Robert D. Sack
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Robert David Sack (born October 4, 1939) is a senior United States circuit judge of the
United States Court of Appeals for the Second Circuit The United States Court of Appeals for the Second Circuit (in case citations, 2d Cir.) is one of the thirteen United States Courts of Appeals. Its territory comprises the states of Connecticut, New York and Vermont. The court has appellate juri ...
.


Early life and education

Born in
Philadelphia Philadelphia, often called Philly, is the largest city in the Commonwealth of Pennsylvania, the sixth-largest city in the U.S., the second-largest city in both the Northeast megalopolis and Mid-Atlantic regions after New York City. Sinc ...
,
Pennsylvania Pennsylvania (; ( Pennsylvania Dutch: )), officially the Commonwealth of Pennsylvania, is a state spanning the Mid-Atlantic, Northeastern, Appalachian, and Great Lakes regions of the United States. It borders Delaware to its southeast, ...
, Sack was raised in
Brooklyn Brooklyn () is a borough of New York City, coextensive with Kings County, in the U.S. state of New York. Kings County is the most populous county in the State of New York, and the second-most densely populated county in the United States, be ...
,
New York New York most commonly refers to: * New York City, the most populous city in the United States, located in the state of New York * New York (state), a state in the northeastern United States New York may also refer to: Film and television * '' ...
. His father was Eugene Sack, who served as rabbi of
Congregation Beth Elohim Congregation Beth Elohim ( he, בֵּית אֱלֹהִים), also known as the Garfield Temple and the Eighth Avenue Temple, is a Reform Jewish congregation located at 274 Garfield Place and Eighth Avenue, in the Park Slope neighborhood of ...
for 35 years."Anne K. Hilker, Lawyer, Is Wed", ''The New York Times'', June 10, 1989, p. 150. In 1989 he married his second wife, the lawyer Anne K. Hilker; he had been divorced from his first wife. Sack received a
Bachelor of Arts Bachelor of arts (BA or AB; from the Latin ', ', or ') is a bachelor's degree awarded for an undergraduate program in the arts, or, in some cases, other disciplines. A Bachelor of Arts degree course is generally completed in three or four years ...
degree from the
University of Rochester The University of Rochester (U of R, UR, or U of Rochester) is a private research university in Rochester, New York. The university grants undergraduate and graduate degrees, including doctoral and professional degrees. The University of Roc ...
in 1960 and received his
Bachelor of Laws Bachelor of Laws ( la, Legum Baccalaureus; LL.B.) is an undergraduate law degree in the United Kingdom and most common law jurisdictions. Bachelor of Laws is also the name of the law degree awarded by universities in the People's Republic of Chi ...
from Columbia Law School in 1963.


Career

He first clerked for Judge Arthur Stephen Lane of the
United States District Court for the District of New Jersey The United States District Court for the District of New Jersey (in case citations, D.N.J.) is a federal court in the Third Circuit (except for patent claims and claims against the U.S. government under the Tucker Act, which are appealed to the ...
. In 1964, he joined
Patterson, Belknap & Webb Patterson Belknap Webb & Tyler LLP, founded in 1919, is a law firm headquartered in New York City. Notable alumni *Former Attorney General of the United States and federal judge Michael B. Mukasey was a partner at the firm before his acces ...
, eventually becoming a
partner Partner, Partners, The Partner, or, The Partners may refer to: Books * ''The Partner'' (Grisham novel), by John Grisham, 1997 * ''The Partner'' (Jenaro Prieto novel), 1928 * ''The Partners'' (book), a 1983 book by James B. Stewart * ''Partner'' (m ...
of the firm. During 1974, he served as Associate Special Counsel and Senior Associate Special Counsel for the
House Judiciary Committee The U.S. House Committee on the Judiciary, also called the House Judiciary Committee, is a standing committee of the United States House of Representatives. It is charged with overseeing the administration of justice within the federal courts, a ...
's impeachment inquiry into President
Richard Nixon Richard Milhous Nixon (January 9, 1913April 22, 1994) was the 37th president of the United States, serving from 1969 to 1974. A member of the Republican Party, he previously served as a representative and senator from California and was ...
. Following his government service, Sack returned to Patterson Belknap. In 1986, he joined the law firm of Gibson, Dunn & Crutcher as a partner. Throughout his career in private practice, Sack specialized in press law and represented numerous United States and foreign-based media companies.Keynote Address of Judge Robert D. Sack at Columbia Law School Commencement, May 17, 2007, http://www.law.columbia.edu/grad2007/judge_sack.Robert D. Sack, Almanac of the Federal Judiciary (2011).


Federal judicial service

Sack was nominated by President
Bill Clinton William Jefferson Clinton ( né Blythe III; born August 19, 1946) is an American politician who served as the 42nd president of the United States from 1993 to 2001. He previously served as governor of Arkansas from 1979 to 1981 and agai ...
on November 6, 1997, to a seat on the
United States Court of Appeals for the Second Circuit The United States Court of Appeals for the Second Circuit (in case citations, 2d Cir.) is one of the thirteen United States Courts of Appeals. Its territory comprises the states of Connecticut, New York and Vermont. The court has appellate juri ...
vacated by Judge Roger J. Miner. He was confirmed by the
United States Senate The United States Senate is the upper chamber of the United States Congress, with the House of Representatives being the lower chamber. Together they compose the national bicameral legislature of the United States. The composition and pow ...
on June 15, 1998, and received commission on June 16, 1998. He assumed
senior status Senior status is a form of semi-retirement for United States federal judges. To qualify, a judge in the Federal judiciary of the United States, federal court system must be at least 65 years old, and the sum of the judge's age and years of servi ...
on August 6, 2009.Biography of Hon. Robert D. Sack, U.S. Court of Appeals for the Second Circuit, http://www.ca2.uscourts.gov/Judgesbio.htm (last accessed October 13, 2011).


Other service

Judge Sack was an officer and director of the William F. Kerby and Robert S. Potter Fund, which assisted in funding the legal defense of journalists abroad, and a member of the advisory boards of the Bureau of National Affairs' Media Law Reporter and the ABA Forum Committee's Communications Lawyer. He is a member of the board of visitors of the Columbia Law School and was a member of the board of trustees of Columbia University Seminars on Media and Society. He has, since 2001, been an adjunct professor of law at Columbia Law School. He was Columbia Law School's commencement speaker in 2007. He was adjunct professor of political science and special guest lecturer at the University of Rochester in 2012 and a distinguished visiting jurist at the University of Chicago Law School in 2013. He is a member of the American Bar Association, the New York City Bar Association (Chair, Communications Law Committee, 1986–89), and the American Judicature Society. He is a Fellow of the American Bar Foundation. Sack is an adviser, American Law Institute's Restatement Third of Torts, Defamation and Privacy, 2019– ; an adviser to the "Global Media Freedom Initiative's High-Level Panel of Legal Experts" convened at the request of the UK and Canadian governments, 2019– ; and a member of the editorial board of the ''Journal of Free Speech Law'', 2021– .


Publications

• ''Sack on Defamation: Libel, Slander and Related Problems'' (5th ed. 2017) (updated annually)
• New York Times Co. v. Sullivan — ''50-Year Afterwords'', 66 Ala. L. Rev. 273 (2014)
• "Protection of Opinion Under the First Amendment: Reflections on Alfred Hill, 'Defamation and Privacy Under the First Amendment,'" 100 ''Colum. L. Rev.'' 294 (2000)
• ''Advertising and Commercial Speech: A First Amendment Guide'' (1999) (co-author)
• "Hearing Myself Think: Some Thoughts on Legal Prose," 4 ''The Scribes Journal of Legal Writing'' 93 (1993)
• "Reflections on the Wrong Question: Special Constitutional Privilege for the Institutional Press," 7 Hofstra L. Rev. 629 (1979)


Notable opinions

''Doe v. Trump Corporation'', 6 F.4th 400 (2d Cir. 2021): Sack, writing for the panel, held that defendants Trump Corporation, Donald J. Trump, and members of his family were not entitled to have the district court enforce an arbitration agreement in a suit for unfair business practices and deceptive statements regarding a multi-level marketing company. ''United States v. Ceasar'', 10 F.4th 66 (2d Cir. 2021): Sack, writing for the panel, held that a sentence of 46 months' imprisonment for a defendant who pled guilty to providing material support to the Islamic State of Iraq and Syria was shockingly low and thus substantively unreasonable, when the defendant had already exhibited recidivist behavior while awaiting sentencing and faced a Guidelines range of 360 to 600 months' imprisonment. ''Badilla v. Midwest Air Traffic Control Service, Inc.'', 8 F.4th 105 (2d Cir. 2021): Sack and Lohier, writing for the panel, held that state-law wrongful death claims against an air traffic controller for negligently causing a civilian flight to crash into a mountain near Kabul Afghanistan International Airport were not preempted by the combatant activities exception to the Federal Tort Claims Act, and that factual disputes remained regarding breach of duty of care and proximate cause. ''Chamberlain Estate of Chamberlain v. City of White Plains'', 960 F.3d 100 (2d Cir. 2020): Sack and Hall, writing for the panel, reinstated claims for unlawful entry, excessive force, and supervisory liability against officer-defendants who fatally shot a U.S. Marine veteran with mental illness after the officers forced their entry into his apartment. ''United States v. Napout'', 963 F.3d 163 (2d Cir. 2020): Sack, writing for the panel, affirmed convictions of two International Federation of Association Football (FIFA) officials for multiple counts of fraud conspiracy, concluding that the convictions rested upon permissible domestic applications of the federal wire fraud statute and rejecting defendants' arguments that the honest services fraud statute is unconstitutionally vague as applied to them. ''In re Bernard L. Madoff Investment Securities LLC'', 976 F.3d 184 (2d Cir. 2020): Sack, writing for the panel, held that transfers of fictitious profit from the Madoff Ponzi scheme were not "for value" for purposes of the fraudulent transfer provision of the Bankruptcy Code, so bankruptcy trustee for Bernard L. Madoff Investment Securities LLC was entitled to recover those funds. ''Compania Embotelladora Del Pacifico, S.A. v. Pepsi Cola Company'', 976 F.3d 239 (2d Cir. 2020): Sack, writing for the panel, held that an "exclusive bottler appointment" contract between Pepsi Cola and one of its bottlers in Peru contained no clear statement of perpetuity and was thus terminable at will. ''Sleepy's LLC v. Select Comfort Wholsesale Corp.'', 909 F.3d 519 (2d Cir. 2018): Sack, writing for the panel, held that mattress manufacturer's allegedly defamatory statements to retailer's agents could satisfy the publication element of a slander claim, and that remand was necessary for the district court to consider whether the retailer consented to the utterance of those allegedly slanderous statements. ''Peterson v. Islamic Republic of Iran'', 876 F.3d 63 (2d Cir. 2017): Sack, writing for the panel, vacated in part a district court order dismissing claims by judgment creditors against Iran and Iran's Ministry of Intelligence and Security; Sack held that certain of the judgment creditors were not bound by a settlement agreement releasing Iran's central bank from liability, and that the bond proceeds held by a Luxembourg bank on behalf of Iran's central bank were not immune from execution under the Foreign Sovereign Immunities Act. ''Perez v. City of New York'', 832 F.3d 120 (2d Cir. 2016): Sack, writing for the panel, held that fact issues precluded summary judgment as to whether donning and doffing activities by urban park rangers were "integral and indispensable," as required to be compensable under the Fair Labor Standards Act. ''In re Arab Bank, PLC Alien Tort Statute Litigation'', 808 F.3d 144 (2d Cir. 2015): Sack, writing for the panel, held that the Alien Tort Statute did not confer original jurisdiction over claims of terrorism victims against bank that allegedly financed and facilitated organizations who committed attacks in Israel, the West Bank, and the Gaza Strip. ''Turley v. ISG Lackawanna, Inc.'', 774 F.3d 140 (2d Cir. 2014): Sack, writing for the panel, held that the evidence supported an intentional infliction of emotional distress verdict, where an African-American steelworker was subject to an abusive work environment replete with racial insults, intimidation, and degradation; jury's award of $1.32 million in compensatory damages was proper, although award of $24 million in punitive damages, which was later remitted to $5 million, was excessive. ''Bailey v. Pataki'', 708 F.3d 391 (2d Cir. 2013): Sack, writing for the panel, held that the due process right to notice and an adversarial hearing prior to involuntary civil commitment to a psychiatric facility was clearly established, and thus defendants, who included the former Governor of New York and various state officials, were not entitled to qualified immunity. ''Marvel Characters, Inc. v. Kirby'', 726 F.3d 119 (2d Cir. 2013): Sack, writing for the panel, held that children of influential comic book artist Jack Kirby, who produced drawings for Marvel Comics, had no rights to Kirby's works between 1958 and 1963 because those drawings were "works made for hire" within the meaning of the Copyright Act of 1976. ''United States v. Stewart'', 686 F.3d 156 (2d Cir. 2012) (''Stewart II''): Sack, writing for the panel, held that in the resentencing of Lynne Stewart, her First Amendment rights were not abridged when the district court considered her public statements as a basis for quadrupling her original sentence; such use of public statements did not impermissibly chill speech. ''Barclays Capital, Inc. v. Theflyonthewall.com'', 650 F.3d 876 (2d Cir. 2011): Sack, writing for the panel, concluded that the tort of hot news misappropriation was preempted by the Copyright Act as applied to the facts of the instant case, which concerned a novel lawsuit by various investment banks, which publish and disseminate equity research reports, against a small Internet-based aggregator of stock tips which sold the investment banks' recommendations to its own clients. ''United States v. Stewart'', 590 F.3d 93 (2d Cir. 2009) (''Stewart I''): Sack, writing for a majority of the panel, affirmed the convictions of Lynne Stewart, the former attorney for "Blind Sheik" Omar Abdel-Rahman, on various counts including conspiracy, providing material support to terrorists, and defrauding the U.S. government, arising out of her conduct in knowingly passing information between her client and his supporters in Egypt in violation of government-ordered "
special administrative measure A special administrative measure (SAM) is a process under United States law (; see also USAMbr>title 9 chapter 24— Requests for Special Confinement Conditions) whereby the United States Attorney General may direct the United States Bureau of Pri ...
s". The panel also vacated her sentence and remanded for re-sentencing in light of Stewart's possible perjury at her trial as well as intervening factual developments in the case. ''Arar v. Ashcroft'', 585 F.3d 559 (2d Cir. 2009): Sack, dissenting in part from the majority opinion en banc, wrote that a ''Bivens'' remedy should have been available to a dual Canadian-Syrian citizen who was detained by federal officials at John F. Kennedy airport, repeatedly denied access to a lawyer, and subsequently removed to Syria to be interrogated under torture by Syrian authorities for ten months. ''Best Van Lines, Inc. v. Walker'', 490 F.3d 239 (2d Cir. 2007): Sack, writing for the panel, held that under New York law, making defamatory statements outside New York about New York citizens did not, without more, provide a basis for jurisdiction, even if the statements were published in a media accessible to New York readers. ''Blanch v. Koons'', 467 F.3d 244 (2d Cir. 2006): Sack, writing for the panel, affirmed the district court's decision that artist Jeff Koons was protected by the doctrine of fair use, and therefore not liable for
copyright infringement Copyright infringement (at times referred to as piracy) is the use of works protected by copyright without permission for a usage where such permission is required, thereby infringing certain exclusive rights granted to the copyright holder, s ...
, when he incorporated a photographer's copyrighted photo of a woman's feet and lower legs into a larger collage painting, even though Koons had benefited commercially from the work. ''Leebaert v. Harrington'', 332 F.3d 134 (2d Cir. 2003): Sack, writing for the panel, decided that a public school's requirement that students attend health-education classes did not violate principles of substantive due process or religious rights of parents who disagreed with the school's curriculum. ''Doe v. Department of Public Safety on Behalf of Henry C. Lee'', 271 F.3d 38 (2d Cir. 2001): Sack, writing for the panel, held that a Connecticut sex-offender registration law violated the Due Process Clause of the Fourteenth Amendment, under a "stigma plus" theory, by authorizing public dissemination of information about sex offenders on the registry without first offering them an individualized hearing about whether they were likely to be dangerous. ''DeStefano v. Emergency Housing Group, Inc.'', 247 F.3d 397 (2d Cir. 2001): Sack, writing for the panel, decided that a state does not violate the Establishment Clause of the First Amendment by providing public funding to a private facility that also offers Alcoholics Anonymous (AA) sessions, which are religious in nature, so long as the staff does not require clients to attend AA sessions. ''McMenemy v. Rochester, N.Y.'', 241 F.3d 279 (2d Cir. 2001): Sack, writing for the panel, decided that Title VII of the Civil Rights Act of 1964 renders unlawful retaliation by an employer against an employee who opposes any unlawful employment practice involving any employer, not just the employee's own employer, so long as the employee establishes a causal connection between the retaliation and the employee's protected activity. ''Commodity Futures Trading Commission v. Vartuli'', 228 F.3d 94 (2d Cir. 2000): Sack, writing for the panel, concluded that a seller of an automatic-trading software program that instructs the user when to buy or sell currency futures is a "commodity trading advisor" under the Commodity Exchange Act (CEA), and that the Act, as applied to that seller, did not violate the First Amendment.


Awards and honors

In May 2008, Judge Sack was awarded the Learned Hand Medal for excellence in federal jurisprudence by the
Federal Bar Council The Federal Bar Council is a not-for-profit specialty bar association whose membership consists of lawyers and judges who practice primarily in federal courts within the Second Circuit. The Second Circuit covers the following districts: District ...
.


Clerks

Judge Sack has been identified as an "academic feeder judge," because a number of his former clerks have entered legal academia. His former clerks include:
Hon. Aaron P. Avila
(1999–2000), Judge, Environmental Appeals Board
Lauren E. Baer
(2007–2008), Managing Director, Arena
Charles L. Barzun
(2005–2006), professor of law, University of Virginia School of Law
Pamela Bookman
(2006–2007), professor of law,
Fordham University School of Law Fordham University School of Law is the law school of Fordham University. The school is located in Manhattan in New York City, and is one of eight ABA-approved law schools in that city. In 2013, 91% of the law school's first-time test take ...
* Joshua Block (2005–2006), Senior Staff Attorney, American Civil Liberties Union, LGBT & HIV Project * Mala Chatterjee (2019–2020), professor of law, Columbia Law School
Robert M. Chesney
(1998–1999), Dean, University of Texas at Austin School of Law
Jordana Alter Confino
(2016–2017), Senior Director of Professionalism & Special Projects, Fordham University School of Law * Elizabeth (Lisa) Daniels (2019–2020), Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of New York * James Darrow (2008–2009), Assistant Federal Defender, Federal Defenders of New York, Eastern District of New York * Meghann E. Donahue (2006–2007), Vice President and Associate General Counsel, Federal Reserve Bank of New York
Greer Donley
(2017–2018), professor of law, University of Pittsburgh School of Law * Julie B. Ehrlich (2010–2011), Program Advisor and Chief of Staff, The Andrew W. Mellon Foundation
Elizabeth F. Emens
(2002–2003), professor of law, Columbia Law School * Susanna Felleman (1998–1999), Executive Vice President, HBO and HBO Max * Stephen E. Frank (2004–2005), Chief of Securities and Financial Fraud Unit, U.S. Attorney's Office, District of Massachusetts
Jeanne C. Fromer
(2003–2004), professor of law, New York University School of Law * Kate Gilbert (2014–2015), Trial Attorney, Department of Justice, Civil Rights Division
J. Benton Heath
(2013–2014), professor of law, Temple University, Beasley School of Law
William Hubbard
(2003–2004), professor of law, University of Baltimore Law School
Aziz Huq
(2001–2002), professor of law, University of Chicago Law School * Joel S. Johnson (2016–2017), professor of law, Pepperdine Caruso School of Law * Brett M. Kaufman (2010–2011), senior staff attorney, ACLU Center for Democracy
Beong-Soo Kim
(1999–2000), senior vice president and general counsel, University of Southern California
Dan Korobkin
(2007–2008), legal director, ACLU of Michigan
Jason Mazzone
(1998–1999), professor of law,
University of Illinois College of Law The University of Illinois College of Law (Illinois Law or UIUC Law) is the law school of the University of Illinois Urbana-Champaign, a public university in Champaign, Illinois. It was established in 1897 and offers the J.D., LL.M., and J.S. ...

Talia Milgrom-Elcott
(2003–2004), executive director and co-founder, 100Kin10 * Luke P. Norris (2012–2013), professor of law, University of Richmond School of Law * Garrett Ordower (2011–2012), general counsel, Mighty * Daniel Richenthal (2005–2006), Department of Justice, Office of Attorney General
Shalev G. Roisman
(2008–2009), professor of law, University of Arizona,
James E. Rogers College of Law University of Arizona James E. Rogers College of Law is the law school at the University of Arizona located in Tucson, Arizona and was the first law school founded in the State of Arizona, opening its doors in 1915. Also known as University of Ar ...

Clifford Rosky
(2002–2003), professor law, University of Utah, S.J. Quinney College of Law * Scott Ruskay-Kidd (1999–2000), senior attorney for judicial strategy, U.S. Legal Program, Center for Reproductive Rights
Andres Sawicki
(2006–2007), professor of law,
University of Miami School of Law The University of Miami School of Law (Miami Law or UM Law) is the law school of the University of Miami, a private research university in Coral Gables, Florida. Founded in 1926, the University of Miami School of Law is the oldest law school in ...
* Jeffrey E. Sandberg (2010–2011), Attorney, Department of Justice, Civil Appellate Section * David Seligman (2011–2012), executive director, Towards Justice
Robert D. Sloane
(2001–2002), professor of law,
Boston University School of Law Boston University School of Law (Boston Law or BU Law) is the law school of Boston University, a private research university in Boston, Massachusetts. It is consistently ranked among the top law schools in the United States and considered an eli ...

Richard Squire
(2001–2002), professor of law, Fordham University School of Law * Ilan Stein (2018–2019), Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of New York * Mitzi Steiner (2018–2019), Assistant U.S. Attorney, U.S. Attorney's Office, Southern District of New York

(2013–2014), professor of law, Villanova University, Charles Widger School of Law (This list does not include former clerks at law firms.)


See also

* List of Jewish American jurists


References


External links

* * {{DEFAULTSORT:Sack, Robert David 1939 births 20th-century American Jews Columbia Law School alumni Judges of the United States Court of Appeals for the Second Circuit Living people Lawyers from Brooklyn Lawyers from Philadelphia United States court of appeals judges appointed by Bill Clinton University of Rochester alumni Patterson Belknap Webb & Tyler people 20th-century American judges People associated with Gibson Dunn 21st-century American judges 21st-century American Jews