The pace of the short race to get on the ballot for thespecial election to Massachusetts’vacant U.S. Senateseat is accelerating to a full sprint. Two Harvardalumni are running,Alan Khazei ’83 and Steve Pagli-uca HBS ’82, and both came to HLS last Thursday todiscuss their campaigns and rally support. After theevent, the

Harvard Law Record

was able to meet briefly with Khazei to discuss his grassroots strategyfor getting on the ballot. Khazei, who founded the non- profit community outreach organization CityYear andwas instrumental in the enactment this year of the Ed-ward M. Kennedy ServeAmericaAct, shared insightsinto the influence of Senator Kennedy on his strategyand his purpose for participating in the election.

Interview withAlan Khazei - Page 5

ATTHEW

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HasAmerica lost its way during the tu-mult of the financial crisis, driven to gov-ernment excess by angry populism? Or has the sobering effect of instability andloss lifted a fog that had obscured the debate on policy objectives? To former NewYork Governor Eliot Spitzer ’84, thecrisis has revealed the fundamental ne-cessity of government involvement in themarketplace as an enforcer of trans- parency, integrity, and competition, as aregulator of externalities, and as a sourceof core social values that will not be guar-anteed by the market. “Only governmentcan force rules related to transparencyand integrity upon the market.” ButSpitzer sees the present moment as fullof both opportunity and hazard. “Angry populism is no better guide for rationalintervention than is Ayn Rand libertari-anism.”Spitzer spoke at Harvard on Thursday, November 12th on an invitation from theEdmund J. Safra Foundation Center for Ethics, an ironic twist which, in light of his resignation from the governorship of NewYork in 2008, prompted heightenedmedia attention to his appearance. Butthe central thrust of Spitzer’s remarks centered on hisexperience not as governor but as theAttorney Gen-eral of New York. In that capacity, he conducted in-vestigations of Wall Street that led to the GlobalSettlement in 2003 to resolve conflicts of interest inthe investment banking industry and fines of over $1.4 billion.After a brief introduction by Professor LawrenceLessig, the director of the Safra Center, Spitzer out-lined the parameters within which government inter-vention in the markets is a necessary component of economic stability and social justice. Looking back on his experience investigating the conflicts of inter-est in the investment banking industry, he said, “Themarket was driving them to a standard of behavior that was the lowest common denominator and it wasunacceptable. It would destroy the integrity of themarket, and the only way to resuscitate the marketwas for the government to come in and say some-thing very simple. Tell the truth.” Because of the in-herent pressures created by competition for marketshare, Spitzer believes that government involvement

Harvard Law Record

November 19, 2009Vol. CXXIX, No. 6

www.hlrecord.org — twitter @hlrecord

The Independent Newspaper at Harvard Law School

News

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

Opinion

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

Features

• The 1LWho Doesn’t Sleep• Climenko’s “Wire” Spouse• “Arsenic” Kills (itsAudience)

INSIDE

The HL Record

LIOT

PITZER

’

THICS

ESSON

Spitzer,

cont’d on pg. 5

BEHOLDHLRECORD

ORG

When Tarnished ex-N.Y. Governor Eliot Spitzer ’84 Came toHarvard Last Week, the Headlines Missed What He Really Said

KHAZEI CAMPAIGN: MORE INFOATALANFORSENATE.COM

In Mass. SenateRace, Khazei Betson Grassroots

Alan Khazei ’83 spoke alongside Steve Pagliuca HBS ’82 in a discussion of their campaigns for theSenate seat formerly occupied by Ted Kennedy. Former N.Y. Governor Eliot Spitzer ‘84 delivered a lecturehosted by the Edmond J. Safra Center for Ethics.

PosnerAffirms:“Meat is Murder”

Israel’s Bedouin VillagesStruggle for Existence

EBECCA

GULE

When the State of Israel wasfounded, in 1948, the new gov-ernment expelled approxi-mately 50,000 Bedouins, asemi-nomadic and pastoralcommunity, from their homes inthe Negev Desert. Others fledinto the surrounding countries.In the 1960s, theIsraeli government began transferringthe remaining Negev Bedouins to permanent, state- built townships.Though theseareas now have ap- p r o x i m a t e l y90,000 residents,an additional80,000 Bedouinscontinue to live inunrecognized villages.The gov-ernment views unrecognizedvillages as illegal settlementsand refuses to provide servicessuch as running water, electric-ity, schools and hospitals. Thisillegal status leaves manyBedouins in constant fear that

A Bedouin Village Goes Without ElectricityWhile Israeli Industry is Fed by Power Lines inthe Background. Photo by Sandra Ashhab.

Ames Finals: 7th Cir. JudgePresides Over Vegan Victory

ATTHEW

W. H

UTCHINS

The marketplace of ideas has hit the road. In a casewhich revolved around a proposed license plate bear-ing the slogan, "Meat is Murder", the highest court inthe Ames competition has upheld limits on the dis-cretion of the State ofAmes to reject the license plate

Photo: Phil Farnsworth

Ames,

continued on pg. 5

Bedouin,

cont’d on pg. 3

ESSICA

ORSI

Thanks to the help of Harvard LawSchool volunteers, an HLS alumna, anda Stanford law grad, a U.S. citizen mis-takenly detained by Immigration andCustoms Enforcement (ICE) and heldamong regular prisoners at the BristolCounty House of Correction in NorthDartmouth, Mass. was released after amonthlong detention.Walther, 24, became a citizen as ateenager. The Harvard ImmigrationProject (HIP) helped him claim his cit-izenship, leave jail, and avoid thetrauma of deportation to Peru, a countryhe has not lived in since he was 13.HIPis a student-run organization thatadvocates for changes in U.S. immigra-tion law that would protect immigrants’rights. For the last year they have part-nered with the PAIR (PoliticalAsylum/Immigration Representation) Project, aBoston area pro-bono organization thatis often the only legal representationavailable to persons detained by ICE.For each of the estimated 1,000 ICE de-tainees in Boston each day, there arearound seven legal professionals—four full time PAIR staff and professorsfrom Suffolk University, Boston Col-lege, and Roger Williams Universitylaw schools—available to assist themwith their claims. The substantial dis-crepancy between the need for legalservices and available practitionersmeans that volunteers, fellows, and stu-dents are essential to preventing wrong-ful detentions and deportations and protecting detainees’rights.Walther’s case hinged on preciselysuch impermanent personnel—PaulSass ’11, an HIP volunteer; AndreaSaenz ’08, an Equal Justice Works Fel-low at PAIR, former HIP member, andformer Editor-in-Chief of the

Harvard Law Record

; and Nick Stanley, a Stan-ford Law alum and deferred law firmassociate who has been working atPAIR for the last three months. Once amonth, a team of PAIR attorneys takesHIPvolunteers and other local law stu-dents to ICE detention centers to speak with detainees in advance of their deportation hearings. The volunteers in-form the detainees of their rights,taking down their information in casethey can make a claim that could enabletheir release and prevent their deporta-tion. Before HIP got involved, PAIR staff were sometimes unable to hear everyone’s claims. With HIP’s help,everyone is heard within half a day.It was Paul Sass’ first time meetingdetainees when he was introduced toWalther on October 8th. Walther had been arrested for the Massachusettsequivalent of a DWI. While he was in police custody, ICE put a detainer onhim, thinking that he was a Peruviancitizen with Permanent Residency. ICEdescribes its mission as “[s]trengthen-ing the nation’s capacity to detain andremove criminal and other deportablealiens.” It is able to detain and deporteven legal residents for what manywould consider minor offenses.Unfortunately,Walther’s position isnot entirely unique. ICE is supposedto screen for derivative citizenship, but it doesn't always happen in prac-tice, and every year there are many people who find themselves behind bars and fighting ICE's presumptionthat because they were born in an-other country, they aren't citizens. In2007, HectorVeloz, the son of aViet-nam veteran and a U.S. citizen, waslocked up for 13 months in an Ari-zona prison because ICE thought hewas an illegal alien.ICE moved quickly to shuttleWalther from police custody to immi-gration detention. Local law enforce-ment agencies agree to reportforeign-born individuals to ICE whenthey arrest them or observe them incourt. Once reported, ICE runs acomputer check, and if they find avisa overstay, lack of inspection at the border, or other cause for ICE to think that the person is here illegally, theysend a detainer to the local police, or-dering them to hold the person for upto 48 hours (not including weekends)and giving ICE the ability to take cus-tody when the local law enforcementagency no longer wants to hold himor her (sometimes even after a sen-tence is completed). This is exactlywhat happened to Walther. The process happens so quickly that thereis often no time for the detained per-son to make any phone calls to ask for help or to let family and friends knowwhat is going on. Detainees are oftennot fully informed of what is happen-ing to them, and there are no attorneysor others present during this process tointercede on their behalf.A derivative citizenship case likeWalther’s is particularly complicated;given its vagaries and complexities, at-torneys often liken immigration law totax codes. Walther thought that hemight have obtained citizenship fromhis mother, who had arrived in the U.S.from Peru ahead of him. He followedher here as a Lawful Permanent Resi-dent, or green card holder, and livedwith her as a child. While he was grow-ing up in the U.S., his mother natural-ized as a citizen, but nothing was doneto obtain full citizenship forWalther. In2000, however, Congress passed theChild CitizenshipAct, a federal law thatautomatically gives citizenship to chil-dren such as Walther who were under 18 when at least one of their biological parents naturalized. Walther’s familydid not know that this law applied tohim and he did not have the documentson him to prove it, given that he had been taken from police custody straightto ICE detention. Due to prison phonesystems, it is extremely difficult for people—whether family or counsel— to call in, but Paul and PAIR had madesure that Walther had PAIR’s phonenumber so that he could follow-up withthem. Walther called PAIR a week after he gave his information to Paul, and Nick Stanley took up his case.Once Nick realized that Walther fellunder the Child Citizenship Act, hemoved quickly to obtain the proof nec-essary to ensure his release—his birthcertificate, his Green Card, and themost important item: proof of hismother’s naturalization. Nick thencalled the Department of Homeland Se-curity’s ICE Chief Counsel Office andspoke the DutyAttorney for the day. Afew hours later the attorney called back to request the documents Nick had ob-tained. Twenty minutes after Nick faxed them, the attorney called to saythat Walther was going to be released.His release happened so quickly thatthere was no time even to let him knowhe would soon be free, and so Nick called Walther’s family to make surethat someone was there to meet himwhen ICE released him into the jail’s parking lot on November 6th, just under a month after Paul took down his infor-mation. Walther ws lucky: his releasecame relatively quickly.Inside the Bristol jail, detainees likeWalther are entirely dependent on coun-sel working on the outside to assistthem. Most cannot afford private attor-neys, who are often reluctant to get in-volved, because of challenging barriers put in place by ICE and the rapiditywith which their clients are deported.Many people in Walther’s situation aredeported without ever having had coun-sel and with nothing more than a videohearing before an immigration judge.Because deportation is not considered acriminal punishment—despite the factthat it is an extremely harsh “penalty,” particularly for infractions, like DWI,that would not even have merited pro- bation—the U.S. government has de-cided that immigrant detainees facingdeportation do not have a right to coun-sel. ICE is a large bureaucracy and, dueto federal law, the personnel workingon immigration cases are often man-dated to take quick action to detain anddeport without any room for discretion.Walther’s story had a happy ending,thanks to the work of HIP and PAIR.HIPintends to expand its programs and become a student practice organization,which will increase the power of PAIR to assist ICE detainees and preventwrongful detention and deportation.Until then, the detainees in the Bostonarea will continue to rely on the sevenattorneys and handful of volunteerswho get in to see them once a month.

Page 2 Harvard Law Record November 19, 2009

H L S

An increasing number of Harvard Law School students are being infected withthe H1N1 (or swine flu) virus, according to an email to the HLS community byDean of Students Ellen Cosgrove, leading the school to take extraordinary stepsto deal with the situation. The measures come seven months after the first knownoutbreak of the virus in Massachusetts took place at Harvard Dental School, andthree weeks after the university reported running out of regular flu vaccine (it hassince acquired more).According to the email, Dean Minow has asked that all measures be taken to en-sure that infected students do not miss any material covered in classes. Several op-tions were apparently looked at to bring the classroom to the sick, including theuse of digital tools ranging from Skype to WebEx to Elluminate to iSite videos.In the end, the law school settled on providing recordings of classes to studentswhom University Health Services has reported to have contracted the illness – butonly in those rooms where it has the capability to do so. Recordings will be madeavailable for at least four days after each class has taken place. Infected studentswith classes in other rooms will receive copies of notes from fellow students.Meanwhile, the Law School's Local Emergency Management Team, or LEMT,is looking into contingency plans if the school falls victim to a wider outbreak.This may result in a revised plan for recording and distributing class materials.The university currently has a limited quantity of H1N1 vaccine and it is only being distributed on the basis of need. According to the University Health Serv-ices website, the university is currently offering the vaccine to pregnant womenand pediatric patients.The next group to be innoculated will include those who areunder six years old, live with assisted care, household contacts of pregnant womenin their third trimester, and medical personnel.Only following these priority patients will UHS be able to offer the vaccine touniversity-age students up to 24 years old who are at risk of health problems, fol-lowed by persons up to 64 years old under the same circumstances.UHS has indicated that it will "probably not" receive the 15,000 doses it re-quested due to slow production of the vaccine.It was one of the most notable perks introduced to Harvard Law School by for-mer Dean Elena Kagan '86, the current Solicitor General. But as many suspectedwould happen, the free coffee that graced the school's hallowed hallways was cut back following budget cuts early this year. Now, however, free coffee will flowthrough the veins of HLS students more liberally than ever, thanks to a new pilot program to provide it all day long.According to an email from Dean of Students Ellen Cosgrove, sent to the HLScommunity last week, the school will augment its current free coffee regime bymaking the caffeinated drink available in Lewis Hall's Room 202. The new freecoffee station will supplement the morning coffee available in Pound andAustinHalls until about 10:15am each day, as well as the evening free coffee availablein the library kitchen after 9pm on weekdays and all day on weekends.Cosgrove's email indicated that the move came in response to complaints both by students and by faculty and staff, whose own free coffee supplies were beingraided by students, resulting in noise in hallways near faculty offices.

Free Coffee Returns, Now for Whole Day LongLaw School Ramps Up Swine Flu Preparations

Victory for Detained LegalImmigrant HighlightsDifficulties Faced by Others

their homes will be demolished or that they will beforced to relocate.On November 10th, Ahmad Amara, a Global Ad-vocacy Fellow with Harvard Law School’s HumanRights Program, moderated a panel on the Bedouinentitled “Invisible Citizens”. Speakers KhalilAlumur and Yeela Raanan outlined the plight of Israel’sBedouin citizens. Alumur, an Israeli Bedouin, servesas the representative of al-Sira, an unrecognized vil-lage in the Negev and home to his family for morethan seven generations. Raanan works with the Re-gional Council for the UnrecognizedVillages, a grass-roots organization created to advocate for villages andcommunities, such as the one whereAlumur currentlylives.Underscoring the depth of the rift betweenBedouins and the Israeli government, Alumur said,that “this is something bigger than misunderstandingor mistrust. There is a crisis between the citizens andthe government.”Alumur described life in his village, which has es-tablished a daycare, built a mosque, paved the dirtroads and laid water pipes. The residents of al-Sira,located just south of Arad, often co-operate to fill one another’s basicneeds.Before we had any regular power,my fridge was like a pharmacy for thewhole village,”Alumur said.Seemingly small tactics often makethe difference between a home’s de-struction and preservation. Alumur’sown home remains grey and un- painted, as he know that, were itwhite, the chances of demolitionwould increase. More permanent-looking structures or those builthigher on the hills are also at greater risk.Each individual feels the impact of life in an unrecognized village deeplyand differently. Ranaan described direhealth consequences, such as chronicdiabetes and widespread asthma.Women living in Wadi al Na'am, avillage close to Ramat Hovav, suffer the highest rate of miscarriages in thecountry. Without schools, childrenmust be bused to out of the villages toreceive an education, a process thatresults in the exclusion of many girls.Unable to marry without homes,young men also suffer.“You don’t want to upset the youngmen,” Raanan said.Sometimes done to send a message, bulldozing also carries strong sym- bolism. Pushed by an audience member for the reasoning behind homedemolition and the refusal to extendrecognition, Raanan admitted that theanswer would likely be unsatisfac-tory.“Recognition of the villages wouldallow people to stay.” Raanan said.“No government wants to makesomething illegal legal.”Raanan offered the audience a bit of historical context. She described whatshe termed “a process of concentra-tion” by the Israeli government to re-move Bedouins from the larger Negev, originally to Jordan and theninto certain areas of the desert. The1965 Planning and Building Law de-termined the hows and wheres of homebuilding and set out the home registration process, but the law provided no authority to give per-mission to Bedouins.Compounding these tensions, the Bedouin commu-nity has historically operated its own courts, previ-ously recognized under the British, and, given this parallel system, many saw registration as unnecessary.“There was no reason to register,” Raanan said.“They had their own system.”Raanan continued that the government does allowfor registration when a family decides to sell its home.“But you see the table of what the land is worth, andits really just pennies.”Rejecting violence, Alumur does not consider breaking the law a viable advocacy tool. Instead, heorganizes demonstrations and protests at Israel’s par-liament, the Knesset, as well as working to drawmedia coverage and the interest of politicians. “Wewant to fight for rights peacefully, legally. We work from the inside, not only from the outside,” Alumur said.Alumur explained the purpose of his trip to Har-vard, one of several speaking engagements.“I hope to bring the story of the unrecognized vil-lages to you. I will just tell you the story of al-Sira,”said Alumur. “But it isn’t a different story from theothers.”In closing, Ranaan urged the audience to take ac-tion, reminding them that the issues at hand are hardlyunique to Israel.“Canada, the US,Australia, they are all dealing withthis. The question is, how do you deal with indige-nous land rights in a western court? This is a politicalquestion, not a judicial issue.”Clinical Instructor Amara works on numerous ini-tiatives related to Israel and Palestine. More than adozen clinical students have joinedAmara, undertak-ing a variety of projects related to the Bedouin popu-lation.These efforts have included research in supportof cases heard before the Israeli Supreme Court, rec-ommendations to a task force focusing on Bedouinland issues created by the Israeli government, andsubmissions to the United States Department of State.The Middle East Initiative, the Outreach Center atthe Center for Middle Eastern Studies and the HumanRights Program at Harvard Law School co-sponsoredthis event.

November 19, 2009 Harvard Law Record Page 3

Next Record:

December 2

W O R L D

HRIS

ZABLA

“How is it that the terrible French, passing racist, sexistlaws, are [also passing laws that are] working out better than[those in] the rest of Europe?”This provocative question wasraised by Patrick Weil, who, in 2003 and 2004, participatedin a commission under former French President Jacques Chiracto determine how France shouldrespond to the harassment of Muslim girls who went withouthijabs, also known as head-scarves, in schools.Weil, a historian and sociol-ogist who is spending a semester as a visiting professor at YaleLaw School, had traveled toCambridge to defend his com-mission’s response – a total banon religious symbols in Frenchschools – before members of Harvard Law School’s HumanRights Program. Human rightsgroups have been critical of thelaw, which they say is an impediment on the absolute right toreligious practice. But five years after the fateful ban, Weilsaid, studies and data collected from other European coun-tries indicated that the law had made a positive impact.Just how he measured the impact of the law, Weil did notsay. He wanted to focus, instead, on defending it against crit-ics who insisted that a law scrubbing schools of religioussymbols was illiberal.At the heart of the debate is the Frenchidea of laïcité, a form of secularism that mandates not onlythe separation of church and state, but state guarantees thatany particular religion will not overrun the public sphere.The roots of

laïcité

go back to the anti-Catholicism of theFrench Revolution, but its more modern manifestation wasevident in a 1905 law that formally separated religion andthe French state. The 1905 law had said nothing about reli-gious practice in public settings, and Weil firmly defendedthe right to practice one’s religion “on the street”. But theschool, he argued, was a different environment. Since the ter-rorist attacks of September 11th, 2001, French school offi-cials had witnessed increasing pressure on Muslim girls towear headscarves, although the majority did not. They con-sidered going after the harassers themselves, but had a diffi-cult time obtaining testimonies.In 2004, the Stasi commission, appointed by Chirac to in-vestigate a solution to the problem , recommended the ban onreligious symbols. Weil, who was a member of the group,outlined three ways he thinks that the ban managed to be con-sistent with religious freedom. First, the law allowed studentsfacing harassment for their choice to wear or not to wear re-ligious symbols like headscarves could use the law as an ex-cuse, rather than suffer for making a personal choice. More-over, those who could not stomach abandoning religioussymbols could always avail themselves of France’s govern-ment-subsidized religious schools. Finally, France coupledthe law with a new flexibility on religious holidays – citizenswould have the option of taking a range of days off, de- pending on their faith.Gerald Neuman ’80, Har-vard’s J. Sinclair ArmstrongProfessor of International, For-eign, and Comparative Law,criticized Weil’s characteriza-tion of

laïcité

– and the ban onreligious symbols – as liberal.Liberalism, Neumann asserted,should be thought of as respectfor the autonomy of individu-als – which individuals should be able to act on themselves.Responsibility for their rights,such as the choice not to wear a headscarf, should not betaken over by the state. Heasked how the state madechoices to support one pressure or another on groups – in thecase of Muslim women in France, toward or against assimi-lation, and why religious symbols were banned when thestate could have taken on other practices that caused harass-ment. Noting that it made more sense to ask government employ-ees, such as teachers, to not wear religious symbols, in order that the government be perceived as neutral toward religion, Neuman said it made less sense to impose a ban on the re-ceivers of a government service for the same reason. Finally,he wondered whether the French law painted too broad astroke – were other religious groups, he asked, the “collateraldamage” of a law intended to focus on a Muslim problem?Weil, for his part, said that the state needed to protect in-dividuals because forces other than the state – such as reli-gion – could be equally oppressive. Still, he took Neumann’s point about other religious groups serving as collateral dam-age, and said that compromises had been found for somegroups, like Sikhs, who were particularly attached to their religiously mandated garments.But Weil’s specific solution appeared to boil down to thefact that

laïcité

was simply the French way of doing things.It demonstrated, he said, that France could not be reduced tothe stereotypes of authors such as Joan Scott or Christopher Caldwell, who had asserted that the French were racist or that their liberalism would lead the country to be overrun byIslam, respectively. “

Laïcité

,” Weil argued, noting thatFrench governments had come and gone, while the principleremained, “is [even] more important in France than the con-stitution”.

French Secularist Defends Country’s Ban onReligious Symbols in Schools

Nice hijab, but don’t try wearing it to a French school. Photo by Flickr user davidChief.

Bedouin

, cont’d from pg. 1