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Elizabeth Warren


I check the New York Unified Supreme Court database. There was no cases involving an Elizabeth Warren.
Do we know whether her husband is licensed in Massachusetts?

My suggestion is to keep after the Boston Herald and Masslive reporters to find out the real reason she resigned her NJ law license on September 11 and to find out how long it had been inactive.

I have been alerting the above reporters with each new Warren post, but so far only Masslive has done a story.

People should keep sending Jacobson’s stories to the press.

I checked, and Bruce Mann, her husband, does not appear to be licensed in Massachusetts

Massachusetts Board of Bar Overseers
99 High Street
Boston, Ma. 02110
Attorney Status Report

Results of search for.. Bruce Mann . Click any Name for more details.
Name Billdate Tel# & Firm Address Discipline
No matches found.


Counsel of Record
1575 Massachusetts Ave.
Cambridge, MA 02138
(617) 495-4621
June 2002

…1 Pursuant to Rule 37.6, amici certify that no counsel for any party authored this brief in whole or in part. No persons other than the amici curiae or their counsel made a monetary contribution to the preparation or submission of this brief. Letters reflecting the parties’ consent to the filing of this brief have been submitted to the Clerk. In July 2000, Elizabeth Warren briefly served as a consultant to special counsel for respondent NextWave Personal Communications, Inc. with respect to a petition for rehearing. Since then, she has not represented any party in this case in any way…

In re:

Case 01-30135-RG Doc 9102-1 Filed 04/28/09 Entered 04/28/09 12:51:15 Desc Exhibit A – Declaration of Andrew J. Rossman Page 1 of 12…

Committee Members, Counsel & Advisors
L. Tersigni Consulting P.C. (n/k/a/ Charter
Oak Financial Consultants, LLC)
Caplin & Drysdale
Elizabeth Warren
Lowenstein Sandler PC
Timothy Wyant
Legal Analysis Systems, Inc.

From Warren’s .pdf CV at Harvard website:

Briefs, United States Supreme Court

Central Virginia Community College v. Katz (2005) (brief on behalf of law professors)

Rousey v. Jackoway (2004) (brief on behalf of the American Association of Retired Persons)

Till v. SCS Credit Corporation (2003) (brief on behalf of the American Association of Retired Persons)

Tennessee Student Assistance Corporation v. Hood (2003) (brief on behalf of law professors)

Federal Communications Commission v. Nextwave Personal Communications, Inc. (2002) (brief in support of Official Creditors Committee)

Bank of America National Trust Association v. 203 North LaSalle Street Partnership (1998) (brief on behalf of the National Association of Credit Managers)

    BTW the CV has a revised date of 6/25/08 at the end – just after showing NJ and TX bar memberships – which is interesting in that the Professor’s post from last evening disclosed she’s been inactive in TX since 1992.

Being referred to as an “expert” when actually acting as such, rather than as a “legal advisor” or “counsel”, example:


COMPANY, Plaintiff
COMPANY, et al., Defendants.

CASE NO. BC 116835

…The Stipulation Re Scope of Testimony of Elizabeth Warren was a pretrial agreement between Fuller-Austin and Joint Defendants setting forth, in general terms, the scope of expected testimony from Plaintiffs Bankruptcy Expert, Professor Warren. The stipulation also reserved the parties’ rights to object to testimony falling outside the scope of the agreed areas.

FreshPondIndians | September 27, 2012 at 1:50 pm

Bruce and Elizabeth’s deed and mortgage records can be found here… Don’t know if they’re pertinent, or not.

I am willing to do research but need some specific tips, links to go about researching Warren. Her “flipping houses in Oklahoma” is rather curious but cannot find out what the real estate law is in Oklahoma . According to
Texas does not require a Texas licensed attorney to have a broker real estate license. However, Massachusetts and New Jersey do. Massachusetts will issue a broker license to an attorney without examination. New Jersey requires a broker license

I am willing to do research but need some specific tips, links to go about researching Warren. Her “flipping houses in Oklahoma” is rather curious but cannot find out what the real estate law is in Oklahoma . According to
Texas does not require a Texas licensed attorney to have a broker real estate license. However, Massachusetts and New Jersey do. Massachusetts will issue a broker license to an attorney without examination. New Jersey requires a broker license along with the law license. Give me some direction and I’ll run with it.

It appears Professor Warren argued a bankruptcy case in the Seventh Circuit in 1997, using her Harvard/Cambridge address. Perhaps she was still licensed in New Jersey then.

“Before CUMMINGS, WOOD, JR., and DIANE P. WOOD, Circuit Judges.

Marc Beem,Michael L. Shakman, Miller, Shakman, Hamilton, Kurtzon & Schlifke, Chicago, IL, Barkley Clark (argued), Mark Moedritzer, Shook, Hardy & Bacon, Kansas City, MO, Michael R. Wherry, Michael C. Runde, Davis & Kuelthau, Milwaukee, WI, Thomas G. Boyer, Russell S. Long, Milwaukee, WI, for Bank One, Milwaukee, N.A.Douglas K. Mayer, Amy R. Wolf, David C. Bryan, Wachtell, Lipton, Rosen & Katz, New York City, Marshall Simmons, Dallas, TX, Elizabeth Warren (argued), Harvard Law School, Cambridge, MA, Charles J. Hansen, Carson Pirie Scott & Company, Milwaukee, WI, for P.A. Bergner & Company.”

RE: EW’s sudden resignation from the New Jersey Bar and previous “inactive” status

(The following is shortened and updated version of information I mistakenly posted in another thread.)

The 2010 version of the annual registration materials sent to N.J. attorneys (I can’t find the latest one in my files, but the rule has not changed) states: “There is no ‘inactive status’ in New Jersey”. Unless an attorney qualifies for an exemption (e.g., military, Peace Corps, etc. none of which are applicable to EW) or is “[r]etired completely from the practice of law” he/she must pay an annual fee and meet the other requirements for attorneys admitted to the bar.

Among these requirements are pro bono activities and continuing legal education. EW would be exempt from pro bono requirements because she does not maintain a law office in New Jersey. Pursuant to Rule 1:42, “an attorney holding a plenary or limited license to practice law in New Jersey is required to participate in a program of continuing legal education (CLE)” unless retired completely from the practice of law, exempt (e.g., military, etc.), or in receipt of a waiver which is only granted based on “undue hardship” or “circumstances beyond [the applicant’s] control” by “clear and convincing evidence”. The CLE requirement itself is hardly onerous: 24 hours over a two-year period. Also, there is no exemption for law professors.

For CLE purposes, attorneys are divided into two compliance groups based on birthday to determine which years they report on meeting the CLE requirements. January 1 – June 30 birthdays report in even years and July 1 – December 31 birthdays report in odd years. The New Jersey CLE requirements only became effective on January 1, 2010. As a member of Group 1 (by virtue of her birthday), EW’s initial CLE requirement was to take 24 hours of CLE during the period January 1, 2010 to December 31, 2011 and report compliance in 2012. If I am not mistaken, EW said, or at least implied, that she had not taken any New Jersey CLE courses.

Because Massachusetts is a state with no CLE requirements and EW lives there, she was permitted (under Regulation 201.8(b)) to satisfy her entire CLE requirement by “alternative verifiable learning formats” (e.g., “internet computer self-study”, videotape, and audiotape). So any suggestion that she would have had to go to New Jersey (or for that matter, even leave her office at Harvard) is bogus.

In a telephone conversation today with the N.J. Lawyer’s Fund for Client Protection, I confirmed that their office is responsible for mailing, receipt, and processing (or forwarding to the proper department) all annual attorney reporting information, including information concerning satisfaction of CLE requirements. Response may be by use of their on-line system or by mail. Annual registration materials are emailed to users of the on-line system by the end of February each year. Paper materials are mailed by the end of March. Responses (including certification as to compliance with CLE requirements) are due by the end of April. Even if non-compliance is reported, a 60-day grace period is generally granted and the worst penalty is suspension pending compliance and a fine, not disbarment. Attorneys who do not respond at all to the initial email or mailing receive a second communication in July with a due date before imposition of sanctions of end of August.

So my questions are:
• Did EW accurately report her active status (i.e., not ”retired completely from the practice of law” each year and pay her fee?
• Did EW accurately report by the end of April of this year that she did not satisfy the CLE requirements (assuming no hardship waiver was granted)?
• If the answer to the foregoing question is “yes”, what was the response by the Board of Continuing Education? Was she suspended at the end of August or thereafter? (Presumably not as she was able to resign a few days ago.) If the answer is “no”, on what basis did she certify her compliance with CLE requirements?

    Alan S. in reply to Alan S.. | September 27, 2012 at 7:22 pm

    Further to my previous post:

    Resignation without prejudice is covered in the New Jersey Court Rule 1:20-22. A resignation is submitted through the Director, Office of Attorney Ethics, but actual approval is by the Supreme Court of the State of New Jersey.

    Paragraph (b) of the Rule requires that a resignation be submitted in a form approved by the Director and shall set forth the reason for the resignation. In addition, it must be accompanied by an affidavit in a form approved by the Director. I could not find the form or the affidavit on-line. (However, I would be willing speculate that they contain representations about the lack of any prior unethical conduct and compliance with all rules applicable to attorneys in the New Jersey.)

    Paragraph (c) states that “[a] resignation shall not affect the jurisdiction of the disciplinary system with regard to any unethical conduct that occurred prior to resignation”.

US Trustee’s response to employing Warren in the asbestos cases summarized here (scroll down):

ARMSTRONG: U.S. Trustee Balks at Bid to Employ Prof. Warren

From LexisNexis

In re F.A.B. Indus, CV 92-5180 WJR, UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, 147 B.R. 763; 1992 U.S. Dist. LEXIS 17842; 93 Daily Journal DAR 208, November 24, 1992, Decided , November 24, 1992, Filed

“According to Professor Elizabeth Warren, who filed an amicus brief on this issue, 11

The “exception” is a judicially created rule to deal with the circumstances under which old equity can participate in a new plan of reorganization. Nothing in the “new value exception” creates an exception to the rule articulated in the Code in § 1129(b)(2)(B)(ii). . . . The “new value [*769] exception” only controls how old equity can participate in the post-bankruptcy company–something not restricted [**21] anywhere in the Code.”

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –
11 The Court granted Professor Warren leave to file an amicus brief on this issue. Professor Warren is a professor of commercial law at the University of Pennsylvania Law School. Warren asserts that her interest in this action is merely academic. Warren has recently presented a paper to the National Conference of Bankruptcy Judges on the issue raised in this appeal.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

More from LexisNexis, where Warren is one of a number of Amicus-appellants, in the case:


The full list of plaintiffs & defendents: FORUM FOR ACADEMIC AND INSTITUTIONAL RIGHTS, a New Jersey membership corporation; SOCIETY OF AMERICAN LAW TEACHERS, INC., a New York corporation; COALITION FOR EQUALITY, a Massachusetts association; RUTGERS GAY AND LESBIAN CAUCUS, a New Jersey association; PAM NICKISHER, a New Jersey resident; LESLIE FISCHER, a Pennsylvania resident; MICHAEL BLAUSCHILD, a New Jersey resident; ERWIN CHEMERINSKY, a California resident, SYLVIA LAW, a New York resident, Appellants v. DONALD H. RUMSFELD, in his capacity as U.S. Secretary of Defense; ROD PAIGE, in his capacity as U.S. Secretary of Education; ELAINE CHAO, in her capacity as U.S. Secretary of Labor; TOMMY THOMPSON, in his capacity as U.S. Secretary of Health and Human Services; NORMAN Y. MINETA, in his capacity as U.S. Secretary of Transportation; TOM RIDGE, in his capacity as U.S. Secretary of Homeland Security

And Warren’s in this group, 6th from last (looks like a gaggle of HLS profs):


Another (LexisNexis) where she’s one of a group of Amicus Law Professors (next to last in list) in support of Appelant, in:

Official Comm. of Unsecured Creditors of Cybergenics Corp. ex. rel. Cybergenics Corp. v. Chinery, No. 01-3805 , UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT, 330 F.3d 548; 2003 U.S. App. LEXIS 10703; Bankr. L. Rep. (CCH) P78,861; 41 Bankr. Ct. Dec. 98, February 19, 2003, Argued , May 29, 2003, Filed , US Supreme Court certiorari dismissed by Lincolnshire Mgmt., Inc. v. Official Comm. of Unsecured Creditors of Cybergenics Corp., 157 L. Ed. 2d 406, 124 S. Ct. 530, 2003 U.S. LEXIS 8198 (U.S., Nov. 6, 2003)US Supreme Court certiorari dismissed by Chinery v. Official Comm. of Unsecured Creditors of Cybergenics Corp., 157 L. Ed. 2d 407, 124 S. Ct. 530, 2003 U.S. LEXIS 8347 (U.S., Nov. 7, 2003)

JONATHAN C. LIPSON, *** Assistant Professor of Law, University of Baltimore School of Law, Baltimore, MD, Amicus Law Professors in support of Appellant.
*** Joining Professor Lipson on the brief are Professors Ralph Brubaker, Daniel J. Brussel, Kenneth N. Klee, Stephen J. Lubben, Walter J. Taggart, Elizabeth Warren, and William J. Woodward.

cicerosdaughter | September 27, 2012 at 4:15 pm

OMG: Warren and her husband sued for attorney fees in MA:

cicerosdaughter | September 27, 2012 at 4:18 pm

Please see this… they contracted to represent their architect in Cambridge, who wanted to vacate order for attorney fees:

cicerosdaughter | September 27, 2012 at 4:20 pm

E. Warren and her husband contracted to represent their architect in Cambridge, sought attorney fees.

I’m on a roll. Here’s one where it looks like Warren did more than just file an amicus brief. The case is:

P.A. Bergner & Co. v. Bank One, N. A. (In re P.A. Bergner & Co.), Nos. 96-3879, 96-3937, UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT, 140 F.3d 1111; 1998 U.S. App. LEXIS 6922; 35 U.C.C. Rep. Serv. 2d (Callaghan) 373; Bankr. L. Rep. (CCH) P77,688; 32 Bankr. Ct. Dec. 536, June 3, 1997, Argued , April 9, 1998, Decided , Certiorari Denied November 2, 1998, Reported at: 1998 U.S. LEXIS 6905.

The counsel (with Warren initially for the Debtor-Appellee, and again for this same company as Debtor-Appellant):

“COUNSEL: For BANK ONE, MILWAUKEE, N.A., Appellant, 96-3879: Marc Beem, Michael L. Shakman, MILLER, SHAKMAN, HAMILTON, KURTZON & SCHLIFKE, Chicago, IL USA. Barkley Clark, Mark Moedritzer, SHOOK, HARDY & BACON, Kansas City, MO USA. Michael R. Wherry, Michael C. Runde, DAVIS & KUELTHAU, Milwaukee, WI USA. Thomas G. Boyer, Russell S. Long, Milwaukee, WI USA.

For P.A. BERGNER & COMPANY fdba P.A. Bergner & Company of Illinois, Debtor – Appellee, 96-3879: Douglas K. Mayer, Amy R. Wolf, David C. Bryan, WACHTELL, LIPTON, ROSEN & KATZ, New York, NY USA. Marshall Simmons, Dallas, TX USA. Elizabeth Warren, HARVARD LAW SCHOOL, Cambridge, MA USA. Charles J. Hansen, CARSON PIRIE SCOTT & COMPANY, Milwaukee, WI USA.

For BANK ONE, MILWAUKEE, N.A., Appellee, 96-3937: Marc Beem, Michael L. Shakman, MILLER, SHAKMAN, HAMILTON, KURTZON & SCHLIFKE, Chicago, IL USA. Barkley Clark, Mark Moedritzer, SHOOK, HARDY & BACON, Kansas City, MO USA. Michael R. Wherry, Michael C. Runde, DAVIS & KUELTHAU, Milwaukee, WI USA. Thomas G. Boyer, Russell S. Long, Milwaukee, WI USA.

For P.A. BERGNER & COMPANY, Debtor – Appellant: Douglas K. Mayer, Amy R. Wolf, David C. Bryan, WACHTELL, LIPTON, ROSEN & KATZ, New York, NY USA. Marshall Simmons, Dallas, TX USA. Elizabeth Warren, HARVARD LAW SCHOOL, Cambridge, MA USA. Charles J. Hansen, CARSON PIRIE SCOTT & COMPANY, Milwaukee, WI USA.


Note, where other counsel list their business names, she has HARVARD LAW SCHOOL. Harvard is very picky and nasty at what they construe as abuse of their brand (name). In general, faculty are forbidden to use it for private outside business that lies outside of their faculty responsibilities. If Harvard were aware of this, I would expect them to go after her for it.

cicerosdaughter | September 27, 2012 at 4:27 pm

E. Warren and her husband contracted to represent their architect in Cambridge, sought attorney fees.
see link above. Case went to MA Appeals Court:

    chris ford1 in reply to cicerosdaughter. | September 27, 2012 at 7:05 pm

    Were you able to find if her husband held a Mass law license at the time? That would make a claim to recovery of attorney’s fees on behalf of the couple copasetic.

In this one, she’s an outside expert:

Heartland Fed. Sav. & Loan Ass’n v. Briscoe Enters. (In Re Briscoe Enters.), No. 92-1446., UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT, 994 F.2d 1160; 1993 U.S. App. LEXIS 17704; Bankr. L. Rep. (CCH) P75,351; 29 Collier Bankr. Cas. 2d (MB) 528; 24 Bankr. Ct. Dec. 717, July 13, 1993, Decided , As Corrected.

“- – – – – – – – – – – – – – Footnotes – – – – – – – – – – –

8 Professor Elizabeth Warren was consulted as an outside expert in compliance with (A)(4) of Canon 3 of the Code of Conduct for United States Judges which in pertinent part provides: “A judge may obtain the advice of a disinterested expert on the law applicable to the proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond.”

Justice Roger Traynor ended an article on appellate judging with the comment that: “There is no reason why courts should not request in complicated cases the disinterested expert opinion of scholars … We might well develop a tradition of regarding such public service as one of the most honorable responsibilities of the profession.” Roger J. Traynor, Badlands In An Appellate Judge’s Realm of Reason, 7 Utah L.Rev. 157, 170 (1960).

Professor Warren is the Warren A. Schnader Professor of Commercial Law at the University of Pennsylvania and Robert Braucher Visiting Professor of Law at Harvard. She is the co-author (with Prof. Westbrook) of The Law of Debtors and Creditors (Little Brown 2nd ed. 1992) and is preparing a handbook for the Federal Judicial Center on Business Bankruptcy.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – “

An early Amicus Curiae brief, cited in:

In re Snyder, Nos. 90-3612 & 90-3667, UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT, 967 F.2d 1126; 1992 U.S. App. LEXIS 15516; Bankr. L. Rep. (CCH) P74,754; 27 Collier Bankr. Cas. 2d (MB) 285; 23 Bankr. Ct. Dec. 287, December 10, 1991, Argued , July 9, 1992, Decided

“In addition, several commentators have recently argued powerfully that the new value “exception” is not an exception at all, but is consistent with the absolute priority rule as codified in § 1129(b). See Brief of Professor Elizabeth Warren as Amicus Curiae at 4-11, In re Greystone III Joint Venture, 948 F.2d 134 (5th Cir. 1991) (No. 90-8529);”

Oh, and here’s the full case citation for that:

In re Greystone III Joint Venture, No. 90-8529, UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT, 948 F.2d 134; 1992 U.S. App. LEXIS 2758; Bankr. L. Rep. (CCH) P74,351; 26 Collier Bankr. Cas. 2d (MB) 220; 22 Bankr. Ct. Dec. 452, February 27, 1992 , Reported at: 948 F.2d 134 at 142. As Corrected March 18, 1992.

“For Amicus Elizabeth Warren, Elizabeth Warren, University of PA School of Law, Philadelphia, [**2] Pennsylvania.”

I don’t see any notes explaining what the [**2] means.

cicerosdaughter | September 27, 2012 at 4:56 pm

The server is down:

WALKER v. WARREN, et al.

Published: 1:00 am Mon, January 1, 1990
By admin



WARREN, et al.




NO. 96-7022







This matter is before the Court on the plaintiff’s motion for summary judgment pursuant to Mass. R. Civ. P. 56(b). As grounds for his motion, the plaintiff, Bradford C. Walker, (“Walker”) asserts that, as neither party “otherwise agreed” to the award of attorney fees in their underlying arbitration proceeding, the arbitrator’s award of attorney fees to the defendants, Elizabeth Warren and Bruce Mann, pursuant to the Copyright Act, 17 U.S.C. § 505, is in contravention of G.L. c. 251 § 10 which prohibits such an award.[1]Walker therefore moves to enforce the arbitrator’s award, except for the award of attorney fees, which Walker moves to vacate as beyond the arbitrator’s authority.


The award of attorney fees by an arbitrator in an arbitration proceeding is prohibited by G.L. c. 251, § 10, which provides that “[u]nless otherwise provided in the agreement to arbitrate, the arbitrators’ expenses and fees, together with other expenses, not including counsel fees, incurred in the conduct of the arbitration, shall be paid as provided in the award.” G.L. c. 251 § 10. In interpreting this language, the Supreme Judicial Court has held that “in the absence of a special agreement to the contrary, legal fees arising out of arbitration may not be awarded, even if the arbitrator seeks to enforce a statute which, if litigated in court, would permit an award of attorney’s fees to the prevailing party”. Floors, Inc. v. B.G. Danis of New England, Inc., 380 Mass. 91, 101 (1980).

By submitting their dispute to arbitration,[2] the plaintiff contends, neither party “otherwise agreed” to an award of attorney fees arising out of their arbitration proceeding. Floors ,supra, at 101. Therefore “[i]n the absence of agreement to award [attorney] fees, the award of fees is prohibited and the arbitrator was powerless to grant them in the underlying arbitration action.” Baxter Health Care, Corp. v. Harvard Apparatus, Inc. 35 Mass. App. Ct. 204, (1993).

The defendants respond that 9 U.S.C. §§ 1-16, the Federal Arbitration Act, and 17 U.S.C. § 301(a) of the Federal Copyright Act, preempt G.L. c. 251 § 10, which prohibits an award of attorney fees by an arbitrator in an arbitration proceeding. The defendants therefore move to confirm the arbitrator’s award attorney fees pursuant 17 U.S.C. § 505, the statutory damages provision of the Federal Copyright Act.

The Federal Arbitration Act (“FAA”) applies to contracts evidencing transactions in interstate commerce. 9 U.S.C. §§ 1 and 2. To ascertain whether a transaction is one involving interstate commerce, the court must examine the agreement, the complaint, and the facts in order to determine whether it is within the purview of the FAA. Foster v. C.F. Turley, 808 F.2d 38, 40 (10th Cir. 1986). Two competing judicial interpretations of the phrase “evidence a transaction involving commerce”, as used in the FAA, formerly existed. The difference centered on whether the reviewing court interpreted the phrase broadly, so as to signify a congressional intent to exercise its full Commerce Clause power, or whether the reviewing court interpreted the phrase narrowly, so as to signify a congressional intent to limit the FAA’s application.

According to the narrow “contemplation of the parties” judicial interpretation:

“The significant not whether, in carrying out the terms of the contract, the parties did cross state lines, but whether, at the time they entered into it and accepted the arbitration clause, they contemplated substantial interstate activity.”

Lachney v. Profitkey International, Inc., 818 F.Supp. 922, 924 (E.D.Va. 1993). Thus, in Lachney, the court held that substantial interstate activity was contemplated by a New Hampshire software manufacturer and its Virginia customers where their contract required the interstate exchange of order forms, the interstate transfer of money for payment, the interstate transfer of employees, and the interstate shipment of software. 818 F.Supp. 922, 924 (E.D.Va. 1993).

Conversely, the “commerce in fact” judicial interpretation empowered a reviewing court to apply the FAA to the full extent of the Commerce Clause. Allied-Bruce Terminix Companies, Inc. v. Dobson, 513 U.S. 265, 279-280 (1995). Under this broad interpretation, the FAA applied to the contract upon the showing of actual interstate activity, whether contemplated or not by the parties. Id. See: Del E. Webb Const. v. Richardson Hosp. Authority., 823 F.2d 145, 147 (5th Cir. 1987) (where a construction contract involved persons from different states, the interstate use of mails, the interstate travel of employees, and the interstate movement of construction materials, the court determined that the parties’ activities involved interstate commerce and held that the contract was within the scope of the FAA.)

In choosing between interpretations, the United State Supreme Court recently held in Allied-Bruce Terminix, supra, that “the interpretive choice is difficult, but for several reasons we conclude that ‘commerce in fact’ is more faithful to the statute than ‘contemplation of the parties’”. 513 U.S. 265, 278 (1995). In this case, the Court concludes that the degree of interstate activity, if any, which actually “occurred in fact”, did not rise to the level of federally regulated interstate commerce. Allied-Bruce Terminix, supra. Although the signed agreement between the parties indicated that Walker’s principal place of business was Cambridge, Massachusetts, and that the defendants were domiciled in Pennsylvania, the work performed under the contract occurred in Massachusetts. Under the contract, Walker, a Cambridge-based architect, provided architectural drawings for the design and construction phases of the renovations to be made to the defendants’ 24 Linnaen Street Cambridge residence. As the parties did not actually engage in interstate commerce, the FAA does not apply to their agreement to arbitrate. Lachney v. Profitkey International, Inc., 818 F.Supp. 922, 924 (E.D.Va. 1993). See: Allied-Bruce Terminix Companies, Inc. v. Dobson, 513 U.S. 265, 265-282 (1995).

Moreover, even if their contract were viewed to involve interstate commerce, “the FAA contains no express preemptive provision, nor does it reflect a congressional intent to occupy the entire field of arbitration.” Volt Info. Sciences v. Leland Stanford Univ., 489 U.S. 468, 477 (1989). Rather, state law is preempted only to the extent that it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress”, or to the extent that it conflicts with federal law. Id. Therefore, in order for the FAA to preempt G.L. c. 251 § 10, the parties’ underlying contract must evidence a transaction involving commerce, and G.L. c. 251 § 10’s prohibition on awarding attorney fees, by an arbitrator, in an arbitration proceeding, must obstruct the purposes and objectives of the FAA. Id.

In determining whether state arbitration law conflicts with the FAA, the court in Merril Lynch, v. JANA, 835 F.Supp. 406 (N.D.Ill. 1993) held that a New York statute, which prohibits punitive damages to be awarded by an arbitrator in an arbitration proceeding, was not preempted by federal law because the parties’ signed agreement to arbitrate contained a provision stating that “[t]his agreement and its enforcement shall be governed by the laws of New York”, and because the New York statute did not conflict with the FAA. 835 F.Supp. 406, 413 (N.D.Ill. 1993). In ruling that the New York statute governed the agreement, the court cited to the opinion of The United States Supreme Court in Volt Info. Sciences v. Leland Stanford Univ., 489 U.S. 468 (1989), which announced that “great deference was to be given to the contractual rights of the parties, including the right to choose the applicable law for their transactions”. Merril Lynch, supra, at 413, citing, Volt Info. Sciences v. Leland Stanford Univ., 489 U.S. 468 (1989). The court also held that the New York statute did not conflict with federal law. Merrill Lynch, supra, at 413. See New England Energy, Inc. v. Keystone Shipping Co., 855 F.2d 1, 4-5 (1st Cir. 1988).

Here, as in Merrill Lynch, the signed contract for Walker’s architectural services contained a valid and enforceable choice of law provision at paragraph 9.1 that stated “[u]nless otherwise provided, this Agreement shall be governed by the law of the principal place of business of the Architect”. See Volt Info. Sciences v. Leland Stanford Univ. , 489 U.S. 468 (1989). Since Walker’s principal place of business was Cambridge, Massachusetts, it follows that Massachusetts law should control. Furthermore, the application of G.L. c. 251 § 10 to their agreement did not disrupt the arbitrator’s enforcement of the parties’ privately negotiated arbitration agreement, did not place limits on the arbitral process, nor did it override the parties’ choice to arbitrate rather than litigate. New England Energy, Inc. v. Keystone Shipping Co., 855 F.2d 1, 4-5 (1st Cir. 1988). It follows that G.L. c. 251 § 10 did not conflict with the FAA. Id. Therefore, the application of G.L. c. 251 § 10 to their arbitration agreement is not preempted by 9 U.S.C. §§ 1-16, the Federal Arbitration Act. Merril Lynch, supra, at 406-413.

The defendants further respond that G.L. c. 251 § 10 is not applicable here because 17 U.S.C. § 301(a), the Federal Copyright Act’s preemption provision, supersedes state law in matters falling within the scope of federal copyright protection.

Federal copyright law expressly preempts all state and common law under section 301(a) of the Federal Copyright Act, which provides:

“all legal or equitable rights…within the general scope of copyright…and within the subject matter of copyright…are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.”

17 U.S.C. § 301(a). Therefore, the defendants urge, because the defendants’ counterclaim for statutory copyright damages was brought pursuant to section 505 of the Copyright Act, and because any damages awarded pursuant to section 505 are governed exclusively by the Federal Copyright Act, it follows that section 301(a) of the Copyright Act preempts G.L. c. 251 § 10’s prohibition regarding the award of attorney fees.

However, as an initial matter, as a condition precedent to an award of statutory damages pursuant to section 505 of the Copyright Act, it is first necessary for the copyright owner to obtain a valid registration for his copyright in the copyright office. 17 U.S.C. § 412(2). Section 412(2) of the Copyright Act provides that:

“no award of statutory damages, or of attorney’s fees, as provided for by sections 504 and 505, shall be made for: (2) any infringement of copyright commenced after first publication of the work and before the effective date of its registration, unless such registration is made within three months after the first publication of the work”.

17 U.S.C. § 412(2). As there is nothing in the record to indicate that Walker’s architectural designs received federal registration in the Copyright office prior to amending his complaint to add a count of copyright infringement, it is unclear whether the arbitrator exceeded his authority in awarding statutory copyright damages pursuant to 17 U.S.C. §§ 412(2).

Moreover, the Copyright Act permits only a court, as an exercise of its discretion, to award reasonable attorney fees, and then only to the prevailing party. 17 U.S.C. § 505.[3] See: Fogerty v. Fantasy, Inc., 510 U.S. 517, (1994) (the award of attorney’s fees pursuant to § 505 of the Copyright Act means “a reasonable award falling within the court’s discretion”).

Further, having arbitrated the dispute, neither party appeared before a court and litigated the issue of copyright infringement, as required by § 505 of the Copyright Act, to obtain an award of reasonable attorney’s fees as a “prevailing party” under the statute. Fogerty v. Fantasy, Inc., 510 U.S. 517, (1994).

A prevailing party under § 505 of the Copyright Act “is considered one who succeeds on a significant issue in the litigation after an adjudication on the merits”, NLFC, Inc. v. Devcom Mid-America, Inc., 916 F.Supp. 751, 756 (N.D.Ill. 1996), and “[a] defendant is considered a ‘prevailing party’ when he successfully defends against the significant claims actually litigated in the action”. REPP and K & R Music, Inc. v. Webber, 892 F.Supp. 552, 560 (S.D.N.Y. 1995). Contra: Great American Fun Corp. v. Hosung New York Trading, Inc., 42 U.S.P.Q.2d 1729, 1731 (S.D.N.Y. 1997) ( a defendant in a copyright action which was voluntarily dismissed, may be a prevailing party under the Copyright Act).[4]

Here, it is undisputed that prior to their arbitration hearing, Warren and Mann admitted in their answer to Walker’s complaint that Walker had dismissed his copyright infringement action (paragraph 10 of the defendants’ answer and counterclaim to plaintiff’s complaint), and that the arbitrator had knowledge of Walker’s prior dismissal. As a result of the dismissal, the issue of copyright infringement was neither litigated nor decided on the merits and the defendants are not, according to the weight of legal authority cited above, a “prevailing party” as defined under section 505 of the Copyright Act. NLFC, Inc. v. Devcom Mid-America, Inc., 916 F.Supp. 751, 756 (N.D.Ill. 1996); REPP and K & R Music, Inc. v. Webber, 892 F.Supp. 552, 560 (S.D.N.Y. 1995).


For each of the above reasons, the Court concludes that the arbitrator lacked authority to award attorney fees. Accordingly, the plaintiff’s motion is ALLOWED and final judgment shall enter enforcing the arbitrator’s awards in paragraphs 1 and 2 of the arbitration decision, but vacating the award of attorney fees to the defendants in paragraph 3 of the arbitration decision.


Thayer Fremont-Smith

Justice of the Superior Court

DATED: August _____, 1997.


[1] In the underlying proceeding, Walker provided architectural services to the defendants, Warren and Mann, for renovations at their 24 Linnaean Street Cambridge, MA residence. Contained within their contract for Walker’s architectural services was an agreement to arbitrate all disputes arising out of Walker’s services. On February 24, August 21, and October 29, 1996, the parties commenced arbitration to resolve Walker’s claim of breach of contract by the defendants, as well as to resolve the defendant’s counterclaim for Walker’s professional negligence. Arbitrator Joel Sowalsky found for Walker on his claim, found for the defendants on their counter-claim and he awarded damages accordingly. Mr. Sowalsky also awarded attorney fees to the defendants pursuant to 17 U.S.C. § 505. Walker now moves pursuant to Mass. R. Civ. P. 56(b) to vacate the award of attorney’s fees.

[2] The parties entered into an AIA Document B151 Abbreviated Owner Architect Agreement which specifically states in Article 7 that “[c]laims, disputes or other mater in question between the parties to this agreement…..shall be subject to and decided by arbitration….”

[3] The full text of § 505 reads as follows: “In any civil action under this title, the court in its discretion may allow the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also award a reasonable attorney’s fee to the prevailing party as part of the costs”.

[4] In Great American Fun, the court, contrary to the weight of authority, held that the defendant was the “prevailing party” under 17 U.S.C. § 505 and awarded attorney fees to the defendant following the plaintiff’s voluntary dismissal of its copyright infringement action, where it found that the copyright claim was frivolous and that the defendants were forced to incur extensive pre-litigation expenses preparing to defend against the plaintiff’s frivolous claim. 42 U.S.P.Q.2d 1729, 1729-1732 (S.D.N.Y. 1997).

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    Ah poot.
    The full text just shows Warren and her husband were trying to get their attorney paid for by their architect. It could be the case that she (or she and hubby) was acting as her own attorney, but it’s just as likely that they’d hired someone else. There’s nothing in any of the files you’ve unearthed on this that mentions another attorney’s name?

Jack The Ripper | September 27, 2012 at 7:16 pm

I lack the time and the resources to check out the following, and was wondering if any of you could uncover facts or legal authority regarding the following:

Does working with a person who is not a licensed attorney vitiate attorney-client privilege?

Are plaintiffs attorneys now going to go after her notes, thoughts, impressions, work product?

Did Elizabeth Warren have a client trust fund account?

Did Elizabeth Warren improperly use student assistance on these cases?

Did Elizabeth Warren ever split fees or receive part of another attorney’s fee, whether for work or some type of referral arrangement?

Did she declare all of the income?

She she deduct on her Schedule C’s expenses relating to the practice of law?


Duty of candor to the court or tribunal?

Did she try to be a fact witness and an advocate in any matters?

Did she give legal advice to students, to Occupy Wall Street, to the law school, to the university, to individuals involving family law, divorce, taxation, contracts, leases, liens, UCC filings, deeds to secure debt?

Did she draft, file or cancel any security instruments in any state or territory?

Did she draft or help negotiate legal documents, settlement agreements, dismissals?

Did she talk about the legal matters she was working on in class or write about them? Remember the issues surrounding attorney-client privilege for Claus von Bulow?

Did she ever have sole possession of evidence or file any affidavits as an officer of the court? Conduct discovery?

Was she ever the sole representation for natural or artificial persons in instances in which only an active member of the bar can serve as an advocate, such as courts of record or certain executive branch agencies, tribunals, etc.?

Lobbying activities? Legislative activities? Registered as a lobbyist or preceding under some bar member exception?

Possible client conflicts?

Did she have malpractice or E&O insurance?

If not, were clients led to believe she had coverage?

If so, did she represent anywhere on the applications for insurance coverage that she had licensure or licenses or misrepresent the status of any professional privileges?

I note that Prof Jacobson may not be right when I seem to remember he said that the Harvard Law Faculty guide was not available online.
I found a link, but it it is internal to the Harvard University Community, as many of their documents are. You need a Harvard username and pin # to open it.

The web page contains the Faculty Manual and Faculty Gree Book links.
Perhaps a reader with active Harvard employment or student status can open and review it for the following:
a. Any law licensure requirements related to employment, doing pro bono work, supervising students doing law clinic work or pro bono work. License requirements for doing legal work on behalf of Harvard itself, consulting.
b. Policies regarding outside business activity: According to the Provist Guide for all Outside Activities, individual schools set internal policy for Faculty. For the law school, that is “Law — Policy on Outside Activities and Guidelines for Reporting Outside Activities of Full-Time Faculty Members (1991)” And the link to that mention of Law School policy on outside employment is in Provost’s Greybook, Footnote 4 of “STATEMENT ON OUTSIDE ACTIVITIES OF HOLDERS OF ACADEMIC APPOINTMENTS*

If someone does know of a staff or faculty member that can look into it, they should discuss with that person, if not already quite obvious to that person – that Harvard Law Faculty policies are clearly intended for internal use and the need for certain information on an employee in a matter of public interest does not justify any attempt to post the material as verbatim text without Harvard’s permission.

But it should be acceptable to publically summarize those policies and say if Elizabeth Warren was complying with clear Harvard Law policies.

Ideally, it would be nice to also get a present member of the Faculty to comment on policies “as they work now on a practical level”.
(Like it appears it is quite common for other lawyers at Harvard to use Harvard offices as their address on court documents…so Warren is in the clear on that…but the others noted as doing so seem to have ACTIVE Massachusetts licenses)

FreshPondIndians | September 27, 2012 at 9:56 pm

Does anyone have the ability to look up EIN numbers? I found a document that has a tax id that I believe is associated with her.

    FreshPondIndians in reply to FreshPondIndians. | September 27, 2012 at 10:03 pm

    Aside from the Tax ID, there are some irregularities in the document itself. The document is signed by EW’s brother and wife on 24 SEP 96, but the notarization (which is on the same page) is dated 26 FEB 98 (this is also the date the notary’s commission expires).

    FreshPondIndians in reply to FreshPondIndians. | September 27, 2012 at 10:17 pm

    Property tax id number. I’ll stick to brewing beer 😀

She’s not listed with Martindale. On they last checked her license in NJ in 2009.
It was active in 2009.

PER page 3 of the Harvard Law Faculty Manual….

“Faculty members who engage in outside work should satisfy themselves that they are not engaged in the practice of law if they have not been admitted to the appropriate bar.”

THIS IS IN WARREN’S OWN FILING…—Elizabeth-Warren-Verified-Statement

Did she employ or enlist her law school students to help her with her cases and briefs? That would make her a supervising attorney, and depending on which federal court she was in, she might need a state license too to be said supervising attorney.

This attorney directory thought she was a Massachusetts lawyer, and couldn’t have picked up the info from Massachusetts bar listings:

Avvo lawyer listings echo the “not eligible to practice” information on Warren, and do not list New Jersey (last updated September 10, 2012) — I have grabbed a pdf print of the page:

1997 Harvard crimson, warren highest paid prof in university. Had mortgage subsidized by university (not to mention hiring husband) Harvard must have been desperate to ge ta Rutgers law grad on staff – for the sake of academic diversity.

I hope this helps:

List of Licensed Texas Attorneys NOT Eligible to Practice Law in Texas

see Elizabeth Warren, p303

7 – Inactive attorney

@janitor That’s her Texas listing. There is a separate page for NJ that has not been updated since 2009 when she was Active. You need to check the resume section to see which license they are referencing.

At the 43:51 minute mark in her 9/24/12 interview on WTKK’s “JIm & Margery Show”, Warren said, “I’ve been inactive in the New Jersey bar for a very, very long time.”

There is a listing of the houses, Fauxahontas flipped in the 1990’s at
Maybe someone in Oklahoma City could research the addresses shown and determine who the owner was and whether there was some wrongdoing of Lieawatha “flipping their house” for profit.
I still haven’t found what the law is in Oklahoma about an attornery acting as a broker without broker license.

The Boston NPR radio station, WBUR, has a story about Warren and Brown’s campaigning this weekend:

Just FYI to get a sense of what this media outlet is reporting.

I was just reading a story on Virgil Hawkins. Had an Epiphany. Perhaps professor you have been reading “inactive” “ineligible” wrongly. New Jersey and Texas used to grant “diploma privilege” too. The thought occurred as I grappled with all the puzzles already written about or her seeming lack of empathy with lawyers’ irritation with cle and payment of fees etc. What if this was all about an early affirmative action problem all along?

Liz was a champion debater.

Any reason to doubt this ?

Although I’m not thrilled about it, I suspect that Elizabeth Warren was validly licensed in NJ until recently. Here’s why:

Until 2010, NJ CLE consisted solely of a substantial but concentrated series of CLE courses, focused on fundamentel aspects of NJ practice, part of a program called Skills and Methods (although everyone called it ICLE). Newly admitted lawyers in their first 3 years of practice were required to take a substantial number of these courses, which included graded homework. However, NJ had no subsequent CLE obligations for attorneys. Presumably Elizabeth Warren took ICLE in the late 1970s. Following that, her only obligation to remain in good standing with the NJ bar would have been to pay her “annual assessment” (bar dues).

NJ changed its CLE rules in December 2009, requiring 24 CLE credits for all attorneys every 2 years, including 4 ethics credits, regardless of seniority. Further, unlike most other jurisdictions, NJ declined to grant CLE credit for teaching classes in law school. These rules became effective January 1, 2010.

When 2012 rolled around, two years had passed, and Elizabeth Warren had not complied with the new CLE requirement. In late September of every year, the NJ Bar publishes a list of attorneys who are delinquent in their requirements and are thus ineligible to practice unless their delinquencies are remedied. I suspect that Elizabeth Warren (or her campaign, as the case may be) realized she was about to go on that list. Since NJ has no inactive status, her only option was to resign, which she did shortly before the bar publishes its ineligible list (these last two sentences are hypothesis, not necessarily factual).

This hypothesis is bolstered by the 2011 ineligible list, which does not show Elizabeth Warren on it. To locate this, go to and find “Order – Lawyers’ Fund for Client Protection – 2011 Attorney Ineligible List.” Her NJ Attorney number was 001351977, if that helps.

Of course, Elizabeth Warren should confirm all of this for the voting public one way or another. And I think there is still a very strong argument that she violated MA bar rules. But upon looking into this, I suspect she had a valid NJ law license until 1/1/2012.

    byondpolitics in reply to Anon_Wombat. | October 1, 2012 at 8:50 am

    “Although I’m not thrilled about it….” is “gotcha” language. It’s not effective & misses the point: it’s good to practice law legally; it’s bad for our leaders to act unethically.

    Alan S. in reply to Anon_Wombat. | October 4, 2012 at 5:18 pm

    See my posts below on September 27 where I covered this and raised possible issues about the accuracy of her 2012 annual registration and resignation affidavit, and pointed out that the Supreme Court retains jurisdiction to sanction an attorney who has resigned without prejudice. Any thoughts?

Mrs. Warren is such a distinguished attorney in Mass, she was honored with the “Lelia J. Robinson Award” from the “Women’s Bar Association of Massachusetts”. Anyone have any contacts over there to ask them why she received the award in 2009?

The award, presented since 1994 at the WBA’s annual Gala, is named for the first woman admitted to the Massachusetts Bar. The Lelia J. Robinson Award recognizes women who, like Robinson, have captured the spirit of pioneering in the legal profession and have made a difference in the community. They include attorneys who have excelled in practice, government and academia; women who have served as mentors and role models; and women who have promoted equality and justice. In recent years, WBA honorees have included practitioners and local leaders Beth Boland, Lisa Goodheart and Ann Morse Hartner, as well as Elizabeth Warren, a Harvard Law School professor and Assistant to the President and Special Advisor to the Secretary of the
Treasury on the Consumer Financial Protection Bureau.

Conservatarian77 | October 3, 2012 at 6:50 pm

New article from Masslive/Springfield Republican (in name only) from Western MA

U.S. Senate candidate Elizabeth Warren represented diverse groups in Supreme Court cases
Published: Wednesday, October 03, 2012, 6:23 PM

Warren showed softer side to Wall Street behind the scenes as Obama aide
By Peter Schroeder and Megan R. Wilson – 10/04/12 05:00 AM ET

Regulations For Thee, But Not For Me
by Hans Bader on October 4, 2012

Sir: Could you send your posts on Elizabeth Warren to:
Arvo Q. Mikkanen email at
[email protected]

Their focus is the federal Indian lands but think they would be interested in this particular ethnic fraud. That woman worth is estimated about $14 million dollars. Even if she got an honorarium from Harvard in addition to salary, I don’t understand how she accumulated that much.

I just received a four-page color mailing from the Massachusetts Republican State Committee this afternoon. The front cover reads “Elizabeth Waren: Native American Scandal” with a “Voter Alert” stamp. Inside is a timeline of Warren’s claims and news reports on the Cherokee controversy. The back page reads “Learn the facts about Elizabeth Warren’s attempt to forge her identity to gain professional advantage…”

The GOP didn’t put a website address on the mailing (stupid) or even a phone number, just their address in Boston. However, it’s an amazing step. Thought you’d be interested. You should ask them to send you the mailing as a .pdf from

Feb 2012. nYT video piece on EW high school years.

Not a single mention of Indian connection.
Warren only second to obama in fund raising? Must want her socialist vote in the Senate.

After reading the NYT op ed “When it comes to family, true and false are often beside the point,” I looked through Warren’s Harvard bibliography for insight into Warren’s positions re: race.


This is the text of a Warren 2002 paper (delivered as a lecture): “The Economics of Race: When Making It to the Middle is Not Enough.” She is looking into black and Hispanic bankruptcies, particularly as caused by predatory sub-prime mortgage practices. Although she does not specifically examine Native American bankruptcies, throughout the paper she generalizes “the economics of race” as “minority” economics.

On page 1798, Warren discusses varying consequences for different issues of minority abuse. Although she is arguing for more activist agitation against predatory lending, she iterates several actual and desired consequences that she ardently approves of for powerful people who in some way abuse race:

“When Senator Trent Lott seemingly expressed his nostalgia for a segregated America, minority groups around the country barraged the talk shows and newspapers, and Senator Lott was ultimately stripped of his powerful position as Majority Leader of the Senate. Similarly, when Texaco executives were accused of using racial slurs to refer to blacks, the company was boycotted, sued for millions of dollars, and forced to adopt new practices to ensure that its black employees had better opportunities.(53) But when a Citibank official said in sworn affidavits that she regularly added extra fees to a home mortgage “[i]f someone.., was a minority,'(54) there was little response. Citibank quietly agreed to a cash settlement with the FTC, and there were no press releases from the NAACP, no extended discussions on Hispanic radio stations, no interviews on the evening news, and no calls for Citibank’s highly visible CEO Sandy Weill to resign.”

Why don’t similar sanctions apply to a person who falsifies minority status — clear legal definitions of Native American status universally available — for a college professorship … or for a U.S. senator? Shouldn’t that person be called on to resign/withdraw?