Harvard Law Record, V. 129 No. 6, Nov. 19, 2009

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November 19, 2009

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In Mass. Senate Race, Khazei Bets on Grassroots

Alan Khazei ’83 spoke alongside Steve Pagliuca HBS ’82 in a discussion of their campaigns for the Senate seat formerly occupied by Ted Kennedy.

The pace of the short race to get on the ballot for the special election to Massachusetts’ vacant U.S. Senate seat is accelerating to a full sprint. Two Harvard alumni are running, Alan Khazei ’83 and Steve Pagliuca HBS ’82, and both came to HLS last Thursday to discuss their campaigns and rally support. After the event, the Harvard Law Record was able to meet

KHAZEI CAMPAIGN: MORE INFO AT ALANFORSENATE.COM

briefly with Khazei to discuss his grassroots strategy for getting on the ballot. Khazei, who founded the nonprofit community outreach organization City Year and was instrumental in the enactment this year of the Edward M. Kennedy Serve America Act, shared insights into the influence of Senator Kennedy on his strategy and his purpose for participating in the election.

Interview with Alan Khazei - Page 5

Vol. CXXIX, No. 6

ELIOT SPITZER’S ETHICS LESSON?

When Tarnished ex-N.Y. Governor Eliot Spitzer ’84 Came to Harvard Last Week, the Headlines Missed What He Really Said BY MATTHEW W. HUTCHINS

Has America lost its way during the tumult of the financial crisis, driven to government excess by angry populism? Or has the sobering effect of instability and loss lifted a fog that had obscured the debate on policy objectives? To former New York Governor Eliot Spitzer ’84, the crisis has revealed the fundamental necessity of government involvement in the marketplace as an enforcer of transparency, integrity, and competition, as a regulator of externalities, and as a source of core social values that will not be guaranteed by the market. “Only government can force rules related to transparency and integrity upon the market.” But Spitzer sees the present moment as full of both opportunity and hazard. “Angry populism is no better guide for rational intervention than is Ayn Rand libertarianism.” Spitzer spoke at Harvard on Thursday, November 12th on an invitation from the Edmund J. Safra Foundation Center for Ethics, an ironic twist which, in light of Former N.Y. Governor Eliot Spitzer ‘84 delivered a lecture his resignation from the governorship of hosted by the Edmond J. Safra Center for Ethics. New York in 2008, prompted heightened media attention to his appearance. But the central thrust of Spitzer’s remarks centered on his economic stability and social justice. Looking back experience not as governor but as the Attorney Gen- on his experience investigating the conflicts of intereral of New York. In that capacity, he conducted in- est in the investment banking industry, he said, “The vestigations of Wall Street that led to the Global market was driving them to a standard of behavior Settlement in 2003 to resolve conflicts of interest in that was the lowest common denominator and it was the investment banking industry and fines of over unacceptable. It would destroy the integrity of the market, and the only way to resuscitate the market $1.4 billion. After a brief introduction by Professor Lawrence was for the government to come in and say someLessig, the director of the Safra Center, Spitzer out- thing very simple. Tell the truth.” Because of the inlined the parameters within which government inter- herent pressures created by competition for market vention in the markets is a necessary component of share, Spitzer believes that government involvement Spitzer, cont’d on pg. 5

Israel’s Bedouin Villages Struggle for Existence

In the 1960s, the Israeli government began transferring the remaining Negev Bedouins to permanent, statebuilt townships. Though these areas now have approximately A Bedouin Village Goes Without Electricity 90,000 residents, While Israeli Industry is Fed by Power Lines in an additional the Background. Photo by Sandra Ashhab. 80,000 Bedouins continue to live in BY REBECCA AGULE unrecognized villages. The govWhen the State of Israel was ernment views unrecognized founded, in 1948, the new gov- villages as illegal settlements ernment expelled approxi- and refuses to provide services mately 50,000 Bedouins, a such as running water, electricsemi-nomadic and pastoral ity, schools and hospitals. This community, from their homes in illegal status leaves many the Negev Desert. Others fled Bedouins in constant fear that Bedouin, cont’d on pg. 3 into the surrounding countries.

Posner Affirms: “Meat is Murder” Ames Finals: 7th Cir. Judge Presides Over Vegan Victory

INSIDE

The HL Record News

• Students’ Immigration Victory • Asking if Harvard is Corrupt • Free Coffee Flows All Day • Swine Flu Emergency Prep • France’s School Symbols Ban • Alien Torts Suits: Originalist?

Opinion

BY MATTHEW W. HUTCHINS

Photo: Phil Farnsworth

The marketplace of ideas has hit the road. In a case which revolved around a proposed license plate bearing the slogan, "Meat is Murder", the highest court in the Ames competition has upheld limits on the discretion of the State of Ames to reject the license plate Ames, continued on pg. 5

• Mumbai? Bring Back Bombay! • Cross-Registration Woes

Features

• The 1L Who Doesn’t Sleep • Climenko’s “Wire” Spouse • “Arsenic” Kills (its Audience) BEHOLD HLRECORD.ORG

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H L S

Harvard Law Record

Victory for Detained Legal Immigrant Highlights Difficulties Faced by Others

BY JESSICA CORSI

Thanks to the help of Harvard Law School volunteers, an HLS alumna, and a Stanford law grad, a U.S. citizen mistakenly detained by Immigration and Customs Enforcement (ICE) and held among regular prisoners at the Bristol County House of Correction in North Dartmouth, Mass. was released after a monthlong detention. Walther, 24, became a citizen as a teenager. The Harvard Immigration Project (HIP) helped him claim his citizenship, leave jail, and avoid the trauma of deportation to Peru, a country he has not lived in since he was 13. HIP is a student-run organization that advocates for changes in U.S. immigration law that would protect immigrants’ rights. For the last year they have partnered with the PAIR (Political Asylum/ Immigration Representation) Project, a Boston area pro-bono organization that is often the only legal representation available to persons detained by ICE. For each of the estimated 1,000 ICE detainees in Boston each day, there are around seven legal professionals—four full time PAIR staff and professors from Suffolk University, Boston College, and Roger Williams University law schools—available to assist them with their claims. The substantial discrepancy between the need for legal services and available practitioners means that volunteers, fellows, and students are essential to preventing wrongful detentions and deportations and protecting detainees’ rights. Walther’s case hinged on precisely such impermanent personnel—Paul Sass ’11, an HIP volunteer; Andrea Saenz ’08, an Equal Justice Works Fellow at PAIR, former HIP member, and former Editor-in-Chief of the Harvard Law Record; and Nick Stanley, a Stanford Law alum and deferred law firm associate who has been working at PAIR for the last three months. Once a month, a team of PAIR attorneys takes HIP volunteers and other local law students to ICE detention centers to speak with detainees in advance of their deportation hearings. The volunteers inform the detainees of their rights, taking down their information in case they can make a claim that could enable their release and prevent their deportation. Before HIP got involved, PAIR staff were sometimes unable to hear everyone’s claims. With HIP’s help, everyone is heard within half a day. It was Paul Sass’ first time meeting detainees when he was introduced to Walther on October 8th. Walther had been arrested for the Massachusetts equivalent of a DWI. While he was in police custody, ICE put a detainer on him, thinking that he was a Peruvian citizen with Permanent Residency. ICE describes its mission as “[s]trengthening the nation’s capacity to detain and remove criminal and other deportable aliens.” It is able to detain and deport

even legal residents for what many would consider minor offenses. Unfortunately, Walther’s position is not entirely unique. ICE is supposed to screen for derivative citizenship, but it doesn't always happen in practice, and every year there are many people who find themselves behind bars and fighting ICE's presumption that because they were born in another country, they aren't citizens. In 2007, Hector Veloz, the son of a Vietnam veteran and a U.S. citizen, was locked up for 13 months in an Arizona prison because ICE thought he was an illegal alien. ICE moved quickly to shuttle Walther from police custody to immigration detention. Local law enforcement agencies agree to report foreign-born individuals to ICE when they arrest them or observe them in court. Once reported, ICE runs a computer check, and if they find a visa overstay, lack of inspection at the border, or other cause for ICE to think that the person is here illegally, they send a detainer to the local police, ordering them to hold the person for up to 48 hours (not including weekends) and giving ICE the ability to take custody when the local law enforcement agency no longer wants to hold him or her (sometimes even after a sentence is completed). This is exactly what happened to Walther. The process happens so quickly that there is often no time for the detained person to make any phone calls to ask for help or to let family and friends know what is going on. Detainees are often not fully informed of what is happening to them, and there are no attorneys or others present during this process to intercede on their behalf. A derivative citizenship case like Walther’s is particularly complicated; given its vagaries and complexities, attorneys often liken immigration law to tax codes. Walther thought that he might have obtained citizenship from his mother, who had arrived in the U.S. from Peru ahead of him. He followed her here as a Lawful Permanent Resident, or green card holder, and lived with her as a child. While he was growing up in the U.S., his mother naturalized as a citizen, but nothing was done to obtain full citizenship for Walther. In 2000, however, Congress passed the Child Citizenship Act, a federal law that automatically gives citizenship to children such as Walther who were under 18 when at least one of their biological parents naturalized. Walther’s family did not know that this law applied to him and he did not have the documents on him to prove it, given that he had been taken from police custody straight to ICE detention. Due to prison phone systems, it is extremely difficult for people—whether family or counsel— to call in, but Paul and PAIR had made sure that Walther had PAIR’s phone number so that he could follow-up with

November 19, 2009

Free Coffee Returns, Now for Whole Day Long

It was one of the most notable perks introduced to Harvard Law School by former Dean Elena Kagan '86, the current Solicitor General. But as many suspected would happen, the free coffee that graced the school's hallowed hallways was cut back following budget cuts early this year. Now, however, free coffee will flow through the veins of HLS students more liberally than ever, thanks to a new pilot program to provide it all day long. According to an email from Dean of Students Ellen Cosgrove, sent to the HLS community last week, the school will augment its current free coffee regime by making the caffeinated drink available in Lewis Hall's Room 202. The new free coffee station will supplement the morning coffee available in Pound and Austin Halls until about 10:15am each day, as well as the evening free coffee available in the library kitchen after 9pm on weekdays and all day on weekends. Cosgrove's email indicated that the move came in response to complaints both by students and by faculty and staff, whose own free coffee supplies were being raided by students, resulting in noise in hallways near faculty offices.

Law School Ramps Up Swine Flu Preparations

An increasing number of Harvard Law School students are being infected with the H1N1 (or swine flu) virus, according to an email to the HLS community by Dean of Students Ellen Cosgrove, leading the school to take extraordinary steps to deal with the situation. The measures come seven months after the first known outbreak of the virus in Massachusetts took place at Harvard Dental School, and three weeks after the university reported running out of regular flu vaccine (it has since acquired more). According to the email, Dean Minow has asked that all measures be taken to ensure that infected students do not miss any material covered in classes. Several options were apparently looked at to bring the classroom to the sick, including the use of digital tools ranging from Skype to WebEx to Elluminate to iSite videos. In the end, the law school settled on providing recordings of classes to students whom University Health Services has reported to have contracted the illness – but only in those rooms where it has the capability to do so. Recordings will be made available for at least four days after each class has taken place. Infected students with classes in other rooms will receive copies of notes from fellow students. Meanwhile, the Law School's Local Emergency Management Team, or LEMT, is looking into contingency plans if the school falls victim to a wider outbreak. This may result in a revised plan for recording and distributing class materials. The university currently has a limited quantity of H1N1 vaccine and it is only being distributed on the basis of need. According to the University Health Services website, the university is currently offering the vaccine to pregnant women and pediatric patients. The next group to be innoculated will include those who are under six years old, live with assisted care, household contacts of pregnant women in their third trimester, and medical personnel. Only following these priority patients will UHS be able to offer the vaccine to university-age students up to 24 years old who are at risk of health problems, followed by persons up to 64 years old under the same circumstances. UHS has indicated that it will "probably not" receive the 15,000 doses it requested due to slow production of the vaccine.

them. Walther called PAIR a week after he gave his information to Paul, and Nick Stanley took up his case. Once Nick realized that Walther fell under the Child Citizenship Act, he moved quickly to obtain the proof necessary to ensure his release—his birth certificate, his Green Card, and the most important item: proof of his mother’s naturalization. Nick then called the Department of Homeland Security’s ICE Chief Counsel Office and spoke the Duty Attorney for the day. A few hours later the attorney called back to request the documents Nick had obtained. Twenty minutes after Nick faxed them, the attorney called to say that Walther was going to be released. His release happened so quickly that there was no time even to let him know he would soon be free, and so Nick called Walther’s family to make sure that someone was there to meet him when ICE released him into the jail’s parking lot on November 6th, just under a month after Paul took down his information. Walther ws lucky: his release came relatively quickly. Inside the Bristol jail, detainees like Walther are entirely dependent on counsel working on the outside to assist them. Most cannot afford private attor-

neys, who are often reluctant to get involved, because of challenging barriers put in place by ICE and the rapidity with which their clients are deported. Many people in Walther’s situation are deported without ever having had counsel and with nothing more than a video hearing before an immigration judge. Because deportation is not considered a criminal punishment—despite the fact that it is an extremely harsh “penalty,” particularly for infractions, like DWI, that would not even have merited probation—the U.S. government has decided that immigrant detainees facing deportation do not have a right to counsel. ICE is a large bureaucracy and, due to federal law, the personnel working on immigration cases are often mandated to take quick action to detain and deport without any room for discretion. Walther’s story had a happy ending, thanks to the work of HIP and PAIR. HIP intends to expand its programs and become a student practice organization, which will increase the power of PAIR to assist ICE detainees and prevent wrongful detention and deportation. Until then, the detainees in the Boston area will continue to rely on the seven attorneys and handful of volunteers who get in to see them once a month.

November 19, 2009

W O R L D Harvard Law Record

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Bedouin, cont’d from pg. 1 homebuilding and set out the home registration lages to you. I will just tell you the story of al-Sira,” their homes will be demolished or that they will be process, but the law provided no authority to give per- said Alumur. “But it isn’t a different story from the mission to Bedouins. others.” forced to relocate. Compounding these tensions, the Bedouin commuIn closing, Ranaan urged the audience to take acOn November 10th, Ahmad Amara, a Global Advocacy Fellow with Harvard Law School’s Human nity has historically operated its own courts, previ- tion, reminding them that the issues at hand are hardly Rights Program, moderated a panel on the Bedouin ously recognized under the British, and, given this unique to Israel. “Canada, the US, Australia, they are all dealing with entitled “Invisible Citizens”. Speakers Khalil Alumur parallel system, many saw registration as unnecessary. “There was no reason to register,” Raanan said. this. The question is, how do you deal with indigeand Yeela Raanan outlined the plight of Israel’s nous land rights in a western court? This is a political Bedouin citizens. Alumur, an Israeli Bedouin, serves “They had their own system.” Raanan continued that the government does allow question, not a judicial issue.” as the representative of al-Sira, an unrecognized vilClinical Instructor Amara works on numerous inilage in the Negev and home to his family for more for registration when a family decides to sell its home. than seven generations. Raanan works with the Re- “But you see the table of what the land is worth, and tiatives related to Israel and Palestine. More than a dozen clinical students have joined Amara, undertakgional Council for the Unrecognized Villages, a grass- its really just pennies.” Rejecting violence, Alumur does not consider ing a variety of projects related to the Bedouin popuroots organization created to advocate for villages and communities, such as the one where Alumur currently breaking the law a viable advocacy tool. Instead, he lation. These efforts have included research in support organizes demonstrations and protests at Israel’s par- of cases heard before the Israeli Supreme Court, reclives. Underscoring the depth of the rift between liament, the Knesset, as well as working to draw ommendations to a task force focusing on Bedouin Bedouins and the Israeli government, Alumur said, media coverage and the interest of politicians. “We land issues created by the Israeli government, and that “this is something bigger than misunderstanding want to fight for rights peacefully, legally. We work submissions to the United States Department of State. The Middle East Initiative, the Outreach Center at or mistrust. There is a crisis between the citizens and from the inside, not only from the outside,” Alumur said. the Center for Middle Eastern Studies and the Human the government.” Alumur explained the purpose of his trip to Har- Rights Program at Harvard Law School co-sponsored Alumur described life in his village, which has esthis event. tablished a daycare, built a mosque, paved the dirt vard, one of several speaking engagements. “I hope to bring the story of the unrecognized vilroads and laid water pipes. The residents of al-Sira, located just south of Arad, often cooperate to fill one another’s basic needs. Before we had any regular power, my fridge was like a pharmacy for the whole village,” Alumur said. BY CHRIS SZABLA cuse, rather than suffer for making a personal choice. MoreSeemingly small tactics often make over, those who could not stomach abandoning religious the difference between a home’s de“How is it that the terrible French, passing racist, sexist symbols could always avail themselves of France’s governstruction and preservation. Alumur’s laws, are [also passing laws that are] working out better than ment-subsidized religious schools. Finally, France coupled own home remains grey and un[those in] the rest of Europe?” This provocative question was the law with a new flexibility on religious holidays – citizens painted, as he know that, were it raised by Patrick Weil, who, in 2003 and 2004, participated would have the option of taking a range of days off, dewhite, the chances of demolition in a commission under former pending on their faith. would increase. More permanentFrench President Jacques Chirac Gerald Neuman ’80, Harlooking structures or those built to determine how France should vard’s J. Sinclair Armstrong higher on the hills are also at greater respond to the harassment of Professor of International, Forrisk. Muslim girls who went without eign, and Comparative Law, Each individual feels the impact of hijabs, also known as headcriticized Weil’s characterizalife in an unrecognized village deeply scarves, in schools. tion of laïcité – and the ban on and differently. Ranaan described dire Weil, a historian and sociolreligious symbols – as liberal. health consequences, such as chronic ogist who is spending a semester Liberalism, Neumann asserted, diabetes and widespread asthma. as a visiting professor at Yale should be thought of as respect Women living in Wadi al Na'am, a Law School, had traveled to for the autonomy of individuvillage close to Ramat Hovav, suffer Cambridge to defend his comals – which individuals should the highest rate of miscarriages in the mission’s response – a total ban be able to act on themselves. country. Without schools, children on religious symbols in French Responsibility for their rights, must be bused to out of the villages to schools – before members of such as the choice not to wear receive an education, a process that Harvard Law School’s Human Nice hijab, but don’t try wearing it to a French school. a headscarf, should not be results in the exclusion of many girls. Rights Program. Human rights taken over by the state. He Photo by Flickr user davidChief. Unable to marry without homes, groups have been critical of the asked how the state made young men also suffer. law, which they say is an impediment on the absolute right to choices to support one pressure or another on groups – in the “You don’t want to upset the young religious practice. But five years after the fateful ban, Weil case of Muslim women in France, toward or against assimimen,” Raanan said. said, studies and data collected from other European coun- lation, and why religious symbols were banned when the Sometimes done to send a message, tries indicated that the law had made a positive impact. state could have taken on other practices that caused harassbulldozing also carries strong symJust how he measured the impact of the law, Weil did not ment. bolism. Pushed by an audience memsay. He wanted to focus, instead, on defending it against crit- Noting that it made more sense to ask government employber for the reasoning behind home ics who insisted that a law scrubbing schools of religious ees, such as teachers, to not wear religious symbols, in order demolition and the refusal to extend symbols was illiberal. At the heart of the debate is the French that the government be perceived as neutral toward religion, recognition, Raanan admitted that the idea of laïcité, a form of secularism that mandates not only Neuman said it made less sense to impose a ban on the reanswer would likely be unsatisfacthe separation of church and state, but state guarantees that ceivers of a government service for the same reason. Finally, tory. any particular religion will not overrun the public sphere. he wondered whether the French law painted too broad a “Recognition of the villages would The roots of laïcité go back to the anti-Catholicism of the stroke – were other religious groups, he asked, the “collateral allow people to stay.” Raanan said. French Revolution, but its more modern manifestation was damage” of a law intended to focus on a Muslim problem? “No government wants to make evident in a 1905 law that formally separated religion and Weil, for his part, said that the state needed to protect insomething illegal legal.” the French state. The 1905 law had said nothing about reli- dividuals because forces other than the state – such as reliRaanan offered the audience a bit of gious practice in public settings, and Weil firmly defended gion – could be equally oppressive. Still, he took Neumann’s historical context. She described what the right to practice one’s religion “on the street”. But the point about other religious groups serving as collateral damshe termed “a process of concentraschool, he argued, was a different environment. Since the ter- age, and said that compromises had been found for some tion” by the Israeli government to rerorist attacks of September 11th, 2001, French school offi- groups, like Sikhs, who were particularly attached to their move Bedouins from the larger cials had witnessed increasing pressure on Muslim girls to religiously mandated garments. Negev, originally to Jordan and then wear headscarves, although the majority did not. They conBut Weil’s specific solution appeared to boil down to the into certain areas of the desert. The sidered going after the harassers themselves, but had a diffi- fact that laïcité was simply the French way of doing things. 1965 Planning and Building Law decult time obtaining testimonies. It demonstrated, he said, that France could not be reduced to termined the hows and wheres of In 2004, the Stasi commission, appointed by Chirac to in- the stereotypes of authors such as Joan Scott or Christopher vestigate a solution to the problem , recommended the ban on Caldwell, who had asserted that the French were racist or religious symbols. Weil, who was a member of the group, that their liberalism would lead the country to be overrun by outlined three ways he thinks that the ban managed to be con- Islam, respectively. “Laïcité,” Weil argued, noting that sistent with religious freedom. First, the law allowed students French governments had come and gone, while the principle facing harassment for their choice to wear or not to wear re- remained, “is [even] more important in France than the conligious symbols like headscarves could use the law as an ex- stitution”.

French Secularist Defends Country’s Ban on Religious Symbols in Schools

Next Record:

December 2

Harvard Law Record

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EStabLiShEd MCMXLVi Matthew W. Hutchins Chris Szabla Editors-in-Chief

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Harvard Law Record

November 19, 2009

Wake Up, India, and Bring Back “Bombay” BY KARAN TYAGI

“Mumbai” is Terrorized by Linguistic Chauvanism

On November 9th, Indian democracy plunged to its nadir. Elected legislators of the Maharashtra Nav Nirman Sena Party (MNS) rushed to the floor of Maharshtra state’s Legislative Assembly to stop the elected member of the Samajwadi Party, Abu Asim Azmi, from taking oath in Hindi, the country’s official and most widely-spoken language. They demanded that he take the oath in Marathi, the language of the Marathi people of Maharashtra, whose cause the MNS seeks to espouse. This was followed by MNS legislator Ravi Kadam slapping Azmi in full view of the public gathering. This follows a similar incident that took place just a few weeks ago, when the same party threatened noted film producer Karan Johar for using the word “Bombay” instead of the Marathi “Mumbai” in his new movie, Wake up Sid. This linguistic and regional chauvinism is not a new phenomenon. The MNS and its chief, Raj Thackeray, have been making inflammatory and divisive comments since the party’s formation. Last year, members of the MNS resorted to arson and violence in different parts of Maharashtra in protest against outsiders entering and working in the state. But in assaulting an elected member of the House in the Assembly, the MNS has sunk to its lowest depths. Apart from taking immediate action against the members of the MNS involved in this ruckus, the fact that there is no place for ethnic and linguistic chauvinism in a city like “Bombay” should be driven home once and for all. At the outset, I would like to point out that the Indian Constitution that allows legislators the freedom to take oath in any official language was written by Dr. Babasaheb Ambedkar, a low-caste native Maharashtrian himself. Further, as was rightly pointed out by Abhinav Chandrachud LL.M. ’09 in the Indian Express, the oath prescribed for members of state legislative assemblies was amended by the Constitution Act of 1963 to include a promise to “uphold the sovereignty and integrity of India”. By stopping Azmi from taking the oath in Hindi, the members of the MNS have not only subverted the Indian Constitution but have also flouted all forms of parliamentary functioning. The MNS fails to realize that “Bombay” has always had a

multicultural character. It was built by the contribution of Parsi and Gujarati entrepreneurs, Konkan mill laborers, Telugu and Tamil industrialists, Koli and Marathi fishermen, and the North Indian-dominated film industry. “Bombay” is the financial capital of India because of the contribution of people from different parts of the country. The city epitomizes the “unity in diversity” characteristic of India. Chattrapati Shivaji Maharaj, the founder of the Maratha empire and the hero of the people of Maharashtra, was known for favoring inclusivity and tolerance of other religions. Thus, the attack on Azmi is not only an attack on Bombay’s famed pluralism, but also on the virtues and teachings of the Marathi hero, Chattrapati Shivaji Maharaj. The Maharshtra government has always turned a blind eye to the threats issued by the MNS and the violence perpetrated by its members. The government has brazenly succumbed to the threats of the MNS, doling out the excuse that stricter action would lead to bigger “law and order” problems. The fact that this time the Maharashtra Assembly has suspended the members of the MNS involved in the incident for four years is a heartening sign. But the authorities fear a backlash by the MNS political activists, one that would lead to widespread violence and destruction in “Bombay” and other parts of Maharashtra. They need to display the courage exhibited by U.S. President Dwight D. Eisenhower during the “Little Rock Nine” incident of 1957. At a time when “Bombay” and the state of Maharashtra are overrun with such problems as terrorism, malnutrition, poverty, and rising prices, it is shocking that some members of the Legislative Assembly would engage in a dangerous linguistic war. On some level, these elected representatives are a reflection of society itself. They are in the Assembly because the people have voted for them. For me, this fact is more dangerous than any threat and any violence that can ever be perpetrated by Raj Thackeray and his goons. As a citizen of “Bombay”, it makes me hang my head in shame. The citizens of Bombay cannot afford to let the city be governed by people who propagate fascism. The time has now come public opinion to turn strongly against it. Karan Tyagi is an LL.M. student from India.

EDITORIAL: CROSS-REGISTRATION WOES

Its Schools Operate Like Independent Fiefdoms. Does Harvard “University” Even Exist?

Another registration season has passed at Harvard Law School, complete with all the trials, tribulations, and technical glitches of the MyPlan system, the arbitrary course caps that will have to be manually adjusted by the Registrar next spring, and the frustration of students who have had to deal with clinical, elective, and “multi-section” course registration periods situated weeks apart. Pity the poor law student who wishes to sign up for all three types of class, for whom registration takes up more time than outlining, and whose Google Calendar is littered with the detritus of unfulfilled classroom hopes and dreams. HLS’ vast menu of courses is one of the school’s main attractions, a standout reason why many choose this buzzing hive of over 2,000 students, faculty, and affiliates over more intimate law schools – in sunnier climes. As Dean Elena Kagan ’86 never grew tired of pointing out, the options also extend to other schools of Harvard University, offering students the ability to work outside the law school with renowned members of the Harvard faculty as a whole. But sadly, the challenges of registering into law school courses pale in comparison to the daunting feat of cross-registration between Harvard schools. Consider: to supplement one’s legal

education with a Graduate School of Arts and Sciences course, a student must first wait practically until the new semester begins, when GSAS finally releases its course schedules. Then, and only then, can a law student begin to plan when to take such a class, well after he or she will have had to already register for law school courses. Students must then bring their signed cross-registration form to the GSAS Registrar’s Office. (One might expect it to be an affair similar to the modest office suite that holds the law school’s registrar staff. In reality, it is a palatial, three story building complete with columns and an expansive lobby.) After finally locating the relevant line, and a requisite wait, students are sent away to fill out a bubble sheet similar to those used to fill in answers on standardized tests. Then they must get back in line to submit the completed materials. A rare example of administrative efficiency ensures students will not have to traipse back to the law school’s registrar to gain approval from that office as well. But such fixes beg the question: if the university was able, recently, to coordinate its exam schedule to facilitate cross-registration, why can’t it coordinate the release of a course schedule? And why can’t the whole process – professors’ approvals included – be moved online?

At least part of the problem seems to be that Harvard’s various schools operate less like organs of a single body than as independent organisms that hardly acknowledge one another’s existence. The schools’ individual approaches to professorial discretion on registration are a case in point. At HLS, professors complain that the system makes it difficult to shepherd in students who they think should be able to take their courses. But at the Kennedy School, professorial discretion reigns supreme. A shocking example emerged earlier this fall in a Kennedy School class taught by Rory Stewart. Stewart has achieved some fame for trekking across Afghanistan during the opening chapters of the war against the Taliban, and for later serving as governor of a province in Iraq. It was understandable, then, that the relatively small classroom the school had allotted him for his course on interventionism couldn’t accommodate the number of interested students, many of whom had also come from schools with which Harvard has cross registration agreements, such as Tufts’ Fletcher School of Law and Diplomacy. Stewart’s solution was not to ask the Kennedy School for a larger classroom, but to make aspiring cross-registrants apply for slots as auditors. Of these, he

would select only eight (out of the dozens who were hoping to register) who would not only have to give up any seats to interested Kennedy School students, but would not be allowed to participate in class discussion at all. The plan provoked outrage among the Tufts students, who petitioned their administration. One even emailed Stewart – and the rest of the class – directly, with a strongly-worded message asserting that Tufts would never treat a Harvard cross-registrant as he had treated the visitors from Tufts. Whether the Stewart case was an illustration of Harvard’s strained relations with other universities, a demonstration that these schools could stand up for their rights better than students from other Harvard schools, or an indication that other universities’ crossregistrants might be taking up class seats that ought to have gone to Harvard students, it is clear that Harvard University as a whole needs to reevaluate its cross-registration system – not only because interdisciplinary studies are the future of many fields, but because without the easy ability for students and faculties to interact across institutional lines, Harvard is no more than a sum of its many parts – and the idea of the “University” as an institution is rendered both hollow and meaningless.

November 19, 2009

Spitzer, cont’d from pg. 1 in markets is crucial for the maintenance of transparency, integrity, and competition. “Everyone in business wants to be a monopolist . . . If we don’t have government enforcing competition laws, then we as consumers, we as an economy, will lose the vitality and creativity that competition generates.” Indeed, the consequences of market concentration in the financial sector, combined with the implicit government guarantee of systemic security, has had the unintended consequence, according to Spitzer, of socializing risk and privatizing profit. “Too big to fail is too big, and in fact, too big to fail is too big not to fail.” Spitzer cited the regulation of harm caused to society and third parties by legal market activities as another crucial component of government activity in private markets. As attorney general of New York he brought suits against electric utilities located in Midwest states under the Clean Air Act for the harm caused to New York by pollution carried along the jet stream. Now he believes that debt itself has become a system-wide externality that is harming the market. “When you aggregate all of the excess leverage in our economy that has accumulated over the last decade, all of a sudden you have systemic risk.” But beyond merely correcting for inefficient results of market participants’ behavior, Spitzer recognized a role of the government in molding the character of the economy to accord with shared “core values” that are identified through the political process. Pointing to discriminatory practices, Spitzer noted that theorists had written extensively about the rational dynamics which should squeeze such behavior out of the marketplace. “The problem is … it just didn’t happen. Discrimination continued because the social values and social morays that drove discrimination based upon race or gender or religion overpowered the rational activity of economic actors.” Likewise, in setting a minimum wage, the marketplace will not by itself set a lower limit on compensation that will allow individuals to support themselves while working a forty-hour week. With respect to the current crisis, Spitzer believes it was inevitable that “an enormous sum of money was going to be spent creating both solvency and liquidity.” Nonetheless, he advanced three primary questions: Who is going to pay for it? What reforms are going to be made? How are you going to create jobs? The implementation of the bail-out programs, says Spitzer, has unfairly deleveraged private banks through creation of government debt and unwisely channeled taxpayer dollars to unregulated financial counter-parties and failing businesses. “There was ab-

Harvard Law Record solutely no reason for [AIG’s] counterparties to get 100 cents on the dollar . . . Taxpayers were not a party to that contract.” Spitzer questioned the reasons for failure to renegotiate such contracts by the New York Federal Reserve Bank and the Treasury, pointing in particular to the $12.9 billion received by Goldman Sachs as a counter-party to contracts with AIG. To put this sum in perspective, he proposed the alternate possibility of spending $8 billion to fund high-speed rail infrastructure, or instead of a bailout of GM a possible government contract to purchase electric cars manufactured domestically from any willing producer. “The taxpayer picked up the whole bill, and that was wrong.” Spitzer expressed dismay that despite his failure to zealously advocate for taxpayer interests, New York Fed Chief Timothy Geithner had been promoted into the lead role at the Treasury. He called this an example of the Peter Principle on steroids: an individual been promoted upward until surpassing the point of his competence, then his failure had been rewarded by a higher promotion, for the purposes of cleaning up the mess he created. Spitzer also scoffed at the proposals by the White House to make the Federal Reserve the national systemic risk regulator. “I hate to break it to you, but they already are and have been. That’s what they were supposed to be doing for the last twenty years. Where were they?” He characterized this as an example of the “regulatory charade”, whereby agencies that had the power to act earlier but shirked from responsibility clamor for greater authority to respond once a crisis occurs. “This is one big façade that should be shattered. They had the power; they didn’t want to use it.” He pointed to the Office of the Comptroller of the Currency’s regulation of mortgage-backed securities as a tragic example of this, stating that when he had sought to investigate the industry as a prosecutor his inquiries had been blocked under the exclusive regulatory authority of the OCC. But despite his views on the role of government, Spitzer accepts that it is the private sector that has to take the reigns and lead the management of the economy. “The private sector creates wealth, not the government.” He indicated meaningful long-term change will depend on reforms of corporate governance that empower the private sector, such as the disentanglement of institutional investors’ voting powers and their jockeying for business as retirement asset managers. “We have denied ourselves the dynamism that we could get from the largest participants in the marketplace, the biggest repositories of equity ownership.”

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Ames, cont’d from pg. 1 design proposed by the fictional vegan group Humans Against Consumption of Animals (HACA). Judges Richard Posner '62 (7th Cir.), Diane Wood (7th Cir.), and Barrington Daniels Parker, Jr. (2d Cir.) presided before arguments by Kathryn Nielson and Ray Seilie for the State of Ames, opposed by arguments from Candyce Phoenix and Hagan Scotten on behalf of HACA. The briefs and arguments from the two competing teams laid out the tensions in the constitutional jurisprudence of free speech in the context of a limited private forum. The recent case of Pleasant Grove City v. Summum, 129 S.Ct. 1125 (2009), set forth wide breadth for the government's exercise selective discretion in accepting certain private messages for public display as government speech. The respondents argued that this holding was inapplicable to the case of a license plate program, especially since the statute in question expressed an intent to facilitate non-profit organizations' ability to communicate. The judges, whom Dean Minow later characterized as a hot bench, challenged the oralists to explain the limits of their arguments by evaluating a list of possible licence plate submissions ranging from "Eat More Blueberries" to "Vegans are Commies" and "Join the KKK." Hagan Scotten '10, who was awarded Best Oralist, said that despite the pressure he faced during the arguments, it paled in comparison to his Army Special Forces service on the front lines of Iraq. "If the Iraqis could shoot as well as Judge Posner can question, it would have been even worse [in Iraq]." For Scotten, the pressure of facing interrogation by three Federal Circuit Judges, "was not nearly as bad, because Posner didn't have bullets." Although the Respondents took both the overall prize and the prize for Best Oralist, the Petitioners came away with the prize for Best Brief. "The margin for each of the calls we had to make was extremely narrow," said Judge Parker. The entire panel praised the quality of the arguments presented, with Judge Wood noting that the oralists all did a "much better job giving a yes or no answer than counsel normally do." This year's Ames competition had the largest participation in recent history, with 50 teams signing up, forcing the organizers to conduct two preliminary rounds to select the teams that will go to the semifinals in the spring. The finalists who competed in this week's arguments were drawn from a smaller pool of close to thirty participants.

Alan Khazei ‘82: Citizen-Candidate Seeks to Carry Kennedy’s Torch Founder of City Year Looked to Sen. Kennedy as a Mentor, Seeks to Mobilize Grassroots Support in Campaign

What is your strategy for challenging the leading contenders in this race to become the next Senator from Massachusetts?

I think it’s important for whoever takes over this very big Senate seat to be connected to the grassroots. Senator Kennedy did that extremely well. It’s the kind of politics I believe in, and it’s also frankly a good strategy to win the special election. As the Herald pointed out today, 93% of the people don’t even know that a special election will be happening. So, what I am doing is organizing a grassroots movement of young people, older people, anyone who’s willing to give a weekend or two and go door to door. If this were a yearlong campaign, I would go around and meet people all across the state. It’s a very short campaign, but I still think it’s important to connect to the voters and the citizens. I’m asking for help because I can’t do it all personally, but I’m going to be out there too to ask citizens, “What do you care about? What are your concerns?” As I’ve been campaigning I know people have lost their jobs, their homes, their savings, their dreams of a college education. I want to send a message that I understand that. Tell me what you care about, and I will help you get it set up. And then I want to take that message and then get my message out. I don’t have a personal fortune, like other candidates that can rely on that to get their message out. I’m relying on citizens to get my message out.

“Here’s who Alan Khazei is, here’s why he’s different. He’s been a public servant, not a career politician. He’s not taken money from the special interests. He has got a very bold agenda, that’s available on his website.” And so anyone from Harvard Law School, and we’ve got a great group already signed up, can come for one weekend, November 21st and 22nd, and join this movement with a thousand people to knock on 50,000 doors. And I’m going to do it the weekend after that and the weekend after that. But all I’m saying is come for this one weekend. It’s going to be a ball; we’re going to have fun. It’s going to be part of a movement of grassroots politics to show that a citizen candidate, with just citizen support, can be a citizen-senator. I have faith in the voters, and I have faith in volunteers.

Does your experience in community organizing give you insight into the legacy of Senator Kennedy and the issues you would be pressing in Washington?

Oh absolutely. I had a chance to work very closely with Senator Kennedy for more than twenty years. He was my mentor, he was my champion, he was my friend, and he was an incredible leader. I learned so much from him that I could write a book. First of all, he believed in supporting people from the grassroots. He believed that as his senator it wasn’t just his job to cast a vote or give a speech; it was about how do you empower people to achieve the

American dream. I became who I am because he empowered me as a 26 year-old graduate of Harvard Law School. You know he discovered City Year, and he put his arm around me and said, “Alan, I’m going to help you make this a national cause. I want to work with you.” And so I learned that you’ve got to get behind movement leaders. I learned that you have to have outstanding constituent servants. I learned that you have to first of all listen to peoples’ stories. The incredible thing about Senator Kennedy is that he dined with Presidents and Prime Ministers, kings and queens, with CEO’s and rock stars, but the people he cared about most, the people he kept in his heart and in his mind every day, were the every day people he met across Massachusetts from places like New Bedford. You know, the factory workers, the entrepreneurs, the young people who were signing up in droves to do City Year and then AmeriCorps, the people working at community health centers providing healthcare for people who can’t afford it, the people who were doing legal aid, the people who were coming off the boat as new immigrants, just as his grandparents did, trying to make it here in America. What was so extraordinary about him, was that he heard peoples’ stories and he never forgot them, and that’s what I’m going to try and do. I’m not going to be Senator Kennedy, but I do stand on his shoulders, and I learned a lot from him.

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Harvard Law Record

November 19, 2009

Pressures on Military Mean Rise in Extrajudicial Killings in Colombia

BY REBECCA AGULE

In March 2006, Martha Giraldo returned to her father’s farm outside of Cali, Colombia, to find the property surrounded by soldiers and her father dead. Based on accusations he was involved with guerillas, the military shot José Orlando Giraldo, and, standing over his stripped and mutilated body, warned Martha and her family members that they could share his fate. “It was the gravest humiliation that one can feel, to find your father assassinated. We saw his body completely destroyed,” Giraldo said. “In the middle of the night, the national army comes and murders your father.” While horrific in many respects, José’s death is hardly unique, nor are the numerous questions such killings raise under international humanitarian law. “This isn’t just the story of my family. The same thing is happening to many Colombians, especially marginalized members of Colombia communities, like Afro-Colombians and indigenous peoples,” Giraldo said. Through a translator, Giraldo spoke about the impunity enjoyed by the government actors carrying out extrajudicial killings of Colombian civilians, at an event hosted by the Harvard Law School Advocates for Human Rights. According to human rights organ-

izations, the Colombia military killed 535 civilians between January 2007 and June 2008. Extrajudicial killings have increased dramatically over the last few years, a rise many attribute to the implementation of a “democratic security policy” designed to fight guerillas and insurgents. Intimidation and reporting issues hinder the collection of accurate date regarding extrajudicial killings. While 2,981 cases were filed from 2002-2008, many suspect that number underscores the true extent of the issue. Now a human rights activist and community organizer, Giraldo traveled to Harvard Law School with Witness for Peace, a “U.S.-based organization that aims to inform the public about connections between US foreign policy and human rights conditions in Latin America.” Giraldo began working with the victims of state crimes program at Witness for Peace in 2007 on behalf of her father’s case. “My work in human rights began when members of Colombian army killed my father, a small scale farmer,” Giraldo said. “He was loved by the community here, but the battalion presented him as if he were a narco-terrorist and part of the FARC.” “The whole world knows that my father was not a guerilla,” Giraldo continued. Despite these efforts, three and a half years later, none of the military officials involved in José’s death

have been punished. Giraldo believes that the military killed her father, and others like him, to demonstrate success in the war against the guerillas. Increasing Giraldo’s pain has been the frustration of not getting a proper response to inquiries regarding her father’s death. “Not one person in charge of human rights for the military has answered my letter, or shown any concern. So now it is the same ones who are killing our family members, who do the investigations,” she continued. “How are we supposed to believe those same people are capable of bringing justice for these cases? This is contrary to what we, as victims, are demanding.” “The military is supposed to protect,” she said. “But they are just killing innocent civilians.” A United Nations investigation determined that military officials often receive benefits, such as promotions, time off and cash bonuses, for each successful killing. Building a network of informants and establishing a family forest ranger program, the government blurs the lines between civilians and the military, including a network of informants, creating an environment of fear and mistrust. Giraldo described some of the additional tactics used by the government in covering up the killings. “They manipulate crime scenes, like dressing up someone after they have been killed,” she said. “For example, sometimes the person will be wearing fatigues. They have a bullet hole in the arm, but it doesn’t go through the fatigues.” Overhearing Giraldo’s presentation soning conflicts with fundamental prinwas Colonel Juan Gomez of the ciples of the American legal system. Colombian Air Force immediately “In all other aspects of U.S. law, we spoke. In the United States as an atdon’t dismiss cases because other countaché to the Organization of American tries don’t like them,” he said. “The States and as a visiting professor at idea that if the government says a case the National Defense University, and should be dismissed it should be disat Harvard Law School on an unremissed is against separation of powers.” lated engagement, Colonel Gomez Another area of disagreement was the first extended his condolences to Gidegree to which the indeterminate naraldo for her loss. He then explained ture of international law was problemthat the Colombian government has atic. not denied that many cases of illegal Kontorovich said that while some killings of non-guerillas by the milicrimes are universally cognizable and tary have occurred. some are not, “the universally cognizA dialogue between Giraldo and able list is very short applying the law Gomez, later recounted in English, of nations.” quickly developed. Giraldo reiterated “In the modern era, there is lots of that her claims had been ignored and soft law,” he said. He paraphrased then dismissed, heightening her sense James Madison as saying that “internaof disillusionment with the governtional law is there but offers too vague ment as a whole and, in particular, an answer.” with the Ministry of Defense. CurAccording to Hertz, any vagueness is rently undergoing a shift from an inaddressed by a standard maintaining quisitorial to an adversarial judicial that norms have to be well defined in system and operating with a someinternational law. He added that the what restricted scope, the Ministry of framers “were very comfortable with Defense lacks the authority to overcourts looking to international law to see many of the types of cases disfigure out what international law is.” cussed. Sensing Giraldo’s Kontorovich also brought up addidissatisfaction with this explanation, tional practical and procedural concerns Gomez asked her for the details of her regarding defendants without a U.S. father’s case and offered to provide nexus. what assistance he could. He said that there is very little eviEventually, Gomez had to depart dence that there is any deterrence to for his next appointment and, having suing foreign officials in part because it reached an impasse, extended his would be hard to enforce judgments hand to Giraldo. Taken aback, Giagainst such people. And, after all, raldo rejected the gesture. “genocidaires,” he said, are “people Already threatened in Colombia, who are clearly very risk accepting. Giraldo’s tour likely puts her at even Finally, there were due process congreater risk at home. To explain her cerns. decision to speak, she simply said, “We think being tried by people with “For me it is very important to remind no stake is a due process or fairness people of who the victims of these issue,” Kontorovich said. “There is no killings are.” reason innocent people from around the

Alien Tort Statute: Did Founders Want U.S. Courts to Look Abroad for Monsters to Destroy?

Debate Over What Originalism Means for Human Rights Lawsuits

BY NICHOLAS JOY

A relatively new take on a centuriesold statute has stirred up serious questions about how U.S. courts can be used to litigate international human rights abuses. On Monday, October 26, Eugene Kontorovich and Richard Hertz discussed the role of the Alien Tort Statute in the 21st Century. The debate was sponsored by the Federalist Society and held in the John Chipman Gray Room. Part of the Judiciary Act of 1789, the Alien Tort Statute gives district courts original jurisdiction over any civil action by an alien for a tort committed in violation of the law of nations or a treaty of the United States. It was relatively obscure until the Second Circuit held in Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) that violations of international norms, including human rights violations, could confer jurisdiction in U.S. courts. According to Kontorovich, a professor at Northwestern University School of Law, Filartiga has given rise to a sector of human rights litigation and substantial controversy. He discerned two main waves of cases that have arisen in this vein: suits against foreign officials under the statute and suits against corporations alleged to have helped countries commit human rights abuses. However, Kontorovich said that such litigation was far removed from Congress’ intent in passing the statute, which was to prevent Americans who violated international law from getting the entire country in trouble. The idea is that “we don’t want the part to endanger the whole,” he said. “They liked to beat up French ambassadors back then. Times have changed.” Kontorovich said that, while universal jurisdiction is properly applied to a narrow set of crimes including piracy, using the Alien Tort Statute to have es-

tablished a civil remedy for universal jurisdiction would set the U.S. apart from other nations. “Europe has said they don’t understand what the U.S. is doing with this law,” he said. “U.S. courts have used universal jurisdiction over offenses no one has before.” Hertz, a senior attorney for EarthRights International, said that the original purpose of the Alien Tort Statute was much broader. The framers, he said, were concerned about demonstrating to the world that the fledgling nation was committed to international law. Given this purpose, Hertz did not consider the use of the statute to enforce international human rights to be a violation of its original purpose. “The ATS is a shining example of human rights and separation of powers,” he said. “I think what is driving the hostility towards it is distaste for international law and efforts to protect U.S. corporations.” For Hertz, using the Alien Tort Statute to sue U.S. corporations is not a major departure from long-established legal principles, since “you can sue Americans for the things they do abroad” and “the only place universal jurisdiction comes into effect is tag jurisdiction.” “It is by statute the policy of the U.S. to promote human rights,” he said. “This is really about fundamental values shared across the spectrum.” Kontorovich disagreed that the way the Alien Tort Statute was applied in Filartiga conformed with original intent, saying that “the majority wanted to have originalism both ways – the framers wanted one thing, but international law changes.” He expressed further concern that these cases involve courts in sensitive matters best left to the executive. “It almost never ingratiates us to other countries,” Kontorovich said. Hertz believes that this line of rea-

world should be hailed into U.S. courts.”

www.hlrecord.org

November 19, 2009

Harvard Law Record

CAMBRIDGE, USA: THE BOY WHO DOESN’T SLEEP

After spending a relaxing year in the U.K., JESSICA CORSI thought she had reacclimatized herself to Harvard Law School’s culture of crazed workaholism – until she came upon a 1L who likes to trade the refreshment of sleep for more reading. Is insomnia, she wonders, the secret to securing the Sears Prize? HE EXISTS. I have met him. There sleep the next night…” is at least one 1L at HLS who has at“And what is tonight?” I wonder. I tempted to give up sleep. And it shows. hope it’s a sleep night; he’s already half The night we met, at a bar review at there. Grafton Street, he seemed to be fading “Tonight is a stay up night.” Wrong in and out of conversation. His eyes again; this does not bode well. were closing slightly, his eyelids heavy “No, come on.” “No, really.” “No.” even at his most alert and attentive. He “Yes!” looked…sleepy. Perhaps he didn’t want “But—have you been drinking to talk to me—I should be kind and tonight?” I wondered, incredulous. give him an “Yeah, but easy out. I stopped a “You’re eiwhile ago bether really cause I knew tired or I’m I needed to boring you,” stay up.” Oh. I said. Right. Of “No, I’m course. not bored; I “So how am actually do you do really tired,” it—how do he explained. you stay up see, “You all night?” I’ve given up He was Photo by Flickr user ArneCoomans. sleeping.” warming to Genius! Insane! Insane genius? Typical the question. He looked almost awake 1L? All of the above? I had to learn as he was answering. He had obviously more. put thought and planning into his “No, come on. You haven’t given up scheme, and he seemed happy that sleeping,” I pressed. someone had finally uncovered his se“No, really,” he went on, his head cret. “A lot of Red Bull! A lot of energy nodding towards his chest. “I have.” drinks. I stock up on those. And I eat. “WHY?” I demanded. I’m going to eat right after we leave this “Because I had to,” he replied. “I bar.” “Like— what?” I ask. “Chicken didn’t do any reading the first part of wings?” I’m a vegetarian. the semester. So in order to catch up “Yeah, chicken wings would be and not fail I need to stay up all night.” good.” Ew. I wasn’t following. “But—wait— “So what else do you do to stay up?” but—but we’re having this conversa“I take smoke breaks—I’m a tion in a bar. At 11:30pm. Why can’t smoker.” He nods as he says this, like you just—I don’t know, not go to bars “Only smokers take smoke breaks.” I instead?” It seemed like a fair question. nod in response, of course. “So that “That’s the thing,” he replied. “I just helps; the smoke breaks help. And I seem to waste time during the day. So have to go to my common room. I have I need to stay up all night.” to change locations and move around. I began to revise my notion that he If I sit on my bed I’ll sleep.” was an insane genius, replacing it with “That’s BECAUSE YOU’RE the notion that he was just a person with TIRED.” poor time management who doesn’t un“Yeah—exactly. So I move around. derstand the impact of sleep deprivation Yeah. I move around and take smoke on information retention. “Well, okay,” breaks outside in the cold. It wakes you I said. “So, could you try and do things up.” during the day?” “And you actually think you’re learn“But I don’t.” ing things? I mean, you know that you “Okay. So—really? You’re actually learn best when you’re well-rested, not sleeping at all?” right?” “I tried the no sleep thing two weeks “Yeah, yeah,” comes the reply. I ago. I stayed up for about three days. don’t know which part he’s agreeing to. And then as I was sitting there studyI have finished my drink. We both ing, I spontaneously fell asleep. I slept want to go home, me to sleep, he for 14 hours. And then I figured out that to...not. We walk back to our apartI couldn’t stay up indefinitely.” ments, which are coincidentally across Progress—he has discovered that it is the street from each other. “I’m over impossible to stay up indefinitely and there,” I tell him. “I’m going home.” that insomnia is not an actual study “I’m going to my motorcycle,” he strategy. “Oh,” I nod, “So you’re actu- replies. “I’m driving to Porter Square ally sleeping now.” to get a sandwich.” Of course he is. I “Yes. I’m on an every other day walked up the steps of my apartment schedule.” and shook my head in confusion and “What?” amusement as he peeled away down “I’m on an every other day schedule. Mass Ave. The things we do to outline I sleep one night, stay up another night, Torts. God bless 1L Fall.

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Lessig’s Focus on Corruption May Have Uncomfortable Implications for Harvard

BY VICTORIA BARANETSKY

Professor Lawrence Lessig’s new focus on institutional corruption is now hitting home, as a Harvard Alumni Association event last week demonstrated. Lessig, head of the new Institutional Corruption initiative within the Edward Safra Foundation for Ethics, was accompanied by Linda Greenhouse, former New York Times Supreme Court correspondent, who quesitoned Harvard President Drew Faust on the university’s own miscreant behavior. Lessig, best known for his work in law and technology, particularly copyright issues (including the establishment of Creative Commons) returned to Harvard this past year to pursue his new found field of study. Through the Safra Foundation’s Institutional Corruption initiative, Lessig reported that he hopes to create a metric to determine “when institutional corruption occurs” and find a way to “produce remedies.” Lessig defines institutional corruption as “an economy of influences upon an institution” that weaken both “the effectiveness of that institution” and “the public trust” within the system. He is less concerned with traditional notions of corruption, like favors traded for “money in a brown paper bag,” than, as he has written on his wiki, “non-obvious corruption where a decision is improperly and/or subtly influenced by a government actor's anticipation of some sort of indirect economic gain or loss”. Lobbying Congress is a “paradigm[atic] example,” said Lessig, according to whom lobbyists have become “pushers or suppliers,” affecting Congressional votes. Wealthy lobbyists like Gerald Cassidy have accumulated hundreds of millions of dollars to throw at Congress. With their coffers open to lobbyists, Congressmen decide wrongly on “nutrition, healthcare and global warming policies,” explained Lessig. “And these are the easy public policy questions,” he guffawed. A “weakened public trust in the institution,” also defines corruption, according to Lessig. In essence, the concern is not whether Representatives were bought. Instead, the problem is that “the American public thinks they were bought. That is what is important,” he explained. Lessig once again pointed to Congress. “Only 22% of the U.S. has a positive view of Congress,” he stated, “And 88% of California believes money buys results.” Linda Greenhouse never explicitly asked President Faust whether Harvard was corrupt, though her interview circled the question. Like Congress, Harvard seems to be a money making machine, illustrated by its recent endowment plunge: a 30% drop, from $36.9 billion to a still-phenomenal $26.0 billion as of June this year. Like Congress, moreover, Harvard seems to have lost the trust of its constituents. Harvard’s alumni magazine recently highlighted the university’s losses, in an article entitled “$11 Billion Less”. “We have a new understanding of what risk is,” Faust said, when Green-

house asked her about the meltdown. “In a school that relies so heavily on its endowment, we understand we now need to save for rainy day.” Although her prepared response seemed to assuage fears about Harvard’s future, alumni were still curious about the university’s past decisions about its finances. “What about the compensation?” an audience member asked, referring to the Harvard Management Corporation, the entity responsible for Harvard’s endowment. Its top six officials made a collective $26.8 million in 2008. Faust replied that they were “consistent with the other salaries in the market” in order to be “competitive.” She did not address an issue at the heart of Lessig’s definition of corruption, however: the loss of public trust. But the driving need for such risky investing seems to be part of a much greater problem. Faust claimed that “we expect too much of our universities. We give them too many roles.” Universities are expected to “supply our workforce, help our children with mental health and socialization, be centers for art and culture and be scientific research centers,” she said. “This is an enormous array of tasks. We must ask how universities are supposed to do all of these things and pay for it. Should these roles be played elsewhere?” In her book University, Inc., Jennifer Washburn explores the commercial transformation of American higher education over the last 30 years. She argues that universities have made money by contracting with pharmaceuticals and other medical institutions as their private researchers and therefore been bent by their influences. Washburn’s book suggests that universities have become like corrupt Congressmen, dependent on and influenced by the economic pressures of pharmaceuticals, which behave like the lobbyists. Unfortunately, that leaves students to play the role of the shafted American public. Another way to pay for this structure is by increasing tuition, an issue Faust has addressed since assuming her role in 2007. Faust made financial aid a priority after she realized the “cost of higher education had risen so much that many intelligent individuals could no longer attend,” she said. But with the economic downturn Harvard has had trouble committing to its financial aid. Either way, people like disgraced former Illinois Governor Rod Blagojevich are not to blame, said Lessig. “We are they, the problem [is] in society,” he continued. “Institutional corruption is primed and permitted by the passivity of the most privileged.” Lessig’s closing remarks go back to the roots of the Safra Foundation, which almost three decades ago began a national movement to institute professional codes of ethical conduct. “These serious problems need serious attention,” said Lessig, “and we are the ones who need to speak up.” If there are problems within Harvard, within this country, he implied, alumni, students, faculty and others should speak up and not just sit and wait for the panel to be over.

Arsenic Page 8

Harvard Law Record

November 19, 2009

and Old Lace

Drama Society’s Fall Farce Serves Insanity Spiked with Homicide

BY MATTHEW W. HUTCHINS

Left: Jonathan Brewster, played by Randall Adams '10, hatches a diabolical plot. Above: Annie Smith ‘12 and Brienne Letourneau '10 watch as one of their hapless victims imbibes a poisoned drink.

A cup of tea. Some finger sandwiches. A plate of roast beef with a glass of elderberry wine. Sweet merciful wine. Joseph Kesserling's Arsenic and Old Lace takes the simple pleasures of American family life and transmogrifies them into the absurd veneer of a family of homicidal psychotics. This combination of banality and madness proved to be an excellent choice for the HLS Drama Society’s fall show, produced by Greg LeSaint ’11 and directed by Kristin Kramer ’10. While HLS students may sometimes feel trapped within a fiction that is simultaneously hum-drum and permeated by paranoia, it sometimes takes a well-written drama to put things in perspective. Mortimer Brewster is a rising theater critic for a New York newspaper. He and his girlfriend, Elaine Harper, are passionately in love and decide to get married. While Elaine runs off to tell her father, the pastor, that she will be out with Mortimer that night, Aunt Abby and Aunt Martha prepare tea and sandwiches to celebrate the young couple's engagement. Ensconsced in such banal circumstances, the shrewd Mortimer swaggers with assurance that he has charted out his life's plan. But like a 1L who gets cold-called on the first day to explain the policy behind Dudley and Stephens, Mortimer, played by Stephen Cha-Kim ’11, soon finds himself clammy and stammering as he struggles to refute the rationalization of homicide. While his aunties are in the kitchen, Mortimer discoveres the body of a man, hidden in the window-seat cabinet. No worries, say Aunt Abby and Aunt Martha. President Roosevelt will go to Panama and dig another set of canal locks, and we'll take the body down tonight for a proper Christian funeral. There's already eleven more bodies down in the basement.

Annie Smith ’12 and Brienne Letourneau ’10, playing the saccharine aunties Abby and Martha, carried the absurdity of the play magnificently through their reproduction of all the familiar mannerisms of kind spinsters. Later, Mortimer's long-lost brother, the psychotic killer Jonathan Brewster, played by Randall Adams '10, returns home along with his side-kick, Dr. Einstein, planning to take over the house and establish an underground plastic surgery clinic to do face-changes for criminals. For the aunties, this rude intrusion becomes downright unbearable when they discover a second dead body, brought by brother Jonathan, hidden in the window seat. How can they give a proper funeral to a complete stranger? In a semester filled with employment anxieties and uncertainty about the future, Arsenic offers a few farcical glimpses of cause for hope. As we see the plight of Mortimer go from bad to worse during the course of the play, it serves as a reminder to appreciate the little things, like home cooked meals that aren't laced with poison and the certainty that when we go to sleep at night we aren't resting mere inches away from a corpse. Running around looking for a job should seem like a piece of cake after seeing Mortimer frantically try to get his brother Teddy committed so that he can pin the dozen bodies in the cellar on the hapless loony. And the occasional disagreement over Thanksgiving dinner should seem like nothing compared to the "Melbourne" treatment Jonathan devised to torture Mortimer after being asked to get out of town. Yes, we have plenty of characters around campus that are devious or detestable, irritating or insecure, superficial or selfimportant. But as the Drama Society periodically reminds us, the special community we live in is full of talented people who are genuinely funny, sometimes because of the shows they produce on a stage in Pound Hall, and sometimes because they deserve to be portrayed there.

Students Protest Stupak

Pro-Choice Rally Againast Anti-Abortion Amendment to Health Bill Hits Harvard Square

A coalition of activists from across Harvard University and beyond came together in Harvard Square on Wednesday, November 18th to protest the Stupak Amendment to the House of Representatives’ health care legislation, which the body passed nearly two weeks ago. The students used coat hangers to symbolize what abortions would look like without financial support for proper procedures.

Left to right: Emily Murphy, La-Toya Franklyn, Tina Huang, and Robert Haferd, all 3Ls

Employing Advocacy

A team representing HLS recently won First Place at ABA Section of Labor and Employment Law’s Trial Advocacy Competition for the Boston Region. The team will be representing Harvard and the Boston Region in the National Finals competition in Washington, D.C., January 30th and 31st.

Has President Obama been too deferential to a rising China? Vote now at hlrecord.org!

Support Jeremy Haber ’13 in his bid to become a columnist for Vote at views.washingtonpost.com/pundits