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Harvard Law Record

The Independent Newspaper at Harvard Law School

January 14, 2010 www.hlrecord.org — twitter @hlrecord Vol. CXXX, No. 1

Feds Run Amok? Civil Liberties Lawyer


Uncovers Prosecutors’ Abuse of Power
A REPUBLICAN IN
Harvey Silverglate ’67 Tears into System in New Book TED KENNEDY’S
SENATE SEAT?
BY MATTHEW W. HUTCHINS

When Raj Rajaratnam was taken into

SURPRISING GOP SURGE COULD


federal custody for violating securities
laws, his arrest came with prosecutors’ and

DERAIL COAKLEY CANDIDACY


investigative agencies’ usual fanfare over
having rooted out a bad apple and sent a
warning to other would-be violators.
BY CHRIS SZABLA ing surge in the popularity – and
Within days, his hedge fund, the Galleon
electability – of Coakley’s Republi-
Group, had shut its doors, unable to cope
In December, Massachusetts At- can challenger, Scott Brown, threw
with the pressure the indictment put on its
torney General Martha Coakley re- the levelheaded (and some would
ability to carry on business.
soundingly defeated three say too complacent) Coakley cam-
The weight of an indictment by a federal
challengers in paign into dis-
grand jury can crush even the most prom-
Harvey Silverglate ’67. Photo: Elsa Dorfman the Demo- array. Polls
ising career. And while the gravity of an
cratic Party were showing
accusation would seem to counsel restraint prominent Boston defense attorney Har-
primary for the race getting
in the pursuit of those who violate federal vey Silverglate ’67, argues that the truth is
the U.S. Sen- more repeti-
law, a new book, Three Felonies a Day: the exact opposite. According to Silver-
ate seat occu- tive. Ras-
How the Feds Target the Innocent, by glate, federal prosecutors have increas-
pied by mussen, a
Feds, cont’d on pg. 2
Edward M. polling service

Double Jeopardy! HLS Student, Grad


Kennedy until that tends to
his death last skew toward

Take Center Stage on Game Show


year, and her conservative
cruise to an ul- CORONATION INTERRUPTED: candidates and
Former HL Record Editor Joins Husband as Champion appeared cer-
timate victory Mass. Attorney General Martha Coakley which has
been faulted
BY CHRIS SZABLA tain. After all, for its method-
the state had ology, never-
Though it goes without saying that Harvard Law not elected a t h e l e s s
School students and alumni are smart, it’s not every senator to sit generated ex-
day that they get to show off their often consider- on the other citement
able non-legal knowledge. But the chance came for side of the po- among Repub-
both Sarah Boyette ’10 and Andrea Saenz ’08 over litical aisle for licans when it
the last few weeks, when both starred as contest- nearly four showed Coak-
ants on the quiz show “Jeopardy!” decades. So ley’s lead
Just getting on the long-running show is a chal- when Demo- trimmed to 9%.
lenge – requiring both an admissions test and a cratic col- THE UNEXPECTED INSURGENT: S u b s e q u e n t
practice game – and any contestant whose appear- leagues like Republican State Senator Scott Brown polls have con-
ance airs is well-qualified for the match. Saenz, Senator John Photos: Flickr user weinbergagain (top), Dan Kennedy (bottom) firmed gains
who was the Editor-in-Chief of the Harvard Law Kerry introduced her as “the next for Brown, but differ over whether
Record from fall 2007 to spring 2008, and who now Senator from Massachusetts,” they they are much larger or smaller than
Former HL Record Editor-in-Chief Andrea
works as an immigration attorney in Boston, knew weren’t just employing the usual those reported by Rasmussen.
Saenz ’08 (top) and 3L Sarah Boyette ’10 the protocol better than most. Her husband, Dan campaign rhetoric. Suddenly, the Coakley campaign
Jeopardy!, cont’d on pg. 7 But what appeared to be a surpris- has found itself under attack for not

INSIDE
appeared on the game show “Jeopardy!”
Photos copyright Jeopardy Productions, Inc.
going on the offensive since the At-
Discu ssio n wi th t h e New Dean torney General’s primary victory,

M M S HLS’
resting on its laurels for a presumed
ARTHA INOW PEAKS ON victory in the last round of the spe-

The HL Record C , A
cial election, scheduled for January
HALLENGES CCOMPLISHMENTS 19th.
By contrast, Brown, a State Sena-
BY JENNY PAUL tor from Wrentham, has been erod-
News ing Coakley’s most serious
• World at Most Peaceful Ever? Dean Martha Minow took the helm of advantage in the primaries, name
• Posner on Financial Reform Harvard Law School at a time when a recognition, by barraging the air-
• Judicial Elections Corrupt? dwindling endowment and university- waves two controversial ads. The
wide budget cuts have forced the school first aped the image of former Pres-
Opinion to employ cost-cutting measures. ident John F. Kennedy, who had
Minow assumed the deanship on July himself held the Senate seat later oc-
• India Buries Kashmir Dissent
1, inheriting a much tighter budget than cupied by his brother Ted. It begins
• Nigerians Condemn Terrorist
in years past. At the law school, each with raw footage of President
department had to trim its budget by 10 Kennedy appealing for tax cuts, and
Features percent, after projections showed that then morphs into an image of Brown
• The Fabulous Return of Fenno the law school could expect to receive finishing his words, before Brown is
• A Church Closes on Christmas $10 million less from the endowment in shown in color saying that tax cuts
• Photos: Winter Near and Far fiscal year 2010 than it received in could help grow the economy.
2009, according to a July HLS press re- By reminding voters of the former
lease. Howell Jackson ’82 was acting President’s tax policy, Brown’s ad
dean at the time the budget cuts and was clearly intended to tie his candi-
FOLLOW HLRECORD ON
other staff reductions were announced. dacy to the legacy of the Kennedy
Still, during her first months as dean, family – a mantle a Republican was
Minow, cont’d on pg. 3
Dean Martha Minow Election, cont’d on pg. 3
Page 2 Harvard Law Record January 14, 2010
Feds, cont’d from pg. 1 sibility of determining the scope of conduct prohib- medical practice. “The Department [of Justice] has
ingly come to rely on vague criminal laws to investi- ited by vague laws, with Silverglate’s probing rheto- drug warriors controlling medicine now.” As a result,
gate and indict professionals in the fields of medicine, ric drawing the reader into the suspension of their physicians are subject to “SWAT-team style arrest and
politics, law, business, journalism, and non-profit presumptions. Thus the reader comes to understand a … lurid smear tactics” for conduct which falls right at
service for a range of practices that have not histori- well rounded defense of each individual’s actions on the intersection of responsible medical practice and
cally been criminalized. The reasons for these pros- personal, ethical, and legal grounds. the federal regulation of prescription medications.
ecutions range from the self-aggrandizing desire of The case-by-case style of the book could become And once an indictment has been brought, prosecu-
prosecutors to impose standards of professional con- monotonous if it were not for Silverglate’s impres- tors frequently seek to freeze assets and coerce testi-
duct on other economic domains to the crass abuse of sively researched details, deeply sympathetic anec- mony out of co-defendants in order to procure a swift
power for purely political motives. dotes and personal reflections that provide valuable plea bargain rather than going through a full trial.
Silverglate’s latest book chronicles some of the insight into the facts and circumstances of each case. Given the extensive investigative authority of the fed-
In this way, Three Felonies A Day eral agents, friends and coworkers may quickly turn
sacrifices objectivity for rhetorical against one another and become cooperating wit-
force. As we are led through a nesses, even when their testimony is potentially fab-
gallery of the egregious abuses of ricated to arrange a plea bargain. “Like Alan
prosecutorial authority, Silverglate’s Dershowitz says, witnesses learn not only to sing, but
unvarnished criticism of the Depart- to compose.” To Silverglate, these coercive tactics
ment of Justice belies his criminal and the seizure of assets pending litigation constitute
defense and civil libertarian roots. a denial of the constitutional right to a fair defense.
But for every ounce of bias injected Although prosecutors sit at the front lines of what
into the presentation of the book’s Silverglate sees as the Department of Justice’s abu-
individual cases, its central thesis, sive decision making, he believes that the entire fed-
that power is being routinely eral criminal justice architecture has been infected
abused, inspires ever greater anger with a culture of aggressive prosecutions. He is skep-
and resentment. tical of any real change coming under Attorney Gen-
As a call to action, Silverglate eral Holder, because like his predecessors for the last
avoids pretentious lectures on the- few decades, Holder began his career as a front-line
ory or overly technical dissections prosecutor. And the courts, says Silverglate, are just
of particular legal arguments. The as unlikely to be the source of change. “Judges, nine
strength of his argument lies in the times out of ten, are former D.O.J. honchos.” Given
traditional toolbox of the defense at- the institutional momentum sustaining these practices,
torney. He presents the facts and es- Silverglate believes the only real change must come
tablishes a narrative in each case from the political process.
that allows the reader to feel that, To his great surprise, says Silverglate, his message
“There, but for the grace of God, go has had a widely positive cross-party reception, even
I.” Each case is supported by legal by figures he never expected would agree with him.
arguments, analyzing the theory of “Liberals, libertarians, and Republicans alike have
the case to find an interpretation of been very positive,” says Silverglate. His message,
facts and law in which the acts of that the law should provide greater transparency and
the defendant were in line with a prosecutions be brought only in cases of clearly crim-
reasonable interpretation of their inal conduct, is one that supporters of constitutional
legal duties. In this way the book rights and of limited government can unite behind.
succeeds in ad-
most prominent and controversial federal cases he has vancing persuasive interpretations of
witnessed throughout his career, whether during his the law to lawyers and legal insiders
own practice or in the headlines. As he lays out the while at the same time giving educa-
facts of each case, Silverglate takes his reader into the tional background to a more general
mind of a top defense attorney to see past the head- audience.
lines and the presumption of guilt to demonstrate how Many of the cases are so recent
in one case after another the Department of Justice that they have either not yet been fi-
has demonstrated unscrupulous and overzealous use nally resolved or the aftermath is still
of creative criminal indictments to intimidate the in- unfolding in the headlines. Silver-
nocent and coerce false testimony and plea bargains glate presents the well-publicized
from its targets. prosecution of Massachusetts House
The problem, says Silverglate, is that the criminal Speaker Thomas Finneran as a case
statutes that were originally written to empower fed- of prosecutorial zeal and coercive
eral prosecutors to pursue organized crime have be- tactics bringing ruination to an un-
come malleable putty that can be shaped by a skilled blemished career, largely for making
prosecutor to bring an indictment against almost any- a statement which was arguably not
body. Combined with a vast regulatory state and stiff false and probably not injurious to
sentencing regimes put in place for the war on drugs, anyone. But the Finneran case
the federal criminal justice system has degenerated stands out partly because of the
into a “thugocracy.” Even an extraordinary effort to transparent motives of the prosecu-
conform to statutory and regulatory rules may be in- tors. As a component of his plea bar-
adequate to prevent a prosecution, as in the case of gain to avoid spending time in
Lee Leichter, who was convicted of violations of the prison, Finneran was forced to agree
Medical Device Amendments to the Food, Drug, and not to run for public office for at
Cosmetics Act. Despite his conviction being reversed least five years, an agreement that
on appeal, Leichter’s life was devastated by the fi- Silverglate finds not only excessive
nancial and professional cost of his criminal defense. and unethical but probably unconsti-
In a recent interview with the Harvard Law Record, tutional.
Silverglate said that he wrote the book, “Because I Just this week, the Massachusetts
thought it was important to pull back the curtain on Supreme Judicial Court denied
some of these practices.” Finneran’s appeal of the revocation
To many readers, the book will read like a highlight of his license to practice law. Sil-
reel of the most prominent and challenging cases to be verglate said that this latest loss
brought in recent years. Whether examining the demonstrates the lasting damage in-
Enron scandal and the ensuing demise of Arthur An- flicted on a public servant who be-
dersen, the prosecution of investment superstar came the target of prosecutors not
Michael Milken, the conviction of Martha Stewart, or due to any pattern of illegal activity but merely for With an impressive roster of endorsements from legal
the battle over assisted suicide in Gonzales v. Oregon, having been in a position of power and public scholars and practitioners, including Alan Dershowitz,
546 U.S. 243 (2006), Silverglate deftly combines the scrutiny. “It pays to be paranoid when you can be Susan Estrich ‘77, Bruce Fein ‘72 and Michael S.
legal sophistication of a criminal defense expert with prosecuted for these kinds of things.” Greco, Three Felonies A Day could become an im-
the plain speech and driving narrative of a journalist. For doctors, Silverglate sees the unwelcome over- portant book in the public debate over the need for re-
Each chapter is woven together with the consistent sight of prosecutors as a cause for both professional form of the justice system and the proper role of
themes of prosecutorial overreaching and the impos- concern and a serious impediment to responsible prosecutors in shaping the law.
January 14, 2010 Harvard Law Record Page 3
Election, cont’d from pg. 1
otherwise unlikely to inherit. In the Democratic pri- factors. ported a possible one-point Brown victory, using a
mary debates, the candidates had scrapped audibly These included not only statewide name recogni- sample size around the same size of the Globe’s. The
over which best represented a continuation of the tion (Coakley was the only candidate to have been PPP poll also seems to show the number of undecided
prominent political family’s legacy. elected statewide and is from the western part of the voters shrinking, indicating that they – and likely
In a second ad, Brown contrasts his stance on taxes state, boosting her popularity there), but her early other independents – had shifted to Brown.
to Coakley’s, quoting her saying “we’ve got to get entry into the race, and extremely low turnout – in part According to the press release included with the
taxes up”. Coakley allies have cried foul, saying due to the election’s unorthodox date, proximity to the poll, entitled “Senate Race Competitive,” a declining
Brown took Coakley’s words – meant to refer to tax holiday season, and even cold weather. Coakley also number of likely voters were those that had voted for
revenue, rather than rates – severely out of context. had the advantage of an established base of women, President Barack Obama ’91 in 2008, indicating that
A similar criticism could be applied to Brown’s who are eager to see her become the state’s first fe- dissatisfaction with sitting Democrats might influence
Kennedy ad, which refers to a policy adopted by male senator. turnout, as it had during gubernatorial elections in
Kennedy during a period of relative economic pros- If enthusiasm for the race remains as low as it had New Jersey and Virginia last fall, where Democrats
perity, when the country did not face a crisis of bal- been in the primary period, these same conditions were felled by Republican insurgents. National Re-
looning debt at least partly attributable to the should lead Coakley to victory once more. And Mas- publicans have been pointing to those races, and
enthusiasm for tax cuts shown under the George W. sachusetts’ registered Democrats also outnumber Re- Brown’s gains in the hitherto impregnable Demo-
Bush administration and its Republican Congresses. publicans more than three to one. The expected low cratic stronghold of Massachusetts, as evidence of its
During that period, tax cuts failed to increase sluggish turnout could increase the probability that the long- good chances in this fall’s upcoming 2010 midterm
growth and job creation, problems that were only ex- time frontrunner and candidate whose political ma- Congressional elections.
acerbated by the global financial crisis and deep re- chine is the most well-oiled will be able to achieve But absent from the PPP poll’s choices is inde-
cession that have developed in the last year and a half. victory. pendent candidate Joe Kennedy, who has no relation
Coakley has largely chosen the high road, however, The Boston Globe’s poll, which was conducted with to the Kennedy family, but whose confusing name
airing more and more ads emphasizing her positive a larger sample size than Rasmussen’s, and which, might have some influence on the outcome of the
contributions to financial regulation and plans to re- crucially, sampled likely voters, actually showed race. The Globe poll showed Kennedy pulling 5%.
make Wall Street. But if they display a firm grasp of Coakley with a 15 percent lead. Her lead grew to 17 Moreover, PPP, while affiliated with Democrats,
the nation’s financial and economic problems, Coak- points if those merely leaning toward voting for her shares a suspect phone-touch methodology with Ras-
ley’s ads lack charisma and pizzazz. They seem un- were included, the paper reported. mussen.
likely to generate enthusiasm for a candidate whose Alarmingly for Democrats, however, the Public
primary victory was largely attributable to structural Policy Polling (PPP) service has subsequently re-

Thinker Pinker: We Live in


Minow, cont’d from pg. 1
Minow has faced these challenges head ation of the Holmes Fellowship, which

World’s Most Peaceful Age


on and has worked to address student will give about 12 third-year students
concerns and create new programs tai- up to $35,000 to pursue public interest
lored to meet student needs that have law in the year immediately following
arisen as a result of the economic graduation, with priority given to stu- about 40 fold from 24
downturn. dents who show they have not been per 100,000 individu-
“My goals are to help the Harvard able to secure another source of fund- als in the 1200’s to
Law School continue to be the leader in ing or job. less than 0.6 per
legal education in the world, which in- In addition, Minow said OCS and 100,000 as of the
cludes continuing to enhance the stu- OPIA are focusing on job fairs and ca- 1960’s. And even
dent experience, continuing to enhance reer counseling, and she has been meet- within the past 200
the faculty, [and] managing during a ing with law firms and alumni to years, the decline of
turbulent economic time,” she said in encourage them to hire HLS students. conventional wars of
an interview with the Harvard Law “It was the theme of my conversa- attrition and interstate
Record in November. tions with alumni during reunions to in- conflict in general has
Although free coffee service was re- crease their involvement in helping brought the number of
duced at the beginning of the academic current students and also alums who are BY MATTHEW W. HUTCHINS individuals killed in armed conflict to
year, Dean of Students Ellen Cosgrove looking for jobs,” Minow said. “People less than 2,000 per year during the past
announced in an e-mail in November were incredibly responsive and eager to The ubiquity of violent images in our decade, compared with 65,000 per year
that the school would make free coffee help.” society can lead to the impression that during the 1950s.
available in Lewis all day, indicating Minow also said construction on the we live in an unusually violent era. Pinker says that it is only natural that
the change was made in response to stu- Northwest Corner project is ahead of Movies and video games depicting despite the decline in actual violence-
dent and faculty complaints. The all- schedule and under budget, although homicidal gangsters, news reports of related mortality we continue to per-
day service supplements the free coffee she cautioned that this could change. wars and genocides, scandals regarding ceive ourselves as violent. Not only is
in Pound and Austin halls in the morn- The Harvard Crimson reported that the torture, and debates regarding legal ex- it difficult to forget the recent memory
ing and the free coffee available in the university recently borrowed $480 mil- ecutions all seem to convey a world in of wars in countries like Korea, Viet-
library during late evenings and week- lion to fund capital expenses, including which death is tolerated if not glorified. nam, Iraq, and Afghanistan, as well as
ends. completion of the new law school fa- But according to psychologist and genocides by the Nazis, Serbs, Rwan-
“We have a very active, terrific team cility. Current first-year students should Johnstone Family Professor Steven dans, and in Darfur, but our own cul-
here, and when students are unhappy still be able to move into the building Pinker, these outward signs of violence tural values are a leading indicator of
about something, we try to respond,” during the spring of their 3L year, she obscure the real historical trend toward progress, always moving beyond our
Minow said. “Coffee was something I said. ever greater peaceful coexistence which present behavior to cause us to reflect
was deeply, personally involved in, and “I’ve had the great chance to tour the has made the present day the safest time negatively on our shortcomings. But in
when students have a problem, we try building,” Minow said. “It’s an ex- in human history. retrospect, the attitudes toward violence
to solve it.” tremely exciting space that is entirely On November 19th, Pinker spoke in have made tremendous progress in the
The ice skating rink that covered student focused with all kinds of meet- Austin Hall to a group of burrito-eating past 400 years. The abandonment or
Jarvis Field during winter months in re- ing rooms of different sizes and a great law students about the data supporting abolition of practices like public muti-
cent years has been one casualty of the flow and a sense of a city with a central the theory that the present day is the lation of animals, public executions,
budget cuts. Minow said she would be artery or a main thoroughfare. It’s going most peaceful in history. Although no torture, slavery, rape, and conquest of
willing to talk to students who are upset to be fantastic.” formal records exist for more than a foreign people has produced a society
about that change. Minow said her experiences since as- few centuries back, Pinker says that that is generally less accustomed to and
“I’d love to talk with them about that suming the deanship have been “intense new research is revealing that the toll accepting of any and all forms of cru-
compared to other priorities,” she said. and busy and exciting.” Still, she said taken on human life by homicide and elty.
Minow said the school also is com- the thing she misses most about only war was much greater in Medieval and Although many scholars and public
mitted to helping 3Ls and alumni who having the responsibilities of a faculty Renaissance Europe than the present thinkers have in the past touted the
have not been able to find work during member is controlling her own time and day. A study by Manuel Eisner indi- “noble savage” idea of modern society
the economic downturn. schedule. cates that homicide rates have fallen Pinker, cont’d on pg. 5
“I would say it’s all hands-on deck on “I don’t do that anymore. Somebody
this one – very, very active and vigor-
ous,” she said.
else is in charge of my time,” Minow
said. “But I would not for a minute give
NEWS@LAW? GET THE FULL STORY.
HLS announced in October the cre- up the privilege and pleasures of work-
ing with students and teaching and writ-
ing. The reason I took on this job was to
POLITICS@LAW, JOBS@LAW,
Next Record: try to help other people and help stu- SPORTS@LAW, ARTS@LAW,
dents and faculty have the great oppor- LIFE@LAW...RECORD@LAW.
tunities that I’ve had.”
February 4
Harvard
Page 4 Harvard Law Record January 14, 2010

INDIA BURIES DISSENT IN KASHMIR


Law Mass Graves Found in Restive Province Undermine

Record
New Delhi’s Pretensions to Democracy
BY ANIL CHOUDHARY dreds of unidentified graves — be-
lieved to contain victims of unlawful
EStabLiShEd MCMXLVi Nearly 2,600 bodies have been dis- killings, enforced disappearances, tor-
covered in single, unmarked graves and ture and other abuses — to no avail.
in mass graves throughout mountainous The starkest feature of these recent
Matthew W. Hutchins
Editors-in-Chief
Indian-controlled Kashmir. The Inter- findings is that there was no coverage
Chris Szabla national People's Tribunal on Human of the report by the Indian media. Hav-
Rights and Justice (IPTHJ), an Indian ing stumbled upon this shocking report
News: Rebecca Agule Kashmir-based human rights organiza- in the New York Times when sitting in
Staff Editors

Opinion: Jessica Corsi tion, claimed that they found the graves the U.S., I sought the perspective of the
Sports: Mark Samburg in 55 villages during a three-year sur- Indian media. To my disbelief and hor-
vey that concluded in November. Out ror, there was not even a single mention
Contributors of the 2,600 graves discovered by about this report in all the leading In-
Siyuan Chen IPTHJ, they claim that 177 graves held dian dailies and news channels, while
Anil Choudhary more than one body. This report is one all of the major international media
Nathaniel Fintz of the most damning pieces of evidence groups had covered the story.
Aminu Gamawa
of the ‘crime against humanity’ perpe- So what does this tell about Indian
Nicholas Joy
trated by the Indian armed forces in democracy? The truth of brutalities in
Jenny Paul
their occupation of the disputed terri- Kashmir have always been kept a secret
tory of Kashmir. to the nation. The Indian state has, for
record@law.harvard.edu The Muslim-dominated region of Mass graves found in Kashmir in 2008. 2,600 fresh
decades, been suppressing the largely
Submit Letters and Editorials to:
graves were discovered last year. Photo copyright
or Kashmir has been a disputed territory International Tribunal for Human Rights and Justice non-violent dissent of Kashmiri people
Harvard Law Record right from the independence of India in Indian-administered Kashmir. against the militarization of Kashmir.
Harvard Law School and Pakistan in 1947 and has been the the largest democracy in the world. In- The Indian state has used the divisive
Cambridge, MA 02138-9984 source of conflict for more than half a dian democracy prides itself on free- propaganda of militancy and religion as
century. While both countries claim the dom of speech and expression and the tools to suppress any kind of dissent
Letters and opinion columns will be region, it is the civilian population of right of its people to dissent. But the against its forced occupation of the re-
published on a space-available basis. Kashmir that has paid the price of the manner in which the dissent of the gion. The Indian state has tried to keep
The editors reserve the right to edit conflict. In contested claims, more than Kashmiri population has been crushed not only the international community in
for length and delay printing. All 68,000 people have lost their lives in illustrates that India still has a long way the dark about its hostilities toward
letters must be signed. Deadline for Indian-occupied Kashmir in the past to go to be a real functional democracy. Kashmiris but also the local Indian pop-
submissions is 11:30 p.m. Tuesday. two decades alone and have witnessed Over the past couple of decades, it has ulation, by controlling media reports of
three conventional wars. been alleged by various human rights the real situation on the ground in In-
The Harvard Law Record is a publication
The latest report, if accurate, only groups that the Indian military has dian occupied Kashmir.
of The Harvard Law School Record Cor-
goes to prove the brutalities encoun- killed a large number of Kashmiri youth A democracy which suppresses dis-
poration. All rights reserved. The Harvard
tered by the Kashmiris at the hands of in "fake encounters", dubbing them sent by means of violence is the most
Law School name and shield are trade-
the Indian armed forces. The Indian oc- "Pakistani terrorists". In April, 2008, vulgar form of democracy, if at all it
marks of the President and Fellows of
cupation of Kashmir casts a dark Amnesty International appealed to the can be called ‘democracy’. The suc-
Harvard College and are used with permis-
shadow over India’s shining image as Indian government to investigate hun- cessful attempt by the Indian state to
sion from Harvard University.
keep the Indian populace in the dark
about such damning reports questions

Nigerians Condemn Christmas Bombing Attempt


the validity of its claim to be the
largest functional, pluralistic democ-
racy.
BY AMINU GAMAWA The Islam we practice teaches and to fully cooperate with their U.S. coun- Kashmir is not the only place where
represents peace and tolerance across terparts in the investigation and prose- the Indian government has responded
Like most Nigerians, I was shocked racial, ethnic and religious divides. It is cution of anyone that is involved in this with violence in the wake of dissent.
when I received the news of an attempt very unfortunate that at a time when we condemnable act. We should all coop- The rising tide of the left-wing Indian
by a twenty-three year old Nigerian are all joining hands in fighting ex- erate and support the security in their Maoists group (termed "Naxalites"),
man, Umar Farouk Abdulmutallab, to tremism that such a shameful act has fight against terrorist wherever they are predominant in East India, have con-
blow up a transatlantic flight between been attempted on U.S. soil. Terrorism hiding. stantly faced violent retaliations for
Amsterdam and the U.S. city of Detroit. is condemnable wherever it takes place. This attempt is a reminder and a their dissent against the capitalist
The incident, which could have cost I call upon everyone, especially our wake-up on all nations that the war on regime of the Indian state. The people
hundreds of innocent lives, if not the friends and hosts here in the U.S., to see terror is not over. It is a continuing of neglected regions of northeastern
courageous efforts of passengers on- this act as an isolated event by an indi- struggle between, on the one hand, evil India have been the subject of torture
board who subdued the attempted jet vidual, brainwashed by some terrorist forces that seek to spread violence, and, by the Indian military forces for
bomber, is a heinous and despicable act groups that are enemies to all of us. The on the other, peace-loving humanity. decades for their demand of more au-
of terrorism. The passengers should be conduct does not in any way represent We must all work together to defeat tonomy for the region.
commended for their heroism. a particular religion or nationality. anyone who wants to use violence Unfortunately, the resort to violence
The fact that the incident took place Opinion expressed across Nigeria and under the guise of religion to pursue po- against any kind of dissent is not a
on such an important day of Christmas, the steps taken by the parents of Farouk litical ends. new phenomenon for the Indian state,
a global ceremony that celebrates the Abdulmutallab demonstrates the com- Nigerian security failed to detect and either. The princely states of Juna-
life of Jesus Christ, someone that has mitment of Nigerians to fighting terror- arrest Umar Farouk Abdulmutallab gadh and Hyderabad were annexed
preached peace and tolerance to ism and extremism, both within and when he entered Nigeria from Ghana by the Indian state by use of force
mankind, makes it all the more unfor- beyond Nigeria. We are all involved in on his way to the U.S., and U.S. secu- when these states declined to be part
tunate. ensuring our collective safety and in re- rity failed to prevent him from entering of the newly formed independent In-
This is the first time that a Nigerian sisting any attempt to commit violence US despite the repeated warning by his dian state.
is involved in such a dastardly act. On against innocent citizens in the name of father on his radicalization. These But India's use of violence to viti-
behalf of my Muslim colleagues and religion. lapses open serious questions that call ate dissent has long been kept under
other Nigerians here at Harvard, I I hope and pray that this is the last for a review of security measures in the wraps of propagandist theories of
strongly condemn this attempted act of time we will experience such an atro- both countries. a functional pluralistic democracy.
terrorism as a heinous and callous cious plot against innocent people. I Still, once again, the terrorists have India has projected itself, not only to
crime which does not in any way rep- would like to call on U.S. security offi- been defeated. May they always be de- the international community, but also
resent the character of Islam or Niger- cials not to use this opportunity as an feated. to its citizens, as being a soft, liberal
ian values of peace and harmonious excuse to harass innocent, law-abiding state. But events, past and present,
coexistence. I also strongly urge all and peace-loving Nigerians, who, like Aminu Gamawa is an LL.M. student prove otherwise.
peace-loving Nigerians and Muslims to many others, have nothing to do with from Nigeria and secretary of the
join me in condemning this barbarous this act. Harvard African Law Association. Anil Choudhary is an LL.M. student
act. I also call upon the Nigerian security from India.
January 14, 2010 Harvard Law Record Page 5

Posner Finds Problems With Proposed


Pinker, cont’d from pg. 3
having a corrupting influence, Pinker

Financial Regulation Reform


said that the current trend is to accept
that Hobbes had it right and that prim-
itive life was short and brutish. Stud-
ies of prehistoric skeletons have
shown that a much higher percentage
BY NICHOLAS JOY said. “If major countries restrict their prices this produced. of the population perished as a result
banks it will create more opportunities “He denied and the government de- of inter-tribal violence than are killed
When it comes to the Treasury De- for other countries.” nied that there was a bubble,” Posner in today’s conflicts, even though the
partment’s proposals for new financial He added that taking action sooner said. “It created an opportunity and in- absolute number of mortalities is
regulations, Judge Richard Posner ’62 rather than later could make coordinat- centive for people to take on an enor- higher due to the larger population
would “be perfectly content to have mous amount of today. The modern state, says Pinker,
them never adopted.” debt. There was a has provided law enforcement and ed-
Posner spoke at noon on Wednesday, kind of an orgy of ucation that have allowed Enlighten-
November 18 about financial regula- spending and it ment era ideas of human dignity to
tory reform and the Obama Adminis- collapsed.” become ingrained in our social and
tration. His talk took place in the Ropes By the middle cultural norms. Religion, which once
Gray room and was sponsored by the of 2007, Posner was a critical component of individu-
Federalist Society. observed, it was als’ concepts of violence, has faded
Posner was appointed to the United clear that there into the background in peaceful, sec-
States Court of Appeals for the Seventh were problems ular societies. And now as our sphere
Circuit by President Reagan and served with mortgages of empathy continues to expand be-
as Chief Justice of that circuit from and the housing yond family and community to en-
1993 to 2000. He is also a Senior Lec- market. He said compass both sexes and other races,
turer at the University of Chicago Law that, even as the even animals are becoming less likely
School and has been identified by the situation got to be subject to human violence.
Journal of Legal Studies as the most worse, “at every Apart from the proliferation of more
cited legal scholar of all time. juncture the Fed sophisticated sensibilities, Pinker said
In his talk, Posner said that he under Bernanke that the reduction in violence can be
strongly disapproved of a June 17 thought the prob- attributed in part to the simultaneous
Treasury Department report on propos- lem was con- proliferation of modern weapons and
als for financial regulation and, more tained.” economic development, for the com-
generally, “the whole business of re- According to bination of the two has made neigh-
form.” He said that the report and the Posner, a critical bors much more valuable alive than
reform proposals concerned him for mistake was made dead. First, from a strategic perspec-
three reasons. when Bernanke tive, the idea of a credible retaliatory
First, he said that there was no au- and Geithner, then strike is a powerful deterrent to any
thoritative understanding of the causes President of the military action. When a first strike
of the current financial downturn. He Federal Reserve from the other side would leave one
contrasted the approach of the bi-parti- Bank of New disabled and weak, it increases the
san Financial Crisis Inquiry Commis- York, decided to need to be prepared to conduct a first
sion with the non-partisan 9/11 allow the finan- strike oneself. But since the end of
Commission, saying that the commis- cial-services firm the Cold War, economic opportunity
sion tasked with investigating the fi- Lehman Brothers has outpaced inter-state tensions,
nancial crisis had been filled with to fail. This bringing nations together to gain by
activists from each party and was being caused an investor cooperation rather than military force.
“extremely sluggish.” panic and a run on Whatever the reasons for the de-
“The proposals precede any system- banks. cline in violence, Pinker presented an
atic study of what happened,” he said. In Posner’s array of numbers that demonstrate
“Whatever was good about the 9/11 view, Bernanke that by almost any statistical measure
Commission is turned upside down.” and Geithner have humans have learned over time how
Second, Posner took issue with pass- chosen to put the to live in greater harmony with one
ing reform measures during an eco- blame on banks another, and that the phenomenon is
nomic recession. As an example of the rather than take fractal across the whole of human his-
potentially perverse effects such re- Richard Posner ’62 aired his views at a Federalist Society r e s p o n s i b i l i t y tory and within almost any period of
forms could create, he described how meeting in November. Photo by Siyuan Chen. themselves and time. As we continue seeking to live
recent regulation on credit cards had acknowledge the up to a higher standard, we can take
driven up credit card costs and frozen ing international regulation of finance role that unsound monetary policy some satisfaction in knowing that so-
that aspect of the economy. more difficult. played. cial progress has been shown to have
“The reform is going to impede the “If Congress has already acted, our “This sort of populist theory is easy empirical results and that abstract val-
recovery,” he said. “The biggest prob- flexibility will be impaired,” Posner to sell,” he said. “If you tell them ues and aspirations appear to have
lem in such a collapse is psychological. said. bankers are greedy and overpaid they’ll made a difference the history of our
The time for ambitious regulation on According to Posner, a significant say, ‘Fine, sounds right.’” species.
risky behavior is when the economy is concern for the prospect of taking a suc- What Posner hopes to see going for-
booming.”
Finally, Posner worried about the lack
cessful approach to financial regulation ward would be a return to a separation
is that the U.S. is in “the awkward po- between commercial banks and other WRITE A
of concerted international action, a de- sition that many of the people most re- financial-services firms. He said that if DISPATCH FROM
YOUR LIFE
velopment he called “most disturbing.” sponsible for the economic breakdown commercial banks were sealed off,
He believes that without international are people in high positions” in the cur- tightly regulated, and insured by the
cooperation, any attempt at increasing rent regulatory regime. By Posner’s FDIC, they could provide “a safe back-
regulation would prove fruitless be- view of the causes of the economic cri- bone” even in another financial crisis. OR
cause of the ability of finance to move sis, Federal Reserve Chairman Ben He said that allowing commercial

CREATE
from country to country. Bernanke, Treasury Secretary Timothy banks to diversify themselves with
“The financial industry is already Geithner, and Director of the National riskier investments creates a dangerous
global. They will go anywhere,” he Economic Council and former Harvard and unstable mix. The cultures of the
University President Lawrence Sum- safe and risky businesses are incompat-
A COLUMN
TO INDULGE
Dissenting
mers all bear some blame. ible with one another.

YOUR
Posner said that the Federal Re- “No one respects risk managers be-

Opinion?
serve’s policies under Bernanke and cause they don’t create profits. All they
his predecessor, Alan Greenspan, do is stop deals, like lawyers,” Posner CREATIVITY
EMAIL RECORD@
kept short term interest rates too low said. “The traders are the real stars.
for too long, driving a surge in de- There are always these tensions.”
mand for housing. Posner said that EMAIL
www.hlrecord.org RECORD@LAW
Bernanke failed to heed warnings
LAW about the dramatic rise in housing
FENNO
Page 6 Harvard Law Record January 14, 2010

returns, in... “Paradise Lawst”


F
enno stood on a long, narrow exciting as (and very much like) spend- months meant that he’d radically un- Please send money. It’s a human rights
dock flanked by the tranquil, ing the rest of one’s life in law school. derevaluated the culture of each. For issue!”
turquoise waters of the Gulf of But the offer Fenno was holding in the entire staff of his future employer Several thousand miles away, Dean
Thailand. How could it be, he thought, his hand had a catch – and it wasn’t just was now up and slaving away on a Martha Minow was startled to find a
that he was leaving behind serene Ko that it was caught in the hand of a starv- merger agreement – at 5:30AM EST. At personal appeal from a victim of star-
Samui for the snows of Cambridge? He ing former journalist who was begging first, there was nothing to distinguish vation in the third world – and then
took a whiff of the Gulf’s sweet, salty for paper to record his last moments be- the BlackBerry buzz that heralded the vexed to remember that its author was
air, trying to forget the images of sooty fore wasting away. No, it was the kind arrival of Fenno’s missive from Thai- one of her students. She thought care-
slush that kept returning to him as he re- of catch that required Fenno to perform land – that is, until the assistant director fully before throwing up her hands.
called what had led to this moment: the “pro bono” service somewhere in order of human resources’ very audible “what “Oh, what the hell,” she muttered
end of his semester in paradise, and his to enjoy the firm’s generous allowance. the freaking fuck!” resonated through aloud. “I know it’s a recession and that
return to the spiritually moribund cor- Fenno had to think. He trotted off, ig- all 41 stories of the firm’s girthy Mid- Arts and Sciences can’t even afford to
ridors of America’s runner-up law noring the cries of the hobos behind town skyscraper. keep the Math Department around any-
school. him. “We know you all got free coffee Luckily, he still had the number of the more. But if we at Harvard Law School
It began with the offer letter. “We re- again!” one shouted, pointing to a crin- smartphone the firm had issued Fenno can afford to not only give the students
gret to inform you…” Fenno had kled copy of the Record that had been during the twelve hours he’d spent free coffee again, but expand the hours
braced himself at the sight of that line, serving as his bedspread. “Bring us there that summer. Fenno hadn’t been it’s available, we can afford to fly this
prepared to toss the sheet on the ground some! I was once one of you! We never particularly impressive, the ADHR re- idiot home.”
for a hapless Cambridge Common hobo thought the doc review would dry up! called – it had just been hard, even in a She replied to Fenno, explaining that
to use as part of his toasty garbage quilt. Please” recession, to recruit associates to an or- he’d be wired a couple thousand dollars
But something was tugging at Fenno, Several hours later, the answer came ganization specializing in genocide de- from the discretionary “secret SPIF /
and, for once, it wasn’t one of the to Fenno while he was reading one of fense and loopholes in the Convention buy an attractive NYU faculty member
homeless bankers or Sunbelt foreclo- those mindless “end of the decade” ar- on the Rights of the Child, even when a Cambridge house” fund, on the con-
sure refugees who were becoming reg- ticles. This one listed all the worst nat- they confronted potential recruits with dition that he returned home immedi-
ulars of the Common’s begging circuit. ural disasters that had transpired over the achievement of reclassifying hidden ately. She got that his firm had stiffed
No, it was the impulse to read on, the last ten years. “Hurricane Katrina, foreign assets as “hibernating” rather him with a deferral, but what on earth
with the feeling that this firm – this spe- earthquake in Sichuan, earthquake in than “parked” – the move that was pay- had given him the idea he could take it
cial firm – was going to offer him Bam…hmm…” Fenno moaned. And ing Goldman Sachs the bonuses they before he was conferred his J.D.? But
something more than the standard “de- then, there it was: the tsunami. Surely, technically weren’t supposed to be re- when she thought about it twice, it did
spite your considerable qualifications, in the vast ass-poordom of southern ceiving this year – or showing them the make some sense: Fenno, she recalled,
we received too many talented applica- Asia, some people were still reeling fabulous Fabergé deal toys they’d re- couldn’t possibly be on track to gradu-
tions this year.” Fenno’s eyes glanced from the ill-effects of that killer wave. ceived from the Russian Mafia. ate, anyway.
to the right, then down the page. And Or, Fenno smiled, at the very least, it “U douchenozzle,” the ADHR swiftly
there it was. would be quite believable that they texted back to Fenno. “Get ur ass back ***
“We regret to inform you that we can- were. And where had all that suffering 2 USA + finish HLS… or u wont c a
not offer you a start date,” Fenno been taking place? In one of the world’s dime!” The next week, Fenno was back at
winced momentarily, but had glanced most sought-after tropical paradises! It The ADHR’s message left his Black- HLS – at the back of a long line of
ahead to know what was coming – “be- didn’t take Fenno long to plot a course Berry, traveled to the cellular transmit- scruffy LL.M.s, to be precise, waiting
fore December 2012. We understand if for Bangkok, texting his travel agent ter atop the Empire State Building, was for his turn in the free coffee pantry, and
this means that you will have to accept under his desk during a particularly relayed to a 3G data center in New Jer- cursing his existence. He’d just re-
employment elsewhere, and can assure sleepy lecture on legal ethics. sey, intercepted and read by a team of ceived an email – he’d had to check the
you that we will not bother with the ex- 35 NSA analysts, sent up to a satellite in public terminal in the Hark, like some
pense of engraving your name on our *** a geostatic orbit somewhere over south- kind of street rat, with his Palm now
solid gold office doors before the elec- ern Libya, relayed to a GSM data cen- stuck at the bottom of the sea – that his
tion assures us that Comrade Obama’s No one ever asked Fenno why he’d ter in Singapore, transmitted to Thai Thailand adventure would cost him
reign of socialist terror has finally come taken off on his firm-sponsored public receivers, and finally into Fenno’s old some of the precious paid time he’d
to an end, and/or we have faced down service quest before actually graduating firm-issued Palm, which was resting been awarded away from the firm.
the Mayan apocalypse. Welcome to the from law school. Perhaps they should about four inches underwater in the “Things are looking up, dipshit,” the
team!” have. Or perhaps Fenno should have sapphire Andaman Sea. ADHR had informed him. “The
Crazy, Fenno thought, but at least emailed the question he sent to his Only about fifteen minutes earlier, bailouts are good for business. We have
they weren’t birther crazy. And it hit stateside firm when he’d first bothered Fenno had been delighting a gaggle of associates sticking bonuses in offshore
him: he had a job! For Fenno had no in- to seek out an internet café in sleepy waitresses at the beachside bar by at- accounts all over the world. We can’t
tention of “seeking employment else- Phuket – with other problems weighing tempting to skip his phone along the afford to have you take off on a year-
where”. If one of the ten firms he’d on him – sooner. The issue he was surface of the water – a move he’d seen long sojourn anymore. From what it
summered at – in spite of Career Serv- wrestling with instead was that the in a Corona commercial once. He sounds like, you had your fun anyway.”
ices’ attempt to advise him against beaches had been scrubbed entirely failed. The phone sank like a stone just Nor was there much reprieve from his
using his summer associate experience clean. He’d been hoping for at least a a couple feet from shore, but he wasn’t studies – Fenno was on call that morn-
to complete the traditional 18th century little devastation to help out with, per- in a hurry to go after it. “Who’s going to ing in legal ethics. He sighed as he
aristocrat’s Grand Tour – hadn’t offered haps a few extraneous legal claims to need to contact me here?” he asked counted the LL.M.s in front of him, all
him a job, he didn’t have much choice: deal with or insurance scams to crack aloud. “The tsunami victims?” His new thirsting after the packets of weak, in-
not even the Law Review kids were and/or join…but there was nada. friends scattered, unamused. stitutional coffee hanging on the kitch-
earning clerkships these days, and who That didn’t stop him from acting with enette’s plastic rack, and counted his
knew who could pull of one of those determination when he’d secured his *** blessings for at least not having to sleep
mythical public service jobs? five-bhat-a-minute booth in the internet on Cambridge Common. Maybe he’d
No, it would probably mean becom- café. “Hello firm!” he wrote. “In Thai- Fenno must have been in Thailand a bring some out to the tent city. Not only
ing a government employee – punching land helping tsunami victims. Please week before he realized something was would the time it took to fill so many
the clock around five to five PM, in- send money.” His work for the day fin- terribly wrong. He’d been back to the cups royally piss off the people in line
stead of forcing his secretary to memo- ished, Fenno strode off to the beach, internet café a couple times, but no one behind him – he’d get to miss all of
rize billing codes in order to record, in tossing a few stray bhat toward the was answering his emails. Finally, he’d legal ethics. For if Fenno had learned
precise detail, his epic four-in-the- café’s attendant. Of course, it would be come to the realization that he’d have anything from law school, it was that
morning doc review sessions. It would hours before his contacts woke up and to seek his living expenses elsewhere. there was no way to attempt a good
mean living in the sepulchral city of could answer his question. “Dear Dean Minow,” his next email deed without cancelling out another.
Washington, DC, which was about as But Fenno’s tour of ten firms in two began. “Starving in Southeast Asia.

Send Us Your Comments and Opinions!


EMAIL RECORD@ LAW
January 14, 2010 Harvard Law Record Page 7
Jeopardy!, cont’d from pg. 1
Pawson, was one of the show’s stars. compete, she said. “After Dan got on fairly confident they are the only pair to only $25,000.
“Dan went on to win not two, not and won everything in sight, I thought have both won at least one game. Despite the prevalence of Harvard
five, but nine games and over $170,000, it'd be fun to take my shot.” She felt in- Saenz’ “Jeopardy!” appearance was Law students on quiz shows, Saenz
collecting more money in regular sea- creasingly that she should have taken the second time in under a month that a doesn’t think her legal education helped
son games than all but three other peo- the show’s qualifying test when Paw- Harvard Law School affiliate had been her much – even if one of the categories
ple in show history, and winning more son had invited her to, back when he on the show. 3L Sarah Boyette starred she encountered during her first “Jeop-
games than all but two others,” she began his run. When she finally did, she as a contestant on December 24th. With ardy!” appearance was “In the Court-
wrote in the Record in January 2008. was not only rewarded with an appear- a respectable second place finish, room”. She said her J.D. was actually
Only six other contestants have won ance on the show – her first aired on Boyette finished the show with a more useful for interpreting the release
over five shows, a category “Jeopardy!” January 7 – but became a champion $21,000 total, but, per the show’s rules, form she had to sign for Sony Pictures
fans have anointed “superchampions”. herself. was only allowed to keep $2,000. Television, which produces the show.
Pawson, a University of Chicago Saenz made over $30,000 during Boyette and Saenz are part of a long And when she was asked to describe
Law School graduate who turned down her first appearance, trouncing her com- line of Harvard Law students and her profession, she was careful to de-
a firm job to live with Saenz in Boston, petitors in the dramatic final round, alumni to have competed on the show scribe herself as an immigration lawyer
now works as a legislative aide at the when she surmised that “The Flint- at some point before, during, or after rather than just a lawyer “because,” she
Massachusetts State House. He was in- stones” was the animated show whose their time in law school. Several – in- said, “I've found that when people hear
vited back to the show in 2009 for its premiere had been sponsored by Win- cluding Pam Mueller ’08, who was on you're a lawyer, they often think you
Tournament of Champions, which he ston Cigarettes. Although she fell to a the show’s college edition before enter- chase ambulances or have annoying tel-
also won. Pawson’s winnings allowed competitor the next day, ending her run ing law school, and Amanda Goad ’05, evision commercials.”
the couple to pay down their bills – with a second place finish, she will be who appeared on its teen tournament – Still, she thinks HLS students and
which helped the public interest couple added to the show’s Hall of Fame for have been champions. Other quiz alumni should try their hand at a game
with their law school debt and other ex- one of the greatest totals ever earned in shows have also attracted HLS brains; a they seem particularly adept at winning,
penses – just as Saenz gave birth to a single game. few have displayed a gusto for risk-tak- particularly if they could use help with
their first child. (Their baby, Rebecca, “I was basically hoping to not em- ing that eludes most law students. Ken their cash flow problems. “I strongly
was born the night Pawson’s final Jeop- barrass myself,” Saenz said of her ini- Basin ’08 (who formerly wrote a col- encourage any students or faculty who
ardy appearance aired. The “Final Jeop- tial goal. “The fact that I won a game umn for the Record on his experiences are feeling nervous about the economy
ardy” category was “Baby Names”.) and made a healthy fraction of my non- studying abroad in Hong Kong) could or job market to hurry and sign up for
But while Pawson’s success grew, profit salary in 30 minutes was beyond have walked away with half a million January's online qualifying test,” she
so did Saenz’s sense that she, too, could anything I expected!” dollars during his appearance on “Who wrote, adding that a “Jeopardy!” vic-
compete on the vaunted quiz show. And while Pawson and Saenz were Wants to Be a Millionaire?”, but chose tory was “even better” than the law
“I've been a Jeopardy fan since I was a not the first married couple to have both to go for the million dollar question. school’s low income debt repayment
kid and it's always been a dream” to been contestants on the show, they are When he got it wrong, he took home plan.

C AMBRIDGE , USA: A C HURCH C LOSES ON C HRISTMAS


BY JESSICA CORSI on the family tree managed to wind up taking reli- But the world’s cutest toddler angel was, apparently,
gious orders. I’m having that “How come no one ever related to the world’s cutest baby Jesus. “Mommy!
We walked up to the church on Christmas Eve and tells me anything?” feeling again. Hiiii!!!” she whispered, and as the angels walked right
ran smack into the TV cameras and a news anchor out “And this nun was our cousin. My father used to toward the holy couple and the others took a sharp left
in front. What the heck was this? The church is lo- pick her up, and she couldn’t leave the convent with- turn, she gleefully continued straight on, running to-
cated in an area of Western Massachusetts small and out another nun. Isn’t that crazy? And they had to sit wards her mother Mary to give her a hug and offer a
rural enough to still be called a “village,” with a pop- in the backseat of the car; neither of them could sit up kiss to the tiny Son of God. As Mary fumbled with
ulation of less than 2,000 people and nothing in it that front with my Dad. Your mom was terrified of them.” both children, it became clear it was going to be hard
I can remember, except an old hitching post, with the “That’s true,” my mom agreed. “I don’t know what to separate the newborn from his new guardian.
date of the village’s founding stamped on it. it was but I was terrorized when they’d come over. As Mass started, the joyfulness quickly wore off.
The day had already gotten off to a weird start. I’d last about a minute before running and hiding.” The mood was tense, almost heartbreakingly sad. No
Never in my life had I taken a bus into my mother’s Habited nuns had walked the rooms of my grand- one there wanted this to be the last Mass. Already
home town on Christmas Eve, and she had already parents’ house, the house I was staying in that night? there had been so many church closings; each week-
managed to “lose me” in a town so small she doesn’t Their rules about traveling with at least two women, end that I had gone home to visit my family my grand-
even get mail delivered directly to her house. Yet now not being able to drive, and their giant habits make mother would read me the announcements from the
there were bright lights and a TV camera trained on a me think of Saudi Arabia. It wasn’t so long ago that local paper of which Chuch was closing here, which
tiny little box of a small town church. What could Catholic religious orders’ practices resembled Mus- over there. I hadn’t thought too much about it. I
possibly be going on? The church's Christmas pag- lims’. I remembered that before Vatican II, all of the knew that, in the U.S., Catholicism was faltering; that
eant was usually good, but not that good. girls and women had to cover their heads in Church. the dioceses everywhere were running out of money;
“Jessica, you do the talking,” my great aunt joked, The pageant was starting, sort of. The place was and that the priesthood was hurting for new recruits.
nodding toward the camera and elbowing me. buzzing with chatter, packed as it was and with the This Church had “borrowed” a priest from a village in
“Why are they here?” I asked her. show running late. The pageant coordinators were Nigeria because there were no locals to draw upon.
“This is the last Mass of this church. It’s closing.” flying around the place looking like Hollywood As the Mass wore on, the whole parish began cry-
I could have used a little advance warning. agents stressed about their starlets being late for the ing. I didn’t know what do to with myself; I’m en-
“Last Mass?” I asked. By this point we are already red carpet, whispering to each other but offering us tirely unused to seeing giant grown men standing in
crossing ourselves as we enter and search out a pew. no explanation. Finally it came—the priest ascended front of an altar decorated with Christmas flowers and
This is our Christmas Eve Church, because it puts on to the pulpit and announced, bawling their eyes out. My own family was tearing
a hilarious Christmas pageant before the Mass, and “Well, there’s been some mix-up. Father so-and so up, and I got swept up in the moment. I only came to
because the priest that travels here just to do the had the time wrong. I just reached him on his cell this church one night a year, but I knew that other peo-
Christmas Eve service does touching things like pass phone. He thought that Mass started 30 minutes later. ple formed a community here each week, and that
out candy to the children, who in turn do funny things So why don’t we just begin?” they were losing both that and a sense of their history.
like run around the church triumphantly eating candy. The pipe organ began piping, and the choir began In an act of rebellion, one of the parish organizers an-
If that sounds mundane, you’ve never been to a singing. The monotone teenage readers assumed their nounced that, “Tonight’s collection will not go to the
Catholic Mass. It's not usually a barrel of laughs. positions on stage, and someone began reciting the Dioceses, because they haven’t taken care of us," I
We take a seat at the front of the Church, immedi- words that set the scene for the little town in Bethle- heard someone announce. It will go to Father’s
ately behind the pews reserved for the pageant par- hem. On cue, the angels began bouncing down the church in Nigeria.” I’d never heard such defiance
ticipants. The place is even more packed than usual, aisle. The littlest angel was giving new meaning to coming from the altar before.
and, in contrast to previous years, the heat is on, for a bounce: literally skipping around the church, twisting “I really hope they don’t tear the building down,”
change. I suppose they figure that, for their last night her head in all directions to get a better view. The tod- my great aunt whispered.
in existence, they could afford to blast the heat. That, dler was making her halo flap and her sneakers flash It took 15 minutes to walk the 30 yards to the exit
and the fact that keeping it cold hadn’t exactly proven red lights with the impact. of the church. The parishoners had blocked the aisles
to be a strategy effective enough to keep them open. Soon, baby Jesus was there, and he was actually a greeting and hugging each other, mourning. My great
They’ve printed a special bulletin just for the occa- real live baby, and also apparently the cutest baby in aunt was off conversing with relatives no one bothers
sion, with “St. Bartholomew’s Parish, 130 years” on the entire world. As Joseph and Mary made their way to tell me are my relatives. Later on, she would try
the cover and a history of the church inside. My great around the altar pretending to look for a room at the and sketch out the family tree.
aunt starts pointing out family members that I didn’t in, Joseph’s staff got caught in the Christmas tree, a Back in the car, everyone let out a sigh.
know I had. “And this guy was out relative, and this hazard I’m sure the original couple endured with as “Did you see the angel’s shoes?” my mom asked.
one,” she says, tracing her finger down the list of much grace. As they assumed their positions center “They lit up!” my aunt responded. We drove home.
priests and deacons. No wonder my mom is so reli- stage and facing the congregation, the angels traipsed
gious, I think to myself, as I see just how many fruits down the aisle once again.
Page 8 Harvard Law Record January 14, 2010

L AW R EVIEW F ORUM : Corruption in Judicial Elections


BY MATTHEW W. HUTCHINS peal of the case, remanding the case to
West Virginia for further consideration.
The Harvard Law Review is usually Prof. White expressed exasperation that
the leading predictor of the actions of the the Court could come out so deeply di-
Supreme Court, but this time John Gr- vided on a case that appeared to have a
isham beat it to the punch. Grisham’s clear cut answer. The dissent, by Chief
latest legal thriller, The Appeal, bor- Justice Roberts, posed forty questions to
rowed its story of a judge captured by a the majority asking for guidance in the
wealthy local businessman from the facts difficult area of election finance and re-
of the case of Caperton v. A.T. Massey view of recusal decisions; to White, each
Coal Co., which recently made its way of these questions could be given an clear
from the West Virginia Supreme Court of answer, “so long as you keep your eye on
Appeals to the Supreme Court of the the fundamental rights of the litigant to a
United States. So when the Law Review fair trial.” To White, this was the most
held its forum on December 7th, it could important emphasis of the majority’s
only hope that the legal experts it had as- opinion, and for the lawyers and judges
sembled would provide a scholarly ad- seeking to conform their conduct to eth-
dendum to the recent Supreme Court ical standards will remain a compass to
decision. The panel included Prof. guide their conduct. White also noted
Adrian Vermeule ’93, who wrote a for- that footnote 68 of Prof. Lessig’s com-
ward for the volume titled “System Ef- ment rightly expressed surprise that the
fects and the Constitution,” Prof. Court’s opinion failed to actually rebuke
Lawrence Lessig, Prof. Pamela S. Kar- Justice Benjamin for conduct that would
lan of Stanford Law School, and Prof. not be acceptable under any set of recusal
Penny J. White of the University of Ten- standards, and instead only commended
nessee, Knoxville, who was formerly a his “careful responses to recusal mo-
Justice of the Tennessee Supreme Court. tions.” Lessig, who is the director of the
In Caperton, the Court was asked to Edmond J. Safra Center for Ethics, said
consider whether it was improper for that even if Justice Benjamin really be-
Justice Brent Benjamin to sit in a case lieved he could sit on the case without
which involved Don Blankenship, the being biased, he is still a cad for having
CEO of A.T. Massey, when it was done so due to the injury his action did
Blankenship who had provided the fi- to the public perception of the judiciary
nancial support for Benjamin to win an as an institution.
election campaign and a post on the Prof. Vermeule expressed fascination
state’s high court. The investment of with the instability created by offsetting Top: Prof. Adrian Vermeule ‘93 and Prof. Lawrence Lessig; Bottom: Prof.
over $3 million in Benjamin’s campaign biases of the members of the West Vir- Penny White and Prof. Pamela S. Karlan
bore fruit for Blankenship when a $50 ginia Court. In his forward, he addressed
million verdict against his company was the emergent system dynamics through court reflect that one individual’s giving up objectivity and yet hoping
overturned on its appeal to the West Vir- which a system can have properties that bias. In the opposite scenario, which for a miracle of aggregation to lead to
ginia high court. When one justice re- are not characteristic of the individual el- Vermeule calls the “miracle of aggre- the virtuous result. Prof. Karlan sug-
cused himself for having made strongly ements that compose it. These emergent gation,” biased members of a body gested that in this situation a judge
negative public statements about properties can then lead to results that are cancel each other out, leaving an ob- should rely on the norm of sincerity
Blankenship and another recused himself counter-intuitive, such as the possibility jective party in the position of casting and follow the position that their ob-
after vacation photos of him with that an undemocratic process of judicial the decisive vote.1 jective faculties show to be the cor-
Blankenship in the French Riviera sur- review could provide a necessary com- Professor Richard Fallon, who rect one. Prof. Lessig expressed
faced, it was Justice Benjamin’s vote that ponent of a vigorous constitutional moderated the panel, questioned doubt as to whether the norm of sin-
was pivotal in creating a 3-2 majority to democracy. The situation in Caperton whether it would be appropriate for a cerity has any real force in the deci-
overturn the verdict. was, to Vermeule, a “nightmare of ag- principled individual to change their sions of a court. For Vermeule, this
The Supreme Court’s 5-4 opinion held gregation,” whereby the system dynam- vote to offset the vote of another- domain involves difficult questions of
that Justice Benjamin should have re- ics created by biased players lead to the member of a panel who was known to role morality, since if one member of
cused himself, and that the impropriety possibility that any single biased judge be biased. Prof. Vermeule said that a court has notably departed from the
of sitting on the case was sufficient to could end up providing the swing vote this would fall under the rubric of norm of sincerity and displayed bias,
create a constitutional defect in the ap- that makes the aggregate decision of the what philosophers call a tragic choice, it has the capacity to influence the ac-
tions of the other members and the
morality of the choices they make.
Winter Sunsets: Cambridge and Los Angeles For Professor Karlan, the case was
rightly decided not only because it
was the correct application of the law,
but also because once the Court
granted certiorari it was put in a posi-
tion of needing to take a moral stand
against impropriety. The assertion of
power by the Supreme Court to inter-
vene in setting the standards for the
conduct of judicial elections can serve
as an important check against state
legislatures, said Karlan. To Karlan,
the standards for judicial elections
have become so watered down that
the people should reject them and
adopt an alternative method of select-
ing judges. It seems that in the wake
of Caperton the important legal and
political questions revolving around
judicial elections have become only
more unsettled and yet more pressing
and relevant.

1. Query whether this in fact reflects the


role of Justice Kennedy in the Court’s
Caperton majority. See Vermeule, 123
Photo: (above) Nathaniel Fintz ‘11; (right) Record Staff
HARV. L. REV. 4, 41 (2009).

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