In November 1997, Robert D. Sack was nominated for a seat on the Court of Appeals for the Second Circuit by President Bill Clinton. He was confirmed on June 15, 1998, and entered into service on August 6 of that year. He was an active judge for eleven years. He took senior status in August 2009. He maintains his chambers on the twenty-eighth floor of 40 Foley Square. He is the author of some 300 opinions for the court and several dozen concurrences and dissents.
Sack attended elementary school, junior high school, and high school (Midwood) in Brooklyn, leaving for the University of Rochester in 1956. He graduated from that institution with a B.A. degree (history) in 1960, and then returned to New York in 1960, enrolling in Columbia Law School.
Upon graduation from Columbia in 1963 with an LL.B degree, followed by a successful encounter with the New York State bar examination, he clerked for District Judge Arthur S. Lane, in Trenton, New Jersey. Judge Lane introduced the young Mr. Sack to Robert S. Potter, a partner at what was then the downtown New York law firm of Patterson, Belknap & Webb. In September 1964, Sack signed on as an associate.
When Sack joined Patterson, Belknap, specialization was the exception, not the rule. Sack was a generalist, spending some years as a litigator, counselor,
and corporate lawyer, both as an associate and, beginning in late 1970, as a partner in the firm.
Thus, early in his tenure, he assisted partners Chauncey Belknap and Robert Pennoyer in addressing the aftermath of the notorious “Salad Oil” swindle, perpetrated by one Tino DeAngeles, the Bernie Madoff of his day, which involved the raising of funds from financial institutions through the use of fraudulent warehouse receipts. The scam left a major brokerage firm in ruins and inflicted many millions of dollars of damages on some of the most prominent banks and commodity trading companies in the country.1 American Express Co., caught in the middle, put up more than $100 million to settle the matter. For the better part of a decade, Patterson, Belknap represented Chemical Bank as the holder and disburser of the settlement funds.
During the same general time period, Sack, as an associate and then partner, represented U.S. Industries, Inc., an active “conglomerate” located in New York City, in its purchase of a number of smaller northeastern U.S.-based companies.
In the 1970s, by contrast, with his partner and close friend D. Robert Owen and several other Patterson, Belknap lawyers, Sack participated in the defense of Bangkok Bank, Ltd., in a civil suit brought in the Southern District of New York by a New York- based commodities firm.2 The plaintiff attributed the collapse of its ambition to become the dominant player in maize trading in Thailand—a venture supported by the U.S. Agency for International Development—to the failure of Bangkok Bank to make good on a particular promise to provide $1 million in financing. The Bank prevailed in a bench trial before District Judge Richard Owen in 1979.
By the early 1980s, at about the time of the publication of his treatise Libel, Slander and Related Problems, Sack’s practice became focused largely on the provision of legal services to Dow Jones & Company, Inc., publisher of, among other media, The Wall Street Journal, and to other authors and publishers. His representation included pre-publication counseling and defense of suits brought on libel and related theories. But he also participated in representing Dow Jones in, among other things, its litigation with the Chicago Board of Trade with respect to the latter’s ultimately unsuccessful efforts to develop a futures market based on unauthorized use of the Dow Jones Averages;3 a variety of antitrust-law related counseling and litigation involving distribution arrangements for the Wall Street Journal; and allegations of insider trading related to articles published by Dow Jones publications, most notably the conviction in the Southern District of New York of a Wall Street Journal reporter and two co- defendants for trading on advance knowledge of the content of the reporter’s columns.4
Beginning in the mid-1980s, Sack also spent a significant portion of his professional time representing Dow Jones with respect to its publishing presence abroad. The challenge facing the company was to publish news and commentary meeting high standards of American journalism under legal conditions in one way or another hostile to that effort. Sack, with leading professionals from the U.K. and other local bars, engaged in proceedings in Hong Kong, Singapore, Malaysia, and the U.K., meeting with some, if not overwhelming, success.5
Meanwhile, in 1974, at the suggestion of Bob Owen, Sack took a seven-month leave from Patterson, Belknap, moving to Washington, D.C. to join the U.S. House of Representatives [Richard M. Nixon] Impeachment Inquiry staff headed by former Department of Justice Civil Rights Division Chief John Doar. (Owen had been Doar’s deputy during his days at the Division.) There, ultimately as senior associate special counsel, Sack participated in a wide variety of facets of the Inquiry.6
Returning to New York in the late summer of 1974 after the President’s resignation, Sack resumed his career with Patterson, Belknap—by now ensconced in “30 Rock,” then known as the RCA Building. Twelve years later, he left for a partnership with the New York office of the global firm, Gibson, Dunn & Crutcher, where he remained until he took the federal bench another 12 years thereafter.
Both before and after taking the bench, Sack has been a frequent author, lecturer, and teacher, largely on topics related to legal matters affecting the institutional press. His 1980 book, now entitled
Sack On Defamation: Libel, Slander, and Related Problems (5th ed. 2017) is, according to a Lexis search, the most often cited defamation treatise in the nation’s courts. Sack also co-wrote with his friend P. Cameron DeVore, of the Seattle-based Davis, Wright firm, the first edition of
Advertising and Commercial Speech: A First Amendment Guide (1999). Before and after becoming a judge, he has also written occasional law review articles, more often than not on press-law topics.7
In the mid-70s through the mid-80s, Sack was a frequent panelist on coast-to-coast “Media and the Law” seminars associated primarily with Fred Friendly and originally sponsored by the Ford Foundation. And beginning in 1973, he has lectured or appeared as a commentator in nearly every annual Practising Law Institute communications law program, which was chaired from the beginning and for several decades by James C. Goodale. Soon after taking the bench, Judge Sack began co-teaching, as a lecturer at law and then an adjunct professor, a course titled “The First Amendment and the Institutional Press” at Columbia Law School. More recently, he has, often with his colleague Debra Ann Livingston, participated in a Second Circuit judicial extern program and an associated seminar for Columbia Law School students. The program had been inaugurated by now-Justice Sotomayor when she was a Second Circuit judge.
Judge Sack 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. In 2008, Judge Sack was awarded the Federal Bar Council’s Learned Hand Medal for Excellence in Federal Jurisprudence.
Judge Sack has also served not-for-profit organizations, including the William F. Kerby and Robert S. Potter Fund, which provided funding to the legal defense of journalists abroad; 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 Columbia Law School. He is also a member of the American Bar Association, the New York City Bar Association (chair, Communications Law Committee, 1986 to 1989), and the American Judicature Society, and is a fellow of the American Bar Foundation.
Judge Sack’s grandparents on both his mother’s and father’s sides were early twentieth-century immigrants from Eastern Europe to the United States. His mother’s parents arrived separately in New York City, where they met and married. His father’s father, a glove cutter by training and trade, settled in the upstate New York city of Gloversville. His family soon followed. He met, and five years after reaching the States married, Sack’s Russian-born grandmother. Her death preceded Sack’s birth.
Sack’s father, Yehuda (then Anglicized to Julius, then Americanized to Eugene), was born in Gloversville in 1912. Sponsored by a local businessman and philanthropist, he left for the University of Cincinnati at the age of 16. Thereafter, he enrolled in Hebrew Union College, also in Cincinnati. Upon graduation, he was ordained as a rabbi. Meanwhile, his only sibling, Rose, had been a student at Hunter College in New York City. Her roommate, Sylvia Rivlin, not long thereafter became Mrs. Sack, the wife of Eugene and mother of Sack and his brother, Steven.
Shortly after Pearl Harbor, Eugene, by then a junior rabbi with a large Reform Jewish Synagogue in Philadelphia, volunteered for the Army. Some of Sack’s most vivid childhood memories are of his family’s odyssey during the War. Eugene, family in tow, moved to Macon, Georgia in 1942, where he trained for the chaplaincy. Then, during the 18 months he was serving in the Pacific Theater, most of the time in New Guinea, Sack and his mother lived with relatives in California and then Brooklyn. Upon Eugene’s return to the States in 1944, he was stationed in Fort Knox, Kentucky, where he and his family were residents on “VJ Day”—August 15, 1945—marking the end of the War.
After Eugene’s discharge from service and a relatively brief stay back in Philadelphia, the family moved to a modest Victorian-style house on East 16th Street in Ditmas Park, Brooklyn. Eugene took the pulpit at Congregation Beth Elohim, in Park Slope, Brooklyn, where he served for more than 30 years.
Judge Sack is married to Anne K. Hilker (Anne Hilker Sack). He has three children who now reside in various parts of the country, working as officers of not-for-profit organizations, and living with families of their own.
Anne was a prominent trusts and estates lawyer in California and New York (where she chaired the City Bar’s Trusts, Estates, and Surrogate’s Courts Committee). In 1995, both she and Sack were named in New York Magazine’s list of “Best Lawyers in New York.” Late-diagnosed Lyme disease forced her to leave the practice of law in 2002. As part of a long recovery, she has pursued part-time graduate studies in the history of decorative arts and material culture.
Judge Sack quips that now that he has taken senior status, he has been able to reduce his workweek to seven days. His somewhat abbreviated sitting schedule has, however, allowed him time to sit annually by designation on the Ninth Circuit, and for Anne and him to spend a bit more time travelling. They have visited, toured, or cruised in
all seven continents.
1. NORMAN C. MILLER, THE GREAT SALAD OIL SWINDLE (1966).
2. Calabrian Co. v. Bangkok Bank Ltd., 55 F.R.D. 82 (S.D.N.Y. 1972) (outlining the plaintiff’s allegations; denying the defendant’s motion to dismiss on forum non conveniens grounds).
3. Bd. of Trade of Chi. v. Dow Jones & Co., Inc., 456 N.E.2d 84 (Ill. 1983).
4. Carpenter v. United States, 484 U.S. 19 (1987).
5. Robert D. Sack, New York Times Co. v. Sullivan—50-Year Afterwords, 66 ALA. L. REV. 273, 274-76 (2014).
6. TIMOTHY NAFTALI, AN ORAL HISTORY INTERVIEW WITH ROBERT SACK (2011), https://www.nixonlibrary.gov/virtuallibrary/documents/histories/sack-2011-09-27.pdf (a video- taped interview for the Richard M. Nixon Library and the National Archives).
7. Sack, supra note 5; see also, e.g., Robert D. Sack, Protection of Opinion Under the First Amendment: Reflections on Alfred Hill,
“Defamation and Privacy Under the First Amendment,” 100 COLUM. L. REV. 294 (2000) (published in the 100th Anniversary issue of the Columbia Law Review); Robert Sack,
Hearing Myself Think: Some Thoughts on Legal Prose, 4 SCRIBBS J. LEGAL WRITNG 93 (1993); Robert D. Sack,
Reflections on the Wrong Question: Special Constitutional Privilege for the Institutional Press, 7 HOFSTRA L. REV. 629 (1979); Robert D. Sack,
Principle and Nebraska Press Ass’n v. Stuart, 29 STAN. L. REV. 411 (1977).