Ralph Nader and Bruce Fein Come Together to Condemn Lapses in System, Call for Citizen Participation

From Two Perspectives, Views on How to Keep an Eye on Government

Harvard Law Record
The Independent Newspaper at Harvard Law School
February 25, 2010

www.hlrecord.org — twitter @hlrecord

Vol. CXXX, No. 4

Top Obama Advisor, Illinois AG Lead the Way at Women’s Law Conference on the Changing Workforce

Photo: World Economic Forum


The millennial generation has been called self absorbed, but also as deeply connected – thanks to new technology and a renewed willingness to trust its elders. But will those connections – and that respect – translate into participation in and concern for politics and the law? Former presidential candidate and consumer advocate Ralph Nader ’58 and former Deputy Attorney General and FCC General Counsel Bruce Fein ’72 come from somewhat

Buzz Off! 2L Takes Google to The HL Record Court Over Privacy Invasions
When Google unveiled its new Buzz social network for GMail users last week, many were perturbed by the fact that the service automatically created networks out of their email contacts. In many cases, these ad hoc networks exposed correspondence that users would have rather kept private. Now, a Harvard Law School student is bringing a massive class action lawsuit against the internet company, claiming that it severely compromised her and others' privacy.


different places ideologically – Nader has been identified with the movement for consumer safety, while Fein thinks that an obsessive concern with safety at all levels hampers risk – but both agree that lax oversight has allowed government to run amok. Implicit in both their comments Tuesday, during a visit to Harvard Law School organized by the Harvard Law Record and Harvard Law Forum, was that the responsibility to change that rested on the current generation’s shoul-

Rule of Law, cont’d on pg. 2

At the end of 2009, in celebration of women becoming a majority of the workforce, the cover of the Economist featured J. Howard Miller's iconic Rosie the Riveter image, announcing “We Did It!”. But according to the Economist, women still occupy less than five percent of management at top companies, face a serious pay disparity, and bear a disproportionate burden when raising children while pursuing a career. With these challenges in mind, the HLS Women's Law Association convened its annual conference on Friday, February 19th, “Women for Women: Advocating for Change!”, bringing together women who are leaders in both the public and private sectors to discuss the dual role of women as participants in a changing society and facilitators of future change. In addition to keynote addresses by top Obama advisor Valerie Jarrett, whose daughter Laura Jarrett ’10 was in the audience, and Lisa Madigan, the Attorney General of Illinois, three panels were convened on the subjects of change in the courtroom, the workplace, and the community. Cognizant of the pressures that the young women in the au-


Left: Irene Khan ‘79 and Valerie Jarrett. Above: Illinois Attorney General Lisa Madigan

dience will face after graduation, many of the speakers offered common sense advice regarding the selection of a future career path, the challenges of leadership, and the struggle for work-life balance while raising a family. At the “Change in the Community” panel, discussing the role of women in public service, former Amnesty International Secretary General Irene Khan LL.M. ’79 cautioned that in her experience, “The glass ceiling is not any weaker in the non-profit sector.” Silda Wall Spitzer '84 said that students should take every WLA, cont’d on pg. 3

• HRJ: Corporate Accountability • International Party 2010 • Pollak Runs in District Nine • Avoiding Critical Mass in Iran • Will Work For $160,000 • Questions Left by Zinn TIRED OF SUBCITING? NEWS EDITORS WANTED! E-MAIL RECORD@LAW

Class Action Suit Alleges Potential Harm to Over 30 Million Users of New Social Network

On February 9th, the day Google rolled out Buzz, 2L Eva Hibnick, 24, said she signed into Gmail without realizing that, by doing so, she had unwittingly also signed up to be part of the new network. After realizing some of the people that were now part of her network were people she hadn't spoken to in months, Hibnick expressed her frustration to classmate Benjamin Osborn ’10, who happened to be a research assistant to

Google, cont’d on pg. 2

What was once an obscure idea hidden in the introduction to an edited volume of scholarly work burst onto the political scene last fall, when the Senate held confirmation hearings for Harvard Law School professor Cass Sunstein ’78, nominated to head the Office of Information and Regulatory Affairs (OIRA). Opponents on both the left and the right scoured the prolific scholar’s writing for ammunition, and the appointment was temporarily blocked by Sen. Saxby Chambliss (R-GA) after his discovery of a proposal by Sunstein and then-partner Martha Nussbaum, the University of Chicago philosopher, to give animals legal standing to appear in court when humans could not formally do so on their behalf. A variant of that idea has proven somewhat less controversial in Switzerland, however, where a proposal to initiate criminal prosecutions on behalf of animal Sunstein, cont’d on pg. 2



Rule of Law, cont’d from pg. 1

Page 2

ders. Fein, who is currently completing a book on the American “mentality of empire,” focused on the expansion of the executive branch and the creation of the “imperial presidency” – a force which gained considerable strength under George W. Bush and shows few signs, according to him, of abating under Obama. He also addressed the lack of oversight of Congress, and said that he had created an organization, First Branch, devoted to citizen polic-

ing of the legislature. Nader, whose recent novel Only the Super-Rich Can Save Us! appears to represent a bitter and cynical turn to the notion that politics and civil society are so broken that billionaires are the only ones with the fortunes to make meaningful change, took on the political apathy that still plagues the United States. Particularly lamenting the sparse crowd that greeted the two prominent

Harvard Law Record

“Harvard Law School is a lie.” - Ralph Nader ’58

public figures, Nader condemned the “generation that doesn’t show up”. Nader also used the occasion to tear into what he saw as the lack of commitment to the public interest at Law Harvard School. ExceptElizabeth ing who Warren, leads Congress’ oversight of the federal bank bailouts, and a few other faculty members, Nader excoriated the faculty for shortsighted and stopgap solutions

to public problems. And although he praised Dean Martha Minow for being what he believed was the first head of the school to assert that its purpose was “justice,” Nader lamented its continued commitment to teaching students to work in the service of corporations. Saying it was training future “greasers,” Nader emphatically pointed to the words of Minow and the content of the curriculum and declared that “Harvard Law School is a lie”. A full video of the event will be available soon at hlrecord.org.

February 25, 2010

Left: Nader condemned the sparse audience,which he said showed a lack of concern for civic affairs. Right: Nader rails while Bruce Fein looks on.

Sunstein, cont’d from pg. 1 victims is going before voters in a referendum on March 7, the Associated Press reports. Brought by animal rights group Swiss Animal Protection, the referendum, if passed, would force each of Switzerland’s cantons to appoint a public prosecutor to go after human mistreatment of animals. The country has a history of putting contentious measures up for public votes. Several months ago, Swiss voters controversially approved a ban on the construction of minarets. Currently, the Alpine nation boasts Europe’s only animal lawyer, Antoine F. Goetschal, who represents 150-200 creatures a year as an employee of the prosecutor’s office in Zurich (for the privilege, he is paid 200 Swiss francs, or $185, an hour). He told the AP that the new measure would represent the next logical step in the evolution of Switzerland’s anGoogle, cont’d from pg. 1 Professor William Rubenstein ’86, who specializes in class actions. Osborn and Rubenstein discussed the idea of a lawsuit, the Harvard Crimson later reported, and Rubenstein eventually contacted attorney Gary E. Mason. On Thursday, ABC News reported that Hibnick was bringing a class action lawsuit against the internet giant, alleging breaches of several federal laws, including the Federal Electronic Communications Privacy Act, the Federal Computer Fraud and Abuse Act, and the Federal Stored Communications Act, as well as California common and statutory law. The complaint was filed by California and Washington, DC law firms in California's San

imal rights law, which recently prohibited keeping pigs in a single cage – what the lawyer calls “solitary confinement” – and which will prevent Swiss horse owners from tying up their animals in stalls by 2013. Goetschal was famously involved in a recent case in which authorities accused a fisherman of torturing a pike because he struggled for ten minutes to haul it out of the water (he concedes it is not the best example of such prosecutions, and does not plan an appeal the loss). Potentially affected portions of Swiss society appear divided over the proposed law. The Swiss Farming Association opposes it; the president of a dog breeding association seemed supportive. One thing is certain: no matter the outcome, the seriousness with which Switzerland is treating the referendum means that Sunstein, who was confirmed as head of OIRA, will have the last laugh on this issue. Jose federal court, and notes that the implementation of Buzz potentially affected the over 30 million users with Google accounts. One of her attorneys, Gary E. Mason, told ABC News that the goal of the suit was "a commitment from Google that they're not going to do this again the next time they launch a product." He said that Google's most recent changes to the program, meant to address privacy concerns by ending its "auto-follow" feature, still leave the program as a whole opt-out. News of the lawsuit comes two days after the Electronic Privacy Information Center filed a complaint about Google Buzz with the Federal Trade Commission.

As the twenty-first century waxes into its second decade, clouds are gathering over the American Republic. A faltering economy, stymied foreign policy, and rising specter of corporate domination of life at home and authoritarian domination of nations abroad has put the public in a state of dissatisfied disillusionment. We need leaders to step forward with a straightforward elaboration of the principles that unite our interests across party lines, but the collected inertia of the two-party oligarchy and the sensationalistic media manages again and again to steamroll over the voice of the individual in favor of the talking head, the rehearsed and scripted speech, and the ten second soundbite. The Greatest Generation has been put to bed, and the Baby Boomer experiment has once again overdosed on its own hedonistic excesses. Now we tread in a desolate chasm while the next generation prepares to stand up and have its voice rise above the noise of the aging demagogues that have populated the media landscape during the Clinton-Bush era. But are we entering an even darker chapter in America's degeneration into demagoguery? Glenn Beck's recent appearance at CPAC offers surprising evidence of the fervor excited by base appeals to the anger and resentment of the crowd. More disturbing yet is the shift from a Republican ideology of veiled elitism toward overt anti-socialist fascism. Beck has begun an escalating revisionist campaign against the core of progressivism and all of its historical proponents, including Roscoe Pound and the Legal Realists. In his mind and rhetoric, the gilded age of the 1920's provides a model for America's True Destiny, and rather than retreating from the seemingly dis-


When Will We Stand Up?

credited Reganite philosophies, Beck elevates them to mythical status. Harvard Law School should be outraged at this campaign, not because Beck himself is a significant figure, but because the public is playing directly into the hands of this charismatic fool and turning against every concept that this institution has spent over a century developing and deploying into the legal culture of the nation. And while we sit comfortably in the halls of Langdell pondering with glee the control of the White House by Barack Obama ’91 and Cass Sunstein ’78, the policies so virulently condemned when practiced by Cheney-Bush are silently tolerated under our chosen President. The missing element in the Thunderdome of present-day discourse is an overarching conceptual framework within which the course of the nation can be justified according to a set of consistent guide posts. That is not to say that we need to search through history like Beck to invent a lost gospel that will guide us into the future. Rather, we must look at the new circumstances of technology, economic reality, international relations, civil rights, human rights, and environmental concerns and assemble a vision of our future that is more than a grab bag of buzz words to be exploited in talking points. And to do this we must step out of our overly intellectualized artificial domain and down into the hedge rows of the public discussion of government and the law. Our nation needs genuine leaders who can navigate the uncharted highway of our future and lead us toward solutions that are based on logical argumentation, common sense, and the spirit of participatory democracy that has sustained our Republic during its darkest nights. We are the ones to take up this responsibility. It is our time to take up the torch and charge forward.

February 25, 2010

WILL WORK FOR $160,000 & BENEFITS On Being a 3L with No Offer
“The greatest thing in this world is not so much where we are, but in which direction we are moving.” - Oliver Wendell Holmes, Jr.

Harvard Law Record

I used to tell people that if they were ever lacking in self-confidence, they should apply for a tenure-track position in a philosophy department somewhere. In return, you get what amounts to a mail-away self-esteem kit: a letter praising your accomplishments, expressing astonishment at your charm and sophistication, and assuring you that you will be a great success wherever you ultimately gain employment. It’s extraordinarily fulfilling to hear your praises sung by people of such power and influence, in particular if you have no interest in taking a crucial step towards adulthood. Only, again, you know – they don’t want to actually hire you. It isn’t an experience I expected to repeat when I enrolled at Harvard Law School. It’s been a little over five months since I found out I did not get an offer. In those five months, certain topics have been rehearsed with wearying regularity. Greater world, on behalf of the Harvard 3L’s with no offers, let me tell you the things we know: 1. It’s not our fault. The economy changed unexpectedly, and things are tough all over. 2. In fact, as Harvard graduates, we have more opportunities. Most people encountering employment challenges in this economy are in worse positions than we are.


“Gah! I’m choking on my own rage here!” - Moe Szyslak

“Are we to put on a brave face and tell the world that our goal all along was to achieve enlightenment and live on an ashram?”

Joined to this knowledge is the understanding that it is, to be fair, rather difficult as a Harvard Law Student to abandon all self-awareness and immerse oneself in self-pity. We remain conscious of the privileges we enjoy and the opportunities that exist for us even in our darkest moments. That isn’t to say we who were nooffered have no room at all for despair. But it feels impolite. Those of us who had been hoping to become Biglaw associates have been dealt a real financial blow. Must we admit what we were told to leave out of admissions essays and job interviews -- that we did come to law school with the hope of making money? Must some of us admit that we hoped to make quite indecorous and undignified amounts of it? Or

4. People with offers but no start dates are in a poor position as well. Even those with deferrals of specified duration face the possibility of an unexpected deferral extension, or even an outright retraction of their offer. In fact, with things as bad as they are, there’s really no guarantee that even those who manage to start work won’t find themselves laid off somewhat soon. Biglaw right now simply doesn’t offer the degree of security it used to offer. Everybody is in the same boat.

3. The loss of Biglaw opportunities means we may find something else from which we derive immense satisfaction, and which we may never have otherwise pursued.

are we to put on a brave face and tell the world that our goal all along was to achieve enlightenment and live on an ashram, and for that purpose and that purpose alone did we deprive ourselves of sleep and commit ourselves to learning the Hand formula and the rule against perpetuities? But the rejection has greater bite than a reorienting of our student loan repayment schedule. Not everyone who was a summer associate at a Biglaw firm had partner ambitions. Whatever the reasons we may have had for spending the summer of 2009 as a summer associate, the summer ended by confronting us with our deepest fear. Like many people praised for intelligence, talent, and discipline, Harvard Law Students are prone to the paranoia that we will one day be exposed as the frauds we suspect ourselves to be. Then-Dean Kagan alluded to these fears when we began our time at Harvard. Addressing the Class of 2010, she told us that our anxieties were illfounded, and that we had all long since established ourselves as deserving of our reputations and the opportunities they made possible. So we studied, and we subcited, and we networked, and we keycited, and we summer associated. And employers looked at our grades, and our journals, and our work product, and our work ethic, and said, “We don’t want you.” We came from Harvard, and they were nonetheless unimpressed. Something about us was so unappealing that it outweighed the appeal of having another Harvard graduate at the firm. And so we wonder – what mark on our resume is so bad that it outweighs the Crimson H? We know the market has shrunk, we know the client base has retreated, we know that everyone is suffering, but we also know something else: not every Harvard 3L got no-offered. We did. We didn’t measure up. Maybe the hiring process was arbitrary. Maybe we really had almost no control over some crucial factor. But most of us got here because we’ve been on a long journey, with increasing momentum. And that momentum just evaporated. I’m confident we will all land on our feet. And I’m certain that the experience will be an opportunity for us to find strength we didn’t know we had. I’ve met us. And we are, to be frank, pretty amazing. But the dream of Biglaw is hard to let go. And after all, there isn’t necessarily any shame in wanting to make money. Some of the wealthiest Americans have been its greatest philanthropists. Bill Gates has retired from Microsoft and dedicated a large portion of his financial empire to addressing global warming and poverty. And Tony Stark created his Iron Man suit to fight the spread of technological weaponry the sales of which, well, financed the creation of his Iron Man suit. Fine, that one isn’t very persuasive. Still, I don’t think we should be judged for wanting to be Biglaw associates with the money and power that would eventually have brought. Maybe we just wanted to be Iron Man. Think about it.

WLA, cont’d from pg. 1 opportunity to lead, but to remember that with limited time in each day it is important to sequence and prioritize one's efforts. Spitzer warned that money is necessary to make anything happen, and that “sometimes you have to fake it” when trying to take on a new role, while trying to “keep a sense of being human and enjoy the process.” In her keynote address, Illinois Attorney General Lisa Madigan said that her career had drawn inspiration from her time as a teacher in South Africa during apartheid and from her early contact with Senator Paul Simon, who taught her that, “You not only have the ability to change the world, but you have the obligation to try.” As Attorney General, Madigan has sought to curb domestic violence, ensure public safety from criminals and dangerous products, put pressure on predatory lenders, and has successfully argued before the Supreme Court. She characterized the wide range of her duties as akin to being “managing partner of the state's largest public interest law firm.” Madigan's success as Attorney General has garnered her re-election to a second term in office by a large majority as well as national attention as one of a small number of female head prosecutors and an open feminist. But in addition to being a legal and political hot shot, Madigan has set an example by having two children during her tenure as Attorney General, even arguing before the Supreme Court once while eight months pregnant. Madigan says that parenthood has opened her eyes to a broader perspective on life. “You shift from thinking about everything in terms of me, and it becomes in terms of them, the kids and the next generation.” She said she has also discovered that the doublestandard of greater social pressure on women to concentrate on parenting is alive and well in the twenty-first century. “Men never get the question of how you are going to raise your children and have your office.” Madigan admitted that because of her husband's flexible schedule as a cartoonist she has been lucky to be able to rely on him for help while busy or traveling out of state, but she said that making time for family requires prioritization, concentration, energy, and a careful balance of responsibilities. As Attorney General, Madigan has pushed to expand the state's efforts to protect women from violence, and she spoke about the progress being made with respect to stalking laws, orders for protection, and the analysis of rape kit evidence. Prior to her entering office, stalking laws in Illinois required that the victim be directly threatened by the stalker before law enforcement could intervene, but this was a high bar that Madigan saw as insufficient protection in light of the approximately 76% of female victims who are stalked prior to being murdered. Madigan initiated a dialogue aimed at examining the definition of stalking, with the result that the new Illinois law allows the threat posed by the stalker to be seen through the victim's eyes rather than by a bright-line rule. But even when a threat had been identified and protective action taken, Madigan found that over 22% of protective orders were not being served. “If we have laws on the books that are supposed to protect women, that are supposed to protect survivors, but they aren't enforced, then they are useless.” When she investigated the reasons for this high rate, she found that ironically many of the men subject to the protective orders were already in the custody of state or local law enforcement. New procedures for service upon entry to or exit from state prison lowered non-served rates to 14%. Madigan also said that there had been significant progress on expediting the analysis of evidence gathered from rape victims in the so called “rape kit” after being the victim of a crime. When human rights activists revealed that there were over 4,000 untested kits, she began investigating the means of cutting down the backlog. “Not only is it another trauma for the victim [for there to be no test done], but it hurts the rest of society.” Now she has introduced a Bill in Illinois to require a test within ten days after the collection of evidence or else provide a reasonwhy there was no test, the first law of its kind in the nation. The Illinois Attorney General said that one of her latest priorities is the creation of a way of protecting children from cyberbullying. Whether it is from peers or anonymous sources on the internet, Madigan sees this as an emerging area of concern which demonstrates the hazards of increasing use of the internet by children. She also expressed serious concern over “sexting” and child pornography, especially given the naïve attitudes of many children to the use of computers. “We have to let them know that everything is public, everything is permanent.” She believes that an effective response to these problems will require programs that facilitate communication between children and responsible adults who can help them deal with bullies and predators. Madigan encouraged the conference attendees to look beyond the career track that they believe they are expected to follow and seek out a course that will be personally fulfilling. “Take the time to figure out what it is you were meant to do, and go and do it. I promise you that you will have a satisfying life, and I can only hope that part of what you find satisfying is helping other people.”

Page 3

Page 4

EStabLiShEd MCMXLVi Matthew W. Hutchins Chris Szabla
Editors-in-Chief Staff Editors News: Rebecca Agule Opinion: Jessica Corsi Sports: Mark Samburg Contributors Anonymous 3L Mohammed S . Helal Matthias C. Kettemann Amreeta Mathai Ryan Mitchell Eleanor Simon
Submit Letters and Editorials to:

Harvard Law Record


Harvard Law Record

February 25, 2010

The Harvard Law Record is a publication of The Harvard Law School Record Corporation. All rights reserved. The Harvard Law School name and shield are trademarks of the President and Fellows of Harvard College and are used with permission from Harvard University.

Letters and opinion columns will be published on a space-available basis. The editors reserve the right to edit for length and delay printing. All letters must be signed. Deadline for submissions is 11:30 p.m. Tuesday.

record@law.harvard.edu or Harvard Law Record Harvard Law School Cambridge, MA 02138-9984

Most people focus on Iran’s alleged ambition to join the exclusive club of nuclear weapons nations as a grave security threat. Whether or not Iran actually aspires to acquire nuclear capability is debatable, but what is certain is that examining the nuclear program in isolation of the political landscape within Iran and the broader strategic environment in the Middle East is a fatal mistake. The problem with Iran is more complex than a clandestine nuclear program or the enrichment of uranium; the problem is what Iran stands for and represents: a religious response to the problem of governance in the Middle East. This is a dangerous answer, because a regime that legitimates itself on the basis of religion will also purport to be the custodian of truth. It is a system that eliminates the marketplace of ideas and encroaches on what is supposed to be a deeply personal and private relation between man (and woman) and his God. In the Middle East, where religions were born and continue to thrive, and where people are highly emotional, such a model threatens to retard the region back to the Dark Ages. Worse still, as Iran feels increasingly threatened by western, particularly American, pressure, it has sought to gather regional cards that it could use in its political poker game with the West. To put it another way, Iran


Persian Problem: Nuance Needed With Iran

Clockwise: Italian Karate by Gabriele Mazzini, Irish music by Andrea Mulligan and Maeve O’Rourke; Singing by Anton Eriera

has planted detonation charges throughout the region that it could use to ignite the Middle East if the need arises. Thus, the ominous shadow of Iran’s political and military claw Hezbollah constantly hangs over Lebanon, threwatening to replicate the events that provoked Israel’s disproportionate war on its small northern neighbor in August 2006. Iran also periodically threatens to annex Bahrain and already occupies three U.A.E. islands in the Gulf of Hormuz, which is a maritime strait critical for the global oil market. Tehran also holds many of the keys to Baghdad, with obvious implications for Iraq and the United States. Moreover, Iran funds and arms the Houthi rebels in Yemen, which are one of many challenges that are portending the division of the country overlooking the southern entryway to the Red Sea. The question then is, what can be done about this, which is a question the Obama administration is probably considering now. The first answer to the complex problem of Iran is simple: do not use force. The United States has, fortunately, jettisoned the deleterious doctrine of regime change, and any surgical military strike will never eliminate Iran’s dispersed and well-protected nuclear program. If anything, a military operation against the Islamic Republic will unite Iranians, who will rally around the flag, and, more dangerously, compel Tehran to ignite the powder-keg that Iran, cont’d on pg. 7

February 25, 2010

Annual LL.M. Party Showcases Students’ Diverse Talents, Cultures
You could call it an incredibly fascinating event representing the richness of the LL.M. student body, the diversity of the world’s cultures and the broad variety of cultural and gastronomic traditions. Or you could stick with the assessment of Richard Staeuber, LL.M. student from Switzerland: “It was really terrific!” The International Party which took place on Saturday, February 13, in the Ropes Gray Room lends itself to both descriptions. In what has been traditionally one of the major annual social events at HLS, this year’s LL.M. class of 165 students from 62 countries, presented a highly appealing mix of cultural traditions from all corners of the world. Students of each country organized a table at which they presented typical national dishes (with a heavy leaning towards the sweet), showed off their country’s cultural and touristic highlights, and provided information for the avid traveler. “Walking around the room was like going on a voyage around the world”, Martina Gerszt-Wernli from Switzerland said. At the Chinese table you could take part in a quiz and pinpoint famous sights on a map. At the Swiss table you could answer rather tricky questions and win a Swiss watch. The Australian table tried to entice students to try the famous vegemite, a salty and malty spread with an interesting aftertaste. Students from Japan showed the basics of calligraphy and drew names in Japanese characters. At the German table, you could try wurst (though I missed the sauerkraut). The African tables focused on the rich cultural heritage of the continent. The smells, sounds and sights made Ropes Gray room, for one evening, into what America as a whole has always been said to be: a melting pot of nations. It was great to see many members of the HLS community come in and visit the LL.M. students they know from classes, but about whose origins and traditions they might not know so much. The impressive diversity served as a reminder of how fascinating the world is – and made students change their travel plans again and again as they progressed from table to table. Indeed, the students’ recounts of how fascinating their home countries are rivaled any description in Lonely Planet. If the wonderful smells emanating from the pots and dishes on the country tables were not enough to bewitch the visitors, they could raise their head and enjoy the photos and videos that LL.M. student Sajjad Nematollahi from Iran had turned into an impressive presentation. From Austrian cows peacefully chewing on grass in Alpine pastures to the otherworldly beauty of Thai beaches, BY MATTHIAS C. KETTEMANN

Harvard Law Record

Page 5

Matthias C. Kettemann is an LL.M. student from Austria.

it was easy to be swept off your feet (also because somebody might bump into you in the packed Ropes Gray room). While the food at some places was slowly running out (Matt Hutchins, Co-Editor-in-Chief of the Harvard Law Record, had told contributors earlier that “everyone should go and at least sample all the delicious food” and they had obviously taken him up on this – and brought their friends), the attention of the more than a thousand visitors from the Harvard Law School community turned to the evening’s highlights: the performances. Students impressed the audience with Greek and Chinese dances, a Karate show, beautiful songs from members of the Australian and UK delegations and enriching shows, including from Southeastern Europe and SouthEast Asia. Jeanne Tai, Assistant Dean for the Graduate Program and International Legal Studies, echoed the spirit of the cheering audience when she declared the performances to have been “totally awesome”. As the day of the International Party was also the first day of the Brazilian carnival, the Brazilian students (in bright yellow soccer T-shirts reminiscent of Ronaldo) finished the International Party off with a huge general carnival and long congas. While not all dancers were as much in sync with the rhythms as the students with experience of rocking the Copacabana, the energy and happiness was palpable. Good thing the Austrian table provided some “Red Bull” (yes, folks, it is as Austrian as Arnold Schwarzeneegger). Since Valentine’s Day came the day after the International Party, you could see pairs holding hands as the party wound down at midnight: a great way to start a day dedicated to love with a party that showed the unity of human spirit underlying the diversity of its expression. Because in the end, this was what all students could see and feel in the displays of art and culture, cuisine and traditions of the different countries: the love of life, the power of hope and the pride in the history and uniqueness of cultural and culinary expression. In her address in September 2009, Dean Martha Minow told international students: “We searched the world for you!” At the International Party, the LL.M. Class of 2010 found hundreds of different ways to say thank you and allowed the HLS community a glimpse of the diversity of the world beyond the Charles. And best of all, for the rest of term, the LL.M. students are still here. Just go talk to them. Most don’t bite. Just don’t ask the Australians to make you a vegemite sandwich.

Page 6

The unfortunate passing of Howard Zinn earlier this year was accompanied by a greater number of panegyrics about his work than probing explorations of its legacy. Zinn’s most famous book, “A People’s History of the United States,” is an exposition of American history’s marginalized narratives: poorly-treated low-rank soldiers of the Revolutionary War, indebted farmers, slaves, freedom fighters for civil rights, labor activists and organizers, even Socialists – a list that gives one a sense of the political direction in which the book is often taken to lean. Zinn worked on “A People’s History” over the 1970s, when it would have been the perfect expression of the Zeitgeist, in which radical critiques of prevailing orthodoxies reigned. But by the time it appeared, in 1980, conservatism was staging a comeback, and Ronald Reagan’s presidency ushered in a patriotic renewal. Instead of being embraced as part of the spirit of the times, Zinn’s book became a partisan lightning rod, a rally point and target in the culture wars. That made the reaction to “The People Speak,” a documentary based on Zinn’s work that aired on the History Channel late last year, just before his passing, fairly predictable. The History Channel tends to play it safe ideologically. When it actually runs historical programming (much of its content is now reality TV), it prefers to stick to straightforward accounts of military strategy, leaving politics out of sight and mind. Its moniker, “the Hitler Channel,” is hardly undeserved. But even the battlefield isn’t completely apolitical: it turns out that many fans of military history either prefer their American story with a side of triumphalism (you don’t see many History Channel programs about Vietnam). So it came as little surprise that the channel’s decision to postpone its regularly scheduled D-Day docudramas for a film based on a controversially revisionist work of American history caused a bit of an uproar. Devoted viewers declared they would abandon a channel they’d watched religiously for years. In the context of a growing chorus in American political discourse that labels any tendency it doesn’t approve of with the conversation-stopping pejorative “socialist”, Zinn’s documentary went so far as to celebrate individuals who wholeheartedly embraced that label. Indeed, much of Zinn’s work – reflected in “The People Speak” – still seems fresh. Labor history may continue to thrive in the trenches of academia, but it’s hardly scratched the surface of the public discourse, even at a time when it might seem more relevant than ever. Nor does one hear much today about the class resentment that Zinn shows was surprisingly prevalent against the ceaselessly venerated Founding Fathers. And in the face of the Obama administration’s plodding and hesitant response to the ongoing recession, Zinn’s claim that Franklin D. Roosevelt was cajoled into implement-


Historian’s Last Documentary Cements His Reputation – but Raises Provocative New Questions
ing many New Deal reforms by popular protest and labor action is a frightening reminder of what happens when government remains cautious and inattentive in the midst of crisis. Other segments deliver a 21st century update on the themes that Zinn piled into the original book, linking the ongoing wars in Iraq and Afghanistan to previous episodes of American expansionism. Especially necessary, and voices Zinn first pointed to thirty years ago are now firmly entrenched in curricula – if still not universally acclaimed. Where does that leave a contemporary reworking like “The People Speak”? Beyond being a nice capstone to Zinn’s career, and illuminating some of his less popularized insights, the documentary itself comes off as a bit counterproductive. Beyond standard

Howard Zinn’s People Speak...Through Celebrities

Harvard Law Record

February 25, 2010

given the rest of the History Channel’s programming, is Zinn’s reminder that the Second World War – which, like other wars in American history, heightened instances of segregation and class conflict, and which inflicted needless deaths on civilians – has been historically sugarcoated, its memory exploited to justify a seemingly ceaseless stream of further conflict.

historical stock footage and voiceovers by Zinn, the star attractions are celebrities who give theatrical readings of primary source documents, acting out the roles of the marginalized voices in Zinn’s narrative. Some of the performances are strong and arresting, but in other cases, the stars’ wattage distracts from the historical message. Some of the choices are particularly

“Plenty of ‘people’s movements’ never made it into Zinn’s history. Radical libertarians and religious fundamentalists have also had a significant – if sometimes frighteningly destabilizing – influence on American history.”
But, thirty years after the publication of “A People’s History” many of Zinn’s stories have lost their radical edge – if simply because they have been so successfully incorporated into mainstream thought. Few would dispute the historical relevance of Frederick Douglass or Malcolm X. Anarchist Emma Goldman and Socialist leader Eugene V. Debs are staples of any decent U.S. history textbook. The ideas that slavery was acquiesced to by its victims or that it could be thought of as a familial relationship (notions that still had currency in the 1950s) are ridiculed. Many of the faces cringe-worthy. Zinn cites “Dear Mr. President,” an anti-Bush ballad by singer-songwriter Pink, as a contemporary example of activists who decry the ironies arising from a system of ideals compromised by a stark reality – and Pink appears in the film to perform the entire piece. Pink’s message is legitimate, but her presence – and celebrity – diminishes the focus on the suppressed and subaltern. The same is true for many of the other stars’ involvement. It’s a little strange that the producers felt that the travails of the underclass were best expressed by the wealthy, su-

perficially-admired people to whom Americans already wantonly turn over so much of their money and time. If they were meant to grab viewers’ attention, they probably did not wind up doing so for the words they were selected to speak. That does not necessarily impugn the celebrities’ own motives for appearing in the film; some of them are informed fans of Zinn’s work – particularly Matt Damon, who was inspired by Zinn while growing up near him in Cambridge (he famously championed “A People’s History” in Good Will Hunting, the breakout film he wrote and starred in with Ben Affleck). Damon only plays a bit part on screen in “The People Speak,” but was a major force behind the scenes: He spent nearly a decade trying to bring it to television. Doubtless part of the opposition to the film – and part of the fury that has frequently been leveled at Zinn – is that his work appears to emphasize only the negatives in American history. A narrative that dwells on events like the debtors’ rebellions of 1786, which motivated the Constitution’s instantiation of a strong central government; the New York Draft Riots, exposing the class conflict simmering beneath the surface of the Civil War; or the oppression continuously endured by Native Americans does not seem to leave many positive examples. But Zinn counters by asserting that there is a silver lining to his narrative: it shows “people below behaving magnificently”. In fact, like any other positive account of American history, Zinn celebrates democracy, albeit a version of American democracy that deeply emphasizes extraparliamentary and extraconstitutional movement as the engine of meaningful change. His stance raises questions about the extent to which he would continue to embrace these ideas today. The increasing noise made by the Tea Party movement is a reminder that plenty of “people’s movements” never made it into Zinn’s history – those that didn’t fit his ideological valence. Radical libertarians and religious fundamentalists have also had a significant – if sometimes frighteningly destabilizing – influence on American history. As much justice resulted from the courageous acts of many individuals Zinn celebrates, the rule of law can be bent both ways.

RECORD@LAW www.hlrecord.org

Dissenting Opinion?

February 25, 2010

HRJ Symposium Examines Checks on Multinationals’ Abuses

Harvard Law Record

initial skepticism that a systematic approach from the corporate side would bear any fruit. But in the end, he said, he’s As globalization has transformed the way (and where, and witnessed a partial transformation in the way that corporate with whom) we do business, major steps have been taken to investments in developing nations are discussed. This is in ensure that corporations find it more difficult to exploit in- part because his framework offers a lexicon for activist shareternational tax loopholes. But loopholes that allow corporate holders, PR departments, and other human rights-conscious activities to benefit from and perhaps contribute to serious elements of corporate decision making to frame their coninstances of widespread human suffering are comparatively cerns in the universal dialect of commercial self-interest. plentiful. Following Professor Ruggie’s keynote presentation of the From IBM’s alleged sale of computers used to implement framework, two panels addressed practical aspects of impleapartheid policies in South Africa, to Western technology menting the ideas and encouraging their adoption by corpofirms’ alleged active role in tracking Chinese political and rations as a framework for country investment analyses. The religious dissidents, the field remains one that many see as first, on corporate accountability litigation, drew connections crying out for both litigation and policymaking. In an attempt between the state and corporate duties to protect and respect to tackle the legal, political, and human rights and some of the ethical parameters of this evolvnotable failings of corporations ing issue, the Harvard Human to do so. The panel of human Rights Journal hosted a symporights lawyers summarized the sium on Thursday, February various forms of on-going liti18th, on the subject of corporate gation around the issue in accountability for human rights which they were involved. abuses in developing nations. These ranged from claims The keynote speaker for the against Western firms that had five hour event was Professor assisted South Africa’s John Ruggie, Berthold Beitz Proapartheid regime (as in the fessor of International Affairs at case of IBM, mentioned the Kennedy School of Governabove), to those against interment and an Affiliated Professor national lenders to and finanin International Legal Studies at cial supporters of Argentina’s Harvard Law School. Since former military junta of the 2005, Professor Ruggie has been “Dirty War” years. Each of the serving as the UN Secretarylawyers expressed frustration General’s Special Representative at the difficulties in tying state for Business and Human Rights, abuses by collapsed regimes to and it’s in this position that he the actions of corporations developed his “Three Pillar” often operating behind a dual framework outlining responsible veil of governmental and corcorporate involvement in nations porate secrecy. The role of the with compromised human rights mens rea standard for corpoProf. John Ruggie - photo: CBSR Vancouver records. rate involvement in human Professor Ruggie’s 2009 Report to the UN laid out the rights abuses was a particular point of focus – for U.S.-based principles as follows: “The framework rests on three pillars: Alien Torts Statute claims in the 2nd Circuit, the standard the State duty to protect against human rights abuses by third appears to be purpose at the moment; but in the 9th Circuit, parties, including business, through appropriate policies, reg- it’s still an easier-to-satisfy “knowing” standard. ulation, and adjudication; the corporate responsibility to reThere was even some speculation that upcoming decisions spect human rights, which in essence means to act with due may exempt corporations from being susceptible to ATS diligence to avoid infringing on the rights of others; and claims at all – not a thought that sits well with practitioners greater access by victims to effective remedy, judicial and seeking to translate corporate accountability principles into non-judicial.” actual legal liability for injuries aided by corporate investAn audience of about a hundred listened as Ruggie out- ment overseas. Panel moderator Terri Marsh, senior litigalined his framework, and explained the often fraught process tion partner with the NGO Human Rights Law Foundation in of bringing human rights NGOs around to the point of view Washington DC, expressed her hope that the ATS litigation that this sort of “loose standard” based on general principles would at least be able to continue, emphasizing the multiple of corporate involvement was preferable to the more specif- purposes of such lawyering; “Even in cases we lose, there’s ically outlined UN standard that it had replaced. That system a huge effect. I’ve had people in prison in China tell me that could be summarized as “if X is occurring, corporations their treatment changed for the better when we were litigatshould keep as far away as possible.” He also shared his own ing issues around the abuses that they’d suffered.” District 9, cont’d from pg. 8 and he sees an alliance with them as important given the fractured nature of the Republican party, which he analogized a scene from Monty Python's “Life of Brian”. He believes there is a troubling lack of leadership in the GOP that is impeding the unification of its various constituencies behind a platform. “It's not so much a question of what do we stand for, the question is where are the leaders who are going to drive that.” Pollak has cultivated his relationship with the Tea Party groups in part by flexing his legal education. When the Obama administration announced a plan to move Guantanamo Bay detainees to Thomson Prison in Illinois, Pollak helped draft a legal attack on the plan founded on the international law. “I helped them make a case in international human rights law why it was bad to move these guys here.” And though the state commission voted 7-4 to approve the relocation plan, his efforts were much appreciated by concerned local citizens. “What was comforting to them was that someone in the political world was taking an interest in them and actually giving them a voice, helping them express their concerns in a way that didn't


Iran, cont’d from pg. 4 is the Middle East. What we need is a more sophisticated strategy of talking softly and carrying a big stick. For Iran the big stick should be the threat and gradual application of tighter multilateral, U.S. and European economic and military sanctions that generate enough local pressure for the regime to mend its ways. Tehran must place all nuclear facilities under full IAEA inspection, withdraw its support of subversive elements in the region and to refrain from intervening in the affairs of its Arab neighbors. In return, Iran should be promised the rightful place of the glorious Persian civilization at the table of nations, and it must receive assurances of non-belligerency from western powers and from Israel. This strategy must also be coupled with a sincere effort to free the Middle East of all weapons of mass destruction. History has also taught us that all of the Middle East dilemmas will be ameliorated by peacefully settling the Arab-Israeli question and by the establishment of an independent and viable Palestinian state in the West Bank and Gaza. This requires both a dialogue with and pressure on Iran, and continuous consultations with regional players to reach understandings that avoid past mistakes. For too long the security of the Middle East and Persian Gulf has been dictated by cursory and shortsighted policies that have not fully comprehended the complexities and subtleties of the region. We must move beyond strategies like Reagan’s “Gulf containment” and Clinton’s “dual containment” that have perpetuated instability and insecurity. Instead, we must initiate a serious dialogue with all the relevant and influential parties, including Russia and China, to devise a sustainable policy that promises the weary people the Middle East peace and prosperity. Mohamed S. Helal studies at Harvard Law School as a Fulbright Scholar. He is an Egyptian diplomatic officer, and served in the Cabinet of the Minister of Foreign Affairs of Egypt from 2005 to 2009. The opinions expressed in this piece are exclusively those of the author.

Page 7

to the voters. He wants to distinguish himself by being accessible to voters and by nationalizing the issues to make the District Nine election a referendum on the incumbent. “The contrast you have to draw between yourself and the incumbent is, 'I'm nice, I'm here, I'll work for you, and she doesn't.'” He sees Schakowsky as vulnerable because of her open defense of President Obama's policy agenda and the lingering questions raised by her husband's conviction for federal fraud charges. And apparently his ground-up campaign is stirring up attention. Not only has he received the endorsement of the local Tea Party organization, he also has heard rumors that Schakowsky has taken notice of his candidacy. Of course, the support of the Tea Party has the potential to work as a double-edged sword, turning off more moderate voters who would otherwise be interested. Pollak noted that he had heard some people wonder, “How can a nice Jewish boy be endorsed by the Tea Party?” Pollak maintains guarded respect for the grassroots activism of the Tea Party organizers,

just involve waving signs and showing up at rallies.” Whether or not Pollak succeeds in displacing Schakowsky, he is enjoying the experience of running a campaign and connecting with the voters. “The most amazing thing about the process is learning what peoples' lives are like, learning how national issues affect them and interacting with them when they ask you what you are going to do for them.” Priority number one for Pollak is helping the residents deal with the dearth of jobs. But he also hears frequent complaints about the Democratic health reform plans, and hopes to see a viable alternative emerge. “Republicans have yet to make the case why it is better to have individual patients in charge of making healthcare decisions.” If he is elected, Pollak says his personal policy interest would be the reform of the federal budgetary process and the corruption tied to earmarks. Joel Pollak is the author of The Kasrils Affair and Don't Tell Me Words Don't Matter: How Rhetoric Won the 2008 Presidential Election. He was a regular writer for the Harvard Law Record during his time at HLS.

Page 8

District Nine, 2010: Pollak’s Plan For Recoloring the Map
S. African Native Gives Voice to Dispossessed GOP Voters in Liberal Illinois District

Harvard Law Record

February 25, 2010

Emboldened by the victory of Scott Brown, Republicans across the country are preparing challenges against Democratic incumbents in the 2010 midterm elections. But before Ted Kennedy's passing opened the field in Massachusetts, recent HLS grad Joel Pollak '09 had already thrown his hat in the ring in northern Illinois. Now that Pollak has won the Republican nomination in the Ninth District, he will be taking on incumbent Janice Schakowsky in the general election this year, and he sees it as the first serious contest his home district has seen in a generation. According to Pollak, the electoral demographics break down such that there is approximately a three to one ratio of confirmed Democrats to Republicans, 150,000 to 50,000. But the district also has a large independent middle of about 150,000 voters. Pollak believes that independents will turn away from President Obama and the Democrats by a ratio of close to two to one, and if that happens, the district will be very much in play. Pollak's next step is to embark on a major fund-raising initiative to amass a war chest of at least a quarter million dollars. If he can do this, he believes he will catch the attention of the

By Matthew W. Hutchins

an appearance at the Kennedy School, and now he plans to parley this exposure into the wider media attention he needs to gather campaign funds. He recently appeared on the Fox Business program “Happy Hour”, where he deftly avoided being characterized as a Tea Party candidate. His ultimate aspiration: an spot on Bill O'Reilly. The South African native Pollak aspires to represent Illinois district nine because it is the seat of his youth home of Skokie, a predominantly Jewish town that fought a legal battle against Neo-Nazi protesters all the way to the Supreme Court. Pollak plans to court the voters Joel Pollak ‘09 outlines his plan to make his home district red. His strategy will concentrate of Skokie and cities faron the suburban areas west of Evanston that have been neglected by the incumbent. ther west to offset the GOP's Young Guns program and qual- overtures toward journalists. He first liberal bastion of Evanston closer to the ify for additional funding. gained the spotlight on Sean Hannity's waterfront, and to do that on a shoeTo drum up the enthusiasm of donors, show on Fox News by vocally chal- string he will be making a direct appeal Pollak says he is making aggressive lenging Barney Frank (D-MA) during District 9, cont’d on pg. 7

HLS Parody 2010 Presents...

Top: Ethan Schiffres ‘10 and Elizabeth Steinfeld ‘11 in Sydney, Australia. Ethan worked on an urban revitalization project for the Arts Law Centre of Australia, drafting legal information sheets and license agreements for artists. Elizabeth worked for the Commonwealth Director of Public Prosecutions, preparing for a federal narcotics trial. Below: Sherry William ‘10, far right, worked at the Egyptian Ministry of Trade and Industry helping revise the national corporations code. Sherry enjoyed working with top caliber, western educated colleagues, who helped her get a taste of authentic Cairo cuisine! Mmmmmm.... Fiteer.


Sign up to vote on this title
UsefulNot useful