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Harvard Law Record

The Independent Newspaper at Harvard Law School

February 11, 2010 www.hlrecord.org — twitter @hlrecord Vol. CXXX, No. 3

LESSIG Ukraine’s Orange


LEVELS Revolution Swept
CITIZENS Aside in Vote
UNITED Country Shifts Away From
DECISION West to Pro-Moscow Party
In Wake of Ruling,
N E W S A N A L Y S I S
BY MATT HUTCHINS

Prof. Says Country When Ukraine’s


Must Act to Restore sitting president,
Viktor Yushchenko,
Trust in Politics was eliminated from
the first round of the
BY VICTORIA BARANETSKY last week hosted by Harvard’s chap- ber of Commerce and parts of Mc-
elections, garnering
ter of the American Constitution So- Connell v. FEC. Justice Anthony
less than six percent
Last month, the Supreme Court au- ciety. Kennedy ’61, writing for the major-
of the vote, he urged KREMLIN MAN?
thored 183 pages of opinions in Cit- In Citizens United, the Court held ity, explained that to rule otherwise
voters in the run-off Yanukovych admires his
izens United v. Federal Election 5–4 that restrictions on corporation’s would chill protected political
election to vote narrow, but solid,
Commission, fomenting the ire of independent expenditures in political speech.
against both candi- margin of victory
Congress, President Barack Obama campaigns are unconstitutional, However, critics like Jeff Clements
dates. That six per- Source: partyofregions.org.ua
’91, and the legal community. Ex- overruling Austin v. Michigan Cham- were not persuaded. “Kennedy
cent proved to be more than enough to block
pressing their own disappointment dances around the real threshold
Yushchenko’s former ally, Prime Minister

Citizens United
with the decision, for two profoundly issue of ‘What is a corporation?’And
Yulia Tymoshenko, from achieving victory.
different reasons, were Professor he is pretending that there is no dis-
One might expect the President to be totally

v. F E C
Larry Lessig, director of the Safra tinction between corporations and
against his long-time rival Viktor
Foundation for Ethics, and attorney humans, but that is very grave.” said
Yanukovych, for it was he who was impli-
Jeff Clements, who authored an am- Clements. “That is what makes this
cated in the falsification of the 2004 presiden-
icus brief in support of the lower case so profoundly important for this
More Coverage and tial election which was reversed by the
court’s decision. The two offered country.”
Opinion - Page 2 Orange Revolution. Outsiders might be sur-
their independent critiques at a panel Lessig, cont’d on pg. 3 Ukraine, cont’d on pg. 8

Bob Mnookin Deals With the Devil AN OUTLAW WHOSE


In His Newest Book, Mnookin ‘68 Negotiates the LIFE WAS THE LAW
Pitfalls of Bargaining With the Forces of Evil
BY NATHANIEL L. FINTZ ket! They deny wrongdoing, and they
also want to renegotiate your original
You are beside yourself with rage. contract.
Your small research-and-development You are so angry you can hardly think
firm in Silicon Valley has partnered with straight. But what should you do?
a Japanese company to manufacture and Should you bargain with this devil? This
distribute your product. But you’ve just question, which arises in so many situa-
discovered that this company has vio- tions, is central to Bargaining with the
lated your contract by secretly creating a Devil: When to Negotiate, When to
knock-off of the design you licensed to Fight, a new book by Professor Robert
them—and selling it in the Chinese mar-

INSIDE
Devil, cont’d on pg. 7

1L Winter Workshop Heats


Branded a “Terrorist” for Work
With the ANC, Albie Sachs Guided

Up First Year Curriculum


South Africa’s Revolution as Dissident,

The HL Record Then as Constitutional Court Judge


BY REBECCA AGULE
BY JENNY PAUL some,” said first-year student
News Danielle Singleton. “It taught us He survived repeat imprisonment, a car
• Phoenix Mayor on Immigrants Harvard Law School’s newest very practical knowledge.” All bombing that resulted in the loss of his arm,
• Mock Trial Wins Again first-year required course was a first-year students were required to and vision in one eye, but through it all, Albie
winter-term success, according to take the course during the law Sachs counts himself lucky to have played a
many 1L students. The Problem school’s three-week winter term. pivotal role in his country’s history. And on
Opinion Solving Workshop was the last of Students separated into small February 5, Sachs, recently retired from the
• Hope for European Rights the curriculum reforms to be im- groups of four or five and were Constitutional Court of South Africa and pro-
• Forrest Gump and Int’l Law plemented after a 2006 faculty vote given hypothetical fact patterns that moting his new autobiographical book, The
• Citizens United: What Next? to change the required 1L courses, they used to address problems Strange Alchemy of Life and Law, shared his
• Citizens United: Nader’s Book which also added Legislation and lawyers face in daily practice, such tales of activism, exile and incarceration at
Regulation and an international law as how to effectively interview Harvard Law School.
elective course to the first-year clients and draft press releases. Sachs began his legal career by advocating
schedule. Dean Martha Minow said she for human rights and representing defendants
TIRED OF SUBCITING? “Problem Solving was awe- was “delighted” with the results. charged under racist statutes. This work led to
NEWS EDITORS WANTED! Problem Solving, continued on pg. 5 Sachs, cont’d on pg. 5
E-MAIL RECORD@LAW
RALPH NADER & BRUCE FEIN ON CAMPUS TUESDAY, FEB 23 - SEE BACK COVER
C I T I Z E N S U N I T E D
Page 2 Harvard Law Record February 11, 2010

Citizens United v. FEC is the kind of opinion that million raised by Barack Obama ’91, and averages of conclusion, the Court piles one questionable assump-
deserves fierce and decisive condemnation by the $711,000 and $2.44 million respectively for House tion atop another – treating corporations as “associa-
American public. Indifferent to the threat of unre- and Senate candidates. ExxonMobil alone reported tions of individuals,” granting those corporations full
strained economic power, and wedded to a rhetoric of profits of $85 billion across this same period. With free speech rights, equating money and speech, and
corporate personhood that only seems plausible in the unlimited access to funds, these corporations would relegating to analytic irrelevance any concerns about
realm of disorienting metaphor, it preaches a vision wield extraordinary power over the electoral the real-world effect of unmatched corporate wealth.
of free speech that most Americans have rejected for prospects of our political class – the harms of which The combination of these errors leads to a prepos-
over a century. Judicially rewiring the First Amend- are both obvious (bad policies that favor narrow cor- terous result, forgetful of the point that the First
ment into an efficient convertor of economic might to porate agendas over the public interest) and subtle (re- Amendment protects democracy by safeguarding self-
political influence, Justice Anthony Kennedy ’61 et duced popular faith in democratic processes). expression essential to political discourse. Although
al. rewrote a major swath of constitutional law in an- It may seem strange to argue that an expansion of “we the people” still reserve the right to speak, our

What Happens Next?


swer to a question posed only by the majority to relative ability to exercise that freedom in mean-
itself. As a result, our First Amendment will ingful service to democratic self-governance has
spend the foreseeable future frozen in irony – a been badly compromised. This result, moreover,
status born of the role it now plays in gutting the is not required by the Constitution. As explained
very right it exists to champion. By Joshua Matz by Justice Stevens, the unique advantages and
Harm to free speech is only the beginning, characteristics of corporations – legal fictions that
however, of Citizens United’s consequences. As ju- free speech will produce this parade of horribles. Jus- we endow with impressive benefits to facilitate eco-
dicial and legislative elections fall under the vastly tice Kennedy frames the issue in absolute terms, re- nomic growth – provide sufficient and long-recog-
expanded sway of corporate dollars, we can anticipate ferring constantly to the “chill” of corporate speech. nized cause for denying them the same rights as
a new bevy of creative tax loopholes, deregulatory How, then, to square a serious commitment to liberty natural persons.
initiatives, and pro-business doctrinal shifts in many with the troubling concerns raised by Citizens United? Some commentators, mainly associated with the po-
fields of private law. And as Prof. Mark Roe ’75 ob- As Prof. Larry Tribe ’66 explained to the House Ju- litical right, tell us not to worry. Citizens United, they
serves in the Financial Times, Citizens United may diciary Committee, “it would be passing strange if the insist, will do little to disturb the status quo. This op-
actually reduce economic dynamism by encouraging First Amendment, so central to our system of self- timistic outlook depends upon at least four doubtful
incumbent business interests to deploy their new po- government, compelled us to choose between free assumptions: (1) legislatures will act effectively to
litical muscle against emerging market entrants (who speech and democratic integrity.” Properly under- limit its impact; (2) judicial elections will not be
lack the organization and influence to successfully op- stood, of course, it does no such thing. To reach its meaningfully affected; (3) patterns of corporate be-
pose regulatory obstacles). havior will remain untouched by an expres-
Citizens United also significantly expands an sive and doctrinal shift in legal culture and
incentive structure that was already highly regulatory power; (4) courts will not construe
conducive to actual and perceived political Citizens United as the basis for further expan-
corruption. Fortune 100 companies reported sion of corporate rights; and (4) patterns of ap-
revenues of $13.1 trillion during the last elec- proximate party in donations to both political
tion cycle, as compared to approximately $745 What Next?, cont’d on pg. 3

With the recent Supreme Court holding in government transparency – are directly trace-
Citizens United, corporations and unions have able to his citizen advocacy. But his point in
first amendment protection to spend directly the book is not vindication; it is to raise the
on political campaigns – at unprecedented lev- possibility of an imaginative alternative. And
els. This is not the first ruling to protect speech with the current elevation of corporate per-
rights for corporations – they also benefit from sonae, Nader’s jujitsu idea may become the
the Court’s “Noerr-Pennington” doctrine, only alternative we have.
which exempts them from antitrust laws when ican notions of check and balance? Much significant human progress occurs be-
they combine to influence legislation. The corporate-controlled fate awaiting us is not cause someone rises above predictable self-advance-
But Jefferson and company might be quite surprised confined to liberal gnashing over global warming and ment, taking on his own elite group. Though this
to learn that “originalists” citing the sanctity of their environmental depredations. Conservatives have a rarely happens, there have been a few remarkable ex-
original intent would let loose upon our government stake also, as the current unfunded liability for social amples, such as Mikhail Gorbachev reversing the So-
hated British megacorporations of the colonial era, security, MediCare and the national debt exceeds a viet Union’s expected course, ending decades of
like the Hudson Bay Company, as a “person” with projected $55 trillion. The carrying charge in current bullying and antidemocratic domination. He did the
such rights to combine with other companies and win dollars for the debt we are imposing on our children unpredictable—he replaced defense bluster with dis-
political influence. We live in a armament and political domination
world that is increasingly controlled In His Latest Book, Ralph Nader Envisioned with Glasnost. And no, it was not
by these horizontal organizations. Reagan or rising oil prices or a pea-
They, together with labor and pro- a Different Kind of Corporate Influence. cock-strutting United States that
fessional alliances, dominate Wash- forced the Soviet Union’s course
ington and in state capitals. They After Citizens United, it May Be Our Only Hope. correction. It was a leader turning
are euphemized as “stakeholders.” against every expected instinct and
These tribal structures are often By Prof. Robert Fellmeth pattern. When such reversals of pre-
vehicles that represent the lowest dictable self-interest occur, the con-
common denominator of the ethical sensibilities of is over $20,000 per family per year. sequences may be profound. Indeed, the highest
their membership. But the problem is not quite related Into this evolving and deeply problematical world, ethical act in the modern world may be to take on
to the easy demonizing Wall Street or corporate pre- Ralph Nader ’58 released his interesting new book, one’s own tribe.
dation; it is that it is the job of corporations to invest Only the Super-Rich Can Save Us (Seven Stories In Nader’s fantasy, that is what these billionaires do.
capital, and then to try to maximize return on that cap- Press). This novel combines real-world politik with They get together and find common ground in a
ital for the stockholders who provided it. That neutral, an imaginative story—a fantasy of what could hap- legacy of competition, environmental health, politi-
understandable task means that they should and must pen if 17 of the nation’s wealthiest and most influen- cal reform, and world progress. Could it happen?
protect that investment, and if society has created tial persons combined to move the needle back toward What is interesting is that Nader personally knows
market flaws that allow external costs in the exhaus- the middle, accomplishing political reform and eco- most of the folks he writes about. And his storyline
tion of the earth’s resources, or health costs borne by nomic restructuring. Can such a group transform our purports to capture not only their political views, but
others, this is not something they exist to correct. long-term future and diffuse interests (the environ- also their personalities: Warren Buffet ordering cherry
The problem is that they are now legally able to pre- ment, our children and our legacy) by expanding their colas, the clever repartee of Sol Price, and the
vent correction. The “socialist” moniker thrown at secondary, public relations “fig leaf” roles into actual, charisma of Warren Beatty. And the fact that these
supporters of government intervention applies where real-world influence? folks do, in fact, care about our planet.
the state excessively owns and operates the means of The prospects would appear dim, but the idea has Most of those named in his story currently spend
production., when the check between private and pub- more to it than the frustration of a longtime consumer fortunes on charity—on advancing values not far
lic becomes lost. But what do you call the evisceration advocate. Nader has been largely marginalized by the from those promoted by Nader. But what they do in
of that check in a system where the means of produc- media as some sort of eccentric, most of whom have his fantasy is stop spending the vast proportion of it
tion own and operate the state? Is industrial or special forgotten that many of the mechanisms that protect on direct services. This is not to say that the billions
interest socialism not even more antithetical to Amer- modern consumers, from air bags to drug testing to Corporations, cont’d on pg. 3
February 11, 2010 Harvard Law Record Page 3
Lessig, cont’d from pg. 1 For Lessig, money’s impact on Con- to do whatever they want,” said Lessig. office without relying on large contri-
Imagining the possible implications gress is the concern – rather than cor- Lessig mentioned Caperton v. A. T. butions.”
of the decision, he explained that in the porations being vested the right to Massey Coal Co. as precedent. In Ca- Lessig also believes a constitutional
2008 Fortune 100 companies had prof- speech. In fact Lessig stated, “It would perton, the Supreme Court announced amendment would be helpful, but in-
its of $605 billion and political candi- be fantastic if we could ensure First that the Due Process Clause required stead of presenting one platform, he
dates spent three billion on their Amendment Speech to the highest de- judges to recuse themselves from cases calls for a form of amendment process
campaigns. But in the next cycle, if the gree. I look forward to the day that where independent expenditures have that exists in Article V, allowing a con-
top 100 spend even 1% of their profit computers can secure this right – a been given to campaigns. “The court vention to be called to discuss the
through “independent expenditures” on Blade Runner type moment.” Instead found there was a constitutional re- amendment. A convention would allow
political campaigns, they will have Lessig expressed concern that “people quirement that the justice had to shut up all proposals for amendments currently
more than doubled the federally-re- think money buys elections.” because of the appearance of impropri- stirring around Washington to remedy
ported disbursements of all American In surveys conducted in California ety from the independent funding.” So Citizens United to be melded, creating a
political parties. “These mathematics and North Carolina, Lessig reported a shouldn’t Congress, Lessig asked, be hybrid amendment worthy of ratifica-
are huge especially when we think that ratio of five to one people believed that able to squash corporate speech to tion. Many people are afraid of such a
money is already paralyzing public in- money buys votes in Congress. Unlike maintain its own integrity? convention, said Lessig. But thirty-
terest in Washington,” said Clements. the courts and the presidency, Congress The solution, according to Lessig, is eight states have to ratify it and twelve
“Corporate money has a huge impact has lost its integrity among a large ma- not to return to the world that we occu- states could veto and stop the process.
on what comes out of Congress or what jority of people. “It is this institution pied before Citizens United was de- Moreover, “an amendment process
doesn’t as it is.” that is most bankrupt,” said Lessig. cided. Instead he wants to “deal with all shouldn’t stop us from a real opportu-
“The implications are even more se- In other words, Lessig is concerned of the other corruption that existed.” nity for freedom,” said Lessig.
rious,” Clements continued. “They go not with corporate speech but with Lessig’s plan is twofold. First, instead Lessig ultimately posed the question
to the heart of our democracy. The Congress’ ability to safeguard its own of overturning Citizens United, Lessig that political scientists have repeatedly
question is who gets to participate in integrity. “Congress’ objective was to endorses the Fair Elections Now Act (S. discounted, “Does money matter?”
self-government in a democracy? Who create a law so that elections were not 752 and H.R. 1826) that was introduced “How,” he wondered, in response to his
is a citizen?” . To fight the Court’s de- dependent on corporations but only in the Senate by Sens. Dick Durbin (D- own question, “could anyone ask that
cision, Clements urged students to peti- upon one thing – the people,” he said. Ill.) and Arlen Specter (D-Pa.). Al- question? Why is such an extraordinary
tion for 28th Amendment introduced by Congress should be able regulate cor- though the title is a proverbial red flag amount of money being spent if it does-
Congresswoman Donna Edwards. The porate behavior that interferes with the to the bull that is Justice Antonin Scalia n’t matter? No doubt,” he concluded,
amendment would overturn Citizens puplic trust in Congress, “Outside of ’60, said Lessig, “the bill would allow “the relationship creates a perverse de-
United. this window corporations are allowed federal candidates to choose to run for pendence.”

Corporations, cont’d from pg. 2 What Next?, cont’d from pg. 2


spent on AIDS or malaria abatement have not yielded im- parties will persist undisturbed (the result of larger pattern of corruption. Although few of
portant results; the 2009 data from UNICEF shows real re- which would be greater corporate control across these would truly fix the problem, they would
ductions in child mortality worldwide. Some of Nader’s the partisan spectrum). This argument is, quite certainly provide a badly-needed palliative.
“characters”—all real persons—are largely responsible for simply, wrong on its merits. And perpetuation of All of which brings us to the main issue: Does
this progress. But their donations are not strongly lever- the status quo ante – with its perverse incentives American democracy remain sufficiently ener-
aged, as Nader would propose. and tendency toward corruption – would not be getic to face this challenge? That, I must admit,
What Nader essentially does is imagine a world where cause for reassurance. is an open question. It is remarkable that our
the super-rich seek more than malaria containment—where At a recent American Constitution Society president felt the need to spend part of his State
they seek leveraged change in public investment and deci- event, Jeff Clements and Prof. Lawrence Lessig of the Union address reassuring us that our po-
sions. Interestingly, Citizens United may make that shift offered wider perspective on these issues. litical institutions are indeed capable of acting
both more needed and more feasible legally. For if corpo- Clements emphasized the important role that for the common good. Not that Congress has
rations can independently campaign for political candidates First Amendment doctrine has played in recent done much in recent years to justify such faith, as
protecting the value of their drilling rights and seek to burn conservative efforts at deregulation. This has evidenced most glaringly by its recent “debate”
carbon accumulated over four billion years as if it were a sometimes taken the form of limitations on the over health care legislation. The postmodern air
sparkler lit on the 4th of July, why cannot those who have regulation of commercial speech (i.e. cigarette of unreality that pervades much of contemporary
wealth, lacking such a sunk-cost bias, do likewise? Why advertisements targeting children), but, in a more political discourse, in which astroturf has re-
can’t Soros and Buffet and Gates and the rest – with wealth pernicious form exemplified by Citizens United, placed grassroots and partisan pundits occupy
freed from direct exploitation bias and able to factor in fu- has undermined popular control over elections in different realities, seems to leave little room for
ture costs – participate in countervailing political discourse? the name of corporate liberty. the kind of meaningful national conversation that
Nader imagines that they end their dabbling and “feel Lessig agreed. He observed “a Blade Runner- might restore integrity to our electoral process.
good” dispensation of shots to wide-eyed children and do like moment in this opinion,” and gleefully ac- Such reform efforts are further complicated by
the work of changing ground rules so that political candi- knowledged his excitement that computers, too, Citizens United itself, which, unlike previous
dates are bought by the public, not by special interests, so may soon find favor with Justices keen to endow Supreme Court decisions that merely denied peo-
that political campaigns have substance beyond ten-second rights upon non-human entities. But he focused ple rights, commits the further indecency of cor-
sound bites and brainless namecalling, so that the many squarely on corruption. Charging the Court with rupting the very electoral process that might
have access to the courts, so that agencies hear from many hypocrisy, he contrasted its apparent disregard normally facilitate remedial action. In the future,
interests regularly, so that no business is too big to fail. for congressional efforts to secure electoral in- any legislator involved in efforts to limit or mod-
The fun of reading this book is in joining the author’s fan- tegrity with the concern for judicial purity that ify corporate funding of elections will confront
tasy, but punctuating it with our own tactics – what we animated Caperton v. A.T. Massey Coal Co. Not- the multi-billion dollar megaphone of corporate
would do to correct the world’s deviant path had we the re- ing that Congress is widely seen as the most cor- general treasury funds. Needless to say, the ti-
sources and visibility of these 17. The characters in this rupt branch of government, and that political tans of corporate America might feel strongly
book seek structural and leveraged change—advocacy for action committees, lobbyists, and fundraising about ensuring their recently secured ability to
public budgets and laws and international agreements—that events already provide corporations with plenty flood our marketplace of ideas with PR-friendly
properly embody more than the exploitation of narrow self- of expression, Lessig worried that Citizens sound-bites.
interest. Now that the U.S. Supreme Court has radically United will further prevent Congress from real- Completing a process begun decades ago, five
shifted ground and allowed (contrary to the judgment of the izing the desires of its one true constituency – members of the Supreme Court have staked the
people’s democratic institutions) many billions of corpo- “we the people.” future of America’s electoral system on their be-
rate and union money to directly influence elections, those So what can we do next? Lessig and Clements lief that we previously suffered for a lack of cor-
interests with capital investment in current profitable en- both support a constitutional amendment to rem- porate influence. The First Amendment, as
terprise – whether it be mining the seas, polluting the earth, edy the decision’s effecys. Lessig ups by the shown clearly by Justice Stevens, did not compel
or collecting medical benefits for power wheelchairs and ante by calling for a full constitutional conven- that result. Now the time has come for the pub-
Cialis on the backs of their grandchildren -- will increas- tion (from which a more wide-ranging group of lic, and our elected representatives, to deal with
ingly lock-in their self-protection and their imposed exter- reforms might emerge). Both also urged Con- its consequences. Any solution worthy of the
nal burden on others. Their free ride, notwithstanding gress to quickly pass the Fair Elections Now Act, name will undoubtedly involve extraordinary
future costs, will be further and irretrievably calcified into championed by Senators Richard Durbin and measures, including some kind of landmark leg-
public law. Arlen Specter. Other commentators have urged islation. “We the people” must therefore be
Although pathetic, it appears as if these 17 and some of changes to corporation law, shareholder gover- brave. Only if the American public stands firmly
their friends may indeed be the most realistic hope we have. nance, disclaimer and disclosure requirements, behind advocates of reform can we hope to rein-
anti-coordination rules, and the terms applied to vigorate the integrity of our treasured political
Robert Fellmeth ’70 was one of “Nader’s Raiders” and for- government contractors. At the state level, Citi- institutions.
merly worked on the Harvard Law Record. He is now is the zens United has emboldened advocates of a shift
Price Professor of Public Interest Law at the University of from the election to appointment of judges. Joshua Matz is a 1L.
San Diego Law School. Many of these proposals strike broadly at a much
Harvard
Page 4 Harvard Law Record February 11, 2010

FROM STRASBOURG WITH HOPE


Law
As it Celebrates its 60th Anniversary, the European Convention on Human Rights is

Record
Being Reinvigorated With New Signatories and Ideas for Better Enforcement
BY MATTHIAS C. KETTEMANN 2008 the U.S. Supreme Court published It is, at the very least, a symbolic one.
just 74 opinions. But the Strasbourg Also of substantial symbolic and real
In 2010, the European Convention Court is charged with a mandate that importance is the vote by the Russian
on Human Rights will celebrate its 60th should give rise to a much higher case- State Duma to finally ratify Protocol 14
anniversary. One might think this is a load: It must ensure adherence to the to the Convention, which was con-
EStabLiShEd MCMXLVi
reason to celebate, but for Thorbjørn Convention by all 47 members states of firmed by the Duma’s upper chamber,
Matthew W. Hutchins
Editors-in-Chief
Jagland, the Secretary General of the the Council, and is, therefore, the court the Federation Council, on January 27.
Chris Szabla Council of Europe, the Convention’s in- of last instance of human rights matters Russia had been the only one of the
stitutional mother, it’s not. In Decem- for 800 million people, a little less than Council’s 47 member states not to ratify
ber 2009, he warned that the European three times the U.S. population. the Protocol, mainly out of political dis-
News: Rebecca Agule
Staff Editors
Court of Human Rights, which over- It’s no wonder, then, that cases before agreements with Strasbourg over the
Opinion: Jessica Corsi sees compliance with the Conven- Court’s scrutiny of military activi-
Sports: Mark Samburg tion, was in a “desperate situation” ties in Chechnya, which had in-
and “no longer able to function as variably led to a number of
Victoria Baranetsky it should”; some judgments had judgments holding Russia respon-
Contributors

Prof. Robert Fellmeth been “reduced to a few lines”, sible for torture and illegal killings
amounted to “little more than an in there. Indeed, complaints against
Nathaniel Fintz
accounting exercise” and con- Russia account for roughly a third
Matthias C. Kettemann
tained “less than a bare minimum of all cases lodged with the Stras-
Joshua Matz of reasoning”. In brief, the situa- bourg Court.
Jenny Paul tion was “intolerable and unwor- Protocol 14, which is part of a
thy of our [the Council’s] member larger process of reform of the Eu-
record@law.harvard.edu States’ repeatedly reaffirmed com- ropean human rights system, pro-
Submit Letters and Editorials to:

or mitment to human rights.” vides for substantial procedural


Harvard Law Record In general, the Court, which sits streamlining, by foreseeing, inter
Harvard Law School in Strasbourg, France, has been alia, new judicial formations, such
Cambridge, MA 02138-9984
considered a huge success. What More roads are leading to the European Court of as decisions rendered by single
Secretary General Jagland, along Human Rights in Strasbourg, and they’re getting faster. judges, or three-judge committees.
Letters and opinion columns will be Photo: Richard Cawood
with numerous human rights Further, cases which similarities to
published on a space-available basis.
lawyers and activists over the past the Court take a long time. So long, in already decided cases can be struck off
The editors reserve the right to edit
years, rightly criticized was that success fact, that sometimes the Court’s hearing the record (the famous pilot-judgment
for length and delay printing. All
had been too overwhelming. As the of cases concerning the right to a fair procedure), as can the untested and po-
letters must be signed. Deadline for
Court’s President, Jean-Paul Costa, trial within one of the Convention’s tentially problematic category of cases
submissions is 11:30 p.m. Tuesday.
pointed out in his Annual Report, in just member states winds up violating the where an applicant has suffered no “sig-
The Harvard Law Record is a publication one year 57,000 new applications had right to a fair trial at the Court – due to nificant disadvantage”. The Protocol
of The Harvard Law School Record Cor- been allocated for decision and 35,460 its lengthy proceedings. will also allow the Committee of Min-
poration. All rights reserved. The Harvard applications were decided: 33,065 by Still, there are silver linings to the isters, a political organ, which is
Law School name and shield are trade- relatively brief inadmissibility or strike- clouds that Secretary General Jagland charged with supervising the enforce-
marks of the President and Fellows of out decision, but 2,395 by sometimes saw during a year when the Court ment of judgments, to work more ef-
Harvard College and are used with permis- extensive judgment. should be celebrating. In fact, three sil- fectively with national governments to
sion from Harvard University. To put things into perspective, in ver linings or “reasons for optimism” as ensure compliance.
President Costa put it in a rather While the changes brought by Proto-
more upbeat press conference col 14 have the potential to substan-
Phoenix, cont’d from pg. 8 selves in the name of patriotism and spew on January 28th. Taken together, tially streamline Court proceedings,
criminals and 50 officers embedded under- vile anti-semitism and racist rhetoric.” The these three factors promise to they are not revolutionary. Some proce-
cover in federal operations. The cost to public presence of these radicals has further make 2010 a revolutionary year dural provisions have already been im-
Phoenix of employing these 150 officers, increased the burden on the police, as clash- for what is widely accepted to plemented through Protocol 14bis,
over $15 million dollars a year, is not reim- ing demonstrations of extremists and be the most successful and most which was adopted in May 2009, after
bursed by the federal government and counter-extremists have required police in- advanced regional human rights it became apparent that Russia’s ratifi-
threatens to force volvement to prevent protection system in the world. cation of Protocol 14 would take some
reductions in city violence. “Now Let us consider them in turn. time. The pilot-judgment procedure has
services like li- those individuals First, the Lisbon Treaty, which also been applied, rather successfully,
braries and after who had to hide in finally entered into force on De- through a creative interpretation of con-
school programs. the dark, under a cember 1, 2009, affirms that the ventional procedure rules from 2004
Mayor Gordon rock like a snake, European Union will accede to onwards, when it was introduced in
says that his city’s feel free to come the European Convention of Broniowski v. Poland. Protocol 14bis
police do not oper- out.” But Gordon Human Rights. While there are will become moot when Protocol 14 en-
ate in the same emphasized that his still a number of unresolved pro- ters into force on June 1, 2010, pro-
manner as the sher- city will continue to cedural questions (should, for vided that Russia’s instrument of
iff of Maricopa fight to protect the example, the EU now be repre- ratification reaches Strasbourg by the
County, Joe Arpaio, human rights of the sented by its own judge on the end of February.
and that Phoenix victims of the coyote Court?) and serious substantive The third positive impetus for the Eu-
police officers’ pri- criminal organiza- issues to clarify (especially con- ropean human rights protection system
mary goal is to pro- tions. “With rights cerning the relationship between will have its origin in the idyllic Swiss
tect the innocent come responsibili- the Luxembourg-based Euro- town of Interlaken, where, on February
from being killed or ties, and although pean Court of Justice, which 18-19, a “High Level Conference on the
sold into slavery. those hate-mongers rules on questions of EU law, Future of the European Court of Human
He denied any pol- don’t care about re- and the Strasbourg Court), the Rights” will take place. President Costa
icy of officers sponsibilities, we move will have limited substan- described the conference as a “land-
rounding up day must.” tial impact on the level of mark” event in which states would reaf-
Protesters in Phoenix, AZ urge passers-by to
workers “just be- Nonetheless, Gor- human rights protection in EU firm their commitment to human rights
“Deport Illegals, Secure our Border”
cause of the color of Photo: flickr user cobalt123 don expressed urgent countries. Already under the and, more significantly, “draw up a
their skin” but rec- concern about the pre-Lisbon Treaty framework, roadmap for the future development of
ognized that the county sheriff’s operations state of immigration law in the United fundamental rights, “as guaran- the Court”. A number of Council offi-
had raised cause for alarm. States. He believes that immediate action is teed” by the European Conven- cials have weighed in with statements
Unfortunately, Gordon said the immigra- necessary to reform immigration policy and tion, were “general principles of on what needs to be achieved in Inter-
tion situation has opened the door for right- assist burdened local police. “I couldn’t and the Union's law.” President laken. While differing on the details,
wing extremists to grandstand their hateful wouldn’t stay silent any longer, not only be- Costa described the future ac- the main challenges are clear (though
beliefs without fear. He expressed extreme cause of the economic costs, but also be- cession by the EU as a “major the ways to achieve them are less so).
concern at the presence of “Nazi hate cause of the cost in human suffering.” step towards creating a Euro- President Costa himself suggested a
groups that wrap the flag around them- pean fundamental rights space”. Strasbourg, cont’d on pg. 5
February 11, 2010 Harvard Law Record Page 5
Sachs, cont’d from pg. 1 of mobilizing society. The indiscrim- the National Executive of the ANC. Problem Solving, con’d from pg. 1
his 1963 arrest under the 90 Day inate use of terror was something we Following the first democratic elec-
“The participating faculty took the unprece-
Law, which allowed the government opposed,” he said. “I recall a time tions, President Nelson Mandela ap-
dented step of meeting daily to confer and
to hold political prisoners for 90 days when planes were hijacked as part of pointed Sachs to the new
compare experiences and ideas -- and all
without filing actual charges. Sachs the Middle East conflict. The leader- Constitutional Court.
seven of the teachers found the experience ex-
sat in solitary confinement, only to ship of the ANC said, ‘We are against While on the Court, Sachs presided
citing and rewarding,” Minow said in an e-
be rearrested almost immediately terrorism.’” over the “Case of Mr. Mohamed,”
mail. “We are avidly reviewing now what
upon his release. He described the Sachs describes the ANC’s anti- which involved a Tanzanian who
worked well and what can be improved.”
experience of sitting alone in a cell, terror stance as, in part, strategic. “If took refuge in South Africa after par-
In the last problem set, students took on the
with little light and high windows, al- the ANC went for that, we play into ticipating in the 1998 bombing of the
role of a public interest lawyer. Their client
ternating between staring at his toes the hands of those in power,” he said. U.S. Embassy in Dar es Salaam.
was a tenant who was told he was being
and the wall. South African authorities extradited
evicted from his rental apartment because a
“It’s a strange existence, an inhu- Mohamed before obtaining a guar-
bank was foreclosing on the owner of the
man existence, to be forcibly without antee that the U.S. would not impose
building. Each group of students had to write
human contact. To be without peo- the death penalty. The Court declared
a memo addressing what type of action they
ple,” he said. “A deep deep depres- the extradition unconstitutional, as
would take to try to keep their client in the
sion enters into you. It is a sense of no person may be sent to another
apartment or how they would negotiate a
total utter deprivation.” state when facing a risk of human
monetary settlement with the bank. The
Mental games and songs helped rights violations.
groups then met with practicing lawyers to
Sachs pass the hours. He waltzed Touching upon the death toll in
present the memos and receive feedback.
around his cell, tried to name all of Dar es Salaam, Sachs said, “The fact
“The word we’ve had from the practitioners
the United States, and sang hit tunes. that the offence is particularly egre-
who did that is that they really liked it, and
Irving Berlin’s popular song “Al- gious is no reason to bend the rules.
they thought, on the whole, our students did a
ways” provided the inspiration for a If anything it becomes that much
good job,” said Todd Rakoff, one of the pro-
satirical take on his own situation. more important, you want to distance
fessors who conceived of the course and
Sachs sang his version: “I’ll be liv- yourself. You don’t want to say in ef-
wrote the problems presented to the enrolled
ing here, always. I’ll be staying here, fect, ‘We are like you, but we are
students. “I thought it was a neat thing. We
always. Keeping up my chin, always, During the 1985 ANC conference, stronger than you.’”
sort of sent 500 people out into Boston to
not for but an hour not for but a week Sachs made a presentation regarding “It is easy to have beautiful princi-
meet with practitioners.”
not for 90 days. But for always.” the treatment of captives, and the or- ples when they aren’t being tested,
First-year student Julie Schechter said the
Prison contributed to his philoso- ganization passed several key reso- but isn’t it when they are tested that
practitioner meetings were her favorite part
phy of life and the law. lutions on appropriate forms of they really matter?” he asked.
of the course. “I think we should have done
“I took a vow deep into my deten- struggle. Sachs prefers to think about the
that for all of the problems or at least more
tion, that if ever I was in a position “When it came to the resolutions it long term implications of the Court’s
than one,” she said. “Someone who had prac-
of authority, I wouldn’t do this to became clear: traditional armed opinions and dislikes the idea of
tical experience taught you more than just
anybody. It’s a great power, greater struggle, but no use of terrorism, no judges operating as machines, simply
talking to your classmates.”
than thinking I will get them and do attacking people because they belong processing the information they are
Only one section was led by a practicing
this to them. It’s a superior power,” to a particular group,” he said. “The fed.
lawyer – Bill Lee, a co-managing partner at
he said. oppressed don’t have to learn the lan- “To what extent does life experi-
WilmerHale. “I loved having a practitioner
Sachs also recognized the benefits guage of the oppressors.” ence go into decisions you make?
[as a professor],” said Jessica Lewis, who was
he enjoyed, as compared to others The delegates voted unanimously Once you’ve got your opinion out it
in Lee’s class. “I think every section should
under the same conditions. to ban the use of torture by the ANC. has an impact; it has effects. It is part
have a practitioner. I think it gives you a dif-
“Even being subjected to torture, Sachs explained this decision, “The of the law.”
ferent experience than the typical classroom
my skin gave me privilege, even as ANC doesn’t use torture, as a matter Occupying a unique place history
experience. I have prior work experience, and
an enemy of the state,” he said. of principle, as a matter of the kind and jurisprudence, Sachs appreciates
it seemed much more like a workplace set-
After being released, and then re- of people we were. This distin- the opportunities that befell him.
ting.”
arrested and released once again, guished us.” “I feel I am perhaps the most priv-
Rakoff said he would like to have Lee re-
Sachs could not bear the threat of “More people have died from state ileged person in the world,” Sachs
turn to teach the course next year, but said it
further imprisonment. He moved to terrorism than terrorism from irregu- said. “I have all the privileges that
is unlikely that any other practitioners would
England and began a life with a new lar forces,” Sachs said. “That’s part being a white person automatically
be teaching. “I think probably we will try to
wife and, later, two sons. of the equation, but no amount of gave you. But I also had the privilege
have some more practitioner involvement in
At age 39, while teaching law at state terrorism justifies the use of ter- of being part of a liberation struggle.
individual problems, since, in a lot of sec-
Southampton University, Sachs dis- rorism to overcome the state.” And finally the privilege of being a
tions, people said they found that really valu-
covered his terrorist status, which he Violence reentered Sachs’ life in lawyer. That is three layers of privi-
able,” he said.
earned simply because of his mem- 1988, when a bomb planted in his car lege, and I dare you to find anybody
Rakoff said all 1L students filled out sur-
bership in the African National Con- by the South African security serv- who has had any more than that.”
veys to give feedback on the course. He said
gress (ANC). Sachs applied for a ices exploded. Sachs lost his right The Office of the Dean, Interna-
those comments are still being processed, but
visa to attend a workshop on South arm and sight in one eye. tional Legal Studies, and the Office
he has looked at them in “bits and pieces.”
African development at Yale, only to “I was personally never engaged in of Public Interest Advising collabo-
“There were many favorable comments
be rejected because of this label. the armed struggle, but the armed rated in sponsoring this event. Dean
about the chance to work in groups,” Rakoff
Sachs saw the accusation as the an- struggle came to me.” Martha Minow’s introduction re-
said. “People seemed to think that that was a
tithesis of the true nature of the ANC. Until 1990, Sachs remained in vealed her admiration for Sachs.
nice break from what otherwise happens in
“The ANC was against terrorism. exile, first in England and then in “I don’t think I’ve had as great an
the first year and they thought they had ac-
This was the era of ‘isms,’ and ter- Mozambique. Returning to South honor since I’ve been Dean as this
quired some skill in working in groups and
rorism was an evil thing for the Africa, he participated in the consti- moment,” Minow said. “This is a
also that it was just kind of fun to have a
ANC. Indiscriminate acts of striking tutional negotiations as a member of hero who has written human dignity
group of people to work with.”
down people are not part and parcel the Constitutional Committee and as into the law.”
Rakoff said he and the other professors who
taught the course will meet in a few weeks to
Strasbourg, cont’d from pg. 4 Committee of Ministers to be “dealt with on the basis of discuss possible changes to the course. In fu-
number of obvious and not so obvious long- and short- well-established case-law”. ture years, students might be given fewer
term goals. He proposed, for instance, to develop the idea While the details, as mentioned before, will still need problem sets, because some 1Ls wrote that
of filtering applications by legal secretaries as it was un- to be worked out and the days before the Interlaken con- they would have liked to spend more time
clear whether all applications “should be examined judi- ference are sure to be filled with intensive intra-Euro- working with the same fact pattern, he said.
cially”. Drawing “inspiration” from the EU’s judicial pean human rights diplomacy, one conclusion of He also said the professors would probably
system, he also suggested adding a Human Rights Tri- President Costa is certainly true: Reforms must bear in write some new problems to give to future
bunal subordinate to the Court as a European human mind the “principle of a better sharing of responsibility first-year students.
rights court of first instance, though this would contribute between the Court and the States”. Truly, ensuring human All in all, Rakoff said, he thought the course
to what some criticize as the mushrooming of European rights protection is not a matter that states can leave to a taught first-year students something different
human rights institutions, with largely parallel bodies ex- court alone, especially one as swamped with cases as the than they were learning in their other courses.
isting in the parallel structures of the Council and the Eu- European Court of Human Rights. It is a common re- “[The workshop] has the same core mission
ropean Union. sponsibility. as the rest of the other courses,” he said. “It’s
Among the new ideas to be explored “immediately,” Interlaken literally translates as “between the lakes”. an attempt to show you the mental pathways
President Costa finally counted “class actions” or col- Let us hope that when it comes to reform of the Court that lawyers use, but we just thought there
lective applications (which are largely alien to the Euro- system Europe’s leaders will not get wet feet. were a whole bunch of those mental pathways
pean legal system) and the possibility of referral by the that weren’t covered in the traditional doctri-
Court of purely repetitive cases to member states or the Matthias C. Kettemann is an LL.M. student from Austria. nal courses.”
Page 6 Harvard Law Record February 11, 2010

W HAT F ORREST G UMP ’ S M OMMA K NEW A BOUT I NTERNATIONAL L AW


Despite Sweeping Arguments to the Contrary, States’ Adhesion to International Law is Not Predictable. With International Law,
Argues MATTHIAS C. KETTEMANN, Forrest Gump’s Mother Had the Best Theory: You Never Know What You’re Gonna Get
Forest Gump’s mother famously said that life was like a box of chocolates: “You ternational agreement.” This does not mean that the ECJ would ignore interna-
never know what you’re gonna get.” The same holds true for international law. tional law – on the contrary. The protection of fundamental rights is deeply rooted
Taking the box of chocolate und accepting “what you’re gonna get”, independent in international law. By referring to a “constitutional guarantee,” the ECJ likens
of whether you like the particular praline, is what international law is all about. its role to that of a constitutional court ensuring that all acts passed by the organs
Since the famous Peace of Westphalia of 1648, which brought along the emer- it oversees respect fundamental rights. There is nothing wrong with that.
gence of today’s international legal system, states have taken the box and eaten Goldsmith and Posner interpret the decision as meaning that “European coun-
both the bitter chocolate (i.e., they have accepted their obligations and changed tries must disregard the U.N. Charter … when it conflicts with European consti-
their behavior accordingly) and the nougat (when they have enjoyed the interna- tutional order.” Again, they are wrong. The Court merely pointed out that any EU
tional legal rules that reaffirmed their interests). regulation implementing a UN Security Resolution must meet minimum human
Then came along Harvard Law School’s Jack Goldsmith and University of right standards. By reforming the Sanctions Committee, established to oversee
Chicago Law School Prof. Eric Posner ’91. In 2005, they published The Limits of these resolutions, the UN has in fact taken up some aspects of the ruling to ren-
International Law, which argued vehemently for what could be termed a “nougat der the system more accountable.
only approach” to international law. In essence, they posited that international law Another example that Goldsmith and Posner bring to support the idea that Eu-
does not, in fact, pull states toward compliance. States conform with international rope has a self-interest-focused approach to international law is the 1999 NATO
law, they argued, only when it furthers their interests. intervention in Kosovo. “European nations,” they write, “participated in NATO’s
bombing of Kosovo without Security Council authorization.” This is true, but as
The limits of international law a Commission that looked into the intervention later concluded, their action was
at least legitimate. Further, the intervention served to stop bloodshed and massive
Former U.S. Ambassador to the UN John Bolton, and more influential thinkers human rights violations in Kosovo and thus served one of the most im-
before him, such as Thomas Hobbes, went so far as to question the very portant goals of the international legal order: protecting individuals.
existence of international law. Goldsmith and Posner don’t go nearly The Kosovo case was later seen as the first important example of
as far. They merely relied on rational choice theory to argue that so-called humanitarian interventions, many of which have gone
international law does not act as an external constraint on state on to be officially sanctioned by international legal bodies.
behavior. The Limits of International Law was widely read and The evolution of the “responsibility to protect” has also been
critically well-received. But some critics, such as international influenced by the Kosovo intervention. Rather than ignoring
law and economics expert Anne van Aaken of Switzerland’s international law and enforcing their own interests, the
University of St. Gallen, rightly pointed out that there were Kosovo intervention thus served to confirm underlying prin-
limits to the Limits book, as the authors only took account of ciples of international law.
the interests of states to conform their behaviour to international
law at one – arbitrary – point in time. More significantly, Gold- Errors have been made – but
smith and Posner ignored the possibility (and, I would argue, also corrected
likelihood) that states have a non-instrumental interest in be-
having in conformity with rules, so as to stabilize the system. I have to concede that Europe’s
Of course, in keeping with an state interest-focused “nougat” ap- approach to trade disputes in the
proach to international law, Goldsmith and Posner could counter that framework of the WTO has not
in so doing states are actually, again, acting in sync with their interests been exemplary. But very often,
– their long-term ones. especially with two of the issues
A stronger observation is that rational states will accept the obliga- Goldsmith and Posner mention –
tory nature of international legal rules as rules, based on an ex ante as- “resisting importation of geneti-
sumption that international rules are legitimate since, by so doing, cally modified foods, or beef from
they can most likely achieve advantages incuding and beyond their cattle raised with growth hor-
own self-interest (such as world peace, international security, or the mones” – Europeans follow an in-
maximization of their reputation) in the long run. In what Professors ternational legal concept, namely
George Norman and Joel Trachtman called a “customary international the precautionary principle, in op-
law game”, states sometimes choose to disobey a rule, but rarely question the posing imports. It is true that European countries did not implement WTO rulings
rule’s legitimacy as such. against them in these cases, but as legal history in both the U.S. and the EU amply
To better understand this point, think of a common thief. He will break the rule shows, the non-implementation of certain rulings, in exceptional cases, does not
against violating another person’s property on an individual basis, but does not serve as evidence of a system’s comprehensive failure. International economic
doubt the existence of the more general rule providing for the protection of prop- law has been a huge success story, but only a few well publicized disputes make
erty. Indeed, his risky acquisition of property is made because he implicitly trusts the headlines.
the state’s legal system to protect his property, even if it was illicitly obtained. It is also true that some European countries have cooperated with the U.S. with
Even thieves hate thieves. Similarly, in international law, it is often the rogue states regard to extraordinary renditions, but this attitude has changed. As a number of
that, while breaking international legal rules on an individual basis, believe (and cases before UN bodies including the Committee Against Torture and the Human
only sometimes abuse) the international legal system in toto. Think of Iraq, con- Rights Committee show, mistakes have been made and international law has been
sider North Korea, and look at Iran. In fact, the choice by a state to ignore an in- violated. But again, this does not help Goldsmith and Posner in showing that Eu-
ternational rule, or to question the validity of this rule, might, in fact, contribute ropean states do not believe in the binding nature of international law or ignore it
to an increase its power to oblige – by making others states voice their opposition whenever they feel like it.
to the violation. The real difference between theft and the violation of interna-
tional legal norms by rogue states is that, while we see the consequences of the for- The importance of values
mer on “Cops”, we have to wait for some years to see the outcomes of the latter
– as “Breaking News” on CNN. Goldsmith and Posner mention other examples, including European states’
sometimes wavering support for the ICC, and follow this up with the conclusion
Does Europe believe in international law? that “Europeans hold their values and interests dear, just as Americans do, and
will not subordinate them to the requirements of international law.”
In a November 2008 Wall Street Journal op-ed, Goldsmith and Posner apply But they neglect to mention that values are influenced and honed by interna-
their theory on the limits of international law to Europe. They write that “[l]ike the tional law and international law, conversely, serves to express and implement these
Bush administration, Europeans obey international law when it advances their in- values. There is no relationship of subordination. Rather, international law, like
terests and discard it when it does not.” In essence, they argue that even Europe, every legal system, creates and is supported by a value system based on intricate
which professes to be international law-friendly, does not really believe in inter- power equilibria and sometimes mutually contradictory goals. The international
national law’s binding power. legal system is more complex than any national system, even though – or because
In their first example, Goldsmith and Posner consider the case of Yassin Ab- – it has far fewer actors. That on the international legal plane values clash, bad
dullah Kadi and the al Barakaat International Foundation. Kadi’s assets were choices are made, rules are broken and judgments remain unimplemented cannot
frozen according to a UN Security Council Resolution against financing terrorism, be doubted. But this is also the situation in every national legal system and can-
which had been inscribed in an EU regulation. Goldsmith and Posner write that, not be used to cast a shadow of doubt over the clear evidence that states consider
deciding the Kadi case, the “the European Court of Justice ruled that the Security international law to be just that: law.
Council resolution was invalid.” They are wrong. In its 2008 judgment, the ECJ The end of the Cold War did brought what the Finnish international legal theo-
merely ruled that the regulation implementing the Security Council resolution was rist Martti Koskenniemi termed, an “enthusiastic revival” of international law.
invalid because it violated Kadi’s fundamental rights. The ECJ noted that the pro- New actors emerged, new laws were made, new hopes voiced. Within the last
tection of fundamental rights must be “considered to be the expression, in a com- twenty years, the system of international was greatly energized, and the United
munity based on the rule of law, of a constitutional guarantee stemming from the States was an important contributor to and shaper of international legal norms,
EC Treaty as an autonomous legal system which is not to be prejudiced by an in- Gump Law, cont’d on pg. 7
February 11, 2010 Harvard Law Record Page 7
Gump Law, cont’d from pg. 6 Devil, cont’d from pg. 1 “framework” that can consistently facilitate a wise de-
H. Mnookin ’68, Chair of the Program on Negotiation. cision about whether or not to bargain with the devil.
which reflected, inter alia, American values.
Rejecting any categorical answers to that fraught ques- This framework involves asking yourself “five basic
Given this fact, it is incongruous to argue, as do
tion, Mnookin develops and presents a highly nuanced, questions.” First, inquire into your interests, and those
Goldsmith and Posner, that international law re-
context-based approach for how one can choose wisely of your adversary. Second, investigate your alterna-
flects only the interest of powerful states and is
between battle and bargaining. tives to negotiation, and those of your adversary. Third,
therefore not “good” as such.
The situation described above is but one of several consider whether any potential deal could satisfy both
captivating stories that fill the pages of Mnookin’s parties’ interests better than their respective alternatives
Just like a box of chocolates
book. Each chapter recounts a real-life, high-stakes to negotiation. Fourth, consider the costs of negotia-
conflict where emotions ran high. The contexts differ tion. Fifth, consider the likelihood that a deal, if
But there is also no reason for a prima facie
radically: the chapters include a business conflict be- reached, would be implemented. If this framework
assumption that a system reflecting the inter-
tween two giant computer companies, a bitter Ameri- seems coldly rational, that is because it is tailor-made
ests of powerful states is bad. This bears out es-
can divorce, and a family inheritance fight. Other to help isolate the signal from amid all the noise—to
pecially in light of the renewed commitment,
stories emerge out of profound political conflicts. tease the precious thread of reasoned analysis out from
by the Obama administration, to international
Some involve political lead- amid a tortuous tangle of
law as the prime tool to engage other states and
ers like Winston Churchill or other non-rational strands.
to find peaceful and sustainable solutions to in-
Nelson Mandela; other tales In short, Mnookin advo-
ternational conflicts. And with the notable ex-
concern lesser-known fig- cates a particular decision-
ception of historically explainable, but outdated
ures who came face-to-face making process. He
institutional rules, such as the membership and
with Nazi officers or the acknowledged that “[d]if-
decision-making structure of the Security
KGB. As Simon & Schuster ferent people applying the
Council, international law, just as any legal sys-
officially releases Bargain- framework can reach dif-
tem, has a strong immune system and phases
ing with the Devil, book- ferent conclusions.” This
out – through state practice – rules which do not
stores might have some is because “assessing the
conform to the aspirations of the majority of
trouble deciding which sec- costs and benefits of alter-
states. Again, it is like a box of chocolates. In-
tion or shelf should be its native courses of action
trinsically good, but with some bitter pieces.
home. History? Current af- involve predictions, and
To continue in this line of thought (and, yes,
fairs? Business? Family? always involve the appli-
I am getting hungry as I write this), Hugo
All of the above? cation of values, and peo-
Grotius, often described as the “father of inter-
In spite of this conspicu- ple can disagree.”
national law”, wrote that there lies in each per-
ous variety, Mnookin’s tales Nowhere is the book’s ad-
son an “appetitus societatis”, an appetite, or
all share a set of key ele- mirable nuance more evi-
desire, to live peacefully in an ordered society,
ments. In each tale, demo- dent than where Mnookin
structured by binding rules of a general nature
nization is rampant, and at fleshes out his approach to
and applicability. I see no reason why states
least one person perceives an moral judgments:
would not also have this “appetite”. In fact, I
adversary as evil. In some cases Mnookin thinks the “[W]hen the analytic side [of the brain] is acting as a
would argue, they do. International law needs
perception of evil is fully justified—in others, a mere dispassionate judge weighing all the arguments, not a
to be binding, it is binding, and states accept it
product of partisan animosity. And in every single lawyer defending a foregone conclusion, … moral val-
as binding – Goldsmith and Posner’s arguments
story the same decision must be made: negotiate or ues should, and in some cases must, be factored into
notwithstanding.
fight? decision-making.” The limited but crucial point is to
More than forty years ago, Louis Henkin ’40
The compelling nature of this question was evi- avoid any abdication of reasoned analysis.
formulated, in How Nations Behave, that “[i]t is
denced by the crowd in the Ropes Gray Room on Feb- In each chapter, Mnookin offers his appraisal of each
probably the case that almost all nations ob-
ruary 4, when over two hundred people attended a character’s decision on whether to fight or negotiate.
serve almost all principles of international law
reception and panel in celebration of the book’s publi- But he makes a point of “giving enough evidence …
and almost all of their obligations almost all of
cation. Along with Mnookin, the featured panelists in- and telling the story in a way where there’s plenty there
the time.” While not wrong, he was imprecise:
cluded Dean Martha Minow, Professors Gabriella if people want to reach a different conclusion than the
It is not only “probably” the case, but evidence
Blum and David Hoffman, and Margot Strom, Execu- one I reach.” As Blum noted, “it is only a very confi-
has shown that his statement is unequivocally
tive Director of the think tank Facing History and Our- dent writer that can do this.” The book invites the
true.
selves. reader to engage closely with each tale; during his writ-
States follow the Forrest Gump Approach to
So, should you bargain with the devil? Mnookin dis- ing process, Mnookin thought carefully about how to
International Law, eating the sweet and the bit-
tances himself from the standard categorical answers. “take the reader into the story.” Storytelling is “a dif-
ter pralines, enjoying their rights and respect-
Some would always bargain with the devil; others ferent kind of writing than what I’d ever done before,”
ing almost all of their obligations almost all of
would never do so. Speaking to the Record, Mnookin Mnookin said, yet he has met this new challenge with
the times, even if they contradict state interest
characterized the first view as “the conventional wis- great success: Minow hailed the stories as “com-
in the short run. They do so, because they know
dom in my field”—the conviction that “you should al- pelling,” and Blum added that each one reads “like a
that the international legal system, and not any
ways be prepared to negotiate with your enemy, page-turner.”
particular rule, reflects their values, and will, in
because after all that’s the only way you can make Mnookin expressly welcomes diversity in his read-
the long run, ensure the realization of such val-
peace with your enemy.” In rejecting this categorical ership. Hoffman described for the audience in Ropes
ues with more effectivity and sensibility to
position, he demonstrates a laudable boldness: at the Gray just a few of the many ways that the book will be
human rights than any nation could possibly
panel, Blum noted how remarkable it is that Mnookin, directly useful to “the dispute-resolution world.” At
achieve alone.
“who has dedicated his life to the negotiation field in the same time, Mnookin said that while his other books
both scholarship and practice,” here questions a basic have been aimed primarily at academics or profession-
Matthias C. Kettemann is an LL.M.
assumption that is so fundamental to that field. als concerned with negotiation or conflict, he hopes this
student from Austria.
Mnookin also firmly rejects as unwise the opposite book will also reach a broader audience. Mnookin is
notion—that you should never negotiate surely correct in his belief that “there are a lot of peo-
with an adversary whom you don’t trust or ple that can connect with the theme of the book,” which

PUBLIC INTEREST who you think is evil. He questioned, for


example, the Bush administration’s refusal
arises with great frequency in everyday business and
family situations. “There are many other stories that

INTERNSHIP
to negotiate or engage with Iran. And he could be told” and “lots of other chapters” that could be
challenged the notions of some litigators written, he said.
or public interest lawyers who think it is Mnookin also singled out what he called “the NPR
Housing attorney Jeffrey W. Purcell ’84 of Greater always better to fight it out in court than to audience”—the “intelligent lay reader who is interested
Boston Legal Services is seeking an intern to negotiate a deal. in ideas” and who is especially likely to find the book
work on housing eviction and foreclosure cases. Rejecting both these categorical an- intellectually stimulating. Also, Blum remarked,
The work would involve interviewing tenants, swers, Mnookin expressed his view that “There are definitely a number of contemporary lead-
going to Boston Housing Court, and doing regu- “the challenge is to make wise decisions at ers I’d love to send the book to.” Last but not least,
lar paperwork. Interested students should email a particular time in a particular context.” Mnookin’s readers will surely include HLS students—
Mr. Purcell at jpurcell@gbls.org or call Accordingly, the book endeavors to an- especially since he might assign some of the chapters of
617-603-1648. swer the question, “By what process might the book in next year’s Negotiation Workshop.
one try to go about making a wise deci- Mnookin’s book should be considered required read-
sion?” When you’re thrust directly into the ing for students and non-students alike. And within this
presence of a devil, how can you avoid the diverse readership, few are likely to disagree that if you
common traps (such as tribalism, demo- read Bargaining with the Devil, a face-to-face en-
nization, and dehumanization) that inhibit counter with evil will never make you lose your wits.
clear, reasoned thinking? To answer this Satan, for his part, would probably want this book
question, Mnookin suggests a single banned.
Page 8 Harvard Law Record February 11, 2010

Phoenix Mayor Paints Disturbing Picture of Immigrant Experience


BY MATTHEW W. HUTCHINS 5th, said that the steady flow of illegal times forcing captives to dig their own seek to extort more money out of them.
immigrants into his city has created a graves while awaiting either freedom or “While I don’t condone the initial
Phoenix, the fastest growing major crisis situation that is extremely dan- death. breaking of our federal
city in the country, with a population of gerous for local law enforcement and a According to Gordon, law to enter this coun-
over 1.7 million, has just surpassed devastating drain on the city’s budget. over 20,000 people, in- try, I also understand
Philadelphia to become the fifth largest Although by statistical measures cluding women and chil- the reasons . . . the
metropolis in the nation. But this rising Phoenix is one of the safest cities in the dren, have been rescued same reasons my
star in the Southwest has an estimated United States, it has experienced a by Phoenix police over grandparents had, to
300,000 undocumented immigrant res- wave of kidnapping and violent crimes the last three years from benefit their children
idents, leading to a rising xenophobic that have challenged its law enforce- “drop houses” where and their children’s
discontent among local residents and ment capacity. The problem, said dozens or even hundreds children.”
increasing burdens on law enforcement, Mayor Gordon, is the violent behavior are held captive or even Gordon said that the
especially due to the organized crime of the “coyotes” involved in human tortured, sometimes in fight against the coy-
operations smuggling immigrants trafficking operations across the nearby the midst of ordinary otes’ organized crime
across the border. Mexican border and who regularly kid- suburban neighbor- has forced the city to
Mayor Phil Gordon of Phoenix, nap, torture, rape and kill those who do hoods. These people, hire over 600 addi-
speaking at HLS on Friday, February not comply with their extortion, some- who have often paid the tional police officers,
coyotes for transit many to replace the
into the United States, become 100 full-time officers assigned to fed-
Ukraine, cont’d from pg. 1 lenge could be more than a stalling ma- victims of what Gordon called eral task forces investigating violent
prised to see President Yushchenko refuse neuver as Tymoshenko works feverishly to modern slavery when the coyotes
to endorse Tymoshenko, with whom he try to prevent the new president from Phoenix, cont’d on pg. 4

BLSA Wins Regional Mock Trial


stood on stages decrying the fraud of the forming a coalition government.
last election, and whose assistance led to Even if the results of this election are ul-
Yushchenko’s ultimate victory in the re- timately accepted with grace and dignity,
vote. But the last five years have pitted the future of the nation remains uncertain.
these two former allies against each other The specter of a severe fiscal crisis is over-
in a bitter fight for control of Ukraine’s na- shadowing all aspects of the national econ-
tional government, with a result of dead- omy, and the first priority of any
lock and division. government will likely be cooperation with
Now, with the votes counted in the run- the International Monetary Fund to put in
off election, it appears that the pro-Russ- place financing and a long-term restruc-
ian candidate for Party of Regions, Victor turing plan for the nation’s debt. The
Yanukovych, will become the next presi- longer it takes to form a government, the
dent. Although neither candidate took an greater the possibility of the country de-
absolute majority of the votes, faulting on its national debts and being un-
Yanukovych held on to a margin of victory able to pay pensions, benefits, and salaries.
of 3.4%, slightly less than the 4.4% who In the long term, the election of
voted against both candidates. Interna- Yanukovych appears to be set to bring
tional observers from the OSCE praised closer ties with Russia and a renewed em- Congratulations to the representatives of the Harvard Black Law Students
the election as “an impressive display of phasis on economic growth through indus- Association mock trial team, who took both first and second place at the
democratic elections” and dis- trial production. In a press Northeast Regional BLSA Convention competition the last weekend of Jan-
missed the argument that the release issued on February uary. Above (L to R): Anthony Hendricks '12, Charles E. Redmond II '11,
Orange Revolution had failed. 10, Yanukovych said that the Etienne Toussaint '12, Allison Reid '12, Ieshaah Murphy '12, Dominique
Rather, European observers nation needs to execute a Winters '10, Nneka Ukpai '11, and Julian Thompson '10. Allison Reid also
hailed the election as a trans- strategy for stimulating inno- won the prize for Best Advocate, with a perfect score.
parent example of fully func- vation in growth sectors like,
tioning democracy. The “steel-making, aircraft engi-
official tally of votes was ulti- neering, rocket engineering,
mately less than one percent the nuclear power industry,
off the results of national exit the military industrial com-
polls. plex and agriculture.”
Despite the praise from in- ON THE OUT Although the Soviet-era
ternational observers, Ty- Yulia Tymoshenko overtones of such statements
moshenko refuses to concede Source: Flickr’s Antonis Shen are clear, Yanukovych has
to her opponent. Press releases adopted a relatively centrist
from her party indicate that a legal chal- stance on many issues since his defeat in
lenge to the results will be forthcoming the 2004 elections. He now expresses
and decry the manipulation of results from openness to closer integration with Europe
the southeastern stronghold of her oppo- while at the same time welcoming renewed
nent’s party. But despite these accusations, ties to Russia. “We are the bridge between

RALPH BRUCE
no street protests have erupted. There has the West and East...We are choosing a
been no general rejection of the election. democratic path and our economy is

NADER F E I N
And her opponent has calmly begun issu- closely integrated with the economies of
ing press releases urging her to concede Russia and CIS countries, and it is becom-
and announcing his plans for the national ing more so with the West. It is important
government. that all these ties grow so that we can ex-
Tymoshenko, for her part, is probably ploit these advantages for the good of the
scrambling not only to assemble a case in country and our people.”
A H A R V A R D L A W R E C O R D E V E N T

COLLAPSE OF TH
court but also to build a parliamentary While the rhetoric may appear to em-

E
coalition that will allow her to retain her brace an open attitude toward international
control of the country’s Verkhovna Rada relations, the reality is that Russia’s rela-

RULE OF LAW
and national government. Yanukovych is tionship with Ukraine has been character-
seeking to form a new cabinet of ministers ized by ultimata and divide-and-conquer
and unite the national government in a tactics. Whether or not Yanukovych really
coalition behind his party, and he is urging desires open relations with Europe, he may
Tymoshenko to accept her fate and go into be forced by dire economic necessity to
Does the rule of law still animate lawyers at all levels of our
opposition. Tymoshenko’s own website re- turn toward the Kremlin for help. As the
nation's government and economy? Civic advocate and former
ported both the official results of the elec- Ukrainian economy wheezes, straining
presidential candidate Ralph Nader '58 will discuss the subject
tion, 48.95% for Yanukovych, 45.47% for under crumbling infrastructure and crip- with former FCC General Counsel and Deputy Attorney
Tymoshenko, as well as the exit poll re- pled by its dependency on Russian gas, the General Bruce Fein '72 and field questions from the audience.
sults of 48.5% and 45.7% respectively. lack of alternatives will make it difficult to
With a national absolute margin of over reject any course that does not involve
800,000 votes, it is unlikely that any chal- plunging headlong into a deep, dark abyss.
AMES COURTROOM | 2PM | FEB 2 3