirls), having earned the numberone seed in the Less ContactLeague playoff bracket, itself fellvictim to LHJ. Just the Tip, joltedby injuries and ill-timed jaunts tothe Midwest, lost to Pass/Fail ina close repeat of their Week Tenmatch-up. After the game, adistraught Jesse Shumaker (’06)raged against the dying of Justthe Tip’s final season: “I vow toreturn as a 4L to crush thesepeople.” So simple and so direct.

Over on the FullContact League side, the SundayNight contests whittled the Fullcompetition down to four teams– Malicious Prostitution, Gans &Co. (no girls), People’s Army, andTim Meyer’s Team. That being

said, no prognosticator, pundit,or soothsayer could have everforecasted the precipitousdemise of the MinimumContact’s season. A downwardspiral that commenced with aloss to Malicious Prostitutionfour weeks earlier concludedwith a playoff defeat at thehands of an unsung TimMeyer’s Team. Anticipatingplaying the Minimum Contactslater in the playoffs, MaliciousProstitution team captain, ClarkWohlferd (’06), looked visiblydisappointed that his outfit hadplayed their main rival for the lasttime. “What was the point ofthat?” he continued to mutterabout their season-ending loss.

With ten weeks of playand one week of playoffs undereveryone’s belts, the final weekof flag football looms this Friday.Championships will be decidedand everyone will retire toMercer Pub for final some finalmoments of post-gridiron revelry.I think a quote from our dearfriend Craig Winters (’06) aptlydistills the intensity of thisFriday for many NYU students.Responding to early reports thathe would miss the playoffs dueto an inconveniently scheduledconference, Winters shoutedback, “We’re winning thechampionship Friday. I’ll be therefor both games. We’ve beenwaiting three years to molest thegoddamn trophy. Conference bedamned.”

You should all come outand watch and cheer and yellthis Friday and, if you come toMercer Pub, bring your gogglesbecause I can promise you thatsomeone is definitely gettingdoused with champagne. Let’sput this season in the books indominating fashion. What time isit? Game Time.

Flag Football Report

Commentator SportsNovember 16, 2005 Page 3

Superstars Dominate On Different Levels, Depending On The Sport.Which Sport Can One Player Influence the Most? The Obscure Answer May Surprise.

This article is brought on bytwo wildly different, but inter-re-lated sports events that I watchedthis past week. The first, a gameinvolving my favorite team, theUtah Jazz, as they took on the NewJersey Nets in the Meadowlands.The second, the Super Bowl ofMajor League Soccer between theLos Angeles Galaxy and the NewEngland Revolution.

The most pressing questionabout these four teams is howthey can survive with such eso-teric nicknames. But that might bea little too murky for a law schoolnewspaper. I was also intriguedby the way that one player couldmake such a difference in bothgames, both for good and bad. TheJazz came into the game led in scor-ing by Mehmet Okur, averagingover 20 points a game. Okur ap-parently would have rather beenhome in Istanbul than in New Jer-sey, and he scored two points inonly fifteen minutes. Of course,the Jazz had little chance with theirtop scorer mailing it in and lost byabout ten points.

The Galaxy entered the play-offs as the number 4 seed in theWestern Conference, and with thesuperiority of the Eastern Confer-ence were basically the ninth best

team in MLS this season. How-ever, the Galaxy had somethingelse that nobody else in MLS had,a bonafide superstar. TaylorTwellman may have been the MVPof MLS, but a true superstar wouldalso be able to solidify a spot onthe national team. LandonDonovan, on the other hand, is theleader of the U.S. national team(with apologies to Kasey Kellerand Claudio Reyna) and has ex-celled in MLS, leading San Jose totwo championships. Led byDonovan, the Galaxy won thegame 1-0, although Donovan didnot score the lone goal.

So, in what team sports canthe best player in the game takeover and dominate, carrying histeam to victory. Let’s look at thecontenders.

Hockey/Soccer: We’ll com-bine these two sports because Ibet kicking a ball while on iceskates would get better TV rat-ings. I already mentioned the im-port that one player can have insoccer. Both games make domi-nant players important becausethere is not a lot of scoring. Whenmost games end 1-0, it only takesone moment to change the entirecomplexion of the game.

Basketball: This seems like

a no-brainer. First, there are onlyfive players on the court, less thanthe other popular team games.Empirically, the team success ofthe Chicago Bulls would tend tovalidate the importance of one tran-scendent player.

However, with the additionof zone defenses to the NBA, it iseasier than ever to nullify thegreatness of one player. The De-troit Pistons are a classic example,winning a championship last yeardespite the L.A. Lakers having thetwo best players on the court andcoming within one game of repeat-ing, again with the Spurs havingthe top two players on the courtall series.

Football: Peyton Manningis a better quarterback than TomBrady. The only argument forBrady is that he has rings, andManning doesn’t. However, untilthis year the Patriots consistentlyowned the Colts. Only now thatthe Colts have added a defense arethey able to complement the bestplayer on the field. Especially con-sidering the best player doesn’tplay half the game in football, itmakes it even more likely that teamplay is more important than hav-ing one great player.

Baseball: Alex Rodriguezjust won his second MVP onMonday. His first one came whenhe showed just how valuable hewas by carrying his team to a lastplace finish. Luckily for Alex hehad $200 million worth of team-mates to barely win his divisionand get crushed in the playoffs.One player does not a baseballteam make, although Barry Bondsalmost is the exception to thatrule.

One further exception isthat a dominant pitcher can fre-quently make the rest of the play-ers irrelevant. However, becausea starting pitcher can only playonce every four or five games, hecan’t single-handedly lead a teamto a championship.

Perhaps this analysis ofpitching means that the gamewhere one player can dominatethe most is women’s softball. Adominant pitcher in softball canplay every day because the pitch-ing motion does not tire the armas much as a baseball motion.

So there you have it, whileone player can usually make a badteam better, only in women’s soft-ball can one player make the other17 extraneous.

BY CHRIS MOON ’06

What do these two have in common?Not much.

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Commentator ArtsPage 4 November 16, 2005

When Art Brut took thestage late last Thursday night atthe Mercury Lounge, their guitar-ist started the night out with thefamiliar opening chords of AC/DC’s “Back in Black” before theband launched into their first song,“We Formed a Band.” Now, thequestion that crossed my mindwhen I heard “Back in Black” is aquestion which encapsulates theentire Art Brut experience: Is thisband serious? Is the band playing“Back in Black” with their tonguesin cheek, intending for the crowdof Lower East Side amassed at theMercury Lounge that night to winkright back at them—or is Art Brutstarting off with a little “Back inBlack” because those are, quitefrankly, some of rock n roll’s mostpotent opening chords?

Art Brut is another in a longline of British hype-bombs makingone of it’s first ever US appear-ances after accumulating massiveamounts of attention at home inthe UK and having been written-up in every self-respecting cutting-edge-of-cool music blog fromStereogum to Brooklyn Vegan.

The five-piece outfit con-sists of a lead singer who dressesand behaves like a cross betweenJack White, Oscar Wilde, SnidelyWhiplash, and a washed-up Vegaslounge singer; a guitarist who re-sembles Sid Vicious at a healthyweight; a second bassist right

Art Brut Play Rock That is Either Smart, Stupid, or Both at Concert.BY BRIGHAM BARNES ‘’06

along the lines of the skinny Brit-ish rockers that inspire the worksof painter Elizabeth Peyton; anunenthusiastic but roboticallyconsistent drummer who playsstanding up; and a maroon-hairedfemale bassist.

Every move and every songsuggests that they could be moti-vated by an agenda to subvert thenorms of what we expect from coolrock n roll—or maybe they’re sin-cere, but self-aware, and their so-simple-that-maybe-they’re-jokes

the band is sincere,yet calculating—which is certainlyrefreshing in thisworld where rockcan only be sincereor calculated butnever both.sort of rock songs are reallydirectrepresentations of exactlywhat Art Brut wants to be rockingout about.

What am I talking about? Letme try to explain…

One of the stand out tracksfrom their debut album, “Bang

Bang Rock n Roll,” is a song called“Modern Art,” a driven anthem inwhich the lead singer, EddieArgos, narrates situations inwhich he has been overcome bycertain pieces of modern art in cer-tain galleries throughout Europe,his speaking voice traded offagainst a shout-along inspiringchorus of “Modern Art! MakesMe! Want To Rock Out!”

It should be noted at thispoint that, in general, all Art Brutsongs can consist of nearly-spo-ken narratives by Argos tradingoff against shout-along choruses.But the question is, does modernart really make Argos want to rockout? Or is this a joke of a songplaying with the notion of the con-temporary art scene as forum forrock star and rock show behaviorand attitude?

I just don’t know, but I’mleaning towards thinking the bandis sincere, yet calculating—whichis certainly refreshing in this worldwhere rock can only be sincere(consider Bloc Party, for example)or calculated (the Darkness) butnever both. Art Brut isn’t afraid toinfuse their music with a sense ofhumor, but that doesn’t mean theyintend to be taken as a joke.

While the seriousness oftheir seemingly silly songs is al-most completely lost in recordedform, watching Art Brut live re-veals that Argos is certainly emo-

As can be seen, Art Brut toes the line between serious and tongue-in-cheek

“Good Weekend” (a meditation onthe elation which comes with find-ing oneself in a new romantic rela-tionship) or “Rusted Guns ofMilan” (a darkly-comic remem-brance of romantic shortcomingswhich seemed to have Argos neartears by its end).

The fact that I’ve writtenabout six-hundred words so farabout the possible motivations ofthis band (without even touchingon the fact that “art brut” is the

French term for “outsider art” andall that that implies) instead of thefact that they put on an absolutelygreat, high-energy show last weekmight be the ultimate testament tothe internal conflict Art Brut caninspire in those inclined to over-analyze things (that would be us,my fellow students of the law).

So, if you can, try listeningto “Bang Bang Rock n Roll” orcatching an Art Brut show withyour brain turned off, and you’lllike it just fine.

tionally caught up in songs like