Jed S. Rakoff
Jed Saul Rakoff (born August 1, 1943) is a Senior United States District Judge of the United States District Court for the Southern District of New York.
Jed Saul Rakoff
|Senior Judge of the United States District Court for the Southern District of New York|
|Assumed office |
December 31, 2010
|Judge of the United States District Court for the Southern District of New York|
March 1, 1996 – December 31, 2010
|Appointed by||Bill Clinton|
|Preceded by||David N. Edelstein|
|Succeeded by||Katherine B. Forrest|
Jed Saul Rakoff
August 1, 1943
|Education||Swarthmore College (B.A.)|
Oxford University (M.Phil.)
Harvard Law School (J.D.)
Rakoff was born in Philadelphia, Pennsylvania on August 1, 1943. He grew up in the Germantown section of Philadelphia and attended Central High School of Philadelphia. Rakoff graduated with a degree in English literature from Swarthmore College (Bachelor of Arts 1964), where he was President of the Student Council and Editor-in-Chief of the college newspaper. He earned his Master of Philosophy in Indian History from Balliol College at Oxford University (1966), and received a Juris Doctor, cum laude, from Harvard Law School (1969), where he was a member of the Harvard Legal Aid Bureau. He has received honorary degrees from Saint Francis University and from Swarthmore.
After serving as law clerk to Judge Abraham Freedman of the United States Court of Appeals for the Third Circuit, Rakoff spent two years in private practice at Debevoise & Plimpton before spending seven years as a federal prosecutor with the United States Attorney for the Southern District of New York. For the last two of those years, he was Chief of the Business and Securities Fraud Prosecutions Unit. He then returned to private practice where he was a partner first with Mudge, Rose, Guthrie, Alexander & Ferdon (1980–90), and then with Fried, Frank, Harris, Shriver & Jacobson (1990–96). He headed both firms' criminal defense and civil Racketeer Influenced and Corrupt Organizations Act (RICO) sections.
Federal judicial serviceEdit
On October 11, 1995, Rakoff was nominated by President Bill Clinton to fill a seat on the United States District Court for the Southern District of New York vacated by David N. Edelstein. He was confirmed by the Senate on December 29, 1995, received his commission on January 4, 1996, and entered on duty on March 1, 1996. On December 31, 2010, he assumed senior status, although he continues to take the full load of cases.
Academic and foundation serviceEdit
Rakoff is Adjunct Professor of Law at Columbia Law School. He has taught at the law school since 1988, teaching seminars on White Collar Crime, the Interplay of Civil and Criminal Law, Class Actions, and Science and the Courts. He also served on the Board of Managers of Swarthmore College and on the Governing Board of the MacArthur Foundation's Law & Neuroscience Project. Rakoff was elected to the American Law Institute in 2009 and to the American Academy of Arts and Sciences in 2013. He is a fellow of the American College of Trial Lawyers. Rakoff represented the federal judiciary on the National Commission on Forensic Science (2013–17) and was co-chair of the National Academies of Science's Committee on Eyewitness Identification. He served on the New York City Bar Association's Executive Committee and was chair of the Association's Nomination, Honors, and Criminal Law Committees. He was chair of the Second Circuit's Bankruptcy Committee and Chair of the Southern District of New York's Grievance Committee and Criminal Justice Advisory Board. He participated in the development of the Third Edition of the federal judiciary's Manual on Scientific Evidence and was co-editor of the Judge's Guide to Neuroscience. He has assisted the U.S. Department of Commerce in training foreign judges in international commercial law in Azerbaijan, Bahrain, Bosnia, Dubai, Iraq, Kuwait, Morocco, Saudi Arabia, and Turkey. He was a senior advisor to the President's Council of Advisors on Science and Technology's Advisory Group on Forensic Science and served as an Adviser on the ALI project to revise the sentencing provisions of the Model Penal Code.
Judge Rakoff's younger brother, Todd, is a professor at Harvard Law School.
Visiting judicial serviceEdit
Throughout his judicial career, Rakoff has sat regularly by designation on the Second Circuit Court of Appeals. In addition, since 2011, Rakoff has regularly sat by designation on the Ninth Circuit Court of Appeals, as well as occasionally on the Third Circuit Court of Appeals.
On April 13, 2013, Rakoff was on a list released by the Russian Ministry of Foreign Affairs (MID) of Americans banned from entering the Russian Federation. The list was a direct response to the so-called Magnitsky list issued by the United States the day before.
Rolling Stone magazine Matt Taibbi wrote in 2011, "Federal judge Jed Rakoff, a former prosecutor with the U.S. Attorney's office here in New York, is fast becoming a sort of legal hero of our time."
In 2017, Pulitzer Prize winning journalist Jessie Eisinger devoted two chapters of his book, The Chickenshit Club, to Rakoff, concluding that "Judge Rakoff has cried out about the injustice of the [criminal law] system. He has played a role to change the way the country addresses corporate criminals."
Rakoff is a leading authority on the securities laws and the law of white collar crime, and has authored many articles on the topic, as well as leading treatises on RICO and corporate sentencing. Speaking about the federal mail fraud statute when he was still a prosecutor, Rakoff wrote, "To federal prosecutors of white-collar crime, the mail fraud statute is our Stradivarius, our Colt .45, our Louisville Slugger, our Cuisinart -- and our true love. We may flirt with other laws and call the conspiracy law 'darling,' but we always come home to the virtues of [mail fraud], with its simplicity, adaptability, and comfortable familiarity. It understands us and, like many a foolish spouse, we like to think we understand it." Judge Rakoff is also co-editor, with the late Judge Leonard B. Sand, and others, of Modern Federal Jury Instructions.
In addition to pushing back against what he has described as superficial punishment by the SEC for companies accused of fraud and the failure of the Department of Justice to prosecute the responsible individuals, Rakoff has held the federal death penalty unconstitutional, sharply criticized the U.S. sentencing guideline, inserted himself into corporate governance reform at WorldCom, pushed for the public release of documents, and authored several of the leading decisions on insider trading.
Swarthmore, in conferring his honorary degree, noted that Rakoff is "broadly recognized as a legal thinker, scholar and judge who not only elucidates and enforces the law, but interprets, defends and challenges it in light of the principles of ethics and social justice that it is designed to serve" and that his opinions "are cited as models of intellectual clarity and judicial vision by lawyers and judges throughout this nation."
He is well-known among lawyers for showing little patience with delays and moving cases along rapidly. The judge says he feels bad taking lawyers and others to task, but he saw in private practice how delays and gamesmanship made the American legal system too slow and expensive for the average person. "The price of being a nice guy is too high—much too high—in terms of the system of justice", Rakoff added.
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United States v. QuinonesEdit
In 2002, Rakoff declared the federal death penalty unconstitutional, writing that:
The best available evidence indicates that, on the one hand, innocent people are sentenced to death with materially greater frequency than was previously supposed and that, on the other hand, convincing proof of their innocence often does not emerge until long after their convictions. It is therefore fully foreseeable that in enforcing the death penalty a meaningful number of innocent people will be executed who otherwise would eventually be able to prove their innocence. It follows that implementation of the Federal Death Penalty Act not only deprives innocent people of a significant opportunity to prove their innocence, and thereby violates procedural due process, but also creates an undue risk of executing innocent people, and thereby violates substantive due process.— Jed S. Rakoff, "United States v. Quinones, 205 F. Supp. 2d 256 (S.D.N.Y. 2002)".
His opinion was heralded by those opposed to capital punishment. The New York Times called the ruling "a cogent, powerful argument that all members of Congress - indeed, all Americans - should contemplate". However, the decision was subsequently reversed by the United States Court of Appeals for the Second Circuit, United States v. Quinones, 313 F.3d 49 (2d Cir. 2002). Before he found the death penalty unconstitutional in 2002, Rakoff says he suspected his ruling would be reversed because he knew a majority of judges on the U.S. Second Circuit Court of Appeals would interpret a Supreme Court decision on the issue, Herrera v. Collins, differently than he did.
Aguinda v. TexacoEdit
Rakoff presided over a class action lawsuit against Texaco, brought under the Alien Tort Claims Act, by a class of Ecuadoreans, including several indigenous tribes, claiming that Texaco caused extensive destruction to the Oriente rainforest. He dismissed the case on forum non conveniens grounds, writing "While reserving final decision on this motion, the Court is tentatively of the view that, if Ecuador provides an adequate alternative forum, it is the proper place to try these cases, with the Peruvian plaintiffs afforded the alternative of a Peruvian forum if they so prefer. Indeed, the voluminous record before the Court demonstrates that these cases... have everything to do with Ecuador and very little to do with the United States. Moreover, the notion that a New York jury (which plaintiffs have demanded) applying Ecuadorian law (which likely governs the claims here made) could meaningfully assess what occurred in the Amazonian rainforests of Ecuador in the late 1960s and early 1970s is problematic on its face..." Judge Rakoff's decision was affirmed on appeal, 303 F.3d 470 (2d Cir. 2002).
Motorola Credit Corp. v. UzanEdit
Motorola Credit Corporation and Nokia brought suit against the Uzan family of Turkey. Judge Rakoff found that the Uzans perpetrated a multibillion-dollar fraud in connivance with various corporate defendants, involving the making of numerous false statements designed to induce Motorola and Nokia to extend the loans in issue, diluting the collateral pledged to secure the loans, and filing false criminal charges in Turkey against plaintiffs' senior executives, claiming that the executives engaged in "explicit and armed threat[s] to kill," blackmail, and kidnap members of the Uzan family. Rakoff awarded over $2.1 billion in compensatory damages and an equal amount in punitive damages. Motorola Credit Corp. v. Uzan, 274 F. Supp. 2d 481 (S.D.N.Y. 2003), affirmed, 388 F.3d 39 (2d Cir. 2004).
SEC v. WorldComEdit
Rakoff presided over the Securities and Exchange Commission's accounting fraud suit against WorldCom, and, on July 7, 2003, approved a settlement between the SEC and Worldcom. Rakoff appointed Richard C. Breeden, former Chair of the Securities and Exchange Commission, to serve as Corporate Monitor. Breeden actively involved himself in the management of the company, and prepared a report for Judge Rakoff, titled Restoring Trust, in which he proposed extensive corporate governance reforms, as part of an effort to "cast the new MCI into what he hoped would become a model of how shareholders should be protected and how companies should be run." The reforms were implemented, and Rakoff later credited Breeden with "helping to transform a fraud-ridden company into an honest, well-governed, economically viable entity, MCI, Inc." WorldCom was purchased by Verizon in January 2006.
Associated Press v. Dept. of DefenseEdit
In November 2004, the Associated Press submitted a request under the Freedom of Information Act seeking unredacted transcripts of the Department of Defense's Combatant Status Review Tribunals' proceedings and related documentation. In response, the Government invoked FOIA's Exemption 6, claiming that they redacted identifying information in order to protect the detainees' personal privacy. Rakoff's rulings highlighted what he viewed as the hypocrisy of the Government's position—as he wrote, "one might well wonder whether the detainees share the view that keeping their identities secret is in their own best interests"—and held that, in any case, the detainees had no reasonable expectation of privacy in the information at issue. He therefore ordered the Department of Defense to release the unredacted transcripts (including the detainees' names) and related documentation.AP v. United States DOD, 2006 U.S. Dist. LEXIS 211, 410 F. Supp. 2d 147 (S.D.N.Y. Jan. 4, 2006).AP v. United States DOD, 2006 U.S. Dist. LEXIS 2456 S.D.N.Y. January 23, 2006.
The Department of Defense complied with the order,[when?] releasing the unredacted transcripts and related documents relating to those 317 detainees (of the approximately 500 at Guantanamo) who participated in Combatant Status Review Tribunals: "Forced by a federal court to lift the cloak of secrecy that had long shrouded the U.S. prison at Guantanamo Bay, Cuba, the Pentagon released thousands of pages of documents Friday containing names and other details for hundreds of detainees scooped up after the Sept. 11 attacks. The records provide the most comprehensive view to date of the Guantanamo prison population, as well as an exhaustive catalog of the U.S. government's charges against detainees who — in page after page of tribunal proceeding transcripts — protest their treatment and proclaim their innocence."
After the Department of Defense complied with most of Rakoff's order, the Bush administration appealed the remainder of Rakoff's decision on May 5, 2008. The United States Court of Appeals, Second Circuit reversed the remainder of Rakoff's decision, writing, in part, "We hold that the detainees and their family members do have a measurable privacy interest in their identifying information and that the AP has failed to show how the public interest would be served by disclosure of this information. We conclude that the identifying information is exempt from disclosure under the FOIA privacy exemptions."
Bailey v. PatakiEdit
In 2005, Governor George Pataki of New York promulgated an executive order which allowed state-employed psychiatrists to effectuate the involuntary civil commitment—without any prior hearing or judicial determination—of sex offenders approaching the end of their prison terms. Under Pataki's rule, the state's psychiatrists simply had to deem such inmates "to be mentally ill and in need of involuntary care and treatment" and they were then committed to a mental institution without any pre-commitment due process. In an opinion and order dated July 8, 2010, Judge Rakoff found that the government's actions "rather blatantly violated plaintiffs' constitutional rights." Bailey v. Pataki, 722 F.Supp.2d 443, 445 (S.D.N.Y. July 6, 2010). As Rakoff explained: "…pre-deprivation procedural safeguards must be provided when it is feasible to do so—and there is nothing in the record here, taken most favorably to plaintiffs, that suggests any reason why it was infeasible for the plaintiffs here to be given pre-deprivation notice, pre-deprivation appointment of court-appointed physicians, or a pre-deprivation hearing. Indeed, it would have been the simplest thing in the world to have all the required procedures undertaken before a given plaintiff completed his prison term…" Bailey, 722 F.Supp.2d at 450. Rakoff's ruling was upheld by the Second Circuit, which agreed that an official in the defendants' position would have known that the process by which plaintiffs were committed did not satisfy basic constitutional requirements. Bailey v. Pataki, 708 F.3d 391 (2d Cir. 2013).
United States v. AdelsonEdit
A jury convicted Richard Adelson, as Chief Operating Officer and, (eventually) President of Impath, Inc.—a public company specializing in cancer diagnosis testing—of conspiracy, securities fraud, and three false filing counts that related to filings made in the latter half of 2002, but acquitted him of all seven counts that related to earlier filings. The gist of the indictment was that Adelson, joined a conspiracy, initially concocted by others, to materially overstate Impath's financial results, thereby artificially inflating the price of its stock. At sentencing, Judge Rakoff noted that "as a practical matter, a sentence of life imprisonment was effectively available here, for the statutory maximum sentence for the combined five counts of which Adelson had been convicted was 85 years, which, given his current age of 40, would have led to his imprisonment until the age of 125. Even the Government [prosecutors] blinked at this barbarity." Adelson was actually sentenced by the court to three and a half years in prison and restitution of $50 million, $12 million of which would be paid by the immediate forfeiture of most of Adelson's assets and the rest by payments of 15% of his monthly gross income.
To put this matter in broad perspective, it is obvious that sentencing is the most sensitive, and difficult, task that any judge is called upon to undertake. Where the Sentencing Guidelines provide reasonable guidance, they are of considerable help to any judge in fashioning a sentence that is fair, just, and reasonable. But where, as here, the calculations under the guidelines have run so amok that they are patently absurd on their face, a Court is forced to place greater reliance on the more general considerations set forth in section 3553(a), as carefully applied to the particular circumstances of the case and of the human being who will bear the consequences.— Jed S. Rakoff, United States v. Adelson Sentencing Memorandum
Judge Rakoff was affirmed on appeal by the Second Circuit. See United States v. Adelson, 441 F.Supp.2d 506 (S.D.N.Y.2006), affirmed, 37 Fed.Appx. 713 (2d Cir. 2007).
Securities and Exchange Commission v. Bank of AmericaEdit
On August 3, 2009, Bank of America agreed to pay a $33 million fine, without admission or denial of charges, to the U.S. Securities and Exchange Commission (SEC) over the non-disclosure of an agreement to pay up to $5.8 billion of bonuses at Merrill. Rakoff, in an unusual action, refused to approve the settlement on August 5 and then, on September 14, after at least one hearing, rejected the settlement outright and told the parties to prepare for trial to begin no later than February 1, 2010:
Overall, indeed, the parties' submissions, when carefully read, leave the distinct impression that the proposed Consent Judgment was a contrivance designed to provide the S.E.C. with the facade of enforcement and the management of the Bank with a quick resolution of an embarrassing inquiry – all at the expense of the sole alleged victims, the shareholders. Even under the most deferential review, this proposed Consent Judgment cannot remotely be called fair . . . . The fine, if looked at from the standpoint of the violation, is also inadequate, in that $33 million is a trivial penalty for a false statement that materially infected a multi-billion-dollar merger. But since the fine is imposed, not on the individuals putatively responsible, but on the shareholders, it is worse than pointless: it further victimizes the victims. Oscar Wilde once famously said that a cynic is someone "who knows the price of everything and the value of nothing." Oscar Wilde, Lady Windermere's Fan (1892). The proposed Consent Judgment in this case suggests a rather cynical relationship between the parties: the S.E.C. gets to claim that it is exposing wrongdoing on the part of the Bank of America in a high-profile merger; the Bank's management gets to claim that they have been coerced into an onerous settlement by overzealous regulators. And all this is done at the expense, not only of the shareholders, but also of the truth.— Jed S. Rakoff, SEC v. Bank of America, 09 Civ. 6829 (JSR)
Judge Rakoff forced Bank of America and the SEC to come back with a 35-page statement about what happened—and a higher penalty. He reluctantly approved the revised deal, calling the revised settlement "half-baked justice at best" and quoting "the great American philosopher Yogi Berra" in a ruling. Washington Post columnist Steven Pearlstein commented approvingly, "maybe Rakoff is exactly the kind of activist judge we need more of."
Securities and Exchange Commission v. CitigroupEdit
The New York Times reported that "Taking a broad swipe at the Securities and Exchange Commission's practice of allowing companies to settle cases without admitting that they had done anything wrong, a federal judge on Monday rejected a $285 million settlement between Citigroup and the agency. The judge, Jed S. Rakoff of United States District Court in Manhattan, said that he could not determine whether the agency's settlement with Citigroup was "fair, reasonable, adequate and in the public interest", as required by law, because the agency had claimed, but had not proved, that Citigroup committed fraud." 
Rakoff wrote: "The SEC's long-standing policy—hallowed by history, but not by reason—of allowing defendants to enter into consent judgments without admitting or denying the underlying allegations, deprives the court of even the most minimal assurance that the substantial injunctive relief it is being asked to impose has any basis in fact." He added that the agency's settlement policy creates substantial potential for abuse because "[i]t asks the court to employ its power and assert its authority when it does not know the facts."
The SEC appealed this decision to the U.S. Court of Appeals for the Second Circuit, which, in June 2014, vacated Rakoff's decision, saying the judge had overstepped his authority, and sending the case back to district court. Circuit Judge Rosemary Pooler, writing for the unanimous panel, "found that Rakoff has showed too little deference to the SEC in rejecting the pact."
Arce v. DouglasEdit
In 2010, Arizona enacted a so-called "ethnic studies" ban, which prevented students in predominantly Latino school districts from participating in a program that incorporated "historical and contemporary Mexican American contributions into coursework and classroom studies." A group of plaintiffs challenged the law in federal court. When the case went up on appeal, Judge Rakoff, sitting by designation on the Ninth Circuit, wrote an opinion reversing the district court's grant of summary judgment for defendants and remanding plaintiffs' equal protection claim for trial. Arce v. Douglas, 793 F.3d 968, 977 (9th Cir. 2015).
Judge Rakoff wrote that parts of the Arizona law, while not facially discriminatory, raised constitutional issues. In particular, Rakoff cited legislative and other evidence of the laws' discriminatory purpose. The case went to trial in July 2017.
United States v. GuptaEdit
In 2012, Judge Rakoff presided over the landmark insider trading trial of Rajat Gupta, one of the most prominent business executives to be tried and convicted in recent decades. Gupta, the former managing partner of McKinsey, served as a director on the boards of many major American businesses, including Goldman Sachs and Procter & Gamble.[better source needed]
At trial, prosecutors showed that Gupta, at the height of the financial crisis, leaked information about Warren Buffett's $5 billion investment in Goldman Sachs to his friend, hedge fund billionaire Raj Rajaratnam. Indeed, within a minute of finishing a Goldman Sachs Board of Directors teleconference regarding the investment, Gupta phoned Rajaratnam at his Galleon Group office in New York. Minutes later Rajaratnam ordered his traders to buy as much as $40 million in Goldman Sachs stock.
Mr. Gupta was found guilty on three counts of security fraud and one count of conspiracy. Judge Rakoff sentenced him to two years. In his order, the Judge wrote that "The heart of Mr. Gupta's offenses here, it bears repeating, is his egregious breach of trust." At sentencing, Judge Rakoff critiqued the sentencing guidelines, which base levels of punishment on the amount of illicit trading gains accrued in an insider trading case. Since the underlying crime in a case like Gupta's is actually breach of a fiduciary duty not fraud on the market, the amount of illicit gains, Rakoff argued, are a poor proxy for the amount of harm inflicted by the defendant. United States v. Gupta, 904 F. Supp. 2d 349, 352 (S.D.N.Y. 2012). On direct appeal, the conviction and the sentence was affirmed, 747 F.3d 111 (2d Cir. 2014).
United States v. SalmanEdit
In 2015, while sitting by designation on the Ninth Circuit Court of Appeals, Judge Rakoff—whose decisions are normally subject to review by the Second Circuit—created a circuit split with the Second Circuit on the "devilishly complex" issue of what constitutes insider trading." In what has been described as "the stuff of legend" and "delicious irony," Judge Rakoff's opinion in the case, United States v. Salman, prompted the Supreme Court to review the case and unanimously affirm Judge Rakoff's opinion for the Ninth Circuit, thereby overturning the Second Circuit's conflicting doctrine. United States v. Salman, 792 F.3d 1087, 1088 (9th Cir. 2015), cert. granted in part, 136 S. Ct. 899, 193 L. Ed. 2d 788 (2016), and aff'd, 137 S. Ct. 420, 196 L. Ed. 2d 351 (2016).
Specifically, in Salman, Judge Rakoff, considered one of the judiciary's "leading experts on insider trading and white-collar crime," held that any insider who disclosed confidential inside information to his relatives without receiving anything in return, was guilty of insider trading as were his tippees. Rakoff's holding ran counter to the Second Circuit's controversial decision in United States v. Newman, 773 F.3d 438 (2d Cir. 2014), which had narrowed the definition of insider trading to situations where the government could prove that the tipper had received a direct financial benefit from the tippee in return for disclosing the information.
Rakoff has been regularly contributing to the New York Review of Books since 2014. More generally, he is the author of over 150 published articles, and has delivered more than 650 speeches. He has also published several satirical poems.
Rakoff has been married since 1974 to Dr. Ann R. Rakoff, a child development specialist. They have three daughters and two grandsons. He and his wife's hobby is ballroom dancing. He is Jewish.
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Todd D. Rakoff, Byrne Professor of Administrative Law
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- Ellen Barry, Russia Bars 18 Americans After Sanctions by U.S., New York Times (April 13, 2013).
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- The Honorable Jed Rakoff Approves Settlement of SEC'S Claim for a Civil Penalty Against Worldcom, US Department of Justice, July 7, 2003
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- "Guantanamo Inmates Despair of Ever Leaving", The Associated Press March 5, 2006
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Assistant U.S. Attorney Elizabeth Wolstein told the 2nd U.S. Circuit Court of Appeals that Judge Jed S. Rakoff in Manhattan erred in 2006 when he ordered the names released, finding in favor of a Freedom of Information Act request by The Associated Press.
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|url=value (help). Missing or empty
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- "How Jed Rakoff, One-Man Circuit Split, Saved Bharara's Bacon - Law360". www.law360.com.
- "Did Rakoff's Rando Circuit Judge Swap Lead to SCOTUS Insider Trading Decision?".
- "Jed S. Rakoff". New York Review of Books. Retrieved November 30, 2014.
- "At Work With: Ann Rakoff". 14 January 2015.
- United States District Court for the Southern District
- FJC Bio
- Podcast of Oxford Debate: Are Courts Representative Bodies?
- Appearances on C-SPAN
David N. Edelstein
| Judge of the United States District Court for the Southern District of New York
Katherine B. Forrest