Touro College: Digital Commons @ Touro Law Center

Journal of Experiential Learning 
Volume 2 Issue 2 Article 1 
2018 
Table of Contents 
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VOLUME 2 SPRING 2018 NUMBER 2
Table of Contents
ARTICLES
HONORING OUR HISTORY: THE BENCH AND THE
BAR AS LEGAL EDUCATORS AND THE
RESURRECTION OF LEGAL APPRENTICESHIPS
Antonette Barilla 157
MEDIATION AND MILLENNIALS: A DISPUTE
RESOLUTION MECHANISM TO MATCH A NEW
GENERATION
Shawna Benston & Brian Farkas 166
BRIDGING THE GAP: A JOINT NEGOTIATION PROJECT
CROSSING LEGAL DISCIPLINES
Karen E. Powell & Lauren E. Bartlett 182
COLLABORATING FOR TRANSFORMATION
Marjorie A. Silver 210
EXPERIENTIAL LEGAL EDUCATION: HOW THE
UNIVERSITY OF KANSAS SCHOOL OF LAW ALUMNI
ARE CONTRIBUTING TO TEACHING PROFESSIONAL
SKILLS
Suzanne Valdez 223
* * *
A Primer for Balancing Student Education
with Services to Disaster Victims
RESTORING POWER: A LAW SCHOOL’S RESPONSE TO
A SUPERSTORM
Melissa H. Luckman & Patricia R. Sturm 232
1
et al.: Table of Contents
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English

Morris, Jeffrey B.

Touro Law Review 
Volume 34 Number 1 Article 4 
2018 
Remarks at Memorial Service for Beth Mobley 
Jeffrey B. Morris 
Touro Law Center, jmorris@tourolaw.edu 
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Recommended Citation 
Morris, Jeffrey B. (2018) "Remarks at Memorial Service for Beth Mobley," Touro Law Review: Vol. 34 : No. 
1 , Article 4. 
Available at: https://digitalcommons.tourolaw.edu/lawreview/vol34/iss1/4 
This In Memoriam is brought to you for free and open access by Digital Commons @ Touro Law Center. It has been 
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more information, please contact lross@tourolaw.edu. 
 
iii 
REMARKS AT MEMORIAL SERVICE FOR BETH MOBLEY 
TOURO LAW SCHOOL, FEBRUARY 12, 2018 
Jeffrey B. Morris* 
 
My relationship with Beth was almost entirely professional. It 
was, however, friendly, warm and, I believe, marked by mutual 
admiration. 
For over three decades, Beth responded to calls for assistance 
(sometimes desperate) connected with books and articles I was writing, 
as well as information I needed for teaching and other matters. Beth 
knew better than anyone else around Touro just how much I did not 
know. What would take me an hour, if I was lucky enough to be able 
to do it, took ten or fifteen minutes when I sought Beth’s assistance. I 
was comfortable enough to be able to tell her that I knew nothing or 
almost nothing about the sources in a given area.  She accepted such a 
statement without accusing me of false modesty and always knew what 
to do to overcome my ignorance. 
I relied upon Beth to ascertain whether there were oral histories 
of obscure federal judges, then to find them and borrow them for me. 
I bothered her with requests for information on obscure changes of 
jurisdiction in the history of the judiciary of the District of Columbia. 
She unearthed for me histories of various law schools and bar 
associations. She found materials I used for a children’s book on Harry 
Truman. I called upon her expertise to guide me to the Nineteenth 
Century conditions of life in the Dakotas, Nebraska and Iowa (among 
other states in the Eighth Circuit).  Locating aspects of the work of the 
multifaceted career of Judge Jack B. Weinstein put both Beth and me 
to the test.  
I enjoyed greatly my talks with Beth -- about books, the state 
of things in the library and much else. I admired the exhibitions she 
curated with such loving energy. We collaborated on one project we 
greatly enjoyed working on, which facilitated the gift of a large 
                                                          
* Professor of Law, Touro College Jacob D. Fuchsberg Law Center.  
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Morris: Remarks at Memorial Service for Beth Mobley
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iv TOURO LAW REVIEW Vol. 34 
collection of books on trials and judges that had belonged to a sterling 
student I had at The City College, Tamar Benamy. Tami (1937-97) had 
left me the choice of books in this valuable collection. I simply did not 
have the room for them. Rather than have the collection sold off, at the 
request of her family, our then Law Librarian, Dan Jordan, found a 
place for Tami’s collection at Touro.  
It was Beth who lovingly integrated the Benamy books                   
into our collection, became fascinated with Tami’s prolific 
correspondence and joined me in hosting Tami’s ninety-year-old 
mother, coaxing the Dean to have a tea to honor the gift and the mother, 
Avivah Benamy.  
Alas, there were projects Beth and I talked about that I never 
had the time to do, especially employing for serious scholarship the 
papers of Judges Jacob Fuchsberg and Frank Altimari in the possession 
of the law school.  Nor did we ever talk through what remains a serious 
issue for me, what to do with the massive materials gathered while 
working on the book about Judge Jack Weinstein.  
For me, Beth was a rock. She reminded me of the capstone 
story of Kathryn Forbes’s novel, Mama Bank Account. Mama was a 
Norwegian immigrant, struggling to bring up a family in San 
Francisco. The family had little, if any, money, but when one of the 
children really needed something, Mama would always say that, if the 
family did not have the money at hand or could not figure out a 
legitimate way to get it, she would take it from “Mama’s Bank 
Account.” However, somehow the money was always found without 
breaking into the account. At the end of the novel, one of her grown 
daughters, now an author, received her first check from selling a story. 
She brought it to Mama and asked her to put it into “Mama’s Bank 
Account.” 
            Flustered, Mama stammered before finally admitting, there 
“[i]s no bank account.” In my relationship with Beth, that thoughtful, 
kind, precise and learned person, I always knew when I had a real 
research problem plaguing me that I could go to Beth. The difference 
from the novel was that just a few hundred feet away was my bank 
account and it was real! 
 
2
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Remarks at Memorial Service for Beth Mobley

Borger, Michael J.

Diamonds in the Rough: A Review of Tiffany v. Costco and a Call to Apply Daubert to the Admissibility of Consumer Survey Evidence in Trademark Infringement Litigation

Touro Law Review 
Volume 34 Number 1 Article 2 
2018 
Table of Contents 
Follow this and additional works at: https://digitalcommons.tourolaw.edu/lawreview 
 Part of the Judges Commons, Legal History Commons, and the Legal Writing and Research Commons 
Recommended Citation 
(2018) "Table of Contents," Touro Law Review: Vol. 34 : No. 1 , Article 2. 
Available at: https://digitalcommons.tourolaw.edu/lawreview/vol34/iss1/2 
This Prefatory Matter is brought to you for free and open access by Digital Commons @ Touro Law Center. It has 
been accepted for inclusion in Touro Law Review by an authorized editor of Digital Commons @ Touro Law Center. 
For more information, please contact lross@tourolaw.edu. 
TOURO 
 LAW REVIEW 
 Vol. 34  No. 1   2018 
 
 
TABLE OF CONTENTS 
 
SYMPOSIUM: 
BENJAMIN N. CARDOZO: JUDGE, JUSTICE, SCHOLAR 
 
 
DEDICATION TO BETH MOBLEY  ....................................................................................................... i 
             Remarks by Howard A. Glickstein, Jeffrey B. Morris & Michael J. Borger                           
 
FOREWORD 
Samuel J. Levine ..................................................................................................................1 
 
CARDOZO  
Andrew L. Kaufman .............................................................................................................7 
 
RECOVERING WAGNER V. INTERNATIONAL RAILWAY COMPANY 
            Kenneth S. Abraham & G. Edward White .........................................................................21 
 
AHEAD OF HIS TIME: CARDOZO AND THE CURRENT DEBATES ON  
PROFESSIONAL RESPONSIBILITY 
            Alberto Bernabe .................................................................................................................63 
 
THE UNCERTAINTY OF SUN PRINTING  
            George M. Cohen ...............................................................................................................83 
 
BENJAMIN CARDOZO AND THE DEATH OF THE COMMON LAW  
John C. P. Goldberg ........................................................................................................147 
 
THE NATURE OF THE JUDICIAL PROCESS: THE ENDURING SIGNIFICANCE OF A LEGAL CLASSIC 
Joel K. Goldstein ..............................................................................................................159 
CARDOZO AND THE CIVIL JURY  
Michael D. Green and Ashley DiMuzio ...........................................................................183 
 
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JUSTICE BENJAMIN NATHAN CARDOZO AND HIS TWO MOST IMPORTANT QUESTIONS:  
REFLECTIONS ON THE CHOICE OF TYCHO BRAHE 
Randy Lee.........................................................................................................................237 
 
JUSTICE CARDOZO’S THE NATURE OF THE JUDICIAL PROCESS:  A CASE STUDY 
Judge Kermit V. Lipez ......................................................................................................247 
 
ONE JUDGE’S LEGACY AND THE NEW YORK COURT OF APPEALS: MR. JUSTICE CARDOZO  
AND THE LAW OF CONTRACTS 
Meredith R. Miller ...........................................................................................................263 
 
PALSGRAF V. LONG ISLAND R.R.: ITS HISTORICAL CONTEXT 
           William E. Nelson .............................................................................................................281 
 
TWO NEW YORK TAX CASES 
Joel S. Newman ................................................................................................................301 
 
CARDOZO, THE CANON AND SOME CRITICAL THOUGHTS ABOUT PEDAGOGY 
Deborah W. Post ..............................................................................................................321 
 
ANALYZING JUSTICE CARDOZO’S OPINIONS ON THE CONSTITUTIONALITY OF THE NEW DEAL 
Robert J. Pushaw, Jr. .......................................................................................................335 
 
CARDOZO’S “LAW AND LITERATURE”: A GUIDE TO HIS JUDICIAL WRITING STYLE 
Richard H. Weisberg ........................................................................................................349 
 
CARDOZO’S FREUDIAN SLIPS 
Steven L. Winter ...............................................................................................................359 
 
 
 
 
 
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This Hornbook introduces the fundamentals of land use planning and control law. Subjects covered include the planning process, zoning, development permission, subdivision control law, and building and housing codes. Discusses constitutional limitations and the environmental aspects of land use controls. Explores aesthetic regulation, historic preservation, and agricultural land protection. -Publisher website

Salkin, Patricia E.

Juergensmeyer, Julian Conrad

Roberts, Thomas E.

Rowberry, Ryan Max

Land Use Planning and Development Regulation Law, 4th ed.

Luckman, Melissa H.

Sturm, Patricia R.

Restoring Power: A Law School’s Response to a Superstorm

Stephens, Brandon

A Hard Pill to Swallow: Symptoms and Prognosis of the Drug Manufacturer Preemption Defense in 2018

Citron, Rodger D.

Touro Law Review 
Volume 34 Number 2 Article 3 
2018 
A Demanding Boss 
Rodger D. Citron 
Touro Law Center, rcitron@tourolaw.edu 
Follow this and additional works at: https://digitalcommons.tourolaw.edu/lawreview 
 Part of the Judges Commons, and the Legal Education Commons 
Recommended Citation 
Citron, Rodger D. (2018) "A Demanding Boss," Touro Law Review: Vol. 34 : No. 2 , Article 3. 
Available at: https://digitalcommons.tourolaw.edu/lawreview/vol34/iss2/3 
This Dedication To The Honorable Judge Leon D. Lazer is brought to you for free and open access by Digital 
Commons @ Touro Law Center. It has been accepted for inclusion in Touro Law Review by an authorized editor of 
Digital Commons @ Touro Law Center. For more information, please contact lross@tourolaw.edu. 
 
i 
A DEMANDING BOSS 
Rodger D. Citron* 
I wrote the tribute below to Judge Lazer in 2012, after I worked 
with him on the New York Pattern Jury Instructions (PJI) Committee.  
During the time that followed, we had a slightly different relationship 
at the law school:  we were fellow members of the faculty and then, 
for several years, I was the academic dean during his last few years 
teaching.  My admiration for Judge Lazer during this time grew.  He 
was, as always, a dedicated and rigorous professor.  His attendance at 
faculty meetings was appreciated.  When he spoke, as in the E.F. 
Hutton television commercials from years ago, people listened.  Even 
after Judge Lazer retired from teaching, he remained sharp and 
engaged.  It always was a pleasure to talk with him about what was 
going on with the PJI Committee or get his views on the events of the 
day, from local politics to international developments in the Middle 
East.  Indeed, what I marvel at, even today, is the extraordinary vigor 
with which Judge Lazer lived his life, right until the very end.  At the 
funeral, his son David told us about some of the things that Judge Lazer 
did in the last year of his life, including going to a Mets spring training 
game in Florida and performing the wedding ceremony for David’s 
son and daughter-in-law.  I cannot say that I am surprised.  It was my 
pleasure and privilege to work with Judge Lazer; it was Touro Law 
Center’s good fortune to benefit from his decades of teaching at and 
service to the school.       
I worked closely with Judge Lazer from 2007 through 2010, 
when I replaced Professor Eileen Kaufman as a reporter on the New 
York Pattern Jury Instructions Committee.  The PJI Committee, as it 
is known, is responsible for publishing annually a two-volume treatise 
that provides model jury instructions for civil cases in New York and 
extensive commentary on the cases, statutes, and rules that comprise 
much of the State’s civil law.  The treatise is widely used by judges 
 
*Rodger D. Citron is the Academic Dean and a Professor of Law at Touro Law Center.   
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ii TOURO LAW REVIEW Vol. 34 
and practicing attorneys in New York and is held in high regard – in 
large part because of the efforts of Judge Lazer, who has been the chair 
of the PJI committee for more than 30 years.  When Professor 
Kaufman first suggested that I apply for the job, she assured me that 
Judge Lazer was wonderful. 
I cannot say that I always had a wonderful time while working 
with Judge Lazer.  He was critical of my early work and fully 
expressed his frustration with my occasional failure to communicate 
with him more.  (My twin daughters had been born in 2006, and I 
struggled to keep my head above water at work as well as at home 
during the early years of their lives.)  Before becoming a law professor, 
I had completed successful stints as a law clerk to a United States 
District Court judge, a trial attorney at the Department of Justice, and 
an associate at large law firm in Philadelphia.  I was surprised by the 
extent to which Judge Lazer criticized my work as a 
reporter.  Nevertheless, I quickly learned that he worked harder than 
any other judge on the committee and came to realize that his criticisms 
were motivated by the best intentions. 
As to his diligence, I still recall vividly a meeting we had after 
my first meeting with the committee in early 2007.  Judge Lazer had 
me reserve a conference room and told me to bring a half-dozen or so 
volumes of the paperback N.Y.Supp.2d volumes that I scoured to find 
new cases to cite and, where appropriate, summarize for inclusion in 
the treatise.  The judge wanted to show me how I should decide which 
cases should be presented to the Committee for its consideration.  We 
worked for more than an hour and made steady progress.  I had 
scheduled a meeting with a student, however, and became concerned 
that I would be late for that appointment. 
“Judge,” I ventured.  “How long do you think we’ll work?  I 
can continue, it’s just that I have a meeting with a student soon.  I can 
cancel –” 
“Cancel,” Judge Lazer replied, decisively.  “We need to keep 
going here.” 
I raced up to my office and left an apologetic note for the 
student, promising to reschedule.  I returned to the conference room, 
where Judge Lazer and I kept working.  About a half hour later I 
interrupted our work again with another question. 
“Judge, can we take a quick break?  I have to go to the 
bathroom.”  I stopped there, not wanting to elaborate, and waited for 
his ruling. 
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2018 IN MEMORIAM iii 
“Sure, go ahead,” he said.  “I’ll just keep going through the 
cases while you’re gone.”  (Without disclosing any state secrets, I 
should note that I am younger than Judge Lazer.) 
Our meeting that day lasted nearly three hours before it 
concluded.  It left a lasting impression upon me that remained constant 
during my service on PJI: that Judge Lazer was attentive to every 
aspect of the work and that he expected no more of me than he 
demanded of himself.  I saw this over and over during my four years 
as a reporter, whether it was when we worked together on the eighth, 
then the ninth, and if necessary even more drafts of jury charges that 
we presented to the Committee or at meetings when he updated the 
Committee on his conversations with the publisher on technological 
changes in how the treatise would be published. 
My service on the PJI committee was enormously 
rewarding.  It improved my writing, deepened my knowledge of 
substantive law, and allowed me to work with the best judges in the 
New York State Court judicial system, an extraordinary privilege for a 
law professor.  But it gave me little time for other scholarly work, and 
ultimately, I decided to step down as a reporter.  At my last meeting, 
Judge Lazer gave me a plaque from the Committee – it’s on display in 
my office – and graciously thanked me for my service.  He 
complimented me on a number of strengths I had developed as a 
reporter, and I can honestly say that no compliment ever has meant 
more to me.  Even now, I continue to remain grateful to Judge Lazer 
for the wonderful experience I had at PJI. 
 
3
Citron: In Memoriam
Published by Digital Commons @ Touro Law Center, 2018


A Demanding Boss

Melniker, Heather

Touro Law Review 
Volume 34 
Number 4 Dedicated to Professor Ilene Barshay Article 3 
2018 
My Friend, Ilene Barshay 
Heather Melniker 
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 Part of the Legal Education Commons, and the Legal Writing and Research Commons 
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Melniker, Heather (2018) "My Friend, Ilene Barshay," Touro Law Review: Vol. 34 : No. 4 , Article 3. 
Available at: https://digitalcommons.tourolaw.edu/lawreview/vol34/iss4/3 
This Tributes is brought to you for free and open access by Digital Commons @ Touro Law Center. It has been 
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more information, please contact lross@tourolaw.edu. 
 
i 
MY FRIEND, ILENE BARSHAY 
Heather Melniker 
I did not want to have to write this tribute to my friend, Ilene 
Barshay.  Not only does it mean she is no longer here, but it is also 
impossible to do her justice in just a few short paragraphs.  She was a 
force in life, and she will be forever loved and forever missed. 
Ilene attended Touro after having raised her two older children 
and while her daughter was still in public school.  On the outside, she 
may have seemed like a typical suburban mom, but she was oh so much 
more.  She was intellectually curious and gifted, and she was so excited 
to begin this new chapter in her life.  She embraced the challenge, 
thrived in the academic environment, and of course, graduated with 
many honors. 
Luckily for me, Ilene decided to come back to Touro to teach 
after she had been in practice for a few years.  I was excited to meet 
my new colleague and hoped we would develop a warm working 
relationship.  We did, but little did I know I was meeting someone who 
would also become a lifelong friend.  From her very first semester 
teaching at Touro, it became clear that Ilene was a superstar.  She 
excelled at teaching and she loved nurturing her students so that they 
would reach their full potential.  She saw each student as an individual 
with a unique story, and she was determined to help each one in any 
way she could.  In return, her students adored her, both while in her 
class and long after they had left it.  Her office was constantly filled 
with current and former students who asked questions about legal 
issues, sought guidance about careers, and chatted about their lives.  I 
was astonished that every year on her birthday in February, a group of 
former students surprised her with balloons and a cake, singing happy 
birthday loudly in our office suite.  That genuine and incredibly 
thoughtful act spoke volumes about the affection, respect, and high 
regard students had for their beloved Professor Barshay.  
Outside of Touro, Ilene never really understood that there were 
only twenty-four hours in a day.  Like a balloon that keeps getting 
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Melniker: My Friend, Ilene Barshay
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ii TOURO LAW REVIEW Vol. 34 
larger, she was somehow able to expand her day to accommodate 
everyone and everything.  Her compassion for others was all-
consuming and inspiring.  She volunteered endless hours to help 
victims of domestic violence, provide legal advice for her synagogue, 
serve as her synagogue’s first woman president, and provide 
immediate guidance, comfort, and support to the many, many people 
who sought her help.  She had names and numbers of various doctors 
she personally knew and thought nothing of calling them on behalf of 
someone who needed help.  In fact, she once called me from Europe 
while she was on vacation because I had left a voicemail at her home 
asking for her opinion about a doctor.  That’s simply just who she 
was—always willing to help, and more importantly, always wanting to 
help. 
I got a small glimpse of how she was able to accomplish so 
much when we frequently carpooled to work events or had lunch 
together outside of work.  In between our discussing family, current 
events, and work issues, Ilene constantly checked her telephone 
messages.  She literally checked every few minutes, and in that short 
time, there were always new messages.  She called everyone back and 
I could hear how much people relied on her.  She was available to 
everyone and she managed to give her full attention to each request, 
each issue, and each person.  
Above all, Ilene was utterly devoted to her loving husband and 
children, and as the years passed, her daughters-in-law and son-in-law.  
And when the grandchildren started arriving, it moved everything to a 
completely new level.  She frequently showed me her “brag” book 
each time it was updated—a book of pictures of her grandchildren she 
would whip out and proudly show anyone and everyone.  Through 
Ilene’s stories, I followed her grandchildren’s milestones and watched 
her joy as she regaled me with stories.  Her family meant everything 
to her. 
Ilene Barshay was one of those rare people one can only hope 
to meet in life—generous, loving, compassionate, and kind—I was 
blessed to call her my friend.  
 
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Table of Contents

Remarks at Memorial Service for Beth Mobley

Diamonds in the Rough: A Review of Tiffany v. Costco and a Call to Apply Daubert to the Admissibility of Consumer Survey Evidence in Trademark Infringement Litigation

Table of Contents

Land Use Planning and Development Regulation Law, 4th ed.

Restoring Power: A Law School’s Response to a Superstorm

A Hard Pill to Swallow: Symptoms and Prognosis of the Drug Manufacturer Preemption Defense in 2018

A Demanding Boss

My Friend, Ilene Barshay

The De Minimis Defense in Sound Recordings: How a Trivial Claim Leads to a Big Question

3,298

3,484