R.129.3 - October 8, 2009_hl Record

Harvard Law Record The Independent Newspaper

October 8, 2009

at Harvard Law School

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Vol. CXXIX, No. 3

MASS. It’s Tom Cruise in...Top Gunner! SENATE: Actor Pops in on Lecture by Hollywood Attorney Bertram Fields ‘52 THE RACE I S ON INTERIM SENATOR

PAUL KIRK ’64 STEPS INTO KENNEDY SEAT

Alan Khazei ’87 and a New Generation Fight Toward 2010 Election

BY CHRIS SZABLA

The race to occupy the late Senator Edward M. Kennedy’s U.S. Senate seat is in full swing. With the state now represented by one Harvard Law School alumnus, interim Senator Paul G. Kirk ’64, another, Alan Khazei ’87, has joined several prominent locals who are now competing in a tight race leading up to the election of a permanent replacement. A U.S. Senate seat has not opened in Massachusetts for decades, and the quest to take over Kennedy’s brought a number of new names onto the state’s political radar. While Democrats and Republicans sparred on Beacon Hill over the possibility Governor Deval Patrick ’82 would be able to appoint an interim successor, potential candidates for a special election, to be held in January 2010, gathered both forces and funding for a contentious campaign. State Attorney General Martha Coakley was the first to step into the ring. Her announcement – that she would run for the first U.S. Senate seat vacancy in Massachusetts in decades – followed so soon after Kennedy’s death that she faced criticism. Weeks later, however, she was the frontrunner in a race that was heating up long before anyone was certain who would represent MassaSenate, continued on pg. 3

INSIDE

The HL Record News

• War Crimes Prosecutor Winds Down Yugoslav Tribual

Opinion

• The G-Force in World Politics • Army’s Afghan Advice Flawed • Who Was Behind Lockerbie?

Features

• Prof’s First Year Survival Tips • 1L Cup Madness

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Financial Crisis Continues to Elude Answers, Provide Headaches

BY MATTHEW W. HUTCHINS

One year and trillions of dollars of government intervention after the financial crisis, experts on financial regulation at Harvard Law School assembled to assess the its causes and effects and to provide insight into what reforms are needed to effectively regulate financial institutions. Moderated by Prof. Howell Jackson ’82, the panel included: Geoff Miller, the Comfort Professor of Law at NYU; Allen Ferrell ’95, Greenfield Professor of Securities Law; Elizabeth Warren, Leo Gottlieb Professor and Chair of the Congressional TARP Oversight Panel; and Hal Scott, Nomura Professor of International Financial Systems. Looking backwards, the events of September and October of 2008 were characterized by widespread uncertainty and unprecedented extensions of the Federal Government’s authority to support financial markets. On September 7th, Fannie Mae and Freddie Mac were both taken into govCrisis, continued on pg. 6

Prof. Elizabeth Warren, right, wants stronger consumer protection in financial regulation. Prof. Ferrell, left, wonders what caused repo market failures. CORRECTION: In the print edition this caption is a repeat from Issue No. 1.

Brazil’s “Minister of Ideas” Returns to HLS Prof. Roberto Unger Succeded by S.J.D. Protégé Daniel Vargas

BY CHRIS SZABLA

Professor Roberto Mangabeira Unger LL.M. ’70’s 2007 appointment as Brazilian President Luiz Ignacio da Silva’s “Minister for Strategic Affairs” – a position that has been described as “Minister of Ideas” – piqued curiosity around the globe. Unger’s task, remarked the New York Times, was no more expansive than to plot a long-term strategy for the country as a whole. The Economist, which ran a profile on the longtime member of the Harvard Law School faculty, seemed intrigued by the appointment’s novelty. Unger was, after all, considered a consummate academic. After completing the written requirements of his LL.M. degree within days of his arrival,

Fabio Pozzebom - Agencia Brasil

he was named one of the youngest professors in Harvard Law School history. His subsequent scholarship was broad enough to be termed philosophical. Yet none of this, alone, made Unger’s appointment surprising – he has been directly or indirectly involved with Brazilian politics, in some way, since the 70s. What made the announcement more astonishing was that Unger had

been one of the President’s sharpest critics, calling his one of the most corrupt governments in the world. Now, nearing the expiration of his paid leave – which, he said, Harvard had refused to extend – Unger has returned to his teaching post, and a much more modest office in Areeda Hall. His former position will not be disbanded – despite political and legal challenges to it that dogged him since the day of his appointment – and one of his students, who is still earning an S.J.D., has provisionally replaced him. Given his vague portfolio, and his barbed words about the President, who is often referred to as Lula, it was probably not surprising that Unger’s time in government caused a stir. Beyond forUnger, continued on pg. 3

Is 1L One Hell? Prof. Einer Elhauge’s Survival Tips

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10. Don’t Wait for the Ball

Many students complain that law professors are just hiding the ball, asking a series of questions without just telling students the answer. For my own first two months as a law school student, my notebook was largely blank because I kept waiting for the answer, which like Godot never came, just more and more questions. I wrote this limerick to express my mistaken attitude. His friends used to tell Socrates Now really, don't be such a tease Just give us the answer And things will go faster And thinking would be such a breeze

But obviously you shouldn’t wait for the ball or the answer. Instead, what you need to understand is the analytical structure of questions relevant to an issue, the range of valid positions, arguments made for and against them, and the process of thinking through them. Because, unfortunately, thinking isn’t such a breeze, and there is no simple ball that is hidden, but rather an array of balls that you need to learn how to juggle.

9. Don’t be boring

We are a polite people, but one can take that too far. A British professor once told me, “Americans are too damn polite, so that a conversation between them consists of each person trying to say what the other person would have said had it been their turn to speak. And that isn’t a real conversation at all.” Don’t be afraid to disagree or be provocative, or even to try on positions you aren’t quite sure about. And don’t close your minds to those who disagree with you. You may find that they are more convincing than you thought, or that discussion with them deepens your understanding of just why they are so wrong.

8. Don’t Ignore What Other Students Say in Class

Now, I don’t say this out of any painfully polite sentiment that everything your classmates say is sound and interesting. It isn’t. And I just told you not to be too polite. The reason to listen to fellow students in class is that, through student comments, professors often teach important lines of arguments or limits with those arguments. Even if you wanted to focus only on what the professor thinks, that may be hard to discern from what they actually say, because professors often just take the opposite position of whatever the student happens to say, to make sure that both sides are developed. So professors may be enthusiastically pushing a position they don’t actually hold. Even if the professor has a position that is revealed during the class, that doesn’t mean it is the gospel or the only thing you should learn, because we’re all trying to prepare you for a world where many judges don’t agree with us – as perplexing as that is – and where the laws, issues, or jurisdictions may differ from the ones we are discussing.

7. Focus on the Forest, Not the Trees

Students often spend huge amounts of times methodically briefing details about case facts, procedural history, and holdings, and memorizing them all. Don’t. It’s a waste of time. As a student, I didn’t cite a single case in any first year exam I took. Professors use case facts and variations to develop doctrinal points, issues, principles, and broader theories. The point is not to know the cases themselves, but to understand the larger points made from them. The cases are only illustrations of the general issues and positions, and a means to the end of understanding them. So brief those larger points, and subordinate cases to what's really important -- the issues, valid positions, arguments, and reasoning about them.

WarCrimesProsecutorWindsDownWork ofYugoslavTribunal,AssessesChallenges

BY REBECCA AGULE

On October 5, 2009, Serge Brammertz, Chief Prosecutor of the International Criminal Tribunal for the former Yugoslavia (ICTY), joined Professor Alex Whiting and a standing room only audience for a discussion entitled, “International Criminal Justice: Challenges of Investigating and Prosecuting War Crimes.” As a former Professor of Law at the University of Liège, Brammertz clearly felt comfortable in front of the student audience, noting his own appreciation for the interaction between the judicial world and the academic one. Brammertz’s fluency in four languages served him well as a Belgian federal prosecutor, where he focused on organized crime, terrorism and international humanitarian law. In 2003, Brammertz moved to the International Criminal Court (ICC), where – as a member of the Investigations Division of the Office of the Prosecutor (OTP) – he conducted the inaugural investigations of crimes in Uganda, the Democratic Republic of the Congo and Darfur, Sudan. Following the 2005 assassination of former Lebanese Prime Minister Rafik Hariri, the United Nations Secretary General appointed Brammertz to the UN Independent Investigation Commission. Charged with closing out the ICTY, Brammertz must finish current trials and locate remaining fugitives. Thus far, the ICTY has indicted 161 persons, with seven cases still to be completed.

Brammertz enumerated some of the Tribunal’s difficulties, including the balancing of victims’ needs against keeping each case manageable. Recalling how former Yugoslav President Slobodan Milošević died before the completion of his trial after five years in The Hague War Criminal Prison, Brammertz said, “We must formulate the indictment to represent the magnitude of the crimes, but we must also be able to present it in a reasonable time.” Speaking of the ICTY, he said, “No one expected it to last for 15, 20 years.” The recent arrest of Radovan Karadžić, after thirteen years in hiding, highlights many of the challenges facing the ICTY. Brammertz noted the heightened significance of the Karadžić trial, especially as it may be one of the Tribunal’s last important cases. Even with the scope of the indictment still pending, Karadžić has begun contesting the Tribunal’s competency, while attempting to claim immunity from prosecution per an agreement with United States Ambassador Richard Holbrooke. The indictment itself, which charges Karadžić with, among other things, genocide and crimes against humanity stemming from his participation in the Bosnian War, including the 1995 Srebrenica massacre, has also given rise to tensions. With only 300 hours to make its case, the Office of the Prosecutor must make difficult decisions regarding which charges to pursue. The OTP currently refuses to make additional cuts to meet these limits, as Brammertz exICTY, continued on pg. 8

October 8, 2009

6. Read Before and After Class

I once had a student who all semester complained that he couldn’t follow the class discussion – it was too confusing. Then, at the end of the class, during exam period, he came into my office said, "You know, the class actually makes a lot more sense, now that I've done the reading." So reading is certainly important. But I think people often fixate too much on trying to understand everything when reading the assignments before class. Often the biggest payoff comes to re-reading the material right after the class, when you can incorporate what you have learned during the discussion.

5. Don’t Just Settle for Blackletter Law

There is a lot of blackletter law and it resolves a lot of cases. So not surprisingly, students often take comfort in just memorizing it. But professors don’t spend a lot of time on it in classes. Why? Is it because law professors are evil and enjoy torturing students with the confusing parts? Well, sure, that’s part of it. But mainly it is because we figure that after 17 years of schooling with top grades, most of you already know how to read. To the extent just reading the rule resolves the issue, we kind of think you got that covered on your own. We may spend some time at the beginning of classes summarizing the basic structure of the blackletter law, but that doesn’t mean that is the main thing to focus on and that you can just snooze through the following question and answer period. It is comforting to focus on the blackletter law because it is the clearest, but the debated issues are what you really need to focus on.

4. Law Is Not Distinct from Policy

Students often act like there are two subjects being taught – law and policy – the law part which they apply in figuring Tips, continued on pg. 3

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Tips, continued from pg. 2

out how the law resolves particular cases, and the policy part which they apply to answer the question of what the law should be. Don’t make this mistake. Policy is the just continuation of law by other means. After all, what do we mean by “policy” in law other than arguments about what legal outcomes we should deem best? If you don’t have arguments on that topic, judges will be influenced by your opponent who does, so your opponent will win any area where blackletter law does not provide a clean answer as applied to your case. It can also be hard to understand what the blackletter law means or when it should apply, unless one understands the policies it furthers.

3. Ask What Future Parties Would Want

In addressing policy questions, one gets relatively little out of asking what the best outcome is for the two parties to the litigation, because they are in court precisely because they disagree about that. Instead, generally the best approach is to ask: “What Would Future Parties Want?” Often the answer is clearer before vested interests are acquired, when benefits to one party can be traded off against harms to the other. Or one might want a rule that is more likely to flag the issue to future parties, and elicit what they would want.

2. Go Meta

It won’t surprise you to learn that legal policy analysis often leads to unclear or conflicting conclusions. In these sorts of situations, it is often useful to switch to the meta-question of framing issues around who best is placed to decide the question. Every time one side argues that X is the best outcome, the response can be not only that Y is a better outcome, but also the meta-argument that judges are not the best placed to decide whether X or Y is best, so judges should defer to some other set of actors, such as legislators, agencies, or contracting parties who have chosen (or would choose) Y. Just remember the old saying, “Anything you can do I can do meta.” Unger, continued from pg. 1 eign trade and food security, Unger advised Lula on energy and the environment, clashing repeatedly with Brazil’s former environment minister, Marina Silva, over development in the Amazon rain forest. Unger argued that the country could expand its agricultural output without clearing more land in the forest – but then advocated energy projects and other forms of development in the Amazon. He also said that Brazil’s military outlay needed to be expanded to protect offshore oil reserves. His prodevelopment push appeared to clash with his responsibility to chair the President’s “Sustainable Amazon” project, and contributed to Silva’s resignation in September 2008. She is now being touted as a potential challenger to Lula in the 2010 Brazilian elections. Earlier in his tenure, Unger also faced uncertainty about the direction he would take the country’s Institute of Applied Economic Research. Many feared it would be politicized. Whatever the direction in which the institute moved, Unger certainly left a mark – 5 of its 6 directors were replaced since Unger’s appointee for its head took office. The institute now faces allegations that its research is more “in line” with the government line than previously. Unger’s return from political practice hardly signals his retreat from the field – he is the author of a multivolume work that takes the expansive title Politics as its name. If that sounds Aristotelian, so, too, do Unger’s ideas. In his first major lecture since returning to Harvard this fall, Unger lambasted the “dictatorship of no alternatives” prevalent in the culture of legal thought, and called instead for a principle of social organization that would “divinize humanity”. Specifically, Unger called for political solutions that would broaden access to elite, “post-Fordist modes of production,” such as information technology, and for states that focused on “equipping and monitoring” civil society rather than trying to provide social services itself. He also advocated the weakening of strong executives by making branches of government mutually ac-

countable to one another – the reduction in executive power, he said, would desirably “heighten the temperature of politics”. Unger portrayed his address as a means to move beyond tired clichés that have dominated law and politics for half a century, particularly what he called “the social democratic compromise,” which is popular in much of the world beyond the United States. Several in the audience who had long studied Unger’s ideas, however, said that they thought the themes in his speech were a rehash of ideas the scholar was already well-known for. Nevertheless, Unger’s thoughts have always prompted spirited debate, in both practice and theory. Former students recall vocal disagreements between him and President Barack Obama ’91, when the latter was studying at the law school and when Unger, according to the Chronicle of Higher Education, was at the high point in his career, with many of his most influential books hot off the presses. Despite the one time disagreements between Unger and his one time student, the professor says that the two still stay in touch. What’s more, Unger’s influence may have rubbed off on other parts of the Obama administration. The new regulatory czar, Cass Sunstein ’78 – who himself engaged with Unger’s ideas in the late 80s – is now known for ideas that similarly bridge the ideological chasm between left and right by proposing state support for the conditions that lead to self-expression. And in further evidence he has won influence, Unger’s provisional replacement in the Secretariat for Strategic Affairs, Daniel Barcelos Vargas – a current Harvard S.J.D. student – will likely fill his mentor’s shoes capably. He calls the professor “the best I had” and worked as his chief of staff in Brasilia. More importantly, the obstacle that brought his former boss back to Cambridge has been cleared – HLS’ graduate program will allow Vargas to remain at the post, without having to worry about abandoning his progress toward a doctoral degree.

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1. Realize the Difference Between Being Confused and Understanding the Confusion

Often students have the following the experience. They read the materials and thought the law seemed pretty clear. Then they went to class. And now the issues seem confusing. So they wrongly conclude that class is actually lessening their understanding. What this reaction misses is that often the correct understanding is that the laws and issues are unclear. There is conflict about what the doctrine means, when it applies, when it trumps other doctrines, and what justifies it, and the same set of issues can be framed in multiple ways. Realizing this doesn’t mean you are confused; it means you understand the confusion. Others leap to the opposite conclusion that all legal issues are confused. But that doesn’t follow. Some things are resolved, and there is a structure to thinking about the unresolved issues. Unfortunately, sometimes students get so focused on spotting ambiguities and conflicts that they begin to jump at shadows, straining to find ambiguities and conflicts everywhere, even when they don’t exist. You have to understand the confusion that exists without seeing nothing but confusion. Perhaps I can best explain this with a saying from Zen. So here it is, quite literally, your moment of Zen. Before I studied Zen, mountains were just mountains and rivers were just rivers. When I first took up the study of Zen, mountains were no longer mountains and rivers were no longer rivers. But now that I am a Zen master, mountains are once again mountains and rivers once again rivers.

There will come a time for you this year when legal mountains no longer seem like mountains and legal rivers no longer seems like rivers. But have some faith that when the year ends, and you are a law master, that saying will actually make sense. Senate, continued from pg. 1 chusetts in the Senate in the interim. With health care legislation pending in Congress, few Democrats were willing to lose their party’s legislative supermajority. Armed with a personal appeal from Kennedy, and the argument that the state ought not lose representation, advocates of an interim appointment engaged naysayers who claimed it was hypocritical for the state legislature to overturn a law it had passed in 2004 to ensure that Republican Governor Mitt Romney ’75 could not appoint his choice of replacement Senator had John Kerry won the presidency. Eventually, advocates of an interim seat prevailed. At the Kennedy family’s suggestion, Patrick appointed Paul G. Kirk ’64 to fill the seat until January. Kirk, who was, until then, head of the Kennedy Presidential Library in Boston, had been a trusted confidant of the former Senator Kennedy for decades. His ascension to the Senate, if only for a few months, brings the number of U.S. Senators who graduated from Harvard Law School to seven. In the meantime, the field of candidates running in the 2010 special election has only grown more crowded. State Republicans have fielded, mostly prominently, Scott Brown, a State Senator from Wrentham. Despite the overwhelmingly Democratic character of the state, its Republican Party is not moribund – three of the state’s last four governors were affiliated with the GOP. Still, Massachusetts voters have preferred Democrats represent them on the national level. A mid-September poll indicates that Coakley would likely beat Brown even without the support of then-undecided voters. That means the most likely future Senator will be decided on December 8, the date of the Democratic primary. Beyond Coakley and Khazei, Mike Capuano, who represents the state’s 8th District in the House of Representatives, and Stephen Pagliuca, the owner of the Boston Celtics, have official candidacies. The same September polling data indicates a commanding lead for Coakley, who has benefitted from her early leap into the race, and the fact that she is the only one of the candidates to

be elected to statewide office thus far. Capuano was thought to benefit from his experience on the national level, but trails. The polling did not take into account Pagliuca’s impact on the race. While Coakley is largely considered a safe choice – her most controversial action as Attorney General has been prosecuting individuals promoting the Aqua Teen Hunger Force movie with guerilla art installations that shut down the city of Boston after they were thought to be bombs – Khazei, whose background is both Irish and Iranian, has positioned himself as an outsider. The founder of a number of public service initiatives, most notably City Year, a youth service program affiliated with AmeriCorps, Khazei was a major supporter of the Edward M. Kennedy National Service Act, which dramatically expanded federal commitment to similar programs. On Wednesday, Khazei’s campaign announced that he was being endorsed by a scion of the Kennedy family, Max Kennedy, the son of former Attorney General and presidential candidate Robert Kennedy. HLS Professor Lawrence Lessig also announced – via Twitter – that he was supporting Khazei. Pagliuca, who graduated from Harvard Business School and made his fortune in consulting, has campaigned as someone who can use his business acumen to improve the national economy. Democratic voters may balk at some of Pagliuca’s beliefs, however – while he stands with members of the party who support the option of a public insurer as part of health care reform and supports same-sex marriage, he has said he is pro-choice, and backed a run by Romney against Kennedy in 1994, as well as the gubernatorial candidacy of Republican William Weld ’70 and, in 2000, George W. Bush. Capuano is a five-term Representative who is best known for a committed stand against the Patriot Act and a commitment to international development aid initiatives. Other members of the Massachusetts House delegation declined runs, saying they were in more powerful positions in their committees in the House than they would be in the Senate.

The G-Force in World Politics

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October 8, 2009

As the G20 replaces the G8, MATTHIAS C. KETTEMANN revisits the nomenclature of “G” in world politics.

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

Staff Editors Rebecca Agule News: Opinion: Jessica Corsi Sports: Mark Samburg Contributing Writers Matthias C. Kettemann Kate Spencer Andru E. Wall Nicholas Joy Oramel H. Skinner [email protected] or Harvard Law Record Harvard Law School Cambridge, MA 02138-9984

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At the Pittsburgh meeting of the Group of 20, or G20, President Obama announced that the more legitimate informal gathering of 20 states would replace the smaller, and more elite, the G8 as the world’s premier forum for discussion on issues such as climate change, global financial stability and finding responses to systemic imbalances. While accepting the G8’s effectivity, international relations scholars and most states not included in this exclusive circle have criticized the role of ‘club governance’ for some time and should welcome the trend to this (slightly) more representative forum. But the G-force experienced by politicians in an interconnected, interdependent world which requires policy responses to keep up with the pace of change does not stop there. In fact, G is probably the most important letter in international relations, as it is used to describe a rich variety of unofficial political constellations with political clout disproportionate to their legitimacy – if measured in traditional terms. Here’s why: Whether the G2, a proposal suggesting closer ties between the US and China is a “G1,” or a “good one,” is open to question. The G3 is both a grouping of Colombia, Mexico and Venezuela and of the three biggest European countries, Germany, France and the United Kingdom. The G4 serves to designate both, a group of China, India, Brazil and South Africa as the leaders of the WTO subgroup G20 and a coalition of Brazil, Germany, India and Japan that is campaigning for seats on the Security Council. Since the last G7 meeting, the G4 has become shorthand for an ‘elite’ group of US, Japan, China, and the EU which President Obama pushed to supplant the G7 (a proposal, which seems to be somewhat at odds with his G20 proposal promoting more international legitimacy). The G5 was used to designate the world’s largest economies (US, Germany, Japan, France, UK) until the group was expanded. Another G5, referring to a group of nations consulting on matters of European security policy, is still in existence (though has been largely inactive lately). The G6, the former G5 plus Italy, now meets as the G7 (plus Canada), the G8 (plus Russia) or the G9 (plus the European Commission). But let’s talk business: in international financial institutions, where effectivity counts for a lot, the G7 has an important role, as well. The finance ministers and central bank heads of the eleven biggest OECD countries meet, surprisingly enough, as the G10. Perhaps they wished to avoid confusion with the actual G11, the “Cartagena Group”, a group

of South American debtors that have teamed up forces to ease their burden by negotiating for common solutions. The G12, again, is a forum for central bank representatives of 13 industrialized nations. The G13 is a group of states which are uniting their forces to reform the United Nations (Since their efforts have not been spectacularly successful to date, they might profit from some inspiration from their namesake: G13, a marijuana strain of “American Beauty” fame). But here there’s “clean” fun, too: the G14 is a group of 18 Europe’s soccer clubs, including big names as Ajax Amsterdam, Bayern München, Manchester United und Real Madrid. Now, back to international relations: the G15 is a group of 17 non-aligned states founded in 1989, which promotes ideological independence in international affairs and has, in the past, proved anything but ideologically independent. In trade negotiations, the G20 developing countries includes a growing number of developing countries from Argentine to Zimbabwe that represent 65% of the world’s population. Better known, of course, is the other G20: the informal gathering of the 20 biggest economic powers and the European Union, which is now destined to become the world’s most important governance club. The G24 is a sub-group of the G77 (of 132 developing nations). Both represent the interests of developing nations in international financial institutions and global trade talks. In the framework of the G90, meetings of African, Caribbean and Pacific island states are held. Even when flying to and from group meetings, the politicians cannot quite avoid the force of the G: neither the gforce (during acceleration and deceleration), nor the gravitational constant G (when staying in air) – nor, incidentally, the G100, G150, G400, G500 or G550, all airplanes manufactured by Gulfstream and used as business jets that transport the G-groups’ VIPs. What does this brief survey tell us about the role of the G in world politics? First, that you can never trust numbers; second, that ‘club governance’ is on the rise and that informal gatherings producing Gentlemen’s Agreements play an increasing normative role; and third, that teaming up to pursue common interests is the best way forward in an increasingly complex and interconnected world. The G-force in international affairs can also inform the stalled process of UN reform. Isn’t the debate missing the obvious way forward: simply renaming the 192-member states organization. G192, anyone? Matthias C. Kettemann is an LL.M. student from Austria.

Obama Should be Wary of Military Re-Examining Lockerbie Who Really Committed the Bombing? Why was Advice on Afghanistan

BY ANDRU E. WALL

In the coming days President Obama will answer this critical question: what is the US strategy in Afghanistan? As he weights the options, burdened by eight years of strategic blunders, no shortage of advice is being offered by his national security team and the Washington chattering class. If you listen closely, you’ll recognize two familiar refrains: the military can win this war if only it is given the necessary resources, or, alternatively, the struggle for freedom in Afghanistan is not (or should not be) a predominately military struggle. This debate, which closely parallels debates over Vietnam, appropriately arouses passions on both sides. What is not helpful are contentions that one position is more patriotic or “pro-military” than the other. Rubber-stamping General McChrystal’s request for more troops does not prove the President’s commitment to national defense any more than supplying unlimited financial aid to Afghanistan proves his commitment to democracy there. Strategy and leadership require difficult choices between competing and complementing interests. History is replete with examples where civilian leaders correctly overruled generals in the field (Lincoln, Churchill and BenGurion to name but three) providing decisive leadership that led to victory. Military experience or perspective do not guarantee successful strategy. Let us embrace a shared vision of security for America and self- determinism for the Afghan people. Invective and personal attacks from pundits and retired officers do not move us closer to this vision.

Andru E. Wall is one of the three American LL.M. students at HLS. From 2007 to 2009 he was the senior legal adviser for U.S. special operations forces in Central and Southwest Asia.

al-Megrahi Really Released?

BY KATE SPENCER

Creating headlines since December 1988, the Lockerbie saga just won’t go away. The most recent media coverage has revolved around the release of the convicted al-Megrahi and his return to Libya. His release and the hero’s welcome he received provoked international outrage, most vocally from the U.S. Was it really a straightforward case of the Scottish Justice Minster experiencing a tug on his heart strings after meeting al-Megrahi, terminally ill with cancer? On December 21, 1988 at about 7:20pm, over a small town in the Scottish Borders, Pan Am 103, heading from Heathrow to New York’s JFK Airport and carrying primarily American passengers, fell from the sky . A bomb exploded from within the hold, tearing a hole into the side of the plane, which then snapped into pieces in the air. There was no time for the cabin crew to make a distress signal, no emergency procedures were initiated – all on board fell to the ground from 31,000 ft. The explosion killed 11 people on the ground Lockerbie. No passengers or crew on board the plane survived. Fatalities totalled 270. Theories abound as to the perpetrators and motives of the attack. Books, films and countless documentaries have publicised the inconsistencies surrounding the case (notably few have been screened on U.S. television). Initial blame focused on three countries: Iran, Syria and Libya. Following the erroneous shooting down of an Iranian passenger plane by the USS Vincennes 5 months earlier, Iran had likely motive. The U.S. Defence Intelligence Agency indicated that the Palestine Front for the Liberation of Palestine in conjunction with elements of the Iranian government and Hezbollah were planning to attack a U.S. target. 8 weeks before the bombing a PFLP cell was arrested in West Germany and bombs similar to that Lockerbie, continued on pg. 7

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CRUISE CONTROLS! ACTOR INVADES HLS

Photos: Jessica Corsi

Hollywood Star Appears with Hollywood Attorney Bertram Fields ‘52 in Entertainment Law Class

BY JESSICA CORSI

On Monday, October 5, Prof. Bruce Hay's Entertainment Law class began with a slight twist: renowned lawyer to the stars Bertram Fields '52 was there to discuss his experiences in Hollywood. But the real buzz began when, a little over 30 minutes later, Fields' client Tom Cruise surreptitiously entered the classroom. Immediately met by nervous giggles and huge goofy grins, he flashed his megawatt smile in return, waved, and announced that he was there to see Bert speak; after all, he'd never had a chance to hear him lecture before. Making his way to the very back row of the classroom, Cruise quietly took a seat amongst students, and assumed an attentive posture. After quick, smiley glances in his direction, students resumed their normal classroom activities--they raised their hands and asked questions; they GChatted; they took notes; they browsed Net-a-Porter and Bergdorf Goodman. From time to time they would steal a sidelong look at the glowing actor. Listening intently to Fields' lecture, he would occasionally lean over and share a quiet joke with the student sitting next to him, who, except for these moments, kept her eyes politely trained on her computer. Throughout his discussion, Fields would refer questions back to Tom, and Cruise would also interject his own experiences. He spoke about tabloid magazines

and issues concerning the propriety of celebrity images, working with directors such as the late Stanley Kubrick, and the business of how the rating on movies gets set in the U.S. as compared to how it works in Europe. When Fields responded to a student's question by constructing a hypothetical scenario in which Tom demanded that his cat be shipped to Boston as part of a contract, Tom jokingly quipped, "I don't actually have a cat." Throughout the two hours of class, there was a natural and comfortable exchange between Fields, Prof. Hay, Cruise, and the students. Cruise kept students laughing with his jokes and intrigued with the unique opportunity for insight into doing business in Hollywood. At one point, Cruise referenced some of the characters he had played who had gone to Harvard Law School, notably Mitch McDeere, his role in the 1993 adaptation of John Grisham's novel, "The Firm." He joked that, once while jogging, someone had stopped him and asked him if he had gone to Harvard Law. He listened and responded to all student questions and comments, nodding in agreement many times, laughing at jokes at others. Twice during the class, Fields paused to remember the name of a movie and a particular line, and students helped him out by yelling, "A Few Good Men!" and "You can't handle the truth!" But things really got fun when class ended, and

Cruise--waving and smiling--made his way to the front of the class to embrace Fields warmly. By then, a bush fire of text messages, emails, and IMs had alerted the school that *TOM CRUISE!!!* was sitting nonchalantly in the back row of Langdell South, and the room was crowded with students who did not regularly attend this class. Despite this, Cruise was gracious and charming, staying for an hour after class to speak intimately with the students. He answered questions such as, "Is there a role you regret not taking?" (short answer: no) and explained the interaction between paparazzi and his three children. As he put it, he does not want his children to be afraid of anything, and so he downplays the intrusion of paparrazi. As young children often do, his daughter Suri has, according to Cruise, some comical responses. For example, she will sometimes throw down her arms and say "Why is this person following me?" and has responded to encroachments on her privacy by raising a hand and declaring, "Personal space!" Cruise probably gave more time to HLS students than many professors are able to after class. Sharing advice, stories, high fives, handshakes, hugs, and even at one point an impromptu dance, he made this early autumn evening at HLS an especially entertaining one for all students lucky enough to greet him in person.

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Harvard Law Record

on their books, the stress test has become obsolete due to unemployment that has grown faster than projected, the financial stimulus programs have basically run their course, and the commercial real estate market threatens to drop another bomb shell. So, who is to blame for the calamity we continue to face? Prof. Miller says that a short list might include the names of figures like Bill Clinton, George Bush, bankers, homeowners, Barney Frank and others, but the central focus of blame should land on three people in particular: “Alan Greenspan, Alan Greenspan, and Alan Greenspan.” According to Prof. Miller, the growth of the financial bubble, which inflated real estate markets and precipitated an unsustainable model of finance, was largely due to the unjustified policy of the Federal Reserve to maintain low interest rates. “It rained credit for 40 days and 40 nights, and when you get that much credit it’s going to find its way to the sea. It just happened to find its way there through the river of subprime mortgages, but if it hadn’t been that it would have been commercial real estate or

October 8, 2009

by forces.” She argues that, looking backwards, there is evidence that Greenspan’s policies were designed to ernment conservatorship, giving the United States a shift systemic risk from financial institutions to fam79.9% stake in each entity. One week later, Lehman ilies by encouraging variable rate mortgages and the Brothers failed and entered bankruptcy, Merrill Lynch extraction of equity from homes for investment and was ushered into an acquisition by Bank of America, consumption. Now she believes that families have and AIG was bailed out, with the government again been put in a double bind, burdened by an overtaking 79.9% ownership. By the end of the month, whelming amount of debt and at the same time held the Reserve Primary Fund “broke the buck”, precipiresponsible as taxpayers for the public debt being astating a Federal Reserve plan to guarantee the fund’s sumed by the government in order to support the fiassets, Wachovia was being acquired by Wells Fargo, nancial system. the stock market was in free fall, the TARP bailout Worst of all to Prof. Warren is the moral turpitude of had failed a key vote in the House, and the short-term the business model adopted by financial system. She credit market or “Repo” market had frozen, causing sees the predominant shift in the industry over the last credit-default swap spreads to skyrocket. The predecade as being from the transparent pricing of risk to vailing atmosphere of hopelessness led to the TARP the adoption of a set of “tricks and traps” designed to program being authorized on a second vote, beginlure in consumers and then punish them arbitrarily ning a process of government support that would ulwith fees and penalty interest rates. “A business timately bring relative stability. Prof. Hal Scott, who model that is built on fooling people about what credit laid out the timeline of the crisis for the audience, costs is a bad business model for families and ultinoted that the macro-level stability today must be conmately for businesses too, because good products get sidered in light of the dire circumlost in the shuffle.” Furthermore, stances. “If the alternative was that the executives and experts who banks fail and precipitate an ecoprofited off the implementation of nomic collapse, then we had no alterthe present system have largely native.” been rewarded not for value-proBut Prof. Miller pointed out that ducing innovation but rather for the impossibility of proving the counthe repackaging and aggregation terfactual scenario will prove to be of risk in opaque instruments. the source of imponderable riddles as “We have built a pricing model we look back in history. “What that encourages deception and would have happened if we didn’t fraud in the name of the next, rescue Bear Stearns? What would fancier thing.” have happened if we had rescued The future of the financial sysLehman?” Prof. Miller sees a mixed tem remains cloudy, with the result from the government intervenshape of future reforms obscured tions that stabilized financial marby the failures of the current regkets. Positive consequences include ulatory framework to avert a the stabilization of financial marmajor catastrophe. According to Left to Right: Howell Jackson, Geoff Miller, Allen Ferrell, Elizabeth Warren, and Hal Scott kets, the restoration of functioning Prof. Scott, capital requirements credit markets, the signs that “green shoots” are something else.” will be one of the crucial tools used by regulators to emerging and foretelling of economic recovery, and Professors Ferrell and Scott were less critical of Mr. construct a more stable foundation for core instituthe potential for positive regulatory reforms. On the Greenspan in their assessment of central bank policy tions. “We’ve got to get capital regulation right, and other hand, the US, UK, and Euro zone have together and the causes of the bubble. Prof. Ferrell noted that this is very very hard. To expect regulators to set the spent more than one sixth of their collective GDP on loose monetary policy in the United States was a func- price for risk is daunting.” One of the key problems is financial rescue packages, there is a possibility of in- tion of very large capital inflows that had been caused that the pricing of risk, a function which has largely flation if liquidity is restored, moral hazard is a major by fixed exchange rate systems around the world, and been entrusted to analysts in the market, has not been concern as financial institutions take risks with pub- that the only tool the Fed had to maintain full em- matched by the projection of what capital requirelic funds, and further financial problems linger on the ployment in the face of such capital inflows was to ments to hold against such risk. Prof. Ferrell sees both horizon as commercial real estate seems poised to un- lower interest rates. Prof. Scott expressed doubts the SEC, with its lack of financial savvy, and the Fed, dergo the same collapse which occurred in subprime about Prof. Miller’s revisionism, asking, “What with its myopic reliance on markets, as too specialhousing finance. would have happened to Alan Greenspan if he had ized to handle the task of reform. Prof. Miller is conProfessor Warren is skeptical and warns that there is said, ‘Hey, this is a bubble, I’m going to crush this vinced that the debates spawned by the crisis will an alternative view of the present situation, that “The thing.’ It’s always easier after the fact to say it was a result in a new architecture being developed for figreen shoots have been glued onto a dead plant.” She bubble than to actually stop a bubble in progress, be- nance. “Life, in the form of legislation and regulalooks back to the financial crisis and the “too big to cause people will not necessarily agree that it’s a bub- tion, is going to take shape from this cosmic soup of fail phenomenon” and sees a sector today which has ble.” the financial crisis, and we are not completely sure become even more consolidated and more vulnerable But Prof. Warren agreed with Prof. Miller that what form it is going to take. But five years from now to systemic risks. Under the surface, the toxic assets Greenspan’s policies were indeed a precipitating the regulation of financial institutions is going to be damaged balance sheets at major institutions remain cause. “I don’t see Alan Greenspan as a man pushed significantly different than it has been.” Crisis, continued from pg. 1

Changing Court: FedSoc Panel Debates the Sotomayor Factor

BY ORAMEL H. SKINNER

The Supreme Court began a new term this Fall featuring a new member, Justice Sonia Sotomayor. With any change in the composition of the highest court comes a flood of commentary on the future of the judicial confirmation process, and so the Harvard Federalist Society invited judicial commentator Ed Whelan to discuss the Sotomayor confirmation process and Supreme Court confirmations with Visiting Professor Sanford Levinson. Each agreed that the Sotomayor process represented a victory for conservative legal principles and left many progressives frustrated. Whelan noted that Justice Sotomayor did not present a strong argument for any sort of progressive judicial philosophy during her entire hearing. Despite the existence of

a nearly filibuster proof majority in the Senate in support of the President, she pointedly rejected President Obama’s empathy standard of judging and offered very conservative sounding answers to basic questions of judicial philosophy. According to Whelan, Justice Sotomayor “sounded much like a conservative, or a caricature of a judicial conservative, in much of her testimony.” Whelan saw this approach as evidence that “conservatives have succeeded in coming up with language which is persuasive and accurate” in portraying conservative judicial beliefs convincingly. Prof. Levinson agreed that in the confirmation process “there was a triumph of a certain type of language” regarding the court, though he noted that he thought this language so extreme and binary that no one actually believed it in practice.

Looking into the future beyond the most recent confirmation process both men also agreed that, in the words of Whelan, the “era of Republican disarmament on the Supreme Court is over.” Unlike the confirmations of Justices Ginsburg and Breyer, Republican Senators engaged on substantive issues of legal approach and philosophy during the most recent confirmation battle, and thirty-one Senators voted against the confirmation of Justice Sotomayor despite her clear path to confirmation. To both Professor Levinson and Mr. Whelan this marked a new era of Supreme Court confirmation battles. To both commentators this movement toward a more pointed discussion of judicial philosophy a good. Whelan thought that it was a “healthy thing” to have a “debate about judicial philosophy.” Levinson bemoaned the fact that

Democrats and the President had shown a lack of backbone and leveled criticism at the handling of those nominated for the Supreme Court. Professor Levinson also criticized the practice of employing nominee handlers. “I would be interested to know how much Justice Sotomayor was affected by handlers.” He noted his desire to see more nominees be open and honest in the process like Judge Bork, but he admitted that post-Bork the best strategy is to “clam up or deceive.” According to Professor Levinson an example of handlers having too much of an impact on a nominee was Justice Thomas. “Justice Thomas did himself a disservice by listening to his handlers, and as a result many have dismissed him intellectually.”

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Harvard Law Record

Lockerbie, continued from pg. 4 used on Pan Am 103 were confiscated. However, in 2001 a Libyan intelligence officer, Abelbaset Ali Mohmed al-Megrahi, was convicted of involvement in the bombing and sentenced to life imprisonment, amid extreme doubts over the circumstantial evidence that secured the conviction. The trial was conducted under Scottish criminal law, before three judges and no jury at Camp Zeist in the Netherlands. The entire investigation, trial and aftermath has been immensely complex, and al-Megrahi’s release has only served to fan the flames of conspiracy theorists and add to the international controversy. Skepticism of some of many of the emerging theories is important. Potentially significant evidence was either not followed up or not presented at trial. It is alleged that quantities of heroin, large sums of U.S. dollars and a T-shirt bearing Hezbollah insignia were found at the crash site in Lockerbie, claims that were never investigated. American agents were present at the crash scene and a recent documentary film has suggested a fragment of the explosive device left the U.K. and was examined in the U.S.: an allegation which, if true, could have resulted in a claim of contamination of evidence. Further facts that raise questions are: the party of American intelligence officers on board the flight returning to the U.S. after an aborted hostage-rescue mission in Lebanon, the anonymous warning made to the U.S. Embassy in Finland in early December 1988, warning that a Pan Am flight from Frankfurt would be blown up by Palestinian terrorists in the next two weeks. Still, politically and logistically, bringing an Iranian sponsored Palestinian terrorist cell to justice would have been nigh on impossible. Undoubtedly Libya was a more convenient accused. The prosecution maintained that the bomb was placed in luggage in Malta. By the end of the trial the defense was suggesting the possibility of it being planted in Heathrow, a theory supported by Robert Baer, a former CIA agent (played by George Clooney in Syriana!) He suggests that it makes no sense for the bomb to be put on the plane at Malta and having to make two stops before it exploded on its way to the U.S. Much more likely, he maintains, that the bomb had been planted at Heathrow. Months after the conviction of al-Megrahi, a former security guard at Heathrow revealed he had discovered a break in at the Pan Am luggage facility on the day of the attack. The prosecution case relied on the premise that a bag was checked on a plane from Malta, not Heathrow, without a corresponding passenger. In a civil action brought by Air Malta over a “libellous” documentary that showed the “bomb bag” being loaded onto the plane at Malta, the airline produced evidence proving all bags had been accounted for and accompanied by passengers. The action settled out of court. Also key to the prosecution case was the witness evidence of Tony Gauci, a Maltese shopkeeper and tailor, who claimed to have sold the clothes found in the suitcase containing the bomb to al-Megrahi. Considerable doubt arose from Gauci’s evidence, particularly in light of allegations of a $2 million pay-off. Gauci was non-committal as to whether al-Megrahi was the man who purchased the clothes from his shop. The closest he got to a positive identification was to state that there was a “resemblance”. He was uncertain of the date he sold the clothes and was memorably described by the man who indicted al-Megrahi, Lord Fraser (Scotland’s most senior law officer at the time) as “not quite the full shilling”. The UN appointed external arbiter stated after the trial: “there is not one single piece of material evidence linking [Megrahi] to the crime… the guilty verdict appears to be arbitrary, even irrational.” He has also said that the split decision, where one accused was found guilty and the other not guilty is highly questionable and further, that it is impossible to believe that a lone intelligence officer could have masterminded and organised the attack. While the Libyans did eventually (in a roundabout way) accept responsibility for the attack and paid out billions in compensation to Lockerbie victims’ families, Libyan government officials label this move as purely pragmatic: “ [it was] easier for us to buy peace and this is why we agreed to compensation.” A Scottish Criminal Cases Review Commission (a body established to investigate alleged miscarriages of justice) inquiry was launched and a recommendation given that there should be a new appeal. This second appeal was conveniently dropped before Al Megrahi’s release. Why? Was a deal done? Was Al Megrahi persuaded to drop his appeal so he could go home to die? Therein lies the true injustice – and the only assumption that can be drawn is it wouldn’t be in the interests of any government concerned to pursue the appeal. So, unanswered questions engulf the Lockerbie affair. An official inquiry, so desired by the families of the Scottish victims and the general public, has been repeatedly refused; the UN is now being called on to conduct an international inquiry. The evidential issues have never been resolved. Factor in the British commercial presence in Libya (oil and arms trade), the Blair government’s favorable attitude toward Gaddafi and Gaddafi’s volte-face desire to ingratiate himself into the international community. Add to this the extraordinary prisoner extradition agreement in 2007 (that the Scots refused to carry out) aimed solely at returning al-Megrahi to Libya and the picture of emerges is one that appears to leave the U.K. government with much explaining to do. Whether the conspiracy theories have anything to do with al-Megrahi’s release is an entirely separate issue. What all these conspiracy theorists (who see the release as the latest development in a series of unorthodox goings-on) ignore is the “Scottish” issue. Scotland has a distinct legal system, an entirely independent criminal justice system and, since 1998, a devolved Scottish Parliament with the power to legislate on most “domestic” matters. The most recent Scottish election resulted in an Scottish Nationalist majority coalition, with a clear autonomist agenda. Relations between the Scottish Government and Westminster are frosty to say the least. The idea that the Nationalist administration would risk international censure by releasing al-Megrahi on the orders of Gordon Brown to further “British” business interests is, to my mind, absurd. Release on compassionate grounds is a genuine tradition in Scots criminal law and some suggest this was an example of the Scottish Government, keen to prove itself as an international actor, doing something uniquely “Scottish”. There was widespread support within Scot-

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Race and the Law: How Often is it Profiling?

BY NICHOLAS JOY

If police data show racial disparities, it’s not because of racial profiling, according to Manhattan Institute Fellow Heather MacDonald. “It’s not policedriven,” she said. “The fact is this is victim-driven.” On Tuesday, September 29, MacDonald and Professor Ronald Sullivan debated the extent to which racial profiling is and should be involved in policing. The debate was held in the Ropes Gray Room and co-sponsored by the Federalist Society and the American Constitution Society. Sullivan is a clinical professor of law and the director of the Harvard Criminal Justice Institute. He has written extensively on issues of criminal justice and race. MacDonald is a contributing editor to City Journal and the author of the book Are Cops Racist? Beyond the workings of the police and the anti-profiling lobby, she has studied homelessness, educational policy, and business improvement districts. According to MacDonald, the notion that policing is racially-biased is flawed, and this notion hurts law-abiding minorities most of all. She pointed to data from New York, where she said that 98 percent of shootings are committed by blacks or Hispanics, to show that violent crime perpetrators are inordinately likely to be minorities. “The police cannot respond to crime without disproportionate involvement in minority neighborhoods,” she said. “This is not their choice. They are responding to crime.” MacDonald said that concern about racial profiling is actually detrimental to minorities, since many victims of crime are minorities themselves. “It is the activists who impose a racial sense on policing, and they are dangerously wrong to do so,” she said. Sullivan sought to avoid the “wrongheaded syllogism” that people who engage in racial profiling are racist. Instead, he painted racial profiling as the result of “race thinking.” “Race thinking is an interpretive phenomenon,” Sullivan said. “We reduce individuals to stereotypes. Police are not immune to this phenomenon.” He supported his position with data of his own. Sullivan said that blacks represent 12 percent of the population and 13 percent of drug users, but make up 57 percent of inmates convicted at the state level for drug crimes. “Blacks are so over-policed that they are disproportionately investigated, convicted and sentenced,” he said. Sullivan suggested that if the police investigated drug use on local college campuses, the numbers might become more balanced. MacDonald called the drug figures “highly misleading.” She said that it is not who is using drugs that is important, but who is dealing them.

“It is open air drug dealing in cities that causes people to be in fear,” MacDonald said. “Outside drug dealing is very dangerous. That’s what the crack wars were about.” She added that police respond to incidents involving drug use on the streets rather than in investment banks like the now-defunct Lehman Brothers both because that is where calls come from and that is where drug dealing is most dangerous. “When you have open air dealing, you have turf,” MacDonald said. “It’s like a blood bath.” Sullivan pointed out the differences in treatment he would expect upper-class drug users and dealers to receive if the police were called to investigate them. “I reject the notion that if the police got calls at Lehman Brothers, they would go in as heavy-handed as they would in predominantly black neighborhoods,” he said. MacDonald responded with a quip. “I agree,” she said. “But dealers at Lehman Brothers are not armed.” Beyond crime statistics, Sullivan described the effects of racial profiling by highlighting elements of police conduct that minorities are subject to which never get written down. “I have been spread-eagled on a police car more times than most people here,” he said. “I have also never committed a crime to my knowledge.” Sullivan called attention to potential constitutional violations that using racial profiling in policing could raise. “Far too many are willing to violate the Constitution on the backs of others,” he said. “I think that is something you should think about, what a certain type of policing does to the Constitution.” The type of policing that Sullivan advocates is stops based on a particularized suspicion. “If you police well based on individual suspicion, you do better policing,” he said. MacDonald said that she was in agreement with Sullivan over the value of individualized suspicion and consideration for constitutional rights in police work. “I argue that is overwhelmingly how policing is done,” she said. According to MacDonald, the vast majority of police use locational or behavioral cues, not race, to determine whom to investigate. “The real cop problem is not racism but bad manners,” she said. “Cops get street-hardened and cynical, but that is no excuse for failing to behave with manners.” Ultimately, Sullivan was skeptical of the extent to which police use valid techniques rather than racial profiling to conduct their business. “People want to live in safety. Heather and I differ in how we get there,” he said. “I say through good policing, not stereotypical policing.”

land for the release of al-Megrahi; perhaps as a result of the cynicism surrounding his conviction and the outspokenness of those advocating for his release, or at least re-trial. However the American reaction to the decision and the quagmire of controversy surrounding it negate any political expediency it may have achieved. Currently, al-Megrahi is releasing documents he would have used in his latest appeal on the internet, documents which he says prove his innocence. But despite his release he will die guilty in the eyes of the law. Without a public inquiry the unanswered questions will never be answered and the alleged miscarriage of justice remains just that — alleged.

1Ls Go Crazy For Cup

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Harvard Law Record

Section II had a secret weapon at last week’s 1L Cup: A Cookie Monster. But one victory was not enough. Ultimately, Section VI came away with this year’s 1L Cup, followed by a second place “Team America” Section IV.

Top: Evan Simpson rallies the troops with a bullhorn; Left: Jared Rinehimer plows his way through a carton of Chips Ahoy! cookies; Right: Section 2 celebrates their champion’s victory in the cookie-eating contest.

LEGAL MARKET IN FLUX, JOB HUNTERS NEED CREATIVITY

BY MATTHEW W. HUTCHINS

As the leaves change and October ripens, the job hunting season has entered full force. But in the last year, the legal world, much like the rest of the economy, has undergone a major upheaval. Frozen credit markets halted the flow of the commercial transactions that have been the lifeblood of many large firms, and the result has been a tight contraction in their workload and hiring needs. Combined with the acceleration of the interview process affected by the introduction of the Early Interview Program, the dearth of available jobs has put HLS students in an unexpected position of entering this October uncertain of their job prospects. With as much as 20% fewer interviews conducted on campus and call-back results that are rumored to have been unsatisfying, many are being forced to construct back-up plans on the fly. The first group affected was the rising 3L class, many of whom entered the summer confident of their position having already been hired at a law firm or public interest organization where they would accept employment after graduation. To the shock of many, highly qualified students returned from the summer with no offer of future employment, not because of their own failure to perform, but as a consequence of a general aversion by firms to a further backlog of incoming labor. Many of these outcasts from the private sector have turned to government service as an alternative career path. For those who remain dedicated to work at a law firm, changes in the nature of the legal profession promise to make the job market extremely challenging. According to Prof. David Wilkins, Director of the Program on the Legal Profession, hiring at law firms is a lagging indicator of the economy and will likely

remain depressed until associates at firms are pressed to capacity. But even once macro-level growth presses the legal market out of its slump, hiring practices will likely change to reflect the growing trends of outsourcing and the use of contract attorneys to complete routine tasks. “As companies and firms disaggregate legal tasks and send commodity work to other providers, that will reduce the need for Harvard Law School graduates,” Wilkins said, adding that the pay structure at firms will likely shift away from lockstep compensation of associates toward a competencybased system. He says that this will be a response both to the internal pressure at firms to reduce salary costs and the external pressure from clients to provide the lowest possible billable rate for a job. In the short-term, job seekers will be under pressure to develop a creative strategy and to enter the next stage of the process free from doubts and negativity. The Office of Career Services advises students to look beyond the major markets and traditional private sector track and to pay attention to every application and every opportunity for networking. Mark Weber, Assistant Dean for Career Services, has warned that the bar for applicants has been raised this year, and firms will be looking to understand how each prospective hire can bring value to their organization. The OCS website has been bolstered with numerous webcast programs aimed at specifically addressing the needs of students that are changing their employment strategy in mid-course, but OCS advisor Jennifer Perrigo encourages students to come into the office and talk to the staff. Overconfidence in one’s state of preparedness or negativity about the course of the job search process can ruin an applicant’s opportunity to make a good impression with a prospective employer.

ICTY, continued from pg. 2

October 8, 2009

plained, in doing so, “the case would no longer be representative of the crimes committed.” Even as the ICTY nears its end, the Chief Prosecutor must maintain pressure to find and arrest the remaining fugitives. “We must wait and see what the future will show us in this regard,” Brammertz said. “We have a tendency to forget what happened 15 years ago, but we must remember how awful the crimes have been that were committed.” As part of his current visit to the US, Brammertz will meet with UN officials in New York to discuss the ICTY’s completion strategy. Now set to end in 2012, with appeals lasting through 2013, the Tribunal must maintain the pace of trials, even while facing a 60% downsizing of human resources. In addition, residual mechanisms must be developed to deal with on-going and future issues, such as the remaining fugitives and witness protection. The ICTY aims to send a strong message from the international community that the closure of the Tribunal does not equate to immunity for those not yet charged. A permanent working group, as well as increased engagement with local and regional prosecutions, will likely fill this gap. “The success of the ICTY depends on how local prosecutors continue,” Brammertz said. While his presentation focused on the ICTY, Brammertz touched briefly upon other international tribunals and special courts, using each to underline the variety of tests facing the international justice system. He connected each back to the International Criminal Court and other possible regional courts, saying, “The way those challenges are resolved will have direct impact on the future of all tribunals.” Brammertz further compared the ICTY’s resources to those of the International Criminal Tribunal for Rwanda (ICTR), which faces many of the same struggles, even while it cannot call on local colleagues to continue prosecutions in the same manner. The reality of limited resources impedes several international courts, including the Special Court for Sierra Leone must continue its case against former Liberian President Charles Taylor despite financial hurdles. Throughout the evening, Brammertz connected and distinguished his range of domestic and international experiences. Where national trials may focus on convictions, international tribunals must account for a broader range issues regarding victims, scope and legitimacy. In addition, each system faces different practical problems in terms of political obstacles and prosecutorial decisions, as well as access to crimes scenes, intelligence information and witnesses. To illustrate his point, Brammertz noted that, in the first years of the ICTY, the continued power of Milošević made evidence collection nearly impossible, even while Serbian authorities further complicated investigations by removing bodies from mass graves. Before opening the floor to questions, Brammertz outlined some of the credibility problems facing the international community. One of the questions has become, he explained, how to establish a more homogeneous system. “We are reinventing the wheel every time,” Brammertz said. Other possible options include the establishment of a standing task force to collect evidence whenever a crisis arises and increased reliance upon the international community. As the ICC can only process a limited number of cases, there can still be support of prosecutions at the local level, even in areas lacking a strong judiciary. “A more objective system will increase the credibility of these mechanisms,” Brammertz said. Whiting’s War Crimes Clinical, along with the Human Rights Program and the Bernard Koteen Office of Public Interest Advising (OPIA), hosted the event.

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