Harvard Law Record, V. 129 No. 7, Dec. 3, 2009

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December 3, 2009

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AFGHANISTAN

HLS CLASS OF ‘97 SUFFERS MULTIPLE DEATHS IN WAR

Down to the Wire Vol. CXXIX, No. 7

MASS. SENATE RACE

NARROWS IN FINAL WEEK

? Obama Orders New Strategy: 18 Months and 30,000 Troops Needed to Fulfill U.S. Mission, Fight Afghan Corruption

BY CHRIS SZABLA

After eight years of exhausting war in Afghanistan, President Barack Obama ’91 outlined his plan Tuesday to achieve what he deemed the U.S. primary goals there and to bring the country’s involvement to an end. Stressing the national security threat still posed by Al-Qaeda, President Obama said that 30,000 new troops would be deployed to the battle-scarred Central Asian country,

Top: Alpha Company, 2nd Battalion, 508th Parachute Infantry Regiment support Afghan police during a cordon and search of Pana, Afghanistan, June 9, 2007. U.S. Army photo by Staff Sgt. Michael Casteel. Above: Pres. Obama and U.S. Army generals salute the remains of soldiers, including Michael Weston ’97, during a ceremony at Dover Air Force Base, Oct. 29, 2009. U.S. Air Force photo by Jason Minto.

Dukakis to Dems: Knock on Doors! Grasroots Campaigning Critical to Success

The most important lesson of the Obama presidential campaign, according to former Governor Michael Dukakis ‘60, is that successful campaigns are founded upon organizations that employ the grassroots power of direct person-to-person contact. Dukakis says his own political career as a memDukakis, cont’d on pg. 3

BY CHRIS SZABLA

Polling data over the last several months made it seem as if Massachusetts Attorney General Martha Coakley was a shoe-in for the Democratic Party’s candidate to fill the late Ted Kennedy’s U.S. Senate seat. But new numbers show other Democratic candidates challenging her lead – and picking up a number of high profile endorsements. With the primary for primary for the state’s special Senate election set to be held December Afghan, cont’d on pg. 3 8th – less than a week away – the chances that another candidate may t h e c r i s i s pull off a surprise victory are now higher than ever. The good news for Coakley’s chalSenate, cont’d on pg. 3

INCREASED LIPP, SPIF MAKE UP FOR PUBLIC SERVICE INITIATIVE CUT Financial Aid Reform: $5.2 Million Increase in Grant Funding Despite Endowment Costs h a r v a r d

BY MATTHEW W. HUTCHINS

BY MATTHEW W. HUTCHINS

along with additional contributions from the U.S.’ NATO allies. But he also outlined additional steps to be taken in the country, including program to turn some Taliban away from the movement, a “civilian surge” to shore up trust in the government, training of Afghanistan’s police and military, and a closer partnership with Pakistan. Despite the apparent openendedness of these goals, Obama declared that the U.S. withdrawal

Coakley Retains Slim Lead – But Dukakis Backs Capuano and Globe Endorses Khazei

a n d

The very visible decline of the Harvard endowment has had notable impacts in all sectors of the university, and the law school has been no exception. From the unfortunate layoffs of staff to the uncertainty regarding free coffee, HLS students have had the woes created by the frigid job market compounded by a sense that the economic crisis was permeating all corners of academic life. Indeed, not long after the installation of the highest steel of the Northwest Corner project seemed to have dispelled any doubt as to the solidity of the law

school's vision of the future, Dean Martha Minow announced this week that the university's financial woes had forced the school's administration to discontinue the recently launched Public Service Initiative (PSI) tuition forgiveness program and limit the amount of summer public interest funding (SPIF) available to current stuPhoto: Siyuan Chen, LL.M. ‘10 dents. But despite the changes announced, representatives of the school's administration say students should have no doubt that HLS has retained its strong commitment to providing public interest funding to all its students and gradFunding, cont’d on pg. 4

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Harvard Law Record

Two-Party Ballot Suppresses Change

BY THERESA AMATO

In October 1958, Ralph Nader, then a recently-graduated, former editor of the Harvard Law Record, co-authored an article decrying the monopolistic practices of the Democratic and Republican parties on state ballot laws and their ill effects on minor parties. In defense of political dissent and the engagement of new proposals, Nader noted the “many times in our history” minor parties had “deeply stirred opinion.” It was easier in the 19th century for regional or small start-up parties to get on the ballot and infuse elections with ideas such as the abolition of slavery, a woman’s right to vote, worker and farmer reforms—all of which we take for granted today, though the minor parties first advocating these rights did not win the presidency. Five decades later, Mr. Nader, now an internationally-renowned consumer advocate, has announced his candidacy for the U.S. presidency three times, twice as an Independent and once on the Green Party ticket. His prescient words concerning the suppression of minor parties and dissenting agendas remain even more accurate today as they were fifty-one years ago. I have an intimate knowledge of these ballot access burdens because I managed the Nader’s 2000 and 2004 presidential campaigns and had to navigate through these laws and oversee or instigate nearly four dozen lawsuits to defend against or seek reform of their ill effects. Indeed, in 2004—motivated by the 537-vote difference between Al Gore, Jr. and George W. Bush in Florida in 2000—the Democrats and their allies launched two dozen complaints in 12 weeks against Nader’s candidacy, consuming the time, energy and resources of the 2004 campaign, which was, in addition to blocking ballot access, the expressed goal of these major party political bigots and their brethren. The litigious onslaught targeted Nader’s candidacy simply because he, like all eight minor party candidates on the ballot, received more than 537 votes: but he received the most and was positioned to appeal to voters again with a progressive agenda. Today, as in 1958, ballot access for minor parties and Independents remains convoluted and discriminatory. Though certain state ballot access statutes are better, and a few Supreme Court decisions (Williams v. Rhodes, 393 U.S. 23 (1968), Anderson v. Celebrezze, 460 U.S. 780 (1983)) have been generally favorable, on the whole, the process— and the cumulative burden it places on these federal candidates—may be best described as antagonistic. The jurisprudence of the Court remains hostile to minor party and Independent candidates, and this antipathy can be seen in at least a half dozen cases decided since Nader’s article, including, Jenness v. Fortson, 403 U.S. 431 (1971), American Party of Tex. v. White, 415 U.S. 767 (1974), Munro v. Socialist Workers Party, 479 U.S. 189 (1986), Burdick v. Takushi, 504 U.S. 428 (1992), Arkansas Ed. Television Comm'n v. Forbes, 523 U.S. 666 (1998). Justice Rehnquist, for example, writ-

ing for a 6-3 divided Court in a fusion case, Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997), spells out the Court’s bias for the “two-party system,” even though the word “party” is nowhere to be found in the Constitution. He wrote that “The Constitution permits the Minnesota Legislature to decide that political stability is best served through a healthy two-party system. And while an interest in securing the perceived benefits of a stable twoparty system will not justify unreasonably exclusionary restrictions, States need not remove all the many hurdles third parties face in the American political arena today.” 520 U.S. 351, 36667. This license, in effect, to discriminate against third parties and Independents—as well as the Court’s general reluctance to require much substantiation of “state interests” when states proffer that rationale to defend discriminatory laws—have not made it easy to be an Independent or the candidate of a Green, Libertarian, Socialist or Constitution Party, not to mention all the others. Moreover, the Court has left unreviewed outright miscarriages of justice, as Nader knows from his half dozen unheard petitions to the Court springing from his 2004 campaign. The burdens faced by minor party and Independent candidates are systemic. First, there are 51 different sets of Byzantine rules, written the by the partisan members of the legislatures of the fifty states and the District of Columbia. As the major parties are usually automatically on the ballot, the partisan legislators show little concern for leveling the ballot access playing field for challengers to their incumbency or parties. Second, many of these ballot access laws are blatantly unconstitutional—as in they have already been held by the courts to be so, but the administrators of the elections cannot get their own state’s legislatures to bring the election codes into compliance with judicial rulings. (We found this to be the case in multiple states, including Alaska, Arkansas, California, New York, Pennsylvania, and West Virginia.) Third, election officials in the thousands of state and local jurisdictions administering these state laws controlling federal elections often don’t know what their own ballot access laws contain or mean or are reluctant to tell candidates their meaning for fear of being sued. Fourth, compliance with the laws may be overseen by partisan civil servants, commissions, or courts, and we encountered all of the above in the adjudication of our cases, including egregious examples of partisanship—such as the use of the denial of ballot access as a partisan fundraising promotion by the then-Secretary of State of Oregon. Finally, the aggregate of these ballot access laws, either cumulatively by state, or even within a state, as alluded to by Justice O’Connor in her concurrence in Clingman v. Beaver, 544 U.S. 581 (2005), may be overwhelmingly burdensome. Of course, ballot access is just one of the burdens faced by third party and Independent candidates. Others include the federal regulatory system, the lack

of public financing, the often dismissive if not derisive media, the Democrat and Republican cartel otherwise known as the Commission on Presidential Debates, which acts as a debate and media gatekeeper to millions. Also, the hodgepodge of irregular and inconsistent laws can devalue the rights of a voter or candidate (from what counts as a vote to who is entitled to seek an audit) depending on the particular state jurisdiction in charge of administering the peculiar state laws applying to federal elections. Ten years ago, The Appleseed Center for Electoral Reform and the Harvard Legislative Research Bureau published in the Harvard Journal on Legislation A Model Act for the Democratization of Ballot Access, 36 Harv. J. on Legis. 451 (1999). A decade later, not a single state has, and the problems remain. I contend in my recent book, Grand Illusion, the Myth of Voter Choice in a Two-Party Tyranny, that a better response would be to federalize federal ballot access laws by creating one federal statute applicable to all federal elections. (State laws written to control the processes for candidates for Congress are often as bad, indeed worse than presidential ballot access laws, with some voters never having the chance to vote for Independent candidates for Congress because of their harsh state ballot access laws.) Since 1985, a few members of Congress—John Conyers, D-MI (e.g. HR 2320, HR 1582), Ron Paul, R-TX (e.g. HR 3600), and Tim Penny, DFL-MN (e.g. HR 1755)—have attempted over nine sessions to introduce federal legislation to ease these burdens for either or both congressional and presidential candidates. Congress has shown that it can exercise control over federal elections where necessary by passing federal legislation to regulate a variety of aspects including registration (the “Motor Voter” Act), provisional ballots and state registration databases (the Help America Vote Act), and most recently absentee ballots for those abroad (the MOVE Act (Military and Overseas Voting Empowerment)). The prospect of passing a federal law (which has been introduced in some incarnation and voted out of committee and received a floor vote at least once in the House in the last two decades) is dim, but greater than the nonexistent movement for passage of a state model ballot access law, which has seen no success in the last decade. The question we should be asking is why we continue to permit this injustice when no other western country puts its third party and Independent candidates through the kind of hazing process ours does? The congressional incumbency rate (routinely in the 90th percentile) reflects the often uncontested or merely predictable-bylandslide-proportions state of our congressional elections. These uncompetitive elections can be impregnable for many reasons, not the least of which are gerrymandered districts, a winner-take-all or first-past-thepost electoral system, and the lack of a choice-maximizing vote counting system, such as instant runoff or ranked choice voting.

December 3, 2009

Do Third Parties Have a Chance? Ballot Access and Minority Parties (1958)

The following article, by Ralph Nader ’58 and Theodore Jacobs ’58, was published in the HL RECORD on Oct. 9, 1958. Mr. Jacobs died Aug. 7, 1998 of a neuromuscular degenerative ailment.

Most people will agree, as a general proposition, that our democratic faith is reflected in our treatment of minorities. But, as so often happens with national professions, it is in the translation of these declarations into actual practice [...] In state after state there is a practical monopoly of the ballot by the Democratic and Republican parties. The perpetuation of this monopoly is insured by laws which subject the entry of new or minority party slates to the ballot to almost impossible burdens, and by judicial interpretation of these laws which ignore their prejudicial effect on small parties. [...] What requirements must a small party or independent group meet in order to place its candidates on the ballot? There are 48 different answers to this question. Each state has its distinctive statutes, ranging from liberal to harsh, [...] Without taking into account all the minor variations in the several states, three main aspects of the independent nominating petition may be treated: (1) The number of signatures required; (2) Apportionment of these signatures throughout the state; (3) Stipulations concerning authentication of signatures and restrictions on persons who sign petitions. In its Model Election Law, the American Civil Liberties Union urged that minor parties be required to accumulate signatures equivalent to only one-tenth of one percent of the total vote cast [...] Compare this standard with the requirements of 2 percent in Missouri (36,000 votes), 3 percent in Massachusetts (71,643 votes), 5 percent in California (259,000 votes) and 7 percent in Ohio (259,000 votes). See more at HLRECORD.ORG The lack of candidate and programmatic choice are also to blame, and for that we can look at the still onerous ballot access laws Nader warned of in 1958 and the ignominious role those laws have played in narrowing voters’ options by dictating the flipside of those choices—candidates’ rights to run on a level playing field. Improved third party and Independent candidate rights— by invigorating and diversifying voter choices—will give citizens more meaningful elections.

Theresa Amato, a public interest lawyer, is a graduate of Harvard College and NYU Law, a former Wasserstein Fellow at HLS and an Institute of Politics Fellow at the Kennedy School. Her book, Grand Illusion: the Myth of Voter Choice in a Two-Party Tyranny, based on her experiences as the national presidential campaign manager and in-house counsel for Ralph Nader in 2000 and 2004, was published this year by The New Press. For more information on ballot access issues, see links on hlrecord.org

December 3, 2009

Afghan, cont’d from pg. 1

would begin in July 2011, just 18 months from the deployment of fresh troops. Obama’s address at West Point comes just weeks after another Harvard Law School graduate died in Afghanistan, on assignment with the Drug Enforcement Agency. According to a report in the National Law Journal, Michael Weston ’97 had already been deployed to Afghanistan as a Marine three times when he was sent in on a DEA raid on a Taliban drug and weapons bazaar. The raid was successful, but Weston did not make it home: his helicopter crashed while attempting to take off in thick dust. Weston’s wife, Cynthia Tidler ’97, had been there before. Her first husband, Helge Boes, also died in Afghanistan – working for the CIA – in 2003. It was another accidental death – a grenade training misfire. Boes was also a member of the HLS Class of 1997. "He was selfless in a way that few who pass through Harvard Law School have the strength and the courage to be,” Weston, had written about Boes when the latter died. “He was the best of us." On the morning of October 29, it was Weston who was being remembered. His body arrived with those of fifteen others at Dover Air Force base, where

Harvard Law Record

Obama and Attorney General Eric Holder were attending the arrival of fallen soldiers for the first time. Weston’s body was the second off the plane. The iconic photo of Obama saluting the coffins that passed has since become iconic. At Harvard, where he, Boes, and Tidler were close friends, Weston had considered becoming a patent lawyer. His father, Steven Weston, is a land development attorney at Alston & Bird in Los Angeles, and Weston was flying back to California for a summer associate position after his first year when he encountered a plane full of Marines. Impressed by their dedication, Weston joined up while he was still a 2L. He served as a judge advocate – never, if possible, flaunting his HLS credential – and then deployed to the fronts of Afghanistan and Iraq. Obama stayed at Dover until 2:30 in the morning, speaking with the families of the deceased. Eventually, he spoke with Weston’s father. “Mr. President,” the elder Weston told the Los Angeles Times he’d said to Obama, “my son went to Harvard Law School just like you did.” The president now faces a critical test of his leadership in his Afghanistan plan. Thirty thousand more American lives – not to mention those of the U.S.’

Senate, cont’d from pg. 1 lengers – who include House of Representatives member Mike Capuano of Massachusetts’ 8th District, Boston Celtics owner Steven Pagliuca, and City Year service organization founder Alan Khazei ’87 – began on November 18, when a Boston Globe poll showed Capuano appearing to gain support among undecideds. His numbers shot up from 16 to 22% within a ten day period. The trend accelerated with the release of a Rasmussen poll showing Coakley’s appearing to be chipped away by Khazei, who gained 8 percentage points between the Globe poll and the November 23 tally. That was before the Boston Globe, in a surprise move, offered its endorsement to the now-dark horse candidate Khazei. The weekend endorsement came with surprising rebukes against the other candidates – the firey Capuano, the paper said, was “too populist,” Coakley “too cautious,” and Pagliuca, a Harvard Business graduate who made his fortune in consulting, not experienced enough in politics to inherent Kennedy’s mantle. Citing Khazei’s bold stances on the issues and experience with grassroots organizing, the Globe called him “Massachusetts’ best chance to produce another great senator”. Khazei has also rolled out a list of endorsements running from AOL CEO Steve Case to New York Mayor Michael Bloomberg to Max Kennedy, a scion of the Kennedy family itself. No more than a day later, Capuano picked up a major endorsement from former Governor and 1988 Presidential candidate Mike Dukakis ’60 – Dukakis’ first endorsement for a statewide position since 1990. Capuano has also been endorsed by Diane Patrick, the wife of current Governor Deval Patrick ’82, though the Governor himself has not endorsed anyone in the primary. Advertising for the Pagliuca campaign has been copious over the last few weeks, with ads for his campaign flooding television and computer screens across the Commonwealth. But the businessman’s numbers have been stagnant: after an early surge in late September, they have stabilized at around 15%. After the Globe’s endorsement, Khazei appeared to be in position to overtake him as the third place candidate. The tightening of the race was reflected in sharp words exchanged between the candidates at a debate sponsored by Boston’s ABC affiliate, WCVB. Each of the candidates fiercely defended their backgrounds – Capuano appeared particularly con-

allies and of Afghan civilians who will suffer from the escalation of the war effort – will be on the line. And the proposal itself appears to be a gamble – that the additional troops can help substantially weaken Al Qaeda beyond its ability to strike the U.S. again, that the Taliban can be significantly weakened to the point at which it is in no position to threaten overthrow of the Afghan government, that the “civilian surge” will help restore credibility to the embattled and corrupt Hamid Karzai government in Kabul, and that closer partnership with Pakistan will reduce its ambiguous stance toward the Taliban. All this must occur before 2011, when Obama has promised to begin withdrawing troops. Already there is deep skepticism. In his address at West Point, Obama attempted to dispel fears that Afghanistan would be “another Vietnam” by pointing out three critical differences – the U.S. is supported by more allies in Afghanistan, is not facing a national resistance, and has a legitimate casus belli – the attacks of September 11, 2001. But the terrain on the Afghan-Pakistan border, where Al Qaeda is said to have its base of operations – is even less forgiving than Vietnam’s. U.S. troops will deploy in greater numbers to Afghanistan without a new strategy for

cerned that the other candidates would try to spin Congressional act and White House policy against him: he is the only candidate in the race with experience serving in elected federal office. More than once he was forced to point out that the Troubled Assets Relief Program (TARP), the unpopular “bailout” of major banks, was not equivalent to the stimulus pushed by the Obama administration earlier this year. Khazei and Pagliuca, for their part, tried to get past the barrier of inexperience. Pagliuca pointed out that he was highly active in Democratic fundraising and had opposed the Iraq War within the business community, but commenters texting WCVB pointed out that he had also donated money to George W. Bush. The same commenters seemed surprised by the appearance of Khazei who, despite his Globe endorsement, lacks for name recognition in the state. Khazei emphasized the twenty years he had spent working in Washington, pointing out that he had played a role in passing several major pieces of legislation with Ted Kennedy. Martha Coakley’s reputation as a safe and perhaps even overcautious candidate was borne out by her performance that evening, as she continued to assert that a “second stimulus” aimed at job creation may not be as much of a priority for her as an evaluation of the first economic recovery measure. But the Attorney General revealed passion when discussing her stance on whether abortions should be covered by health care. Although the House health care bill includes an amendment substantially restricting access to health care funds for abortions, Pagliuca said that he would vote for it. In the sharpest exchange of the evening, Coakley declared that the issue was “not political, but personal”. Capuano quickly backed her up with a severe jab at Pagliuca: the businessman would “send America’s women to the back alleys” for abortions by voting for the current incarnation of the House health care bill. The candidates claimed the mantle of Kennedy, but each displayed a slightly different side of the late Senator’s personality: his sometimes brash, righteous anger (embodied by Capuano), his willingness to compromise (a trait that seemed to belong most to Coakley) and his dedication to public service (the mantle clearly inherited by Khazei). As voters learn more about the four, they seem less able to choose between these qualities , which they so admired, together, in the late Senator Kennedy.

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fighting on the ground. Obama’s attempt to woo low-level Taliban who lack ideological commitment to the cause is hobbled by a lack of existing infrastructure to incentivize or support such defectors. And Obama may be ignoring the regional element to the conflict: one of the reasons Pakistan has not hit the Taliban harder, some say, is its longstanding policy of using jihadist militias as proxies against its perennial South Asian rival, India. Obama’s goals are certainly clearer than those that seemed to be guiding the U.S. in Afghanistan before. But they are still somewhat vague, and it remains to be seen how committed he will be to them. At the close of his speech at West Point, he noted that the cost of the wars in Afghanistan and Iraq was hampering the U.S.’ economic recovery, a prosperity, he said, that financed its power. The balance he draws between this consideration, the deaths of American soldiers, and the diminishing returns of pursuing Al Qaeda into the deepest mountains of the Hindu Kush, or upholding even the sparsest nation-building program in Afghanistan, is likely to determine whether the withdrawal that begins in 2011 marks a quick U.S. exit from one of the longest wars in its history, or merely the beginning of its long denouement.

Dukakis, cont’d from pg. 1

ber of the town meeting of Brookline began with the common sense step of knocking on doors and asking for the support of voters. When he ran for the governorship in 1972, he made sure to have a captain in every precinct across the state, working to make sure every voting household would be directly contacted, and he managed to defeat his opponent, the incumbent state attorney general, while spending only $25,000 on mass media. Dukakis admits that he made many mistakes in the 1988 campaign for the presidency, but he says that in retrospect he should have gone with his instinct and mobilized grassroots support across the country. The Obama campaign, which succeeded in Iowa through grassroots, faltered briefly before recognizing the potential for the internet to open access to a broad base of support. The result was fundraising of over $750,000,000 from 4,000,000 supporters, shattering all the records. But despite the phenomenal success of the Obama organization’s grassroots strategy on the national level, local candidates have reverted to reliance on mass media and ignorance of the person-to-person organizational strategy. The only candidate employing the tried-and-true methods in the present Massachusetts senate race, says Dukakis, is Alan Khazei ’87, but unfortunately the compressed schedule of the special election will likely minimize the benefit this provides. To Dukakis, a serious candidate will start organizing 18 months ahead of the election. The process begins with the selection of an experienced organizer who can work the field tirelessly and appoint a captain in every precinct. Once each precinct is staffed by local block captains, the process of knocking on the door of every voting household begins, and it doesn’t end until each house has been canvassed multiple times. The most obvious proof of this strategy’s success is, for Dukakis, the victory of Governor Deval Patrick ’82. When Patrick came to Dukakis in 2005, he was an unknown across Massachusetts. Dukakis told him to get a captain in every one of the 2,157 precincts across the state and begin organizing a direct appeal to voters. “And this neophyte, who had never run for elected office before and who very few people knew, not only beat two much better known and quite capable candidates to win the nomination, but he went on to win the election over the incumbent lieutenant governor by 20%. How did he do it? It was all grassroots organizing.” Red-states and Blue-states, Republicans and Democrats, he believes an aggressive candidate should reach out to every voting household and make a direct appeal using the voice of members of the local community who have joined the campaign organization. Do this, and you will win.

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Funding, cont’d from pg. 1 uates. Dean Minow's announcement expressed a shift in strategy to emphasize the Low Income Protection Program (LIPP) as the preferred method of post-graduate public interest funding, indicating that the gross funding of the program had increased by $1.1 million and that eligibility would be extended to unpaid public interest workers, who had previously not qualified. According to Alexa Shabecoff, head of the Office of Public Interest Advising, the strategy change was necessitated by the double-bind of declining endowment funding and increasing demand for funding due to the troubled job markets. “The world has changed in the last year and a half,” said Shabecoff, who spoke with the Record along with the head of Student Financial Aid, Ken Lafler. “When the economy is bad,” said Lafler, “there is more need for financial aid.” The result has been a net deficit of $5.2 million for the law school's existing commitments to provide public interest funding, the combined effect of a $2.5 million decline in endowment funds and a $2.7 million increase in program needs. According to Lafler, the LIPP program has this year received more applications, only halfway through its fiscal year, than it did during the prior twelve month period. Lafler says this is partly because of the safety net structure of the program itself, which has no requirement of years of service and is designed to allow free movement of alumni in and out of public service positions. With more graduates moving directly into public service after school and a large number of private sector attorneys being forced to pursue alternative pathways, estimating the program's total costs will be difficult until the job market begins to recover. In fact, the large number of deferred first-year associates exposed the program to a problem of under-inclusiveness which the administration hopes will be adequately addressed by the promise to include unpaid graduates who are at least employed. But in order to support its expanding commitments under LIPP, the PSI pilot program could not be continued. Contrary to the facts reported by the Harvard Crimson, Lafler says that enrollment in the PSI had been in line with the administration's projections of 60 students for the first year and 80 students in the second year, with final enrollment reaching 58 and 73 students respectively. Even with the PSI available, some students he advised made the informed choice to accept only LIPP funding, preferring the flexibility of not making a definite commitment under the PSI framework. And although the PSI program helped overcome the psychological aversion to debt, many students have already seen complete protection from exposure to debt payments under LIPP. Shabecoff, who was involved in the design of the PSI, says the program was also partly an effort to create an annual cohort of students that resembled her alma mater's Root-Tilden-Kern scholars program, with a kickoff banquet aimed at establishing collegial connections among participants. She remains convinced that the funding available through the LIPP and SPIF programs provide unparalleled opportunities to HLS students and hopes that a new program will be developed that captures the best aspects of the PSI's design. In the meantime, she is relieved that the Holmes Fellowship program will provide employment opportunities for a dozen new graduates each year. For current students, the total evaporation of 1L employment at law firms and the imperilment of 2L opportunities have swelled SPIF applications from 495 students last year to more than 600 this year, an increase of over 20%. To accommodate the increased volume, the program has been limited to an 8-week funding period, which Shabecoff says was a necessary trade-off in order to protect open access. Lafler declined to say that the program would be extended again when the economy recovers, saying only that every dollar available for public interest funding will continue to be directed whatever program is deemed to provide the most benefit to students and graduates. In a time of severe limitation in private sector employment opportunities, both current and prospective students will be focusing close attention on the funding law schools provide to pursue public interest employment. Both Shabecoff and Lafler urged students to consider the flexible and open structure of the LIPP program as a continued testament to the commitment Harvard has made to provide loan repayment assistance no matter what causes an employed graduate's financial need.

Harvard Law Record

December 3, 2009

Climate Depends on Copenhagen

Upcoming Climate Agreement Will Change the World, But the United States is Not Taking the Lead

BY CRAIG ALTEMOSE

like the Maldives, Brazil, Mexico, Ghana, and others, which are willing to make significant emisFrom December 7 to 18, the representatives of sions reduction pledges, China and India are 192 nations will gather in Copenhagen, Denmark, looking to only pledge to reduce the rate of growth to decide the fate of the human race. Will we con- of their emissions. tinue to live in a world with a stable climate, or To make things even worse, leading scientists will we condemn ours and future generations to a now believe that the 450 target that countries are world with steadily decreasing amounts of food failing to even have a 50% chance of hitting is outand water as the population is set to dramatically dated and overly conservative. NASA’s leading increase? climate scientist, Dr. James Hansen, Director of Among the attendees will be President Barack the Goddard Institute for Space Studies, has deObama ’91 and the heads of state of close to 100 termined that the highest safe level of CO2 in the nations, including Australia, Brazil, Canada, atmosphere is 350 parts per million (ppm). We are China, France, Germany, and the UK. now at 390ppm and climbing quickly, on pace to The original goals of the summit was to try to hit over 900 by the end of the century. The world reach an agreement to keep temperature increases has not had CO2 levels stabilize at 400ppm for to less than two degrees Celsius; thereby fore- some 13 million years, long before human beings stalling what scientists said would be the worst walked the planet, much less rode on it in carts or consequences of global warming. This two degree cars. This goal has even been endorsed by the goal was based on a report by the Intergovern- chair of the Intergovernmental Panel on Climate mental Panel on Climate Change, the Nobel-win- Change. ning body charged with summarizing all of the So, basically, the world is screwed. Almost available scientific literature on global climatic every major environmental organizations in the disruption. United States is so excited to have President This body was not empowered to make recom- Obama actually doing something, after decades of mendations, but their analysis revealed that to inaction in the hands of Reagan, Bush, Clinton, have a 50% chance and another Bush, that of avoiding two dethey forget that scigrees, we would need ence actually does to stabilize emissions care about the numat 450 parts per milbers. We are not nelion (ppm) of Carbon gotiating with Dioxide in the atmosRepublicans, we are phere. negotiating with In order to earn that Physics and Chem50% chance, develistry, and they do not oped nations like the handle negotiations US would need to rewell. We get no credit duce their emissions for recessions, for filIceberg on the Thames. Photo: flickr user IanVisits between 25-40% ibusters, or for good below 1990 levels of emissions by the year 2020, intentions. and by 80-95% by 2050. Since most heads of state Copenhagen will fail to reach a deal that will will not be in office in 2050, the 2020 goals are safeguard your future. If you are planning to have much more telling of the current state of affairs: children, you might want to reconsider. Some sciThe European Union has pledged to reduce entists estimate that we may have enough food and emissions across the block by 20% below 1990 water left on the planet for less than one billion levels by 2020, and increase that pledge to 30% if people by 2100. A recent report funded by the other nations similarly follow suit. Some Euro- United States Army, the World Bank, and UNpean nations have pledged even more: Norway ESCO stated that, without dramatic action “bilhas pledged to reduce its emissions a full 40% by lions of people will be condemned to poverty, and 2020 (what most developing nations are now call- much of civilization will collapse.” Scientists esing for); and our strong ally the UK has pledged to timate that as early as 2035, melting glaciers in the reduce its emissions 34% below 1990 levels by Himalayas would see the water supply of over 400 2020. Japan, too has stepped up, with a 25% million people (more than the entire populations below 1990 levels pledge by 2020. of American and Canada combined) completely So how is Obama ‘reclaiming’ American lead- dry up, leaving the nuclear-armed nations of ership and returning us to good-standing in the in- China, India, and Pakistan scrambling to find, buy, ternational community? He is going with a pledge or steal enough water to quench a thirst the size of of 17% below 2005 levels by 2020. While this North America. sounds fairly close to what other nations are doing, Here in Massachusetts, the Leadership Camit is indeed a national embarrassment. In 1990 lev- paign is leaning on the state government to emels, when most of our rich peers are in the 20-40% brace the goal of 350 parts per million by range, Obama is going to Copenhagen with a committing to repower Massachusetts with 100% pledge to reduce emissions by only 3% below Clean Electricity in ten Years. The campaign is 1990 levels by 2020. led by students at over twenty schools across the Canada and Australia are using U.S. intransi- state, but is conducted in partnership with the Masgence as an excuse to refuse to be less aggressive, sachusetts Council of Churches, the Massachusetts but they would quickly fall into line if we stepped Climate Action Network, and the Sustainable up to the plate. But more frustrating and damning Business Network. Twenty-five legislators (repis that developing nations can also use our failure resenting 1/8 of the entire state legislature) have to lead as an excuse. already pledged their support. All observers recognize that China, India, and other major developing nations will have to agree Craig Altemose is a 3L pursuing a joint degree to binding emissions reductions if we to avert ca- with the Kennedy School and a member of the tastrophe. Yet with Obama coming to the table Leadership Campaign, online at www.theleaderwith such a measly pledge, it is hard for those na- shipcampaign.org. Thosewith a desire to assist his tions to go back to their people having made any effort can contact him at [email protected] commitments themselves. So, despite vard.edu. the courageous leadership of developing nations

December 3, 2009

Harvard Law Record

Harvard’s Pharmaceutical Patent Policy Still Limits Access to Drugs by World’s Poor

BY MARIA VAN WAGENBERG

About a third of the world’s population, or roughly two billion people, lacks even the most basic access to essential medicines. Each year an estimated 25 million individuals, 10 million of them children, die of treatable and preventable diseases. A large share of those deaths could be averted by low-cost access to pharmaceuticals developed and patented by U.S. universities. University patents are found in a quarter of HIV/AIDS drugs and a fifth of high-impact drugs approved between 1988 and 2005. The number of university patents has been on the rise since the 1980 passage of the Bayh-Dole Act, which gave universities title to patents arising from federal funding. Once a university obtains a patent, it will typically license the patent to pharmaceutical companies for further development and commercialization. However, unlike pharmaceutical companies, which are tied to profit margins, universities are non-profit actors whose work is largely financed by public funding. Therefore, universities have a special obligation to ensure access to their research. In 2001, a group of Yale students learned that d4T (stavudine), an HIV antiretroviral drug patented by Yale and licensed to Bristol-Myers Squibb, was being sold at outrageous prices overseas, blocking off access for HIV patients living in South Africa and other developing countries. Troubled that Yale-developed drugs were being priced out of reach for HIV patients, the students joined in a publicity campaign that eventually pressured the university and pharmaceutical company into reducing the price of the drug and making it available for generic production in South Africa. Today, the organization those students founded, Universities Allied for Essential Medicines (UAEM), continues to advocate making university-developed drugs available to poor countries at low cost. On November 9th, the campaign for increased access scored a significant victory when Harvard and five other research universities signed a statement of principles pledging to “promote the availability of health-related technologies in developing countries for essential medical care.” The policy represents an important step forward for Harvard, which is both a research powerhouse for diseases such as AIDS and malaria, as well as a leader in the global technology access movement. However, the policy does not go far enough in several important ways. First, it is not clear the new policy represents an improvement over current licensing practices. Harvard has included global access provisions in only 5 of the 62 licenses concluded over the past two years. However, these licensing agreements are secret, so the nature of the access provisions, the number of medical licenses, and even the identity of the drugs covered, remain opaque. The new policy promises that Harvard’s intellectual property will not pose a barrier to essential medicine access in the developing world. It also commits to applying “meaningful metrics” to evaluate the success of its efforts. This commitment is extremely vague. It does not address what the metrics are or how they will be applied in the context of individual agreements. How meaningful will the composite, retrospective metrics be, especially when so few agreements are concluded each year? Second, while the policy also sets out a menu of licensing options, it does not assemble these options into a coherent plan that would facilitate access to Harvard licensed drugs. University licenses can impose global access conditions on pharmaceutical licensees in a variety of ways. Some of the most discussed options include: (1) Requirements that NGOs receive the rights to distribute discounted or donated drugs for humanitarian purposes (though NGOs rarely have the capacity to meet the needs of all patients in poor countries). (2) Tiered pricing for lowincome and high-income patients in countries with a significant income gap, such as China or India (a difficult policy to administer and enforce). (3) “Marchin rights” which allow the patent holder to revoke the

licencee’s rights and license the patent to another company, if, for example, a global access condition is breached. (4) Financial incentives, such as forgiveness of university royalties, for licensees in exchange for providing low-cost drugs in the developing world. (5) Mandatory sub-licenses to specific generic manufacturers in developing countries. (6) Non-patenting policies, where the university simply does not patent in poor countries, allowing any manufacturer to make generic versions of the drug without a license. The new policy requires universities to select

Photo: flickr user RESchroeder

among these options with the goal of “align[ing] incentives among all stakeholders.” This is a vague standard. Future policies should instead guarantee that a minimum level of access is negotiated into all relevant licenses; alternately, universities should commit to making access a primary consideration in negotiating global access provisions. A mandatory policy would reduce the need for transparency and oversight and might also give universities greater leverage and credibility in negotiating agreements with pharmaceutical licensees. As it stands, however, the policy does not articulate a clear, access-based strategy. Third, under the new policy, Harvard will continue the practice of asserting patents in the so-called “BRIC” countries (Brazil, Russia, India, and China), in addition to patenting in developed regions such as Europe and North America. The BRIC countries produce over 40 percent of the active ingredients in the world’s generic and over-the-counter pharmaceuticals, and remain the only source of generic drugs outside the developed world. The effect of patenting in BRIC countries would be to close the “pharmacy to the developing world,” shutting down all sources of generic production bound for developing countries. Generic manufacturing represents the most sustainable option for delivering drugs to the poor, compared to the relatively stopgap measures of sublicensing and royalty forgiveness. Finally, Harvard has stated that the policy will not apply to drugs for non-communicable diseases, even though these diseases are major killers in the developing world. The developing world now accounts for 80% of the world’s deaths from non-communicable diseases such as heart disease, cancer, and diabetes. While HIV/AIDS and malaria are often the first things to come to mind when thinking about global health, the problem of access extends beyond those two highprofile causes. The policy for non-communicable disease drugs might be explained by a deference to three pharmaceutical company concerns. The first concern is “parallel importation” – the idea that discounted or generic drugs meant for distribution in the developing world will be smuggled back to the developed world and sold through black markets. Unlike malaria or tuberculosis drugs, non-communicable disease drugs have significant markets in both the developed and developing worlds. There is scant evidence that parallel importation of donated or discounted drugs exists or poses a threat to industry profits. HHS estimates that about 10 million shipments of unapproved prescription drugs entered the U.S. in 2003; however most of these originated in Canada or Mexico. It is not clear what percentage, if any, of these imports represented

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discounted or donated drugs that were destined for poor countries. A fair portion of these parallel imports consist of counterfeit or illegal drugs, rather than legitimate generic or brand-name drugs, according to HHS. The European Union allows parallel importation among its member states, but even the EU has experienced very few instances of parallel importation of drugs destined for the developing world. After incidents like the one in 2002 when GlaxoSmithKline discovered a trader had diverted 44,000 packs of HIV/AIDS medications from five African countries, governments have cracked down on these types of shipments. Manufacturers have also adopted techniques like color-coding and special packaging to counter smuggling. As long as drugs are sold at a lower price in the developing world than the developed world, there will be an incentive for parallel importation. However, the solution is not to sell drugs to the developing world at the same price as the developed world, but rather to combat the smuggling.

The second concern is that pharmaceutical companies, and by extension universities, will lose profits by forgoing potential pharmaceutical sales in the developing world. Pharmaceutical companiess have publicly stated that they will seek to recoup any profits lost as a result of healthcare reform by raising prices in poorer nations (see, for example, “Drug Firms See Poorer Nations as Sales Cure,” Wall Street Journal, July 7, 2009). Medications for chronic, longterm diseases like heart disease, cancer, and diabetes, are lucrative pharmaceutical sellers, and thus represent the best way for pharmaceutical companies to maintain their double-digit profit margins. However the developing world represents a miniscule portion of pharmaceutical profits. PhRMA, the industry lobby, concedes that Africa comprised only 0.5% of sales in 2007, with China and India at 0.6% and 0.2% respectively. By comparison, the U.S. represented 67.7% of 2007 world sales. With the developing world accounting for such a small percentage of overall sales, pharmaceutical companies cannot claim that global access provisions would drastically alter their R&D incentives or lower their profit margins. Moreover, universities rarely make money off of their licenses. In 2007, Harvard University had about $1.88B in total research expenditures, but only $12M in license income. Universities will occasionally hit the jackpot with isolated blockbuster drugs – New York University and Columbia had the highest licensing revenues in 2007 with $791.1M and $135.6M respectively, each from single deals. These amounts are almost never high enough to offset universities’ research expenditures. The third concern is that global access provisions will serve as a “poison pill,” discouraging pharmaceutical companies from licensing with universities that require such provisions. This risk is probably overstated. Pharmaceutical companies will still compete to license promising drugs. Furthermore, licenses are primarily made with small companies (49.9% of deals) or start-ups (16.5%), many of them formed by the researcher who originally discovered the technology. These companies take the drug a bit further down the development pipeline before licensing to a big pharmaceutical company. Global access provisions are unlikely to change the first licensee’s decision to license, especially if the licensee has discovered the drug. For the second licensee, often a large pharmaceutical company, global access provisions are unlikely to discourage licensing for a drug with demonstrated value. Since these concerns remain unproven, they should not serve as a basis for unnecessary concessions to pharmaceutical companies. If Harvard continues to enforce its patents in a way that prevents generic manufacturing of essential medicines, it will create a real barrier between these drugs and the people in developing countries who need them the most. Maria van Wagenberg is a 2L.

Harvard Law Record

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SWISS MISTAKE? Harvard Law Record

December 3, 2009

The World Was Shocked When Switzerland Voted to Ban New Minarets, But the Decision was About More Than Just Blind Xenophobia

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

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Editor Emeritus: Ralph Nader Contributing Writers Craig Altemose Theresa Amato Philipp Fischer Nicholas Joy Patrick Karuretwa Konstantinous Stylianou Karan Singh Tyagi Maria van Wagenberg Stephanie Young [email protected] or Harvard Law Record Harvard Law School Cambridge, MA 02138-9984

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SUNSTEIN NAMED TOP THINKER

Foreign Policy magazine recently named Prof. Cass Sunstein ’78, who is on leave from Harvard Law School to serve as head of the Office of Information and Regulatory Affairs, the #7 thinker of the year in its list of the top 100 most influential intellectuals of 2009. Sunstein was cited for his book Nudge, co-written with economist Richard Thaler; he had taken the #3 slot on the Prospect/Foreign Policy ranking of the world’s most prominent public intellectuals of 2008. With his spouse, the Kennedy School’s Samantha Power ’99, who is working with the National Security Council, ranked #80, the D.C. duo were the only married couple to both be named to the list. We look forward to the debut of their son, Declan, on the list around 2045.

The controversial poster displayed around Switzerland in support of a ban on new minarets. Photo by Flickr user rytc.

BY PHILIPP FISCHER

initiative for the interfaith relationship in Swiss society. All the polls published in the weeks preceding the vote suggested that the initiative would be solidly rejected. Sunday’s result therefore came as a colossal surprise for the country and for the entire world. Against this background, it is worth noting that the initiative does not ban the construction of mosques or the exercise of the Muslim religion as such, but only the construction of minarets on mosques. The four minarets that currently exist in Switzerland are not affected by the vote, nor are the approximately 400,000 Muslims living in Switzerland restricted in any way from practicing their faith in their places of worship. That being said, this

despite the fact that this decision casts a shadow on Switzerland’s image as an Switzerland’s vote to ban the conopen and tolerant country. This vote struction of minarets, the prayer towers rather reflects a sentiment of fear and of mosques, was greeted with a mixture uncertainty that recently grasped this of astonishment and disbelief around country. In the past months, some of the the world. The impact of this decision fundamental pillars that defined the was certainly magnified by the fact that Swiss society over the past century – coincidentally – it occurred on the last were shaken to the core, particularly following the disclosure of the dire fiday of the “Festival of Sacrifice” (Eid nancial situation of its flagship banks al-Adha), a holiday celebrated by Muslims worldwide. Some commentators and the relentless attacks on the Swiss have already suggested that the vote banking secrecy. Furthermore, an onwill spark a backlash similar to the one going diplomatic row with Libya foltriggered in 2005 by the publication in lowing an incident involving the a Danish newspaper of cartoons repreLibyan leader’s son in Geneva may also senting the Prophet Muhammad. That have been on voters’ minds when they makes it critical to shed light on the cast their ballots. legal and political process that led to But it is also worth pointing out that , this vote. until recently, the Swiss ConstituSwitzerland takes pride in a tion contained a provision whereby century-old political system the creation of a new Catholic diowhich allows its citizens to have cese was subject to the approval of the last word on almost any imthe federal government. Given the portant issue regarding their counProtestant alignment of the Swiss try. The Swiss Constitution grants government at the time this provieach citizen the right of initiative, sion was introduced in 1874, the requirement for a prior approval was i.e. the right to propose a constitutional amendment which, if tantamount to an outright ban. In signed by at least 100,000 citi2001, Swiss voters decided, again zens, is then submitted to a popuin a popular vote, to remove this lar vote. discriminatory legal provision. A Turkish mosque in Wangen bei Olten, SwitzerIn July 2008, a minor conservaSadly, the blank line left in the text land sports one of the country’s four minarets. tive political party announced that of the Constitution by the 2001 vote it had collected the required number of formalistic approach to the scope of the will now be filled with the new provisignatures to force a vote on the prohi- initiative fails to reflect the symbolic sion banning the construction of bition of the construction of minarets in power of the message sent by a major- minarets. Switzerland. This proposal was imme- ity of Swiss voters this Sunday. Sunday’s vote will probably be seen diately opposed by three of the four Some commentators have argued that around the world as a step backwards main political parties that share power this initiative might be contrary to the on the road towards the peaceful cowithin the Swiss government. The liberty of religion, as guaranteed by the habitation of religions. This notwithfourth main political force endorsed the European Convention on Human standing, this decision – which was initiative, but only half-heartedly. At the Rights, to which Switzerland has been a taken democratically in a sovereign outset of the political campaign, a num- party since 1974. But the practical con- country and therefore ought to be reber of Swiss cities, citing concerns sequences deriving from the conflict spected – must be considered as a under Swiss anti-racism laws, an- between Switzerland’s duties under an unique opportunity to initiate a pronounced their intent to ban from their international treaty and a constitutional found dialogue with the Muslim comstreets the posters the proponents of the amendment ratified by an overwhelm- munities, both in Switzerland and initiative printed, showing missile- ing majority of Swiss voters are un- elsewhere in the Western world, in shaped minarets piercing a Swiss flag. clear, and are currently the subject of a order to define the necessary precondiThis proved to be a costly strategic mis- heated debate among Swiss law profes- tions of a peaceful and harmonious cotake by the initiative’s adversaries. sors and politicians. existence. From then on, the public debate focused More importantly, this vote cannot essentially on the limits of freedom of and should not be seen as the ultimate Philipp Fischer LL.M. ’09 is currently a expression and touched only very su- proof of a predominantly anti-Muslim researcher at the University of Geneva. perficially on the significance of this sentiment within the Swiss population,

December 3, 2009

Harvard Law Record

Page 7

MUMBAI MASSACRE: QUESTIONING THE AFTERMATH One Year After Terrorists’ Deadly Assault on India’s Financial Capital, Mumbai Still Lacks Security, Justice – or Gratitude for Those Who Fought Back

BY KARAN SINGH TYAGI

government's support for their capabilities, however, has been shoddy, to say the least. Even today, the local police are grossly unprepared to deal with terror attacks, because of an acute shortage of weapons and ammunition. Official records show that for a force of well over 180,000, the home department procured a meagre 2,221 weapons, 577 for Mumbai and 1,644 for the rest of Maharashtra, in the last six years. In the absence of a firing range and ammunition for prac-

Why is the Maharashtra Government so insensitive and apathetic? And when will its so-called policy I remember November 26, 2008. I remember, makers stop hiding behind the veil of anonymity? vividly, the smell of terror surrounding Mumbai when After the last bullet was fired in Mumbai, there was an 10 young jihadis with guns in their hand and hate in outpouring of anger and much dismay at the "polititheir eyes took over my city and declared war on my cal system": the whole country ranted, raved, and took country. The dastardly events took place in two wellto the streets to protest against a political leadership known luxury hotels, a 20-year-old railway terminus that had wholly mismanaged internal security. traversed by thousands every day, a popular cafe filled A year later, the same political leadership has rewith foreign tourists and locals, an unturned to power, and the section of the known place of refuge, and a common population that had taken to the streets maternity hospital. Terrorists opened one year earlier were nowhere to be fire and cut down men, women and seen on voting day. The voter turnout children of every social stratum of the in Bombay was an abysmal 46% in the city and from every corner of the State Assembly elections and an even globe. more dismal 43% in the Parliamentary The attacks raised a lot of questions elections. The truth is that the fault lies in the minds of Indians. Are we living not only in our politicians and leaders, in callous times? Are we being run by but also in us. The low voter turnout a bunch of corrupt and inept politicians proves that we Indians have started to who can’t even have in place a basic believe that the intangible "political game plan to manage a crisis of this system" is demonic and that there is magnitude? Do we need to change our nothing that we as common men and mechanism of intelligence gathering? women can do to change it. What we Now that the first anniversary of the need to realize is that it is only the citattacks is here, it might be a good time izens that can cause real change. The to revisit the same questions to know current electoral system in India offers how much has really changed since, no hope and the need of the hour is urA candlelight vigil for the victims of the Mumbai attacks. Photo by Flickr user aloshbennett. Mumbai and India were held ransom gent changes that will invite engageby ten terrorists. tice, local policemen have not opened fire in the last ment, loyalty and pride from all of us. Sadly, not much has changed. A year down the line 10 years. The newly-created Indian Marine Police But the biggest tragedy is that we don’t know how no individual has been held accountable or punished (IMP) has set up some of the planned seven dozen to respect our heroes. We don’t know how to respect, for such a heinous act. It was only yesterday that the coastal police stations but, they have only received cherish and immortalize their sacrifices. November Pakistan Anti-Terrorism Court formally charged about four dozen of the total of 20 dozen small five- 26th should mean something for us all. It should mean seven suspects, including Lashkar-e-Taiba com- tonne and 12-tonne-high speed boats. The IMP needs recognition of the sacrifices that have been made, and mander Zakiur Rehman Lakhvi, with planning and more than 500 small high-speed boats and about 12 that are still being made, by policemen, soldiers, their helping execute the Mumbai attacks. It is better late dozen coastal police stations for more effective pa- families and their children. It should mean appreciathan never, but one only hopes that this indictment trolling. tion for what thousands of brave policemen and solwill be taken to its logical conclusion without any furSubstandard bullet-proof jackets are supposed to be diers have done for India - not just on that fateful ther delay. one of the many reasons that caused the death of many night but in all other wars that my country has fought In India itself, the trial of Ajmal Amir Kasab, the brave policemen during the terror strikes. A year after and is still fighting to preserve our freedoms. I pray lone jihadi captured alive, has been turned into a pro- the attacks, the Maharashtra chief minister Ashok that heroes like Major Sandeep Unnikrishnan, Antilonged circus that is serving no one. Kasab initially Chavan said last Sunday that he would investigate re- Terrorist Squad Chief Hemant Karkare, Additional pleaded not guilty, but later, on July 20th, admitted ports that policemen remain easily exposed to bullet Commissioner Ashok Kamte, Senior Police Inspector his guilt. The court accepted his plea and placed the wounds. But these reports have been circulating for Vijay Salaskar, Constable Ombale and several others confessional statement on record, but dubbed the ad- almost a year, and the question could well be asked: shall not have lived and fought and died in vain. mission of guilt as a partial admission and let the trial what exactly Maharashtra’s Chief Minister and Home proceed. Minister have been doing for the last 12 months? Karan Singh Tyagi is an LL.M. student from India. By all reckoning, Kasab's is an open and shut case. So why not get on with it and reach the inevitable end? I am not suggesting kangaroo courts and summary trials, but delays like this don’t translate into justice. It is especially distressing to see such problems continue to emerge after the discomforting maze of O OU ANT TO ET UNCHED IN THE ACE the Indian judicial system was so badly exposed to the psyched to go. whole world when the Trial Court took thirteen years BY JESSICA CORSI We arrived late. We had to bring down curtains to the 1993 Bombay Bomb The time had come in ambitiously promised a Blast case. friend that we would drive In the immediate wake of the attacks, there was a my HLS career to show some school spirit: I was down at dawn to catch the change in guard at the Ministry of Home Affairs, with going to Harvard-Yale. traditional 9am Harvardthe appointment of P. Chidambaram, a lawyer and a I’m not normally a school Yale Law Review game of Harvard Business School graduate, as Home Minister. (flag) football. We were Regional hubs of the country’s elite anti-terrorist spirit person, and even growing up in Texas had obviously hallucinating force, the National Security Guard (NSG), were also not made me interested in when we said this. We hit established. A National Investigation Agency was set the road around ten, and up by him to probe and pre-empt any terrorist attempt. socializing around football. But my year at began seeing signs for But, the fact is that Mr. Chidambaram needs to recCambridge University New Haven around kickognize is that India has never lacked agencies–in fact, off time. No problem, we it is the multitude of intelligence agencies, and their had changed me into a person who enjoyed ensaid to ourselves. We’ll lack of cooperation, that has been the reason for the gaging in petty rivalries still see plenty of action, if failure to prevent terrorist attacks like those of Noalongside hordes of affilthere was any action to be vember 26, 2008. The lack of co-ordination between seen; after all, Harvard and the Intelligence Agencies, the Naval Agencies, the iated University revelers. Photo: flickr user Kaptain Kobold So, I decided that there was Yale are not the country’s Coast Guard Agencies and the local police was what no time like my last semester to engage in this suppremier football schools. But whatever happened, we enabled the terrorists to slip through and land on posedly quintessential Harvard experience. And with were going to be there, screaming and chanting while Bombay’s beaches that day. It is the Indian local police that are entrusted with that, we were off to New Haven, dressed in Crimson juggling our funnel cake and beer. There is something inherently hilarious about a the duty to implement strategies to prevent terrorist and ready to wave our white and red pompoms. I didattacks at the ground level. The Maharashtra state n’t even have to feign excitement; I was genuinely Yale, cont’d on pg. 11

CAMBRIDGE, USA: AT HARVARD-YALE “D Y W G P F ?”

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Harvard Law Record

December 3, 2009

MASTERMIND’S RELEASE FUELS RWANDAN GENOCIDE DENIAL

BY PATRICK KARURETWA

The recent encouraging news of the arrest in Germany of two of Rwanda’s suspected criminals, Ignace Murwanashyaka and Straton Musoni, overshadowed the latest development in the appeal chamber of the International Criminal Tribunal for Rwanda (ICTR). On November 16, the tribunal reversed a 20 year prison sentence and ordered the immediate release of Protais Zigiranyirazo (“Mr. Z”). Based on a finding of ‘serious errors’ in the first chamber’s handling of the defendant’s alibi, the decision immediately sparked a wave of protest and consternation in Rwanda and the Rwandan diaspora. The release of a suspected war criminal will not create much disturbance in a country where convicted killers live side by side with their victims’ relatives. The community-based gacaca, a local justice mechanism, have tried hundreds of thousands cases. They have also allowed the release of thousands of perpetrators under a plea-bargaining scheme. But Mr. Z is not your usual genocide suspect. He is largely considered one of its masterminds. Many feared him too much to pronounce his full name, for Mr. Z is the brother of Agathe Kanziga, wife of the former Rwandan president Juvénal Habyarimana. Zigiranyirazo’s reputation as a radical extremist went beyond Rwanda’s borders. In 1993, he was expelled from the Université de Québec à Montréal – and then from Canada altogether – after being convicted of uttering death threats against Tutsi refugees in Montreal. He moved back to Rwanda, where he was already known as the head of the ‘Akazu’, an informal but powerful organization revolving around the former president’s wife, who controlled the ominous ‘Zero Network’ death squads. The existence and sinister agenda of the ‘Zero Network’ death squads were revealed as early as 1992 in the Rwandan press and confirmed in various local and international fora throughout the years that led to the genocide. General Romeo Dallaire, the UN peacekeeping commander, sent a now-famous report to New York in January 1994 based on the very detailed information and warnings provided by Jean Pierre, one of several defectors of the ‘Zero Network’. Everything Dallaire’s informant told him became reality three months later, and close to a million human beings were slaughtered. Like all other defectors, Jean Pierre had mentioned ‘Mr. Z’ as one of the key actors in the preparations. Today, Mr ‘Z’ is a free man. The Trial Chamber, because of serious procedural errors, had led to a finding that he is not guilty. The memories of thousands of Rwandans of the vicious anti-Tutsi roadblocks he had established in direct proximity of all his residences in Kigali and Gisenyi weigh little or nothing to the court.

It is useful to remember that the ICTR was established by the UN Security Council Resolution 955 with the dual objectives of accountability and deterrence on the one hand and reconciliation and peace on the other hand. In the words of Richard Goldstone, the Tribunal’s first prosecutor, the ICTR trial process is “an important means of promoting peace and reconciliation in Rwanda, providing catharsis to survivors.” By clearing Protais Zigiranyirazo of any culpability, the appeal chamber arguably followed international standards of justice. The consequence of that decision, however, is not a simple mistrial. It is the acquittal of a man whose acts, though not properly documented by a prosecutor, are not easily forgotten in a country where genocide was committed in broad daylight. How much consideration was given to the assessment of the impact on peace and reconciliation that the Tribunal is meant to serve? How locally relevant are the decisions of a transitional judicial body that applies rules and processes developed to address fundamentally different realities than that of a genocide? Most importantly, what are the implications of Mr. Z’s release for the very concept of Genocide Planning? No planning = No genocide?

‘Mr. Z’ was reportedly still stunned by the appeal chamber’s decision when a news release co-signed by his lead defense attorney, Jean Philpot, celebrated the rejection, for the second time, of the charge againt him of genocide planning. The press release also calls for “the ICTR trials to be halted, ICTR convictions to be reviewed by an independent UN Commission, and the conditional release of detainees”. Interestingly enough, Jean Philpot is the brother of no other than Robin Philpot, the Canadian politician who, in 2007, attracted intense media attention for repeatedly denying the 1994 genocide of the Tutsis. For Jean Philpot, Peter Erlinder and others, the concept is quite simple: no planning = no intent = no genocide. But the genocide deniers’ campaign goes beyond the ICTR trials. A small but very active group of academics, often with ties of some kind to the ICTR defense lawyers, does not miss an opportunity to propagate their revisionist views. In the words of Professor Gerald Caplan: “the deniers’ reach and influence has been spreading, metastasizing like a malignant cancer, thanks to the anarchy of the blogosphere and to the embrace of the deniers’ arguments by a small but influential number of left-wing, antiAmerican journals and websites. Google Rwanda and you will quite likely get a deniers’ rant featuring the tiny band of usual suspects.…” Similarly, Oxford University’s Phil Clarck worries

about the increasing influence of deniers in the form of “scholars pursuing the latest academic fads that revel in ‘alternative narratives’, no matter how spurious or morally questionable; ‘génocidaires’ seeking to deflect attention from their crimes; and critics of the current Rwandan government who try to connect alleged RPF crimes to unrelated concerns with its current policies.” Despite the lack of evidence for their assertions and the extensive works of reputable scholars and organizations that amply documented the planning of the 1994 genocide, this group persists. Could we be witnessing their increasing influence over the ICTR? An increasing number of genocide survivors apparently think so. International Justice for the International Community

“Arusha’s justice is not ours. It is yours. That Tribunal was created to cleanse your conscience”. Yolande Mukagasana (survivor of the genocide). November 18, 2009

Yolande lost her three children as well as her husband, brothers and sisters. She has devoted her life to supporting genocide survivors in Rwanda. She has seen and heard enough. Her cynicism can therefore be forgiven when she suggests that the ICTR, sitting in Arusha, should imprison the orphans and widows instead of the killers. “At least they will have three meals a day. At least they will have a shelter. At least they will get medical care,” Mukagasana writes. International standards of justice certainly have their own merits. There is, however, room for much more thinking on their societal impact in a post-conflict context. For several years, Rwandan genocide survivors have been accusing the ICTR of repeatedly neglecting and watering down their testimonies. Today, they are once again in dismay. They feel ignored and abandoned, blocked from going to Tanzania and appearing in Arusha at the ICTR to tell the terrible truth. Arusha’s justice is not theirs if it considers Mr. Z an innocent man. The ICTR has spent more than 1 billion dollars and completed less than 50 cases. With its profound detachment from Rwanda’s social realities, the tribunal could not be further from its claimed objective of contributing to national reconciliation.

Patrick Karuretwa is a Rwandan lawyer and army officer. He is currently studying at Tufts University’s Fletcher School of Law and Diplomacy as its first ever LL.M./M.A.L.D. joint degree candidate.

Illusion of Free Choice: Experts Debate Merits of EFCA

and collective bargaining. But experts are divided on the question of whether the increased power to unionize would actually reflect the auEugene Scalia (left) and Prof. Thomas A. Kochan (right) tonomous choices of BY NICHOLAS JOY employees or if the Act’s proposed How difficult should it be for em- changes would simply increase the coployees to form a union? The proposed ercive power of unions. Professor amendments to federal law embodied in Thomas A. Kochan, who is the co-dithe Employee Free Choice Act would rector of the MIT Sloan School of Manremove some of the hurdles that have agement’s Institute for Work and historically stood between organizers Employment Research, debated the

question with former Dept. of Labor Solicitor Eugene Scalia on Monday, November 30th, in an event sponsored by the Federalist Society and the John Templeton Foundation. The new labor law would institute “card check” unionization, automatic recourse to binding arbitration when collective bargaining stalls, and higher penalties on employers for unfair labor practices. Scalia, a partner at Gibson, Dunn, & Crutcher, said that the EFCA would give unions greater power in exactly those situations when their interests are not aligned with those of workers. “Unions have self interests of their own to serve,” he said. “They see a moment to get this through. They want this because union membership is declining.” Scalia sees card check unionization as eliminating “the hard won right to vote one’s conscience.” As evidence

that the election model does not give unionization efforts short shrift, he cited statistics that unions won more than 68 percent of elections last year, the highest proportion in years. Scalia believes that the secret ballot is “absolutely necessary” to avoid abuse. “It is really not credible that the reason unions support card check is to prevent intimidation,” he said. “Unions want a monopoly on intimidation.” But according to Kochan, the rights of employees to unionize are not being adequately respected in the U.S. today. “The evidence is overwhelming that American labor law is broken.” Under the current system, employees interested in unionizing must gather at least 30 percent employee card check approval, at which point the federal government supervises an election by secret ballot. Card check unionization

EFCA, cont’d on pg. 10

PERSPECTIVES ON FEMINISM

December 3, 2009

Harvard Law Record

Is the Future of Feminism Conservative?

BY NICHOLAS JOY

Christina Hoff Sommers is a feminist who believes the women’s movement has taken “a wrong turn,” and she is willing to court controversy to say so. On October 28, Hoff Sommers discussed “conservative feminism” in the Ames Courtroom. The talk was cosponsored by the Federalist Society and the Abigail Adams Society. Hoff Sommers’ books include Who Stole Feminism?: How Women Have Betrayed Women and The War Against Boys: How Misguided Feminism Is Harming Our Young Men. She advocates “equity feminism,” which focuses on securing equal legal rights for women. Hoff Sommers sees her views as being rooted in the tradition of classical liberalism. “Equity feminism promotes harmony between the sexes. It is not new,” she said. “I’m not here to ask you to reject classic equity feminism.” According to Hoff Sommers, the modern feminist movement has been appropriated by “gender war eccentrics” who want to “knock down doors that are already open.” “If you looked at men and women together, it would be hard to say who is better off,” she said. “There are still unresolved equity issues, but the real 21st Century challenge is outside this country.” This challenge, she said, is the liberation of women in the developing world, which she called “the human rights challenge of our time.” “There is something wrong with feminism on campus,” she said. “We need to turn the focus to other parts of the world.” Hoff Sommers categorized modern feminist theorists as believing in “what they call a sex-gender system,” in which “every institution in our society bears the imprint of patriarchy.” She took issue with this theory. “I read that and just do not recognize the society we live in,” she said. “It is too dramatic and negative about our society.” Hoff Sommers said that modern feminist theorists have bolstered their views with urban myths and “egregiously false information.” She said she had found that many commonly cited statistics, such as that violence against women increases 80 percent on Super Bowl Sunday, did not have any basis. “Over and over again, you could count on theorists to overstate,” Hoff Sommers said. “The truth is so much more complicated. If you want to help women, help them by using the truth.” According to Hoff Sommers, the feminist movement has also become increasingly hostile towards men, “implicating an entire gender.” It does so by focusing on the bad behavior associated with “aberrational masculinity” rather than what most men are like. “We get the worst-case male standing for masculinity,” she said.

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Freedom to Sell Sex? The Debate Continues

This attitude, Hoff Sommers said, is BY STEPHANIE YOUNG partly the reason why the increasing plight of American boys has largely Should prostitution remain a crime? been overlooked. On Monday, November 16, 2009, four “American young men are under- panelists, Professor Samantha Majic, achieving, underperforming,” Hoff Dr. Melissa Farley, Ms. Vednita Carter, Sommers said. “The gap favoring girls and Dr. Elizabeth Wood, gathered to reis getting close to a chasm.” frame the issue in their own terms. The She cited statistics to support the no- eager audience included Harvard law tion that American girls are succeeding and government students, members of while boys struggle, saying that leading the Massachusetts and Rhode Island veterinary schools are 80 percent task forces against human trafficking, women and that women have taken and professors from several schools. over the social sciences and biology. Prof. Majic is an assistant professor To the extent that women remain un- of political science at CUNY. She derrepresented in areas such as the sci- spoke on the difference between deences, Hoff Sommers said that, while a criminalization and legalization of sex better job could be done of encouraging young women to enter these fields, general preferences between the sexes could be at issue. “I accept the fact that the sexes are different, different but equal,” she said. “What you want for women is dignity, equality but not sameness.” She cited polling data that showed that, “under conditions of freedom,” 20 percent of women are “careerist,” 20 percent “just want to stay at home,” and 60 percent want both. In contrast, when men are polled, 80 percent are Theran Prostitute by Shirin Fakhim. Photo: flickr user Joep de Graaff careerist, 20 percent want to balance careers and homemaking, work, advocating for decriminalization and “a tiny percent want to stay at so that sex workers could more effechome.” tively access social services and the “Women who embody stereotypes legal system. should not be made to feel bad,” she Dr. Wood, a professor at Nassau said. “20 percent will defy the stereo- Community College and prolific blogtype – that’s why we need equity femi- ger, views coercion and violence as disnism. But 80 percent will embody the tinct and separable from sex work. She stereotype.” found that explicit exchanges of sex for When Hoff Sommers first published money do not equate to exploitation or her views of the modern feminist move- violence, and described the conflation ment, she said that her “colleagues were of sex and rape as “troubling.” Dr. outraged,” and she was subjected to a Wood pointed out that women also ex“colorful attack” by the feminist estab- perience violence within marriages or lishment. the military, but we do not seek to abol“I am not a backlasher, a traitor, an ish these; rather, we try to improve civil anti-woman,” she said. “I am a philoso- liberties for the people within these sopher.” cial institutions. In one of the most conDespite her issues with the modern troversially received comments, Dr. feminist movement, Hoff Sommers be- Wood confirmed her support of a statelieves that organizations such as the Na- ment on her blog that bestiality or tional Organization for Women were zoophilia can be noncoercive. integral to improving the lot of women Dr. Farley, whose research focuses on in America and can still perform an im- prostitution and sex trafficking, exportant role. plained that women are forced into “Those organizations were essential, prostitution by a series of “invisible cobut they’ve been here a long time,” she ercions.” In her work, she has found said. that the rates of PTSD in prostitutes Hoff Sommers hopes that the rival those found in rape victims, torwomen’s movement will recast itself in ture survivors, and combat veterans. the future. Dr. Farley conceptualized prostitution “I don’t think we should reject con- as a form of “paid rape,” and explained temporary feminism,” she said. “We that the conditions for consent simply should reform it.” could not exist within prostitution. She cited statistics from Victoria, Australia,

that showed legalizing prostitution created a great increase in illegal prostitution and organized crime, although Prof. Majic disagreed with Dr. Farley’s interpretation of those statistics. Ms. Carter, a survivor of prostitution, runs Breaking Free, a center in St. Paul, MN for African-American women escaping prostitution. She drew parallels between current prostituting of AfricanAmerican women and historical enslavement. Ms. Carter related the difference between street and “indoor” prostitution to the difference between slaves who worked in the field and those who worked in the “big house.” Although the house slaves were better off in some ways, and the conditions of slavery could be improved, the facts of enslavement and oppression could not be changed. Harvard LL.M. student Alejandra Suero asked about the assumptions underlying the panelists’ definitions of sex, and about the distinction between sex work and other types of paid labor. Dr. Wood responded that “sex” can include a broad range of activities which are private and not usually discussed. She drew parallels to nurses’ aides, who are continually in very physical and intimate contact with their patients, yet do not draw the same social stigma as sex workers do. Ms. Carter stated that sex and prostitution are separated by differences in process and interpersonal dynamic, in the same way that sex and rape are differentiated. Dr. Farley focused on the prostituted woman’s emotional presence, and pointed out that many prostituted women dissociate emotionally during their acts, either through emotional means or through substance abuse. All the panelists agreed on what they would say if President Obama called to ask their advice on prostitution, unanimously stating that they would decriminalize the selling of sexual acts, and increase social services such as health care and housing. However, Dr. Wood and Professor Majic wanted to decriminalize both selling and buying sex, while implementing labor laws and regulations on the industry. Dr. Wood felt that this would help sex workers access courts for real violations of their rights, in that the workers would not fear prosecution. Ms. Carter and Dr. Farley, on the other hand, both argued in favor of holding “johns” or customers accountable, and shifting the criminal burden from supply to demand. Dr. Farley cited research in Sweden that showed criminalizing the demand side of prostitution actually decreased sex trafficking by a large margin. After two hours of debate, Professor Glenn Cohen, the event’s moderator, thanked the audience for being “feisty,” but some participants were not yet ready to leave. Professor Majic continued to emphasize the importance of the language and terms that frame the issue, but Dr. Farley got in the last word: “Legalizing prostitution is a fantasy.”

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Wire, cont’d from pg. 12 Citizenship and Public Affairs, Cora received her LLM from HLS and worked briefly for Cravath, Swaine & Moore LLP. She left private practice to concentrate on international research and advocate for on women’s issues in both Sierra Leone and East Timor. In preparing for the event, Cora checked in on Booker T. Washington, the Baltimore school where she taught 7th grade. “It was as bad as it was when I taught there in 1992. On test scores, it ranks at 1 out of 10,” she said. “And it consistently ranked highest on issues like failure to attend, pregnancy, and guns. It is a nexus of the most challenging social problems that schools face.” But Cora later went to Mott Hall, a Harlem magnet school, where she saw another side of the public school system. “Mott Hall is a school for gifted and talented kids. These were kids who had really motivated parents and family support, people who got them into one of the better public schools.” The contrast revealed to her the stark reality of unequal opportunity. “While I was there, I kept thinking of kids I had at Booker T. who were just as gifted and talented, but who I lost to the street,” she continued. “In those two experiences, I saw the two extremes of public education.” For Cora, the roadblocks faced by students in The Wire are tangible and pervasive. “These are not problems unique to Baltimore,” she said. “These problems exist across this country.” Cora’s desire to build up her advocacy arsenal led to her decision to leave the classroom and enter the law. “I wanted to empower myself to fight the stratification in this country,” she said. Jim readily acknowledged that Cora’s experiences as a teacher informed his performance as Pryzbylewski. “When I was reading scripts, I felt like I was reading the scripts that Cora had been talking about for years,” he said. He went on to admit that it felt a bit odd to examine the relevant issues by watching television, asking, “Why aren’t we watching clips of Cora in the classroom?” However, he went on to recognize the value of popular entertainment as a teaching tool. “For those who have seen The Wire, it’s a godsend,” he said. “It’s great that those issues have been brought to a bigger public arena and a larger audience than they usually would be.” A former teacher in Camden, NJ, one audience member credited The Wire for its depiction of the issues that plague schools throughout the country. She very much saw herself on the screen. “All my friends said, ‘I am Mr. Prezbo’, no ‘I am Mr. Prezbo’,” she added. David Simon’s writing partner, Ed Burns, brought his own experience as a Baltimore teacher to the script, deepening the show’s realism. The audienceeagerly joined the discussion, recounting their own joys and disappointments in the classroom. While watching The Wire, one student recalled her own frustrations, crediting them with driving her from the classroom and into law school. As might be expected of an educator, Cora closed by encouraging the audience’s commitment, noting several ways to advocate for students, even outside the classroom. Though not currently working directly in primary or secondary education, Cora remains in contact with former colleagues now working on policy or attempting to open their own schools. “To this day, teaching remains the most important job I’ve ever done, the hardest job I’ve ever done. And that includes my time in Sierra Leone and East Timor.” “Its great to have had teaching be my first professional experience, because subsequent places I’ve been, I knew when it wasn’t fulfilling me, and I knew it was possible to be fulfilled,” she added. Child and Youth Advocates, a Harvard Law School organization bringing together students interested in a range of children’s issues, including child welfare, juvenile justice, and education, sponsored the event.

Harvard Law Record

December 3, 2009

U.S. Can Learn From EU Telecom Reforms

BY KONSTANTINOS STYLIANOU

This winter, the global telecommunications sector is active as never before. On November 24, Europe voted on its new Telecoms Package, a set of Directives that will serve as Europe’s future network policy. The U.S. is revising its own broadband policy at the same time, commissioning Harvard’s Berkman Center for Internet and Society to compile a study on the current global broadband trends. This fortunate conjuncture of regulatory overhauls both provides a clear vista of where we are heading to in terms of telecommunications, and highlights important differences between the U.S. and Europe, offering lessons, examples and alternatives to both sides of the Atlantic. The EU’s approach is clearly consumer driven, and reasonably so. European countries strove hard to instill competition in the telecommunications sector over the past 20 years, and, having succeeded, they can now shift their attention to enhancing the consumer experience. This did not stop the EU from taking further action to increase competition, facilitating functional separation of national telecoms, requiring more independent national authorities, overseeing national regulatory remedies proposed by national regulators and reallocating spectrum. To achieve uniform application of these rules, the EU will establish a new oversight authority, the Body of European Regulators for Electronic Communications (BEREC). But the new directives will also gravely change the lives of millions of network users directly. The EU will officially embrace a form of network neutrality: national telecom authorities will set a minimum quality level for all services, while network management allows more demanding types of applications to take up the necessary bandwidth. Customers will also receive transparency in the form of better information on what services they subscribe to and what they can or cannot do with those communications services. A requirement that obliges all website operators to ask permission before installing almost any kind of cookie on the user’s computer is another step towards consumer protection, but this privacy provision is so strict that has attracted negative criticism. Finally, European consumers will also be able to change their fixed or mobile phone operator in one working day while keeping their old phone number (it currently takes, on average, nine). EFCA, cont’d from pg. 8 would eliminate the election and make the initial process of checking cards determine if a workplace will be unionized, once a majority has indicated approval. Kochan said that this change is necessary because many who would like to join unions give up because they are “subject to delays both legal and illegal.” He cited data indicating that a third of those who pass the current card check hurdle never manage to conduct a full election to determine if the workers will actually unionize. “You lose an enormous number just in the early stages,” he said. “The majority never reach the endpoint.” In addition to legal challenges to the preliminary steps, Kochan said illegal activity by employers creates an additional set of actual impediments to unionization. According to Kochan, there are approximately 300,000 labor law violations by employers every year. Another EFCA provision that the panelists addressed was mandatory, binding arbitration if a company and union representatives could not draft a collective bargaining agreement within a certain window of time. While arbitrators are generally known for “acting like a judge,” Scalia believes that labor arbitrators would be “writing the contract” and “acting like legislators”. He questioned who the arbitrators would be, whether qualified people could be found to perform that role, and emphasized the “enormity” of the implications of the arbitration provision. “When you’ve got an arbitrator sitting down and writing how you can run a business, that can be life or death,” said Scalia. “I think it would be an even greater disruption to the economy than card check itself.” Kochan minimized the possibility that contracts de-

Most importantly, though, the EU has declared that Internet access is a fundamental right and no disconnection from the internet can take place absent a prior fair and impartial procedure, including the right to be heard, and the right to an effective and timely judicial review. The provision came as a response to the opposition against France’s infamous three strikes law. EU Telecoms Commissioner Viviane Reding said that “the new internet freedom provision represents a great victory for the rights and freedoms of European citizens…. ‘Three-strikes-laws’ could cut off Internet access without a prior fair and impartial procedure or without effective and timely judicial review, will certainly not become part of European law.” The UK is considering a similar law, but both countries recognize that their version of the three-strike law is not inconsistent with the new EU requirements. Some of the issues the EU’s Telecoms Package aims to tackle are common to the U.S. The FCC National Broadband Plan taskforce has also identified a “consumer information gap” and a “data privacy gap,” while the management of the frequency spectrum is also a priority there, especially given the tremendous growth in the smart phone and netbook market. But because American telecommuications companies lack an obligation to share infrastructure, entry barriers for new competitors remain very high, and lack of coordination between firms when laying infrastructure dramatically increases costs. The problems of low rural penetration and digital divide are more acute in the U.S. than in Europe, and the FCC’s efforts are more likely to focus thereon. In that direction a reorganization of the Federal Universal Service Fund, to subsidize the broadband sector more effectively, is under examination. The following months are critical. The FCC must deliver its plan to Congress by February 17, 2010, BEREC is expected to be formed by mid 2010 and the rest of the European directives must be transposed into national law by 2011. The synchronized mobility in the telecoms sector comes in a time where both the US and Europe need to catch up with more technologically advanced countries, like Japan and South Korea, which show the way towards the future: a fast, ubiquitous, integrated network to cover people’s information needs. Konstantinos Stylianou is an LL.M. student from Greece

termined by arbitrators would have major effects for businesses. He said that the scope of arbitration was limited and that “arbitrations are by nature conservative”. “Arbitrated agreements almost always mirror negotiated agreements,” he said. “I’m a critic of arbitration for not being as innovative as we would want it to be.” For Kochan, the arbitration process would provide a way to ensure that more agreements are completed. Moreover, he believes the threat of binding arbitration would lead to 90 percent of contract negotiations ending in negotiated settlements, while the success rate currently stands at only about 60 percent. Kochan also disputed the argument that it would be difficult to find qualified arbitrators. “There is no rocket science to being an interest arbitrator,” he said. Ultimately, Scalia and Kochan differed on the nature of unions in the U.S. and the reasons for their recent struggles. Kochan said that the union system has been responsible for the success of companies such as Southwest Airlines but has been damaged since the 1980’s. “You can see that this process is clearly broken,” he said. “We ought to fix the law and fix it systematically.” Scalia, however, described unions as losing traction because of savvier companies raising working conditions and wages, blunting workers’ desire for unionization, and increasing competition as well as their own success. Furthermore, Scalia believes that federal entitlement and social safety net programs have replaced many of the core functions unions once served in the regulation of economic activity. “Unions have put themselves out of business by asking the government to do the things they used to do.”

Trial Judge Sinks Nesson’s Piracy Defense

December 3, 2009

BY MATTHEW HUTCHINS

Harvard Law Record

The outcome of the trial was predictable if tragic. An industry dominated by corporate titans, seeking to make an example of an individual who had infringed on their intellectual property, brought suit in federal court with the expectation of settling their claims for a substantial monetary penalty which would deter the public at large. Joel Tenenbaum had done no more than many thousands of other young computer-savvy music listeners by installing and using Napster, but it was his unfortunate fate to be selected as a target of opportunity for his copyright infringement. When his case came before Judge Nancy Gertner in the District of Massachusetts, she suggested to Professor Charles Nesson ’63 that he consider taking the Case. But even a brilliant professor from Harvard Law School couldn't win against the stacked deck of legal authority favoring the recording industry. To Nesson, the final judgment at the trial, awarding $675,000 to the Recording Industry Association of America (RIAA), was both disappointing and absurdly excessive. “I got my ass kicked pretty well in this trial.” But Nesson is confident that the long-shot case was a good opportunity to make a stand. “What Joel did in downloading and sharing songs was what just about every kid in his generation did and which I bet a great many of you did.” Addressing a room full of HLS students, Nesson explained his motivations and methods in the defense of Tenenbaum for the innocuous downloading of thirty mp3's. When the case first came to his attention, Nesson knew that there was little chance of victory on the merits, with the only truly viable strategy at trial being the minimization of damages. Nonetheless, Nesson pressed forward with a defense on the merits to the validity of the charges, arguing that the behavior asserted by the RIAA as violating the law was a ubiquitous and socially acceptable activity which should not be considered infringement. Young computer users like Tenenbaum, called “digital natives” by Nesson, grew up in a world where the explosion of music sharing was a widespread cultural phenomenon. “In a way, if you didn't participate in Yale, cont’d from pg. 7 football rivalry between Harvard and Yale. The real rivalry between the schools is of course the question of who is smarter, more elite, more prestigious, more likely to take over the world. There’s also the Cambridge-New Haven rivalry, in which we hate on each other’s cities. But, fine, let’s pretend its about football for a minute. However you want to classify it, we were looking forward to acting like pro-Harvard anti-Yale jerks for a few hours. It was a stunningly sunny day—an auspicious beginning. We walked into the stadium grounds (the Bulldog’s den!) and were met by civilized teasing. A golf cart of blue clad men trundled by, clutching Budweisers. “Go back to Boston!” they yelled, laughing. Come on, that was all they had in them? “We will!” I yelled back. “In about five hours!” As we left the tailgating area, a few couples attempted to come up with something witty and harsh and could only stutter, “Ew, is that Crimson?” I turned around. Were we being referred to as a personified color? “Barf!” they giggled. I waved my pompoms in their

Napster, you really didn't know what was happening on the Net,” said Nesson. “The idea that a whole generation was guilty seemed wrong to me.” Indeed, Hilary Rosen, the chairperson of the RIAA, recognized Napster as, “the most efficient method of distributing music ever invented.” Despite the doubts of colleagues, Nesson believed that the exception to statutory copyright infringement for “fair use” might be applied to Tenenbaum's case. The doctrine was originally developed to provide freedom for creative production of derivative works, and though Tenenbaum's use of the music did not have a creative component, Nesson believed that the Supreme Court's protection of VCR home recording might provide a basis for viewing copyright law as protecting the public interest of consumers, a category which fit Tenenbaum. But precedent was strongly against this theory. Courts had already rejected Napster's fair use arguments based on preview of music for later purchase as well as MP3.com's “space-shifting” argument that the internet could act as a jukebox for owners of licensed CD's. In fact, Judge Gertner accepted Nesson's theory of fair use, but only for the “interregnum” period from Napster's creation in 1999 until the recording industry began to offer a legal alternative for purchase of its music online. But by 2004, when Tenenbaum downloaded the music in his case, the music industry already provided online access to music. Nesson argued, however, that until 2007, when fully transferrable, unencrypted music was available online, there was no full technological substitute that would rule out a fair use argument. “The fair use argument then, to a Court, becomes, a policy argument, in effect, of saying that the law

face and they broke out laughing. On the way into the stadium, two Yale men asked me to pose for a picture with them in front of the giant inflatable Bulldog. Just to show they meant business, they attempted to give me bunny ears. This was hardcore rivalry, alright. Across the stadium, a friend of mine doing a PhD at Yale was at the Forestry School’s barbeque. She gushed to me that they were roasting oysters sprinkled with cilantro. Arriving late was the accidentally smart thing to do. We loaded up on fried food and piled into our seats at the end of the third quarter. Depressingly, the score was Yale: 10, Harvard: 0, and the mood was pessimistic. My friend turned to me in angst. “What do you think they’re going to do?” he said, gesturing at Harvard’s team. I am not the right person to ask about these questions. I follow the game by mimicking what the rest of the crowd is doing. “I think they’re going to play football,” I said. “I mean what will they DO?” I stared back at him, and then I offered

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shouldn't put its weight behind an inferior product. When you have an alternative that is ubiquitous, that the industry has been responsible for making so [because CD's were not encrypted], if the law enforces copyright based on the encrypted product, which is inferior to the available product [which is unencrypted], then it's acting in a way which is counter to innovation.” The rejection of this argument by the trial court left Tenenbaum's fate in the hands of a jury, but the evidence presented by the RIAA, which made it look like Tenenbaum blamed others and lied, interfered with his effort to appear credible and sympathetic. The RIAA was thus able to convince the jury that his conduct was basically, in Justice Breyer's words in the Grokster case, “garden variety theft.” Upon the entry of judgment, Nesson plans to take the case to the First Circuit on appeal, hoping for a reevaluation of the legal theories presented and an invalidation of the damages as unconstitutionally excessive. But in the meantime, there has been an extended delay in the entry of judgment and an exchange of motions that have led to Judge Gertner taking the matter under advisement. Nesson believes there may be reversible error due to the exclusion under Rule 408 of certain parts of a settlement letter offered as evidence by Tenenbaum, since that rule is intended to protect the party that makes a settlement offer and the letter should have been admissible, and that Judge Gertner may hold that the jury's calculation of damages was incorrect and should be reduced to the statutory minimum of $750 for non-willful violation. He believes now, in retrospect, that he should have treated the case as a criminal case, pleading the Fifth Amendment and demanding a bill of particulars, and that future defendants should treat such cases like criminal trials. But despite the rejection of his theory by the trial court, Nesson believes that statutory damages were never intended by Congress to be imposed against individuals. Furthermore, he believes that the statutory fair use defense supports Tenenbaum's case on each of the factors of amount of the work taken, the effect of the market, nature of the work, and nature of the use. Indeed, to Nesson, sharing music has had a net positive effect on the music market by offsetting the harm to large record producers with a huge stimulus to independent music production, and Judge Gertner's own recognition of the “interregnum” following the advent of Napster makes the policy arguments in the case eminently cognizable to a judge and jury.

up a distraction. “Funnel cake?” He does love funnel cake. We tried getting serious about footstomping, but the mood was not contagious. A group of our LL.M. friends abandoned hope just before the start of the fourth quarter and left to tour Yale’s campus. What they missed was a surprising and triumphant comeback. Harvard capitalized on poor playcalling by Yale to win the game 14-10. This was it! This was the reason we drove all the way down to New Haven on a Saturday morning! The crowd poured onto the field. We filed out to the funnel cake stand, again. No sense in getting in their way. We shuffled back into town with the masses, high on the victory and sugar, and I was feeling particularly obnoxious. “Stinks to be you!” I laughed at a man in a Yale shirt. “Do you want to get punched in the face right now?” he asked, glaring at me. Uhm, NO. “Do you want to learn to take a joke right now?” I asked. This man was threatening to punch a girl in the face because she was lording a football victory over

him? He wasn’t backing down. “I play on the team,” he growled. Well that explained things. I sized him up. Apparently, Yale had recruited some very small football players that like to punch girls in the face. But victory had been destined to be ours from the very beginning. “Yeah, okay,” I responded. “So you play on the team. Sorry.” He kept glaring. “Hey man—don’t worry!” one of my friends reassured him, in a cheery voice. “You’ll come back next time!” Traitor! Why was he even speaking to him? This little person had just threatened to hit me! He was psychotic! “Whatever,” the small angry football player spit out, stumbling into the forest on the side of the road. “What the hell was that?!” we asked each other, before deciding to head for pizza, the one thing that New Haven may do better than Cambridge. But the day was ours. Victory was delicious, and not even hostile miniature football players could take that away from us.

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Harvard Law Record

The Wire Meets The Streets

BY REBECCA AGULE

When Cora True-Frost asked the audience how many had seen The Wire, nearly all hands were raised. It was obvious that no one had come for advice on their Legal Research and Writing homework. Everyone was much more interested in learning about Cora’s husband, Jim True-Frost, and his experience working as a television actor. But while Jim’s success came from portraying a cop working the streets and schools of Baltimore, Cora’s inspiration came from hands-on experience in the real classrooms of Baltimore, where she saw the grim consequences of life on the street during her service for Teach for America. On The Wire, Jim portrayed Roland “Prez” Pryzbylewski, a police officer known for his incompetence on the street who shines due to an aptitude for cracking codes and utilizing wiretaps. His character later becomes a middle school teacher at a blighted Baltimore middle school. To provide context for the event, Jim played several clips from the show, depicting Pryzbylewski’s interactions with students. “It’s amazing when we meet people on the street,” said Jim. “They are so touched by the interactions between Prez and the kids. But when I try to redirect the conversation to Cora, who actually has experience in those schools, they aren’t interested.” Running on HBO from 2002 until 2008, The Wire garnered critical acclaim and developed an almost

December 3, 2009

Climenko Fellow and “Mr. Prezbo” Explore Intersection of TV and Reality

cult-like following for its portrayal of Baltimore’s the law, and now her academic research as a Clistreets and citizens. Jim’s work has included numer- menko Fellow concentrates on case studies in family, ous programs centered on the criminal justice sys- trade and criminal law as a means of understanding tem. In addition to The Wire, he appeared on several the fragmentation of norms at the international level. editions of Law & Order, CSI: Miami and Crime After completing her JD-MPA at the Syracuse UniStory, as well as Homicide: Life on the Street, based versity College of Law and the Maxwell School of on the book of the same name by The Wire executive Wire, cont’d on pg. 10 producer and head writer David Simon. Jim now serves as an adjunct faculty member with the American Repertory Theater’s Institute for Advanced Theater Training. “For three years I didn’t know that I would be anything but this misfit cop,” he explained. “Then, late in the 3rd season I got a hint that something serious was going to happen to my character. I thought I was going to get killed off. Then they told me, you are going to play a teacher, and it was bizarre and wonderful.” Cora went from her own Wire experience serving Cora True-Frost LL.M. ‘06 and her husband Jim True-Frost. Cora was a teacher in a for Teach for America into Baltimore school; Jim played one on television in The Wire.

Fall of 1L Year

You can't contract your way into happiness, but, shhh, no one tell the 1Ls - at least until after exams. For these eager young lawlings, implied warranties of liability begin more friendships than break them up. As fall frosts turn to winter chills, examtide camaraderie breeds bizarre rituals around campus, like the dormmates at left, who got comfortable enough with one another to begin coordinating clothes. For the upperclassmen among us, it's either heartening to see first-year students, whose heads are more often found wedged inside casebook pages, out and about – before submitting, again, to the confinement of the library. Take heart, young ones: your lives will probably be waiting for you on the other side of Winter Break, or at least that newfangled problem-solving course. Oh, and don't worry: 10% of you will get low passes, no matter what. Thanks to Sandra Ray for the great photos!

Yalies Trounced by HLS Teams in Basketball, Poker Matchups

Top: The 1Ls of Ames 3rd floor only wear navy blue: Jeremy Troxel, Ben Watson, Sam Kuhn, Big Mike, and Danny McEntee; Bottom, left: 1L Brian Wood being very pensive outside the Hark; Bottom, center: 1Ls Sandra Ray and Greer Libbey at the Head of the Charles; Far right, top: Greer Libbey walking in Harvard Square; Bottom, right: 1Ls Samantha Kuhn and Greer Libbey waiting to board the bus to The Harvard-Yale Game in the B-school parking lot at 6:30am

Crimson Come From Behind for 14-10 Victory in 126th Meeting of The Game

The Court Classic, which took place the night before the Harvard-Yale football game in New Haven, raised money for summer public interest funding at Harvard and Yale. Coach Mike Lloyd '10 led the HLS team to a victory over its New Haven rivals. The event was sponsored by the law firms of: Paul, Weiss, Rifkind, Wharton & Garrison LLP; Fried, Frank, Harris, Shriver & Jacobson LLP; Freshfields Bruckhaus

Deringer US LLP; and Davis Polk & Wardwell LLP. HLS also came up victorious at the third annual Harvard Yale Poker Faceoff on Friday, Nov. 20th. The individual results were wins for: Jonathan Montgomery ‘10, Jamison Davies ‘11, Ryan Adrian ‘10, Peter Ostrovski ‘10. Joe Ferdinand ‘10 scored a tie due to the time limit expiring.

Left to Right: David Hamilton '11, Brent Herlihy '12, Jamie Bull '10, Cory Baird '10, Robert Young '10, Jamie Ianelli '10, and Francesca Butnick '10 represented HLS in its victory over Yale Law on the basketball court.

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