Harvard Law Record
The Independent Newspaper
2009-2010 ACADEMIC YEAR
at Harvard Law School
April 15, 2010
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BY CHRIS SZABLA
Kagan and Minow Both on Shortlist for Obama’s Second Supreme Court Nomination
stein, a Supreme Court litigator who runs SCOTUSblog, told the Harvard Law Record that he believes Kagan is Obama’s top choice, but that Minow was also likely to be very close to nomination. On Tuesday, the Associated Press was able to confirm that seven names were definitely on the White House shortlist,
STEVENS RETIRING - SUPREME FEVER FOR HLS DEANS
ators spoke out against naming another Ivy League-educated justice, noting that, with the exception of Stevens, all eight remaining current justices had attended either Harvard or Yale Law Schools (Justice Ruth Bader Ginsberg graduated from Columbia Law School after transferring from Harvard before her third year). The Senators went so far as to say that the recent outcome in Citizens United v. Federal Election Commission, which allowed corporations to directly support advertising for political campaigns, was a product of justices whose backgrounds put them out of touch with ordinary Americans. That might have come as a surprise to several of the current justices whose youths were hardly privileged, but quite a few other prominent names mentioned as possibilities for the court held Harvard Law degrees or connections to the school, including Massachusetts Governor Deval Patrick ’82, who said he would prefer to fight for reelection this year, and HLS professor and TARP overseer Elizabeth Warren, who is popular for her public stance on consumer SCOTUS, cont’d on pg. 4
Greg Craig Shares Views on Terror Trials, Looks Back at Service in Obama Administration
FORMER WHITE HOUSE COUNSEL: SUPPORT HOLDER ON GUANTANAMO
Vol. CXXX, No. 7
Barely hours had passed after Justice John Paul Stevens’ announcement of his imminent retirement last Friday – widely anticipated after the 89 year old Supreme Court judge failed to hire the customary number of clerks for the court’s next session – speculation began to swirl about a number of frontrunners to replace him on the bench – many, if not most, with Harvard Law School pedigrees. Foremost among them was former Dean Elena Kagan ’86, now serving as Solicitor General. Not long after, however, Bloomberg News confirmed that another recent Harvard Law School Dean, Martha Minow, was also being seriously considered for a Supreme Court seat. Kagan, Seventh Circuit Judge Diane Wood, and D.C. Circuit Judge Merrick Garland ’77 are widely seen as President Barack Obama ’91’s top choices for the position, but the confirmation that Minow’s name is on the president’s shortlist leads credence to the possibility she may also be chosen. Tom Gold-
including Kagan, Wood, Garland, Michigan Governor Jennifer Granholm ’87, Homeland Security Secretary Janet Napolitano, Georgia Supreme Court Justice Leah Ward Sears, and 9th Circuit Judge Sidney Thomas, who was suggested by Senator Max Baucus for the diversity in geographic and educational background the Montana-raised judge would bring to the court. Baucus and several Democratic Sen-
A spokesman for Dean Minow said she was “deeply honored to be considered”.
I N T E R N AT I O N A L L AW
State Dept. Legal Adviser Lays Out Emerging “Clinton-Obama” Doctrine
Beyond Curricular Reform
MINOW OUTLINES PROGRESS, FUTURE OF LEGAL EDUCATION AT HARVARD
ent, and future of the institution she now leads – and particularly on how she and Kagan jointly shaped the curricular reform that transformed the school’s long-static student experience. There have been subtle changes since Minow officially took the school’s helm in the middle of last year. The lagging consequences of the ongoing recession led to unavoidable budget cuts that did away with many of the “creature comforts” that endeared Kagan to students – and the faculty raids that made her fearsome to competing law
“When you have a lawyer for a client, it’s the most difficult experience, and I had the best lawyer in America as my client.” Greg Craig, the first White House Counsel to President Barack Obama ’91, sat down with Prof. Charles Ogletree ‘78 at Harvard Law School on April 6th to discuss the Obama administration’s accomplishments and his career in public service. “The White House is a remarkable place to work, and you don’t ever forget the significance of working so close to the President of the United States. At the same time, it is also very difficult.” Greg Craig’s career as a litigator began at Washington based Williams & Connolly, where he defended at-
BY MATTHEW W. HUTCHINS
BY CHRIS SZABLA
For those who criticize President Barack Obama ’91 for showing more continuity with the Bush Administration’s policies than change, Harold Koh ’80 has one word: “Duh”. Koh, who was the Dean of Yale Law School before enter-
BY MATTHEW W. HUTCHINS
DIDN’T WIN YOUR JOURNAL ELECTION? WE NEED NEW EDITORS-IN-CHIEF! E-MAIL RECORD@LAW
ing the Obama administration as Legal Adviser for the Department of State, says that the massive institutional momentum of the federal government means, “You do not turn the Titanic 180 degrees. There will always be more continuity than change from one administration to the next. But Koh, cont’d on pg. 7
It’s official: both the current dean of Harvard Law School, Martha Minow, and her predecessor, Elena Kagan ’86, are now being considered as replacements for Justice John Paul Stevens on the Supreme Court. But mostly lost in the tidal wave of speculation that has accompanied the news of Stevens’ retirement over the last week was the role both deans played in quietly reshaping legal education. Last Monday, just before the recent SCOTUS hype began, Minow gave an address to the school that focused on the past, pres-
The HL Record
• Net Neutrality Threatened • Restoring Afghan Rule of Law • Banned Scholar Returns to US
News Opinion Culture
Craig, cont’d on pg. 9
• Negotiating Law School • Genocide Debate Ignores Facts • What’s in the Harvard name? • Film: War Don Don
Dean, cont’d on pg. 10
Schulte Roth & Zabel - See Back Cover
Harvard Law Record
April 15, 2010
April 15, 2010
The D.C. Court of Appeals ruled last Tuesday that the FCC does not have authority to regulate broadband Internet service providers, granting Comcast the ability to shape its consumers’ use of certain web applications. This is the most recent development in a string of court battles that stems from Comcast’s practice of delaying or blocking certain types of Internet traffic without disclosing the details to its customers. While other companies may also engage in the same practices, Comcast, as one of the biggest and most powerful ISPs, sets the standard for the industry. The saga began in 2007, when one Comcast customer who had extensive network experience figured out that certain applications were being blocked. He realized that his Internet connection shut down when he tried to share his favorite music, public domain barbershop quartet recordings, via peer-to-peer applications. Because Comcast does not disclose what information they block and when they do it, less sophisticated users may not know that problems with their Internet connections are intentionally inflicted by their ISPs. The Electronic Frontier Foundation and Associated Press investigated, and discovered that Comcast purposely slowed or blocked peer-to-peer file sharing applications such as BitTorrent. Subsequently, special interest group Free Press filed a complaint against Comcast with the FCC in 2007 based on this practice.
BY STEPHANIE YOUNG
D.C. Circuit Rejects F.C.C. Authority to Regulate Internet Carriers’ Controls on Data
Free Press asserted that Comcast’s secrecy constituted a deceptive practice that should be regulated. Comcast explained that this was merely a “network management practice,” to ensure that no one consumer took too large a share of its bandwidth away from other customers. However, it failed to regulate some other applications that used more, and restricted other applications that used less bandwidth. In 2008, as the result of agency adjudication, the FCC ordered Comcast to disclose full details of its network management practices and create publicly available plans for new and nondiscriminatory practices. Comcast appealed this finding on the grounds that the FCC did not have authority to regulate under its “ancillary” authority. Comcast also claimed that the FCC could not make this decision through adjudication instead of conducting a formal rulemaking proceeding. In the April 6 decision, the D.C. Circuit found that the FCC misused its authority in regulating Comcast’s network management practices, effectively allowing Comcast to inhibit transmission of whatever content it deems troublesome to its networks. FCC Chairman Julius Genachowski said that even despite this decision, his agency would look for other means to protect consumer interests in broadband. As the appeal was pending, several bills introduced in Congress sought to remedy this issue from a consumer protection standpoint. The Internet Freedom Preservation Act, a bill introduced on July 31 of last
Comcast Decision Threatens Net Neutrality
Harvard Law Record
Afghanistan’s arduous road to the rule of law continues to encounter blockages and delays. In March, Rebecca Gang and Saeeq Shajjan, both Harvard Law School LL.Ms, who worked as defense attorneys in the country’s nascent new legal regime, together with Jasteena Dhillon, a fellow at the Harvard Kennedy School’s Carr Center for Human Rights Policy, shared their experience working in the country’s legal institutions. “I found that the pragmatic approach we were following on the ground, if not a complete mismatch, was not an answer to the break down of the rule of law,” Dhillon said. Using the example of Bosnia, she noted that post-conflict judicial institutions are generally not equipped to deal with the unique situations they face. Dhillon provided a brief overview of the issues facing Afghanistan’s legal system, including the interaction between Afghanistan’s formal and informal justice systems, both based in Sharia, and reflecting holdovers from the Roman civil and English common law systems. Within this context the discussion touched upon whether the international community correctly understands the challenges Afghans face and whether its presence is a help or a hindrance. She further explained the difficulty in determining the cycle of policy initiatives, as they may begin on the ground, filter up to policy makers and then circle back down. An Afghan attorney, Shajjan worked with the International Development Law Organization and Independent National Legal Training Center at Kabul University. Prior to returning to the United States for her LL.M, Gang focused on legal assistance and access with the Norwegian Refugee Council and the Afghanistan Independent Bar Association (AIBA). Shajjan recounted relevant aspects of Afghanistan’s history, noting attempts at legal and political reform. Ruling from 1919 to 1929, relative moderate Amanullah Khan created the country’s first constitution and compiled the penal code, as, according to Shajjan, “the state tried to make justice accessible.” With the 1973 coup, however, many earlier miseries returned to Afghanistan. “All the work that was done before was nullified,” Shajjan said.
BY REBECCA AGULE
Afghanistan: Successes, Roadblocks to the Rule of Law
Following the 2001 U.S. invasion, Afghanistan adopted a new constitution, which enshrined several human rights. Article 31 altered the scenario for the accused, providing that, “Upon arrest, or to prove truth, every individual can appoint a defense attorney.” With defense counsel almost a rarity in the country before, Shajjan recalled entering the courts of judges who did not even recognize the idea. He noted that the new constitution also includes a prohibition on torture and an equal protection clause, and he compared rights on paper to their effective, real time implementation. Despite some shortfalls, and even as he noted that
year, includes enforcement provisions for noncompliant ISPs and creates law directly rather than delegating to the FCC for rulemaking. This bill is currently in committee but will probably be replaced by the more recent National Broadband Policy. The Broadband Consumer Protection Bill, introduced on March 15, aims to promote disclosure to consumers of the actual transmission speeds their ISPs achieve. The act would spur an FCC rulemaking to ensure that broadband marketing includes clear information to consumers about what speeds they can realistically expect, and to regulate ISPs’ marketing and service procedures. The FCC released details of its National Broadband Plan, a priority of the Obama administration, on March 16, stating multiple goals of increasing the number of Americans with broadband connections, improving computer and Internet literacy, and making access more affordable. It remains to be seen how the National Broadband Plan will comport with the D.C. Circuit’s decision. Unfortunately, the recent Comcast decision means that the FCC may not have authority to regulate. This decision left the FCC with lesser regulatory power over broadband, and consumers with fewer rights against the industry. In order to ensure that consumers receive fair terms and competitive prices, either Congress or the courts need to reverse this trend and place broadband squarely under the FCC’s authority to regulate.
many challenges extend to the entire country, Shajjan remains hopeful. “I am optimistic that things are happening,” he said, pointing to the establishment of the Afghanistan Independent Human Rights Commission and the Election Commission. “Afghanistan does have certain achievements.” Of Gang, Dhillon said, “We worked in the same places at different times and both worked with AIBA. In post conflict countries, we put a lot of emphasis on judges, et cetera, but forget about defence lawyers.” After spending the last four years in Afghanistan, in part as an advisor to the first AIBA, Gang explained her reasons for stepping back into academia. “First, I came to Harvard to give my grandparents the year off from me living in Afghanistan,” she said. “Secondarily, because I came home from work everyday in tears, or if not in tears, with the feeling of having spent my day banging my head against the wall.” Gang had begun to question the appropriateness of the AIBA’s law and development approach and whether it would simply entrench more deeply the
“With defense counsel almost a rarity in the country before, Shajjan recalled entering the courts of judges who did not even recognize the idea.”
very justice sector problems it purported to solve. Law and development emerged as a distinct field in the 1960s and 1970s, Gang said, as people aimed to make a transformation from formalism to instrumentalism. Issues arose, however, when western assumptions were applied to developing countries. In reaction to this concern, a new model has been in relied upon since the mid-1970s. In practice, these polices were enforced by those with access to lawyers, thereby reinforcing the interests of the elite. “These iterations of level development all circle around this one concept and say the same thing, that locals need to design these programs. It says, ‘as long as locals are designing these projects, all of our problems are solved’,” Gang said. With the Bonn Agreement on the framework for Afghanistan’s post-2001 government moving forward, the International Bar Association (IBA) conducted a fact-finding mission in Afghanistan. Without standards for or regulation of the legal profession, and no structure to answer the problems of defense attorneys, it was nearly impossible to implement Article 31. The IBA suggested the creation of a new institution, which led to the AIBA’s formation. Gang said, “The IBA comes in and says, this is the solution, we are going to set up a framework; we are going to look at international best practices. Then you Afghans you fill it in.” Opening its doors in July 2008, the AIBA has met with both success and failure. Gang noted the accomplishment of even staffing the office and beginning work on non-controversial cases. By contrast, AIBA services have not expanded beyond Kabul, it lacks a strategic plan, and it continues to avoid controversial advocacy. “All of the problems we set out to fix, they have not only not been solved, but the mechanisms we set up to solve them have ensured they won’t be solved,” Gang said. Shajjan tried to temper Gang’s concerns, saying “this is the first year, don’t expect everything from them. They will do this.” Dhillon offered an angle of realism and progress. “When you are in the field you know that you are not always doing it right, but you just hope that it fits, and you push and you push. It’s great to go back and do this reflection.”
A South African Muslim scholar form the University of Johannesburg, Professor Adam Habib, was welcomed back into the U.S. early this month after a ban on his entry was lifted by Secretary of State Hillary Clinton in January. Under the Bush administration, Habib was linked to terrorism. The reasons for the link are unclear. A spokesperson for Clinton, Assistant Secretary of State P.J. Crowley, stated that Habib was not a threat to the United States and that the rationale under which his visa was denied could not be repeated in the future. He added that their latest decision was consistent with President Obama’s outreach to “Muslims around the world” and that “we want to encourage a global debate.” Speaking at Harvard Law School, Habib took the opportunity to open the dialogue on ideological exclusion in one of his first speaking engagements in the country since the reversal of the ban. Habib’s story began in October 2006, when he boarded an 18-hour flight from Johannesburg to New York City. At JFK International Airport, he was stopped by a customs official and asked to undergo further security checks. “Have you ever been a terrorist?” Habib was asked, to which he replied, “How long have you been doing this job? Has anyone ever answered ‘yes’?” Five hours of interrogation later, Habib’s visa was “prudentially” revoked and he was deported back to South Africa without any given reason. The visas of his wife and children were also denied. Speculation into Habib’s forceful removal ranged from racial profiling to his participation in anti-war protests
BY CHRISTINE LEE
Banned Under Bush, Muslim Scholar Allowed to Return to U.S.
during the 2003 U.S.-led Invasion of Iraq. Habib’s own favorite theory is that the government has a formula: traveler, one point; Muslim background, one point; critical of American foreign policy, two points, “and I went over a magic number,” he muses. rorism. Goodman felt that either this was a form of censorship or the government was “crazy”. Professor Habib hardly comes off as a terrorist. America is his beloved second home where he pursued his PhD at the City University of New York. For
Harvard Law Record
April 15, 2010
Photo: ACLU of MA
The American Civil Liberties Union took on Habib’s case and launched a lawsuit on his behalf. By law, there must be some “facially legitimate and bona fide reason” for a denial of entry into the U.S., explains ACLU staff attorney Melissa Goodman. The US State Department eventually explained that Habib’s visa application was barred because he was “engaged in terrorist activity”, contrary to a provision in the Immigration and Nationality Act. How or why this link was made, they would not say. After doing a background check on Habib’s work and history, Goodman found that there was nothing that could possibly link Habib to ter-
SCOTUS, cont’d from pg. 1 protection. Obama also faces pressure to name a justice who is not currently serving as an appeals court judge, as all eight remaining justices had prior to joining the Court. Among the competing pressures weighing on the president are potential concerns not only about age, experience, and race, which are always factors that weigh on the names floated to the press as much as in the choice for nomination itself, but over whether he should spend political capital fighting for a justice who embraces liberal ideals or instead favor a candidate who will sail smoothly through confirmation hearings. Kagan has left little trace of her potential legal philosophy, a fact which helped her win approval from the Senate last year, when she was confirmed as Solicitor General. She has also expected to encounter relatively little opposition from Republicans impressed with her efforts to overcome the ideological divide among the faculty at HLS and appoint conservative professors such as Jack Goldsmith. But civil liberties writer Glenn Greenwald of Salon.com has led the charge that Kagan, while presumably to the left of the conservative justices, would nonetheless be a less reliable liberal than Stevens, and that her selection would shift the court to the right. Assessing Minow’s chances, the Boston Globe also emphasized her personal ties to Obama, noting that she first identified and encouraged his potential in public service and that her father, Newton Minow, served as Obama’s mentor at the former’s Chicago law firm. A spokesman for the dean told the Globe that she was “deeply honored to be considered” for the position.
It has become beyond cliché to say that the continuing evolution of communications technology has dramatically transformed the landscape of journalism. And it’s no less the case for writers and reporters who cover law. But legal journalists face their own particular opportunities and challenges navigating the new formats, sources, and audiences available online. “The vast majority of Americans don’t go to court or engage lawyers,” said Roy S. Gutterman, Director of the Carnegie Legal Reporting Program at Syracuse University’s Newhouse School of Public Communications, a fact which made it even more incumbent on legal reporters to clearly explain what goes on in courtrooms – and judge’s heads. Noah Feldman, Harvard Law School’s Bemis Professor of Law, concurred. “The overwhelming way people in the U.S. understand legal issues through work of people like those here,” Feldman said. “The law not so much what courts say as what media tell people courts say.” Feldman, himself a contributor to the New York Times, was referring to the assembled panelists at the Harvard Law Review’s spring forum, which focused on the relationship between media and the law – and, in particular, the question of whether the media could successfully convey legal ideas. Beyond, Gutterman said, the specialized press –
BY CHRIS SZABLA
Can the Media Digest Big Legal Ideas? Journalists Have Their Doubts.
the last 20 years he has come and gone from the U.S. without incident, developing enduring personal and professional relationships along the way. “It’s a place where I have memories”, he says, “It’s the place where my son was conceived. It’s where I played with him in Central Park trying to feed the ducks … and for me, no government should be able to deny me without any due course that I can [or cannot] visit a place where I have memories.” More importantly, Habib believes his fight to regain re-entry into the States is a principled struggle for democracy. Ideological exclusion would deny the legal rights of U.S. citizens to hear di-
verse views. It goes against everything Habib feels that contemporary America stands for and in fact, exactly what the terrorists of 9/11 would have wanted all this time. The lawyers involved in his case may have agreed or disagreed with his views, but that didn’t matter, because on principle, they believed that his views deserved to be heard. “That’s a beautiful thing”, Habib says” “it’s solidarity, action and practice that transcends national boundaries.” There are also global consequences when America practices ideological exclusion, according to Habib. It is one thing for Zimbabwe to censor ideas at the border; it is another for the United States to do it. When the most powerful country in the world filters out scholars critical of the government, it weakens the message of democracy across the world and lends credibility to censorship. The reversal of Habib’s ban by the Secretary of State is therefore a major victory for American democracy and civil liberties. The professor joins an illustrious list of scholars, politicians and thinkers who have been denied entry into the U.S. on ideological grounds, including South African President Nelson Mandela and Nobel laureates Doris Lessing, Pablo Neruda and Gabriel García Márquez. Nevertheless, Habib recognizes that most scholars do not garner media attention or have organizations litigating their case. “I got lucky,” he says, “there [are] countless individuals” whose bans are still in place. He warns that this stands at odds against a democratic society where arbitrary political actions should not be made to prevent the exchange of ideas. According to Habib, it is “incumbent on the Obama administration to do something for the voiceless who have not been heard.”
outlets like the National Law Journal, for example – most legal reports tended toward the sensationalistic rather than the philosophical. The media, he insisted, was largely “looking for man bite dog stories”. Dahlia Lithwick, legal writer for Slate.com, agreed. “The media does very little with legal ideas,” she said. “The media likes crime and disputes”. If one clicked on the now defunct law tab on CNN.com, she suggested, one would see “17 missing blonde stories.” Still, Gutterman insisted, such pieces could serve as conduits to introduce audiences to important legal issues. But Lithwick noted that, during the media circus surrounding the Anna Nicole Smith trial, the “probing legal idea” was “does she look good?” Lithwick did agree that engaging audiences with stories about trends in legal thought to begin with was as difficult, if not more challenging, than explaining those concepts to begin with. “Most of what we do [when writing such stories] is really inside baseball” to the general public, she said. To successfully convey serious legal ideas, writers needed thousands of words, a privilege few legal journalists are allowed. The New York Times’ Adam Liptak, Lithwick noted, was an exception: he was regularly allowed to write long pieces integrating recent law review scholarship. But at Slate, she said, it is considered a general rule that readers generally quit after 1400 words – and attention spans are getMedia, cont’d on pg. 10
April 15, 2010
Best Contract Overall: Russell Herman, David Roth, Kristi Jobson and Aaron Dalnoot Best Representation of Save Our Square: Fentress Jamal Fulton and Betny Townsend Best Representation of McMillin’s: Adam David Lander and Matthew Walsh
Students Simulate Negotiation Between Community Activists and Global Franchise
The Winners of Harvard Law School’s 57th annual Williston Competition, Harvard’s annual contract negotiation and drafting competition for first-year law students, were announced on Monday, April 5. The Williston Competition presents participants with a complex business problem and charges them with representing a client in negotiations, trying to arrive at an agreement that they then reduce to writing. This year’s problem involved a negotiation between a community group, Save Our Square, and an international fast-food chain, McMillin’s, which were trying to come to an agreement over the terms of the chain’s establishment of a franchise in the local community. The competition presented participants with the opportunity to try out their contract negotiation and drafting skills. “We were drafting right up to the deadline on the last day of the competition,” said Russell Herman, who represented McMillin’s. “It was difficult drafting the contract so that all four of us were satisfied with the language.” It was not all work and no play for the competitors, though. “The most fun part of the negotiation was brainBY JOHANNA SCHWARTZ MIRALLES
Williston Winners Celebrate Negotiated Victory
Harvard Law Record
storming with the other side,” Herman added. “Both sides brought really creative ideas about how to address each of the issues, and since we had a good working relationship, both sides felt comfortable sharing them.” His counterpart representing Save Our Square, Kristi Jobson, agreed. “The four of us worked so well together,” Jobson said, “and were similarly invested in finding an outcome that worked for both sides.” The Williston Competition is run jointly by the Board of Student Advisers and Harvard Negotiators, under the supervision of Professor Robert Bordone, Director of Harvard’s Negotiation and Mediation Clinical Program. This year’s competition was judged by Sarah Jelsema ‘11, Andrew Madsen ‘11, and Jonathan Lackow ‘07, an associate at Ropes & Gray.
Record Still Seeking Next Year’s Editors. Seriously.
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Top row, L to R: A. David Lander, Matthew Walsh, David Roth, Russell Herman. Bottom row: F. Jamal Fulton, Betny Townsend, Kristi Jobson, Aaron Dalnoot
$1 per day for 1 month from each student at the law school would fund a fellow classmate to work in the public interest for a year following graduation. The Post-Graduate Student Funded Fellowship is the result of students realizing there is much we can do to help one another and others in a time of economic and social distress. The immediate goal is to support one of our peers, someone whom we have shared classes with, whom we have been inspired by, and who is eager to tackle the problems of the world. The effects of the fellowship, however, will surely extend beyond the HLS community. By funding a year of public interest work, we are confident that we are also funding positive change for the individuals and communities with whom the fellow works. Even beyond that, we believe that this Fellowship has the power to positively influence the school’s culture, building greater community on campus. This is why it is important that this fellowship be grassroots, led and supported by students. The economic downturn has made clear that nothing can be taken for granted, including the availability of a job for someone both qualified and deserving. Discussions about post-graduation plans have turned into comparisons of starting dates, deferral periods, and the latest frustrations of trying to crack into the public sector. Some of us find ourselves relatively well positioned; others are still busy networking, mass e-mailing, and polishing up fellowship proposals. And so this time presents a unique opportunity to step back and think about what each one of us can do to help our fellow classmates in addition to those less fortunate outside of the HLS community. We have worked to make it as easy as possible for students to donate. Everyone is encouraged to visit our website at www.law.harvard.edu/students/orgs/fellowship, and donate through the online form (by writing in Post-Grad Student Funded Fellowship in the Additional Comments section). As you may have noticed, we are holding weekly bake sales (Wednesdays from 12-1 at the Hark) until the end of the school year, and we’d love for you to stop by, chat, get more information, buy a treat and give back. 3Ls have the chance to direct their class gift to the fellowship, among the other options. 2Ls will have the opportunity to donate “One Day’s Work” this summer to the fellowship. This is hopefully just the beginning. We have selected students with the drive and ideas to lead this initiative next year. Our goal is to make the fellowship a permanent part of the HLS community. Thank you. Your Post-Grad Student Funded Fellowship Chairs, Sheila Lopez, Julie Ruderman, Alison Welcher, and Maura Whelan
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FACTS AND THE POLITICS OF NAMING
BY NAIRA DER KIUREGHIAN
Harvard Law Record
April 15, 2010
Reth inking the Armenian Genoci de
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The Armenian Genocide took place in the Ottoman Empire during the First World War. It was an attempt by the Turkish government to eliminate the Armenians from present-day Turkey. From 1915 to 1923, 1.5 million Armenians were killed and many more were deported on death marches in to the Syrian Desert. Since then, Turkey has denied this history and strongly opposed recognition of these events as genocide. Popular discussions of the Armenian Genocide increasingly focus on the politics of recognition and the rhetoric of denial and overlook the substance of these tragic events and their legacy. My great-grandparents were survivors of the Armenian Genocide. Growing up in an Armenian community in California, most of my friends’ grandparents were also survivors. The genocide was an inevitable topic of discussion. It came up whenever people discussed their families, histories, or the origins of their names. Many Armenians have surnames denoting their grandparents’ hometown or occupation in Turkey prior to the Genocide. Even today, our names remind us of the past and a way of life that no longer exists. As a child, I spent a great deal of time listening to my grandmother and her friends talking about the past. They discussed their lives in Lebanon, where many Armenians ended up as refugees, and the way their families had struggled to regroup and regain a sense of normalcy in the decades following the Genocide. Even if it weren’t explicitly discussed, the legacy of the Genocide was omnipresent. One day I asked my grandmother why one of her elderly friends had writing on her face. She explained that her friend had lost her entire family during the Genocide, and that during the deportations, she was taken by a Turkish family to be a domestic worker. They had tattooed Quranic verses on her face, a practice they perceived as a means of beautification. She later escaped to a home for Armenian orphans, where she met and married a young man who was the only other surviving member from her village. I also learned about the ways in which people dealt with loss. My great-grandmother’s mother, for instance, went into shock after she lost three of her children in one week during the Genocide. Afterwards, she made an oath that she would never utter any sound outside of prayer. Turning to religion,
Part I – Political v. Personal Discussions
There are countless other stories that I’ve read and heard, but I suppose debates about the impact of recognition on U.S. foreign policy and discussions about the niceties of terms like “civil war,” “deportation,” and “genocide” are easier to ponder. The language used to describe the Genocide in American discourse can strike one as absurd. While Obama was still a senator, he had no hesitation labeling these events as genocide. On April 15, 2009, President Obama, like many presidents before him, opted instead for a euphemism out of fear of offending Turkey. Perhaps in a show of solidarity, he used the Armenian epithet, the term
Part II - The Politics of Naming / Recognition
she spent the rest of her days in silence. Another friend would never drink any water except rainwater. She had lost her children to thirst during death marches into the Syrian Dessert. She pledged to use only rainwater from then on, denying herself the comforts that would have saved her children. Though an avid story-teller, my great-grandfather never spoke of his experience during the Genocide. It was not until after he died that I found taped interviews with him in a historical archive. In the interviews, he recounted his experiences after marching for months in caravans into the Syrian Dessert with his mother and sisters. He recalled how during death marches armed gangs regularly attacked the Armenian convoys, killing indiscriminately and raping women and girls. My great-grandfather must have been about ten at the time. In the interviews, he recalls hearing the sounds of girls being raped and the agony of knowing no one could save them. Once a girl was taken, she was never seen again. Eventually he and his family made it to the outskirts of Aleppo but were prohibited from entering. Aleppine officials adopted a policy of refusing entry to all Armenians. During the initial stages of the Genocide, the city had been overrun by an influx of emaciated and disease-ridden Armenians, causing a public health crisis. Martin Niepage, a schoolteacher, documented the impact of the arrival of the first Armenian survivors in The Horrors of Aleppo Seen by a German Eyewitness, in which he beseeched the German government to put an end to the persecution. Through deceit and out of desperation, my great-grandfather, his mother, and sisters eventually managed to make it inside the walls of the city. Disguising themselves as workers, they were smuggled into the city by laborers.
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victims of our April Fool’s Day issue among media both students and the
Minow and members of
(and to Dean
the administration who
had to deal with them) for falsely raising hope for tuition refunds or inamong
creased ideological di-
remain utter fantasies.
faculty. To clarify, these
Anaide L. Nahikian, Harvard University Program on Humanitarian Policy and Conflict Research
Following your recent piece "Experts Ponder Implications of Remote, Robotic Warfare" in the 11 March issue of the Harvard Law Record, my colleagues and I wish to [point to] the recent publication and launch of the "HPCR Manual on International Law Applicable to Air and Missile Warfare". The "HPCR (Program on Humanitarian Policy and Conflict Research) Manual" provides the most up-to-date restatement of existing international law applicable to air and missile warfare, as elaborated by an international Group of Experts. As an authoritative restatement, it contributes to the practical understanding of this important international legal framework.
Letters to the Editor
I can’t help notice that only one week after “General Kagan” demanded a Supreme Court vacancy open up in the April Fools’ day issue of the Harvard Law Record, Justice John Paul Stevens announced his retirement. I can only conclude that Stevens and the White House thought that the column was written by the real Elena Kagan, and jumped to oblige her. (This wouldn’t be a first, as the Record April Fools’ day issue has been tricking inattentive media and academic types since the 1970s.) The Record board should feel justified in claiming complete credit for Stevens' retirement. Anyway, count me among the thousands of HLS students and alums who will be unapologetic homers for our former dean if she is nominated. I hope this is her time. But I have to say that there is a major downside if Kagan ascends to the Court: she will have to wear a dowdy black robe all the time instead of her famous rainbow of
Genocide, cont’d on pg. 8
solid-color blazers. (A Google image search provides all the examples you need.) I always wanted to put Elena Kagan Paper Dolls in the Record, where the basic doll was wearing a black top, black pants, and sensible shoes, and then you could dress her up in a red blazer, a green blazer, or for a formal night out, a black blazer. Lest you think Kagan left this fashion statement behind at HLS, I asked a friend who works in the Solicitor General’s office, and he assured me that Kagan has kept the blazer collection even at her lofty post in DOJ. That made me feel good, like Kagan wasn’t going all “D.C.” on us. Alas, robe beats blazer every time. Best of luck to her or whatever other HLS grad is nominated for the spot (since that seems to describe almost everyone being short-listed). Andrea Saenz ’08 Editor-in-Chief, Harvard Record, 2007-08 Law
April 15, 2010
Harvard Law Record
Sunny Skies Over Cambridge
Sunny Lee, LL.M. ‘10, took to the skies for an Easter Sunday helicopter ride over Boston and Cambridge, catching pictures of Harvard landmarks along the way. Flying out of Hanscom Airfield in a Robinson R-44 Raven, Sunny gained a new perspective on the geography of Boston Harbor and Harvard.
BY MATTHEW W. HUTCHINS
What’s in the Harvard Name?
E R S O N A L
E F L E C T I O N
I almost didn’t apply to Harvard. To me it was a name and a place far away and full of vague notions of elitism, and in some sense I saw my own life as a less ambitious affair. I wanted to go to law school partly to learn a profession, but I also had a desire to get beyond the external manifestations of power and come to know the system from the inside. And so I applied, knowing that Harvard’s name, network, and faculty could equip me for these goals better than others. When I came here three years ago, I felt like I had snuck in the side door by figuring out the secret handshake, and now that I had gotten inside I would start to learn other secrets and crack even more devious ciphers. By the end of 1L year, I was fairly well disillusioned. My classmates no longer seemed so different from me. My professors were starting to seem less lofty and inscrutable. And the contours of the law were already forming a sort of a superstructure that would later be reinforced and walled in to form a solid body of knowledge. Soon enough, the Harvard name too had also lost its luster, already looking more bizarre from the inside. I realized at some point that it was just another brand name, this one with an “established” date earlier than others and with a longer list of successful graduates, but essentially just a label on a product and an institution. I also realized that I too could use this brand name like a badge, a shield against doubt and scrutiny. Whether it was a resume or this newspaper, promi-
nently placing the Harvard name next to my own became second nature before long. But Harvard is more than a name. It is a global symbol of academic success, but it also serves as a nexus for a massive self-selection process, and those who are drawn by its name and reputation soon become the corpus of the institution and a part of its history. By the time we have crossed the last threshold and stand in the halls of Langdell and Austin, we have by and large identified ourselves as holding particular values and goals and have ascribed to particular means of achieving our objectives. Thus, whether we know it or not, the common bonds of achievement and aspiration that draw us together also drive our assimilation into the culture of the place and its people, where we are saturated with the Harvardness of where we are and who we are becoming. Walking back out of the gates I entered three years ago, I can also feel the inertia that Harvard has lent the course of my life. I have a path in front of me now, a yellow brick road, that makes the unpredictability of life seem less daunting. We will all land on our feet, that mantra inculcated by our mentors, seems true enough now, despite some bumps and delays for all of us. But the road ahead is not really so simple, and the destination is not some magical crystal city where all our problems will be solved. Life remains complicated and full of change. Writing for this newspaper has given me the chance to speak to the world as a member of the Harvard Harvard, cont’d on pg. 9
the question is what is the approach, and is the approach the same or different.” Koh appeared at HLS as the keynote speaker for the Harvard International Law Journal’s 2010 Symposium, where he outlined what he sees as an emerging Clinton-Obama Doctrine of international engagement, as well as his own role in the Department of State and his conception of how government lawyers shape international law. As the Legal Adviser of the Department of State, Koh is tasked with coordinating a multitude of U.S. legal affairs, but whether he is acting as the general counsel to the diplomatic corps, buying land in Beijing, negotiating contracts in Afghanistan, or advising the Secretary of State, he sees his primary role as a defender of U.S. interests. From his position as an advisor to Secretary Clinton, he sees the emerging Clinton-Obama Doctrine as centering around four key ideas: principled engagement with international organizations and institutions, diplomacy as a critical element of smart power and at the vanguard of foreign policy, strategic multilateralism, and the conduct of U.S. affairs in line with both domestic and international law in a way that follows “universal standards, not double standards.” As examples of greater international engagement, Koh pointed to the United States’ return to the ICC, climate change negotiations, the human rights counsel, and numerous other international discussions. Although Koh has written widely on international law, he said that his own role in the discussion is more that of adviser and facilitator than decision maker or expert. “I am not in the office as Harold Koh the legal expert. I am in the government as Harold Koh the legal advisor. Standing up at a law professors’ conference makes no difference. Legal advice must be based
Koh, cont’d from pg. 1
on the reasoned opinions of prior governmental officers.” Given the body of statutory and case law, as well as policy documents from all branches of government, and faced with the challenges of a serious recession, two armed conflicts, and earthquakes in Haiti and Chile, Koh said that making progress can be extremely difficult. In addition, formulating a new governmental position can be painfully slow as a document progresses through the internal clearance process, the interagency process, the legislative process, the governmental lawyering process, and the intergovernmental process. Despite all the barriers to change and inevitable delays, Koh believes that government lawyers are crucial to the process of internalizing international norms. Among the important functions government lawyers serve, Koh elaborated upon their role in creative generation of lawful options, channeling actions toward what is legal under international law, determining the applicability of international rules, evaluating customs, nominating international experts, negotiating international texts, and participating in international dispute resolution. Of these, he put particular stress on option generation as a means of providing advice beyond the mere evaluation of legality. He said that on joining Secretary Clinton’s staff he made it clear that, “If I am to be your general counsel, I must have the freedom, after I have told you whether something is lawful or not, to go one step further as a policy matter to tell you whether this is lawful but awful.” Koh sees this as an indispensable function that lawyers can provide in their capacity as trusted advisors who take part in important discussions of policy. “The international lawyer is not a potted plant. In a crisis, your job is not just to sit there. When the moment arises, speak up! Speak law to power!”
Medz Yeghern, or “great calamity.” Like many Armenian terms, it’s rich with consonant digraphs, yet easier to pronounce than the term we use much more frequently, Dzeghaspanutiun, or genocide. Ironically, Raphael Lemkin, the jurist responsible for creating the term “genocide,” first developed the concept with the Armenian Genocide in mind. Winston Churchill referred to these events as a “holocaust” in his history of the First World War. In 2000, Robert Fisk expanded on the politics of naming by writing about his struggle with his editors at The Independent who insisted on using a lower case “h” for “Armenian holocaust.” They said common usage dictated that the capital “h” be reserved for the Jewish Holocaust. When pressed further, they said the Jewish Holocaust warranted capitalization because it was Europe’s genocide, and therefore, had a particular place in their culture and language. In recent years, an increasingly absurd rhetorical
Genocide, cont’d from pg. 6
Of all the starts and finishes we’ve gone through and are about to go through in our lives, the difference between the beginning of the JD and the end of the JD is particularly, spectacularly, pronounced. Think back to the first few days of 1L, when you met your section mates, the people you would see day in and day out for years. You sat through the mock class and had dinner with the Dean in the “Trophy Room” at the library; you posed for your section photo and it was still sunny and warm and fall hadn’t technically begun yet. Or go back even further—think back to admitted students day and the way you felt walking through the buildings for the first time as someone invited to be there—someone who was supposed to be there. I’m guessing that those on the eve of graduating with a JD are feeling very far removed from those early days. The transformation that takes place at both the individual and the group level over the course of the JD is rapid and dramatic. The beginning and the end point of your Harvard JD are profoundly distinct. And like any change, it is unsettling. As we prepare to graduate, it is worth nothing that the disruption in front of us is not just a change in location or community or title or income. It is also a change in identity and self, and it has been occurring throughout the course of the JD. Whether you suffered through 1L, deeming it the worst year of your life, or whether you loved it, it was likely a sea change moment. 1L begins with little context. Nothing you’ve ever done before could likely prepare you sufficiently for law school. You have no idea what to expect, and depending on your personality, this is either terrifying, or exhilarating, or some mix of the two. Like anything unknown, 1L produces fear in those living through it. When you don’t know where you’re going— you have the address in your hand but you’ve never been before—the walk or the ride feels longer and harder and more uncertain. You’ve never read anything like this, you’ve never been asked questions like this, you’ve never engaged in a process of reasoning like this. Add the competition inherent in both
BY JESSICA CORSI
BEGINNINGS AND ENDS, STARTS AND FINISHES
a curved grading system and at an envi- the non-legal, non-rational parts of you. ronment like Harvard Law School and Students can wind up with an extremely you have compounded the fear. The heavy load of classes even in the very perceived sense of competition couples beginning—17 credits in one semester? with the fear of looking like an idiot in It happens. In addition to the volume, front of 80 other people that you’re de- there is the lack of experience holding cently certain are pretty smart and you back: you will never read legal ma100% certain that you are seeing again. terial more slowly than you read it 1L Everyone is so darn motivated—does fall. As a result, in 1L we are often that make you lazy? If you thought of forced to give up many of the things yourself as a hard worker before but that had made us happy prior to entering you chafe at the amount of work you are law school. assigned, while others seem to get down For many people, 1L is the first time to it without hesitation, what does that they have felt a sense of purpose and say about you and how you had previ- that what they do or say matters. Fiously perceived yourself? If you’re nally, what you’re studying will have struggling to stand out in a sea of over- some practical consequence for your achievers, you are likely incapable of life and your career, and your career is doing so without a hefty dose of stress. going to have consequences for other It doesn’t help that the adversarial people. You can “do” something now. system of American legal reasoning pits You can win a case; you can change a us against each other: we are taught to law; you can produce real outcomes that tear each other’s arcould affect guments apart and dozens, thousands pick out all of the From 1L to 3L and beyond, of other people. flaws. The class- the intimidation, trepidation, That is meaningful, room divides as peo- and opportunities of change. but it is intimidatple take sides. The ing. Now you have feeling is that it is to take your work personal: you made a mistake; you’re more seriously. Now a mistake is more on the wrong side. grave, a failure more significant. Throughout it all, you are being Fast forward to the eve of graduation forced into a specific mold. You are in- and those early moments of the beginstructed to read in a specific way; to re- ning year seem a million miles away. peat and analyze what you’re read in a The change we’re about to experience certain way; and to write and argue in a in leaving Harvard Law School cannot specific way. You are being shaped and be understated. For several years we’ve remade, and maybe you don’t like what been ensconced in this community, and you’re being turned into. Maybe the re- we’ve been enriched by it, and we’ve shaping cuts off pieces of your former been protected by it. On the one hand, self that you didn’t want to let go. we’re lucky simply to have communiThe intense growth experience of 1L ties. Americans live increasingly atomis mixed in terms of the feelings it pro- ized lives, and are less and less likely as duces: 1L might have been the most in- the decades progress to be a “member” tellectually stimulating year of your life of anything. Not only are we members to date, but likely the pressures and of the law school, we’re members of the processes involved in pushing you to Harvard community generally, and we new heights and new understandings then join all sorts of sub-communities was also significantly uncomfortable. within the schools, based on religious or You may have had to work harder in political or other affiliations, or focused your life than ever before, and this chal- on specific projects or activities. There lenge may have been exciting, but it is is always something to join or do here, also fatiguing. This process, too, cuts and even if you didn’t take any action you off from your former self. 1L is a to join or participate in anything, your year when people lose time; their days default community is large, diverse, and are swallowed up with law school. You positive. Few people if any would think may have talked to your family more that membership in the Harvard Law prior to law school, you may have had community is other than an exceedingly more time for hobbies that addressed good thing. You don’t lose this mem-
C A M B R I D G E ,
game has overshadowed meaningful discussions of the Genocide. One can easily find reports insisting on the impracticability of official congresional recognition of the Genocide and criticizing House discussions of recognition for their “interference” in the precarious reconciliation process between Turkey and Armenia. In October 2009, Turkey and Armenia signed a protocol, under the close watch of Hillary Clinton, agreeing to begin the process of reestablishing diplomatic ties. The agreement reached an impasse after the Armenian Constitutional Court held that the agreement could not prevent the Armenian state from seeking international recognition of the Genocide. Neither state’s parliament has ratified the agreement. Although federal recognition has been controversial, forty-four U.S. states have officially recognized the Genocide. So have a number of countries, including Canada, France, and Russia. These are examples of how Turkey’s relationship with its allies has survived and even been strengthened despite recognition
Harvard Law Record
of the Armenian Genocide. During the drafting of the current protocols, Turkey insisted that the issue of the Armenian Genocide be resolved at a later date by a team of historians. Though such solutions seem reasonable, they overlooks the fact that the question of whether the events constitute genocide is beyond debate. Historians have reached a consensus in favor of the label of genocide. In fact, many Turkish academics and intellectuals, such as historian Taner Akcam and publisher Ragip Zarakolu have called on Turkey (and the U.S.) to recognize the Genocide, at great cost to their own liberty and safety. Both the International Association of Genocide Scholars and the International Center for Transitional Justice have officially recognized the events as genocide. Ultimately, we must not allow Turkish denial to shift the conversation from the legacy of this Genocide and its impact on history to the banalities of naming.
April 15, 2010
U S A
Jessica Corsi is a graduating 3L and Opinion Editor of the Harvard Law Record. This is the last of her two year long series of columns for this paper.
bership by graduating, but you lose the almost daily interaction that it provides. We’re being scattered around the world—how will we find each other again? What will our days and weeks be like without the support we feel here? Graduating in 2010 presents an added wrinkle: this is not the world we expected we’d be graduating into. Part of what makes Harvard great and what makes it tough to bear is the loftiness of the expectations all of us bring to the table. Clearly, we can be the next president of the United States! Obviously, we can be the next Supreme Court Justice! When you’re here, there is no ceiling to your aspirations. But, the world is being remade in front of us. Most HLS graduates target jobs at large, famous law firms in big cities for their first post-graduation job. Those types of firms are still reeling under the presure of the economic downturn that has afflicted the entire world, and as a result, they’re not hiring nearly as much as they were when this graduating class entered law school. Still, I don’t think I’d be going out on a limb if I said that I believe that everyone in this graduating class is going to find a job. But a big difference between 1L expectations and end results now, though, might be the job you end up finding. In the years we’ve taken to complete our JD, our opportunities have changed. Our expectations and wishes might not have. Now, they might not match. This is unsettling, and disturbing, and definitely not what we signed up for. I’m willing to bet, though, that whatever we’re feeling in the weeks leading up to graduation, and however we view our 1L experience or our JD experience generally, that we wouldn’t trade it for the world. I think that even the most miserable graduate would answer that they would do it all over again, and have a host of reasons for professing this. Something with that powerful of a draw, and that huge of an impact on our lives, is very hard to leave.
April 15, 2010
“War Don Don” Probes the Reality of International Justice
Film Forces Viewers to Question Their Assumptions About Guilt, Innocence, and War Crimes Tribunals
most satisfying intellectual and emotional discomfort. “War Don Don” opens with the Special Court itself, a fortified structure surrounded by the ubiquitous blue-helmeted United Nations guards. With every act, the film shifts its focus, never make Sesay’s guilt a seemingly foregone conclusion. For Crane, only the Devil himself could have created Sesay and his co-defendants. “These dogs of war, these hounds from hell…These were the leaders, the commanders of an army of evil, a corps of destroyers and a brigade of executioners bent on the criminal takeover of Sierra Leone, once the Athens of West Africa,” he says “Today, due to these indictees, a sodden backwater, marred and broken, lapping against the shores of civilization.” But, just as the most dovish of viewer considers tying the noose herself, Cohen opens the backstage door to the justice system at play, and all such assumptions begin to splinter. Despite representing a man described by Crane as soulless, the Sesay team managed to avoid caricaturing itself with criminal defence stereotypes. Instead, Lead Defence Council Wayne Jordash and Co-Counsel Sareta Ashraph humanize Sesay, re-introducing him as a relatively moderate soldier, trapped first by horrific circumstance, and then by the inappropriate application of strict conceptions regarding military structure and command responsibility. Perhaps Sesay himself throws the most eloquent wrench into any simplistic notions international criminal justice. “Just because I’m an RUF commander, that’s what I’m convicted
Harvard Law Record
Craig, cont’d from pg. 1 tempted-assassin John Hinckley, Jr., but he has gone in and out of public service numerous times, working for key Washington figures like Senator Edward Kennedy, Secretary of State Madeleine Albright, and President Bill Clinton, whose impeachment defense he coordinated. Despite his previous service in the Clinton administration, Craig was an early supporter of Obama, joining his campaign as early as 2006 and bringing with him the wealth of foreign policy experience he gained under Senator Kennedy and at the Department of State. He said that he found Obama’s early public appearances “transformative” and recognized his potential as a presidential candidate after his Robert F. Kennedy Award speech in 2005. Craig departed the White House in January of this year due to growing concern over the handling of the administration’s policy regarding the detention of combatants at Guantanamo Bay. “Trying to unwind the Bush Policies while trying to manage two wars was not easy,” said Craig during his appearance at HLS. Apparently, tension mounted between Craig and White House Chief of Staff Rahm Emanuel as Craig’s desire to push for decommissioning the facility came in conflict with other priorities on the President’s agenda. Craig said that Rahm Emanuel used the analogy of a crowded airport to illustrate the difficulty of the situation. “We are trying to bring in two huge 747’s [the wars in Iraq and Afghanistan] at the same time we are trying to reform our national health care system, and right in the middle you want to send up a flock of Canadian geese, which is Guantanamo, which could take down one of those 747’s.” Aside from the delays in the Guantanamo closure, Craig said that the Obama administration has achieved an impressive measure of change in its first year, with particular examples including the abolition of enhanced interrogation, the shutdown of CIA black sites, the completion of a full review of detention policy, the release of pre-
Filmmaker and HLS graduate, Rebecca Richman Cohen ‘07 first observed Issa Sesay in 2006, through the bullet proof glass of the gallery at the Special Court for Sierra Leone. While assigned to a different defence team for her 2L summer, Cohen felt drawn to the trial of the former Interim Leader of the Revolutionary United Front, the rebel army that had waged and lost a decadelong civil war against the government of Sierra Leone. Four years later, as the Court concludes its cases, the first major war crimes tribunal to do so since the Trials at Nuremberg over sixty years ago, Cohen presents “War Don Don”, the jarring product of her legal education and three years of filmmaking. In Krio, the lingua franca of Sierra Leone, “war don don” means “the war is over”, and Cohen’s film offers an insider’s nuanced examination of the role played by international criminal justice once hostilities have formally ceased. Winner of the Special Jury Prize at the South by Southwest Festival, “War Don Don” forces its audience to challenge preconceived notions of righteousness, justice and retribution. Even the seemingly secure concept of truth is quickly muddied, creating the
BY REBECCA AGULE
allowing the viewer to simply take a passive role. Harrowing images war’s casualties, including the dead, the maimed and the child soldier, as well as graphic victim testimony and the vehemence of Chief Prosecutor David Crane
for,” he says. “If I was to be judged as an individual, I think they would not convict me on many things” This lack of consensus regarding Sesay, specifically, and justice, generally, is not confined to the Court. Cohen’s crew follows the Court’s Outreach Team as it meets the with communities throughout Sierra Leone, speaking to many who lack basic necessitates such as water, shelter and food, about the Court’s mandate to provide truth, not aid. The millions of dollars expended to fund the Court locate these words somewhere between ironic and cruel. The film’s aesthetic, simultaneously stunning and disturbing, matches the tenor of the issues at hand. Refraining from voiceover and allowing the war, the court and Sierra Leone itself to serve as much of the soundtrack, Cohen deftly removes herself from the film. Instead, she elegantly allows the violence, the individuals involved, and, in the end, the lingering questions to haunt the viewer. “War Don Don” will screen at the Independent Film Festival of Boston (IFFBoston) on April 24, 2010, at 2:30 pm, at The Somerville Theatre, 55 Davis Square. Tickets, $9, can be purchased online at http://iffboston.bside.com/2010/films/ wardondon_iffboston2010. More information and the trailer can be found at http://www.wardondonfilm.com/.
viously confidential memos, a reevaluation of the executive use of the state secret doctrine, and the announcement of an intention to end the “Don’t Ask, Don’t Tell” policy. He expressed regret that the decision by Attorney General Eric Holder to seek trial of Khalid Sheikh Muhammad in Article III courts has been framed as a civil liberties issue, pointing to the proven efficiency of government prosecutors, federal judges, and criminal procedure rules as a sure means of obtaining solid convictions. He warned that military tribunals have suffered from a debilitating effort to accommodate the procedural needs of defendants and remain an uncertain venue that may be subject to reversal on appeal. He also noted that support for military commissions is particularly surprising in light of the fact that they are not allowed to sentence detainees to capital punishment. “If you care about capital punishment for KSM and these individuals, then you would support what Eric Holder recommended.” Craig also identified some of the logistical challenges that will make the closure of Guantanamo a difficult issue. He said that of the approximately 240 remaining detainees, some 40-45 will be prosecuted, another 40-50 are dangerous individuals who will be held indefinitely, many of those remaining will be transferred or released. But one of the biggest problems at the present moment is determining the proper course of action with respect to the 98 Yemeni detainees. “People do not want to send them back to Yemen, although Yemen would take them,” said Craig. “Until we solve the problem of what to do with the Yemenis, it is going to be very hard to close down Guantanamo.” Craig anticipates that the plan to transfer inmates to Thomson prison has potential, but that after the most recent upgrades to the Guantanamo facility, human rights advocates are concerned that conditions could actually be worse at the Illinois facility. “Once we go to Congress to get appropriations for Thomson, it opens up negotiations about Guantanamo.”
community and define the reality of this place for outsiders. Now, I too will become an outsider to the place and its institutional forces. Leaving here I will lose that uniquely local attitude to Harvard as a place that comes with being a student, but I will retain a share of the name, a right to stand in as an ambassador to the world and part of the extended Harvard family. So in a certain sense, as an alumnus I will no longer be a part of the institution, but I will shape the perception of it by the outside world by wielding its brand name. Thankfully, this does not mean that I will be required to proselytize a set of orthodox views, nor will I be penalized if I decide to file away my degree and keep my education a secret. I can choose on my own whether or not to be associated with the Harvard name and community, but the legacy of my time here will shine through in ways I will probably not even recognize. The tools I have acquired, the attitudes I have accepted, and the friends I have grown close to during my time here will stay with me after I have left here and influence the course of the rest of my life. I am thankful that I could study at such an interesting and challenging school, and indeed I am proud of having “attended Harvard.” Nonetheless, I remain suspicious of those who would make too liberal use of the Harvard name. I do not believe in treating Harvard like a label that certifies quality or an icon of an exclusive club. Harvard is a place to which we chose to come to be amongst likeminded individuals and an institution that has gathered exceptional people who have now passed on to us some of their collected wisdom. Now we each must make the choice of how to direct our efforts in the world, and it is the fruit of those efforts that will some day serve as the scale by which the world measures Harvard. Matthew W. Hutchins is a graduating 3L and Co-Editor-in-Chief of the Harvard Law Record.
Harvard, cont’d from pg. 7
FOLLOW HLRECORD ON
Media, cont’d from pg. 4 There was a “real question about whether the ecoting even shorter. nomic model” for the sort of journalism practiced by Still, Lithwick occasionally has the freedom to the New Republic would continue, Rosen said, echowrite such stories, though she said more legal jour- ing a concern that has been felt throughout the journalists were turning to amicus briefs, books, and legal nalism industry. He dismissed the idea of forcing blogs than law review articles. The ability to link to readers to pay for content online, saying that it would cases directly freed legal writers from having to re- dissuade authors. Harvard Law’s Jack Goldsmith report on their mere facts and holdings. And blogging, portedly said that it was not worth writing a piece that she said, has “transformed the way the academy has fewer people would read behind a New Republic paycome into our lives”. For professors, she noted, it was wall, Rosen said. In addition, the professor and editor “no longer silly and trivial to write online,” a “sea observed that it was harder to break ranks with politchange” from just a few years ago. Still, she said, it ical factions online, where, as Cass Sunstein ’78 was frightening, given pointed out in his book Rethe internet’s vast re“Laws are public, legislatures public.com, opinion tended sources, that so many to the extremes. writers were pulling meet in public, but where do peoOf course, the central and sources from just a difficult task of legal journalple really learn about the law?” ists – conveying complex few major portals. Jeffrey Rosen, asked Gutterman. His answer: legal arguments to lay audiGeorge Washington ences – has been an issue in University law profes- “television”. media since long before the sor and legal affairs introduction of the internet. editor of the New Republic, had an even less sanguine “Laws are public, legislatures meet in public, but perspective on the rise of blogging about legal acade- where do people really learn about the law?” asked mia and its ideas. Hired to his position in the early Gutterman. His answer: “television”. 1990s, he was able to shape a magazine which, at the Gutterman observed that crime dramas composed time, was “the only game in town” for legal ideas. By 25% of all television programming in the 1980s, and the early 2000s, his monopoly “suddenly vanished” that the current most popular legal drama, Law & and he began to face mounting criticism from blog- Order: Special Victims Unit, could count on 57 milgers. One “cannot have any sense of entitlement in lion viewers a week. 5.7 tune in to each Judge Judy the age of the web,” Rosen said, where one is “only as episode alone. By comparison, Gutterman noted, only good as your last piece and arguments”.
schools. But Minow’s deanship has quietly led the school in a more international and even artistic direction. Appearances by leading figures in the international human rights world have become more frequent – or at least better advertised and attended – and the dean sponsored a series of law-related film screenings last semester. So it was unsurprising that Minow’s address to the school was different – both in style and content – from Kagan’s. The former dean, who is now serving as Solicitor General, had a tendency to give presidentialstyle “state of the school” speeches. Minow gave an explicitly different form of address; focusing far less on the day-to-day operations of the school, she decided to speak about its pedagogical philosophy: its intellectual roots, recent reforms, and the curriculum’s future. “It’s an exciting time in legal education,” the dean observed, noting that it was a time of “innovation and renewal”. Some countries were founding law schools for the first time, creating new types of law schools, or retooling the focus of their legal education systems to produce lawyers who could practice worldwide. The changes came at the end, Minow explained, of a long line of developments in legal pedagogy. The history she told wound through the pre-industrial period in which lawyers learned their skills through apprenticeships to the establishment of university law schools. When Harvard was provided with a donation for either a chair in medicine or law, she said, it chose to fund the teaching of law – because medicine was already funded. The reputation of the law school was not always so high; no less an authority than the towering jurist Oliver Wendell Holmes, Jr., Class of 1866, said that the school was a “disgrace to the Commonwealth” because students could obtain degrees without even attending class. That approach led to the hiring of Christopher Columbus Langdell, Class of 1854, and the implementation of his rigorous – if not immediately practical – case method of teaching. In the divorce of Langdell’s notion that the law could be studied like a science, developing analytical skills in the process, were the seeds of the notion that a global idea of law could be taught today, Minow observed. But challenges plagued the curriculum – particularly the rise of the administrative state – and even as it raised the school’s academic standards, it was critiqued as increasingly out of touch. Until HLS’ curricular reform effort was launched in
Dean, cont’d from pg. 1
Harvard Law Record
April 15, 2010
Minow’s suggestions for the school’s pedagogical 2003, Minow said, refinements to Langdell’s curriculum followed shifting temporal interests and did not future echo emerging global trends. The financial crifundamentally alter its character. The focus on private sis, she observed, accentuated the importance of eslaw classes taught using the case method remained tablishing the notion that lawyers were independent paramount. But at the turn of the millennium, debates actors with their own set of professional standards that over the effects of globalization, the growing clout of operate independent of their interest in representing interdisciplinary research, and an increasing focus on clients, as well as a need to develop long term analytalternative dispute resolution techniques begged in- ical thinking about institutional design. Other trends, including new psychological evidence about how clusion in an ossifying law school curriculum. These debates ultimately helped launch the Harvard older students learn, the influence of new technology, effort at curricular reform, the first of its kind – or at and questions about financing education and driving least the first to be successful. Minow said that when down the high cost of tuition should also be taken into she agreed to lead the project at then-Dean Kagan’s account. The experiences of other schools should continue request, she set down several ground rules to ensure the effort did not wind up like others in the past. There to be considered, Minow said, noting the recently was, for example, no final report at the end of founded University of California, Irvine law school’s central focus on problem solvMinow’s review, since ing as one example. Harvard she had “watched facThe experiences of other Business School could serve ulty use” final reports “as target practice”. schools should be considered, as a model for educational fiThe review process Minow said, asking “How can nancing; it does not depend on its primary also took the novel law school feel more like a lab?” tuition asshe said, butsource of income, on execstep of looking at aputive education and publishproaches used by other professional schools – and discovered that law school ing. And the tension between public and private curricula were relatively static by comparison to dis- purposes that persisted throughout the law school’s ciplines like medicine, which had introduced much history might be addressed by moving decisively to plug the gap in public interest law work by using stumore hands on learning techniques. In 2005, the effort paid off: the new curriculum was dent clinical talent in a way similar to journalism approved. It not only added new classes to the largely schools’ deployment of students to cover local issues. “How can law school feel more like a lab?” Minow unchanged core curriculum developed for first year students by Langdell – a change considered so revo- asked, pushing further the possibilities of comparalutionary at the time that, according to Minow, “peo- tive methodology. She returned to the notion that major transformaple said they would leave the school,” acting as if “God created the contracts class as it is” – but allowed tions made continuing reform of the law school curstudents, for the first time, to take different course op- riculum not just a possibility, but a necessity. tions in their first year. But because of contention that Worldwide shifts resulting from the growth in students required guidance, the school developed an biotechnology, the revolution in information technolalternative to an undergraduate major system – se- ogy, and increasing global economic ties, as well as quences of recommended classes known as programs the downsides of these trends, such as resource scarcity, climate change, mass population growth, and of study. Substantively, the new curriculum included not only human migration, she said, generate fundamental the popular new class in legislation and regulation, questions, begging answers regarding “common inbut an elective in international law – one which had stitutions and values that can help [people] deal with the desired effect, according to Minow, of unsettling [those] of different traditions”. This was an “inflection point in world history,” she students’ assumptions about law. The problem solving course for 1Ls during January term was finally in- concluded. “More than any time in recent memory, troduced early this year as the final piece of the lawyers need to lead in creating solutions to probreform, and has drawn the most attention from prac- lems.” ticing lawyers. one million viewers read the New York Times homepage on an average day. The panelists did not think major legal ideas emerged from the one televised event during which one might expect them – Supreme Court confirmation hearings. Feldman insisted these were being increasingly hollowed of any meaningful content, leading to unnecessary drama over such minor incidents as now-Justice Sonia Sotomayor’s controversial “wise Latina” comment, which she had made as an offhand joke. Lithwick said that the hearings were “where big ideas fall down”. Lithwick also thought it was unwise for the sitting justices to try to humanize the court by making media appearances, a strategy she thought backfired by making them seem too relatable and less authoritative. She believed televising the court’s oral arguments might allow the public to admire their intellectual capabilities, but Feldman disagreed, saying it would risk the court’s authority by bringing out the justices’ showboating tendencies. Neither the ultimate authorities on the nation’s laws nor the journalists who effectively create the public perception of their opinions appeared capable of finding ways to make legal ideas publicly accessible. But Feldman insisted the wit and erudition of the writers on the panel had at least drawn one group of readers who wouldn’t normally read about legal ideas – practicing lawyers.
April 15, 2010
BY ELAINE LIN
Negotiating Law School Was Fun, Fulfilling
for at-risk youths affiliated with FAIR Fund, an international NGO working in anti-human trafficking, domestic violence and sexual assault prevention. Created best practices manual for renegotiat• ing child support agreements for the American Academy of Matrimonial Lawyers • Trained outside organizations in negotiation skills, including Firemen and the Town Administrator of Nantucket, elected officials of the Mississippi NAACP, and graduate students at the Harvard School of Public Health. • Put our skills to test at the American Bar Association Negotiation Competition, St. John’s Dispute Resolution Triathlon, and the International Negotiation Challenge in Leipzig, Germany. • Simulated multi-party bankruptcy negotiation with other law students in light of the economic crisis
Harvard Law Record
Recently, I was present at a meeting between clinical students for the Negotiation and Mediation Clinical Program and a client representing the Federal Energy Regulatory Commission (FERC). The representative assumed that we had plenty of opportunity to work in teams at the law school, since that’s what most of us will have to do after we graduate. The law students and faculty in the room chuckled at how far off her assumption was from reality. What are the skills we need after we leave law school? Surely, a nuanced understanding of constitutional law isn’t all there is to legal practice. Perhaps this is my own bias stemming from how I’ve spent my time here, but I would add team work, project development, project management and client development to that non-exhaustive list. And in Harvard Negotiators, I found all that. Harvard Negotiators (HN) is the main student organization here at the law school focused on negotiation and dispute resolution. Through HN, I had opportunities to employ the negotiation theory I learned in the classroom in a real-world context. For clients, we create value by providing substantive work in negotiation and dispute resolution. And as students, we benefit from the opportunity to engage the real world, develop actual work experience in a lowrisk setting, engage our passions and bring ideas to reality. To give you an idea of what all that means, in the past year HN has… • Developed negotiation curriculum for the Prison Entrepreneurship Program (PEP), a Houstonbased non-profit that provides educational and mentorship programs for enterprising incarcerees. • Developed difficult conversations curriculum
What took you to Venture Law Group after having worked at Cravath, and how did the experience working with start-ups get you excited about venture capital?
After graduating from HLS, David Hornik ’94 went on to work at Cravath, Swaine & Moore before clerking for Judge Altimori at the Second Circuit. He returned to Cravath before eventually leaving in 1997 to join Venture Law Group, a start-up boutique in Silicon Valley. From there he helped start Perkins Coie’s Bay Area practice and, a decade ago, Hornik joined August Capital to himself become a venture capitalist, financing start-ups as an investor. Hornik returned to HLS this spring to teach a course in Entrepreneurship and Company Creation, and he sat down with the Record to speak about his career and the tech industry.
Meet the Alum Who Reshaped Venture Capital Through Blogging
when the internet was exploding. There was a huge amount of energy and activity in the start-up world, and Venture Law Group was only representing startups. One of the reasons I left Cravath and went to VLG was that friends of mine from Stanford undergrad were the guys who started Yahoo!, and they were being represented by the lawyers at VLG. It seemed to me that what they were doing was incredibly interesting and that the opportunity to work with Yahoo as their counsel was also incredibly interesting. In retrospect, maybe the thing I should have done was go and work with them, but it worked out fine. I became corporate counsel to a number of really interesting start-ups, all in the Internet space, and that really got me addicted to this idea that company building and start-ups are fascinating and really fun. What I discovered was that working with startups was exhilarating. I loved representing them and talking to them about their business and the ways I could be helpful to them -- not just as a counselor and in their legal issues, but ways in which I could be helpful in company building. I had the opportunity to ask, “have you thought about these things?” and “maybe you should do this?” We would engage in this back and forth about how they were thinking about building their business. Some of the fun was in answering questions about how do you structure a company if you are engaging in a certain relationship. I remember very clearly once when a client and I were negotiating with a guy who was essentially Steve Jobs’ right hand man at Apple. The conversation was fascinating, because when it came time to discuss what the “look and feel” of this particular joint venture was going to be, we were told that Apple would get final say, period. I argued that we had never agree with that and so on, but the answer came back that, “No, no, Steve gets final say on how these things look. Period.” That was an incredibly interesting moment. It was like, do you want to push this, or do you want to get a business relationship done. So we agreed to it. In our minds, it was the Steve Jobs clause. What were your goals when you created Venture Blog?
Our work last fall helped incarcerated individuals in the Houston prison system learn how to better navigate their business and personal lives after leaving custody, we helped youths in the DC Metro area learn how to have difficult life-altering conversations, and hopefully helped a few of the many children in the middle of the country who are currently experiencing hardship due to the economic downturn. Firemen and other union workers in Nantucket will hopefully be able to secure better contracts, and at a minimum, the animosity in their relationship with the Town has decreased. And the list goes on. I don’t mean to say that our organization has all the answers or that the HLS students at HN are experts, but in the process of finding projects to work on, manage our work load, and deliver concrete results, I know that I have developed my own abilities. I love the fact that HN is organic and interest-driven. If you have an idea or an interest, the mentality is – let’s try to make something happen. Given that
negotiation touches every aspect of our lives and is implicated in almost any field, it seems like everybody has an interest that overlaps with what we do. But HN is not about riding on someone else’s coattails or waiting for someone else to act. It is all about figuring out what you want to do and how to do it. I feel that everyone who joins the organization has the opportunity to develop marketable skills in project and client development and management, if you are willing to do what it takes. With the countdown to the end of law school being only weeks now instead of months, I confess that I am extremely jealous of those who get to continue on here. There are incredible resources here at the HLS, and I feel like I have just begun putting them to good use in developing myself professionally and impacting the world positively. The students here come from such different backgrounds and bring a wide variety of experiences and passions to law school. And as far as I can tell, the point of law school isn’t to take those differences and stuff them into nice little conformist boxes, but to bring those differences to the table to enhance the experience – yours, those around you, and the community beyond. If I could say anything to those not yet staring the cap & gown in the face – and maybe because I’m a graduating 3L you might afford me the opportunity – it would be to take the opportunity while here to learn, not just from books and cases, but about life and the world. I know I just said it several sentences ago, but there are incredible resources here. Being a student at HLS and taking part in an organization gives you the platform from which to launch new ideas. Find your own analogue to the Negotiators, or feel free to join ours. It has certainly made my experience here at the law school all the more worthwhile.
Cravath is in many ways the epitome of the establishment, a firm that represents some of the biggest and most well established corporations in the world. It’s reflected in the attire: you wear -your dark suit, every day, even if it’s just to hang up your coat on the back of the door. I went to Venture Law Group in 1997
When I started Venture Blog there were no other venture capital blogs. Now there are literally hundreds of VC’s who are blogging. You look at it now and you say, “I get it. There is this
opportunity to discuss things that are interesting and hopefully engage in a conversation with other people who find these things interesting.” But when I started blogging there were no investors talking about the venture capital process, so it was an interesting challenge. To a certain extent, the venture business was seen as this black box, and you weren’t supposed to talk about the things that you did as a VC. You weren’t supposed to talk about your thought process, because it was viewed as this tightly kept secret. As I sat there as a VC it struck me that none of what we were doing was particularly secretive. This wasn’t the recipe for Coke. It was, “I want to hear from really smart entrepreneurs about what they are working on, and if it is sufficiently compelling, then I want to give them money.” It struck me that there was no good reason why I wouldn’t start this discussion. There are certainly some things that I don’t discuss, things about the companies I have invested in and conversations with my partners that I would be silly to talk about. But that is only because those particular things are private; their value is in the fact that they aren’t shared. I wrote about “what is it that Venture capitalists expect in a presentation?” It doesn’t seem like that should be a puzzle. I want to actually find out about your company, and so I should tell you the things that are important and interesting to me, so that when you present your company, you tell me about the things that matter.
Harvard Law Record
April 15, 2010