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Harvard Law Record

The Independent Newspaper at Harvard Law School — twitter @hlrecord

February 25, 2010 Vol. CXXX, No. 4

From Two Perspectives,


Views on How to Keep Top Obama Advisor, Illinois AG Lead the Way at
an Eye on Government Women’s Law Conference on the Changing Workforce
Ralph Nader and Bruce Fein Come
Together to Condemn Lapses in System,
Call for Citizen Participation

Photo: World Economic Forum

Left: Irene Khan ‘79 and Valerie Jarrett. Above: Illinois Attorney General Lisa Madigan
BY MATTHEW W. HUTCHINS dience will face after graduation, many of the
AND ELEANOR SIMON speakers offered common sense advice re-
garding the selection of a future career path,
At the end of 2009, in celebration of women the challenges of leadership, and the struggle
becoming a majority of the workforce, the for work-life balance while raising a family.
cover of the Economist featured J. Howard At the “Change in the Community” panel, dis-
Miller's iconic Rosie the Riveter image, an- cussing the role of women in public service,
nouncing “We Did It!”. But according to the former Amnesty International Secretary Gen-
Economist, women still occupy less than five eral Irene Khan LL.M. ’79 cautioned that in
percent of management at top companies, face her experience, “The glass ceiling is not any
a serious pay disparity, and bear a dispropor- weaker in the non-profit sector.” Silda Wall
BY RECORD STAFF different places ideologically – tionate burden when raising children while Spitzer '84 said that students should take every
Nader has been identified with pursuing a career. With these challenges in WLA, cont’d on pg. 3
mind, the HLS Women's Law Association
The millennial generation has the movement for consumer
been called self absorbed, but safety, while Fein thinks that an convened its annual conference on Friday,

also as deeply connected – obsessive concern with safety at February 19th, “Women for Women: Advo-
thanks to new technology and a all levels hampers risk – but cating for Change!”, bringing together women
renewed willingness to trust its both agree that lax oversight has who are leaders in both the public and private
elders. But will those connec- allowed government to run sectors to discuss the dual role of women as CONTROVERSIAL
tions – and that respect – trans- amok. Implicit in both their participants in a changing society and facili- SUNSTEIN THEORY MAY
late into participation in and comments Tuesday, during a tators of future change. BECOME PRACTICE AFTER
concern for politics and the visit to Harvard Law School or- In addition to keynote addresses by top
law? Former presidential candi- ganized by the Harvard Law Obama advisor Valerie Jarrett, whose daugh- SWISS REFERENDUM
date and consumer advocate Record and Harvard Law ter Laura Jarrett ’10 was in the audience, and What was once an
Ralph Nader ’58 and former Forum, was that the responsi- Lisa Madigan, the Attorney General of Illi- obscure idea hidden
Deputy Attorney General and bility to change that rested on nois, three panels were convened on the sub- in the introduction to
FCC General Counsel Bruce the current generation’s shoul- jects of change in the courtroom, the an edited volume of
workplace, and the community. Cognizant of

Fein ’72 come from somewhat Rule of Law, cont’d on pg. 2 scholarly work burst
the pressures that the young women in the au- onto the political

Buzz Off! 2L Takes Google to

scene last fall, when
the Senate held con-

The HL Record Court Over Privacy Invasions

firmation hearings
for Harvard Law School professor Cass
Sunstein ’78, nominated to head the Of-

Class Action Suit Alleges Potential Harm to Over

fice of Information and Regulatory Af-
News fairs (OIRA). Opponents on both the left
• HRJ: Corporate Accountability 30 Million Users of New Social Network and the right scoured the prolific
scholar’s writing for ammunition, and the
• International Party 2010
When Google unveiled its new On February 9th, the day Google appointment was temporarily blocked by
• Pollak Runs in District Nine
Buzz social network for GMail users rolled out Buzz, 2L Eva Hibnick, 24, Sen. Saxby Chambliss (R-GA) after his
last week, many were perturbed by said she signed into Gmail without discovery of a proposal by Sunstein and
Opinion the fact that the service automatically realizing that, by doing so, she had then-partner Martha Nussbaum, the Uni-
• Avoiding Critical Mass in Iran created networks out of their email unwittingly also signed up to be part versity of Chicago philosopher, to give
• Will Work For $160,000 contacts. In many cases, these ad hoc of the new network. After realizing animals legal standing to appear in court
• Questions Left by Zinn networks exposed correspondence some of the people that were now when humans could not formally do so
that users would have rather kept pri- part of her network were people she on their behalf.
vate. Now, a Harvard Law School hadn't spoken to in months, Hibnick A variant of that idea has proven some-
student is bringing a massive class expressed her frustration to class- what less controversial in Switzerland,
TIRED OF SUBCITING? action lawsuit against the internet mate Benjamin Osborn ’10, who however, where a proposal to initiate
NEWS EDITORS WANTED! company, claiming that it severely happened to be a research assistant to criminal prosecutions on behalf of animal
E-MAIL RECORD@LAW compromised her and others' privacy. Sunstein, cont’d on pg. 2
Google, cont’d on pg. 2
Page 2 Harvard Law Record February 25, 2010
Rule of Law, cont’d from pg. 1 ing of the legislature. public figures, Nader condemned the to public problems. And although he
Nader, whose recent novel Only the “generation that doesn’t show up”. praised Dean Martha Minow for being
ders. Super-Rich Can Save Us! appears to Nader also used the occasion to tear what he believed was the first head of
Fein, who is currently completing a represent a bitter and cynical turn to the into what he saw as the lack of com- the school to assert that its purpose was

“Harvard Law School

book on the American “mentality of notion that politics mitment to the “justice,” Nader lamented its continued
empire,” focused on the expansion of and civil society public interest at commitment to teaching students to
the executive branch and the creation of
the “imperial presidency” – a force
are so broken that
billionaires are the
is a lie.” Harvard Law
School. Except-
work in the service of corporations.
Saying it was training future “greasers,”
which gained considerable strength only ones with the - Ralph Nader ’58 ing Elizabeth Nader emphatically pointed to the
under George W. Bush and shows few fortunes to make Warren, who words of Minow and the content of the
signs, according to him, of abating meaningful change, took on the politi- leads Congress’ oversight of the federal curriculum and declared that “Harvard
under Obama. He also addressed the cal apathy that still plagues the United bank bailouts, and a few other faculty Law School is a lie”.
lack of oversight of Congress, and said States. Particularly lamenting the sparse members, Nader excoriated the faculty A full video of the event will be avail-
that he had created an organization, crowd that greeted the two prominent for shortsighted and stopgap solutions able soon at
First Branch, devoted to citizen polic-
Left: Nader condemned the sparse audience,which he said showed a lack of concern for civic affairs. Right: Nader rails while Bruce Fein looks on.

When Will We Stand Up?

Sunstein, cont’d from pg. 1 imal rights law, which recently pro-
victims is going before voters in a hibited keeping pigs in a single cage
referendum on March 7, the Associ- – what the lawyer calls “solitary
ated Press reports. Brought by ani- confinement” – and which will pre- BY MATTHEW W. HUTCHINS credited Reganite philosophies, Beck el-
mal rights group Swiss Animal vent Swiss horse owners from tying evates them to mythical status.
Protection, the referendum, if up their animals in stalls by 2013. As the twenty-first century waxes into Harvard Law School should be out-
passed, would force each of Switzer- Goetschal was famously involved in its second decade, clouds are gathering raged at this campaign, not because Beck
land’s cantons to appoint a public a recent case in which authorities ac- over the American Republic. A faltering himself is a significant figure, but because
prosecutor to go after human mis- cused a fisherman of torturing a pike economy, stymied foreign policy, and ris- the public is playing directly into the
treatment of animals. because he struggled for ten minutes ing specter of corporate domination of life hands of this charismatic fool and turning
The country has a history of put- to haul it out of the water (he con- at home and authoritarian domination of against every concept that this institution
ting contentious measures up for cedes it is not the best example of nations abroad has put the public in a state has spent over a century developing and
public votes. Several months ago, such prosecutions, and does not plan of dissatisfied disillusionment. We need deploying into the legal culture of the na-
Swiss voters controversially ap- an appeal the loss). leaders to step forward with a straightfor- tion. And while we sit comfortably in the
proved a ban on the construction of Potentially affected portions of ward elaboration of the principles that halls of Langdell pondering with glee the
minarets. Swiss society appear divided over unite our interests across party lines, but control of the White House by Barack
Currently, the Alpine nation boasts the proposed law. The Swiss Farm- the collected inertia of the two-party oli- Obama ’91 and Cass Sunstein ’78, the
Europe’s only animal lawyer, An- ing Association opposes it; the pres- garchy and the sensationalistic media policies so virulently condemned when
toine F. Goetschal, who represents ident of a dog breeding association manages again and again to steamroll practiced by Cheney-Bush are silently tol-
150-200 creatures a year as an em- seemed supportive. One thing is cer- over the voice of the individual in favor erated under our chosen President.
ployee of the prosecutor’s office in tain: no matter the outcome, the se- of the talking head, the rehearsed and The missing element in the Thunder-
Zurich (for the privilege, he is paid riousness with which Switzerland is scripted speech, and the ten second sound- dome of present-day discourse is an over-
200 Swiss francs, or $185, an hour). treating the referendum means that bite. arching conceptual framework within
He told the AP that the new measure Sunstein, who was confirmed as The Greatest Generation has been put to which the course of the nation can be jus-
would represent the next logical step head of OIRA, will have the last bed, and the Baby Boomer experiment tified according to a set of consistent
in the evolution of Switzerland’s an- laugh on this issue. has once again overdosed on its own he- guide posts. That is not to say that we
donistic excesses. Now we tread in a des- need to search through history like Beck
olate chasm while the next generation to invent a lost gospel that will guide us
Google, cont’d from pg. 1 Jose federal court, and notes that the prepares to stand up and have its voice into the future. Rather, we must look at
Professor William Rubenstein ’86, implementation of Buzz potentially rise above the noise of the aging dema- the new circumstances of technology, eco-
who specializes in class actions. Os- affected the over 30 million users gogues that have populated the media nomic reality, international relations, civil
born and Rubenstein discussed the with Google accounts. landscape during the Clinton-Bush era. rights, human rights, and environmental
idea of a lawsuit, the Harvard Crim- One of her attorneys, Gary E. But are we entering an even darker concerns and assemble a vision of our fu-
son later reported, and Rubenstein Mason, told ABC News that the chapter in America's degeneration into ture that is more than a grab bag of buzz
eventually contacted attorney Gary goal of the suit was "a commitment demagoguery? Glenn Beck's recent ap- words to be exploited in talking points.
E. Mason. from Google that they're not going pearance at CPAC offers surprising evi- And to do this we must step out of our
On Thursday, ABC News re- to do this again the next time they dence of the fervor excited by base overly intellectualized artificial domain
ported that Hibnick was bringing a launch a product." He said that appeals to the anger and resentment of the and down into the hedge rows of the pub-
class action lawsuit against the in- Google's most recent changes to the crowd. More disturbing yet is the shift lic discussion of government and the law.
ternet giant, alleging breaches of program, meant to address privacy from a Republican ideology of veiled elit- Our nation needs genuine leaders who
several federal laws, including the concerns by ending its "auto-fol- ism toward overt anti-socialist fascism. can navigate the uncharted highway of
Federal Electronic Communications low" feature, still leave the program Beck has begun an escalating revisionist our future and lead us toward solutions
Privacy Act, the Federal Computer as a whole opt-out. campaign against the core of progres- that are based on logical argumentation,
Fraud and Abuse Act, and the Fed- News of the lawsuit comes two sivism and all of its historical proponents, common sense, and the spirit of partici-
eral Stored Communications Act, as days after the Electronic Privacy In- including Roscoe Pound and the Legal patory democracy that has sustained our
well as California common and formation Center filed a complaint Realists. In his mind and rhetoric, the Republic during its darkest nights. We are
statutory law. The complaint was about Google Buzz with the Federal gilded age of the 1920's provides a model the ones to take up this responsibility. It
filed by California and Washington, Trade Commission. for America's True Destiny, and rather is our time to take up the torch and charge
DC law firms in California's San than retreating from the seemingly dis- forward.
February 25, 2010 Harvard Law Record Page 3


WLA, cont’d from pg. 1
opportunity to lead, but to remember that with limited time in each

On Being a 3L with No Offer

day it is important to sequence and prioritize one's efforts. Spitzer
warned that money is necessary to make anything happen, and that
“sometimes you have to fake it” when trying to take on a new role,
while trying to “keep a sense of being human and enjoy the
“The greatest thing in this world is not so much where process.”
In her keynote address, Illinois Attorney General Lisa Madigan
we are, but in which direction we are moving.” said that her career had drawn inspiration from her time as a

- Oliver Wendell Holmes, Jr.

teacher in South Africa during apartheid and from her early con-
tact with Senator Paul Simon, who taught her that, “You not only
have the ability to change the world, but you have the obligation
“Gah! I’m choking on my own rage here!” - Moe Szyslak to try.” As Attorney General, Madigan has sought to curb domes-
tic violence, ensure public safety from criminals and dangerous
BY ANONYMOUS, JOBLESS 3L are we to put on a brave face and tell the world products, put pressure on predatory lenders, and has successfully
that our goal all along was to achieve enlight- argued before the Supreme Court. She characterized the wide
I used to tell people that if they were ever enment and live on an ashram, and for that pur- range of her duties as akin to being “managing partner of the state's
lacking in self-confidence, they should apply pose and that purpose alone did we deprive largest public interest law firm.”
for a tenure-track position in a philosophy de- ourselves of sleep and commit ourselves to Madigan's success as Attorney General has garnered her re-elec-
partment somewhere. In return, you get what learning the Hand formula and the rule against tion to a second term in office by a large majority as well as na-
amounts to a mail-away self-esteem kit: a let- perpetuities? tional attention as one of a small number of female head
ter praising your accomplishments, expressing But the rejection has greater bite than a reori- prosecutors and an open feminist. But in addition to being a legal
astonishment at your charm and sophistication, enting of our student loan repayment schedule. and political hot shot, Madigan has set an example by having two
and assuring you that you will be a great suc- Not everyone who was a summer associate at a children during her tenure as Attorney General, even arguing be-
cess wherever you ulti- Biglaw firm had partner fore the Supreme Court once while eight months pregnant. Madi-
mately gain employment. “Are we to put on a ambitions. Whatever the gan says that parenthood has opened her eyes to a broader
perspective on life. “You shift from thinking about everything in
brave face and tell the
It’s extraordinarily fulfill- reasons we may have had
ing to hear your praises for spending the summer of terms of me, and it becomes in terms of them, the kids and the

world that our goal all

sung by people of such 2009 as a summer associ- next generation.” She said she has also discovered that the double-
power and influence, in ate, the summer ended by standard of greater social pressure on women to concentrate on
particular if you have no in- along was to achieve confronting us with our parenting is alive and well in the twenty-first century. “Men never
get the question of how you are going to raise your children and
enlightenment and
terest in taking a crucial deepest fear. Like many
step towards adulthood. people praised for intelli- have your office.” Madigan admitted that because of her husband's

live on an ashram?”
Only, again, you know – gence, talent, and disci- flexible schedule as a cartoonist she has been lucky to be able to
they don’t want to actually pline, Harvard Law rely on him for help while busy or traveling out of state, but she
hire you. It isn’t an experi- Students are prone to the said that making time for family requires prioritization, concen-
ence I expected to repeat when I enrolled at paranoia that we will one day be exposed as the tration, energy, and a careful balance of responsibilities.
Harvard Law School. frauds we suspect ourselves to be. Then-Dean As Attorney General, Madigan has pushed to expand the state's
It’s been a little over five months since I Kagan alluded to these fears when we began efforts to protect women from violence, and she spoke about the
found out I did not get an offer. In those five our time at Harvard. Addressing the Class of progress being made with respect to stalking laws, orders for pro-
months, certain topics have been rehearsed with 2010, she told us that our anxieties were ill- tection, and the analysis of rape kit evidence. Prior to her entering
wearying regularity. Greater world, on behalf founded, and that we had all long since estab- office, stalking laws in Illinois required that the victim be directly
of the Harvard 3L’s with no offers, let me tell lished ourselves as deserving of our reputations threatened by the stalker before law enforcement could intervene,
you the things we know: and the opportunities they made possible. So but this was a high bar that Madigan saw as insufficient protection
we studied, and we subcited, and we net- in light of the approximately 76% of female victims who are
1. It’s not our fault. The economy changed stalked prior to being murdered. Madigan initiated a dialogue
worked, and we keycited, and we summer as-
unexpectedly, and things are tough all aimed at examining the definition of stalking, with the result that
sociated. And employers looked at our grades,
over. the new Illinois law allows the threat posed by the stalker to be
and our journals, and our work product, and our
2. In fact, as Harvard graduates, we have work ethic, and said, “We don’t want you.” We seen through the victim's eyes rather than by a bright-line rule.
more opportunities. Most people encoun- came from Harvard, and they were nonetheless But even when a threat had been identified and protective ac-
tering employment challenges in this econ- unimpressed. Something about us was so un- tion taken, Madigan found that over 22% of protective orders were
omy are in worse positions than we are. appealing that it outweighed the appeal of hav- not being served. “If we have laws on the books that are supposed
ing another Harvard graduate at the firm. to protect women, that are supposed to protect survivors, but they
3. The loss of Biglaw opportunities means And so we wonder – what mark on our re- aren't enforced, then they are useless.” When she investigated the
we may find something else from which sume is so bad that it outweighs the Crimson reasons for this high rate, she found that ironically many of the
we derive immense satisfaction, and which H? We know the market has shrunk, we know men subject to the protective orders were already in the custody of
we may never have otherwise pursued. the client base has retreated, we know that state or local law enforcement. New procedures for service upon
everyone is suffering, but we also know some- entry to or exit from state prison lowered non-served rates to 14%.
4. People with offers but no start dates are
thing else: not every Harvard 3L got no-of- Madigan also said that there had been significant progress on
in a poor position as well. Even those with
fered. We did. We didn’t measure up. Maybe expediting the analysis of evidence gathered from rape victims in
deferrals of specified duration face the
the hiring process was arbitrary. Maybe we re- the so called “rape kit” after being the victim of a crime. When
possibility of an unexpected deferral ex-
ally had almost no control over some crucial human rights activists revealed that there were over 4,000 untested
tension, or even an outright retraction of
factor. But most of us got here because we’ve kits, she began investigating the means of cutting down the back-
their offer. In fact, with things as bad as
been on a long journey, with increasing mo- log. “Not only is it another trauma for the victim [for there to be
they are, there’s really no guarantee that
mentum. And that momentum just evaporated. no test done], but it hurts the rest of society.” Now she has intro-
even those who manage to start work
I’m confident we will all land on our feet. duced a Bill in Illinois to require a test within ten days after the col-
won’t find themselves laid off somewhat
And I’m certain that the experience will be an lection of evidence or else provide a reasonwhy there was no test,
soon. Biglaw right now simply doesn’t
opportunity for us to find strength we didn’t the first law of its kind in the nation.
offer the degree of security it used to offer.
know we had. I’ve met us. And we are, to be The Illinois Attorney General said that one of her latest priori-
Everybody is in the same boat.
frank, pretty amazing. But the dream of Biglaw ties is the creation of a way of protecting children from cyberbul-
Joined to this knowledge is the understand- is hard to let go. And after all, there isn’t nec- lying. Whether it is from peers or anonymous sources on the
ing that it is, to be fair, rather difficult as a Har- essarily any shame in wanting to make money. internet, Madigan sees this as an emerging area of concern which
vard Law Student to abandon all self-awareness Some of the wealthiest Americans have been its demonstrates the hazards of increasing use of the internet by chil-
and immerse oneself in self-pity. We remain greatest philanthropists. Bill Gates has retired dren. She also expressed serious concern over “sexting” and child
conscious of the privileges we enjoy and the op- from Microsoft and dedicated a large portion of pornography, especially given the naïve attitudes of many children
portunities that exist for us even in our darkest his financial empire to addressing global warm- to the use of computers. “We have to let them know that every-
moments. That isn’t to say we who were no- ing and poverty. And Tony Stark created his thing is public, everything is permanent.” She believes that an ef-
offered have no room at all for despair. But it Iron Man suit to fight the spread of technolog- fective response to these problems will require programs that
feels impolite. Those of us who had been hop- ical weaponry the sales of which, well, financed facilitate communication between children and responsible adults
ing to become Biglaw associates have been the creation of his Iron Man suit. Fine, that one who can help them deal with bullies and predators.
dealt a real financial blow. Must we admit what isn’t very persuasive. Still, I don’t think we Madigan encouraged the conference attendees to look beyond
we were told to leave out of admissions essays should be judged for wanting to be Biglaw as- the career track that they believe they are expected to follow and
and job interviews -- that we did come to law sociates with the money and power that would seek out a course that will be personally fulfilling. “Take the time
school with the hope of making money? Must eventually have brought. Maybe we just to figure out what it is you were meant to do, and go and do it. I
some of us admit that we hoped to make quite wanted to be Iron Man. Think about it. promise you that you will have a satisfying life, and I can only
indecorous and undignified amounts of it? Or hope that part of what you find satisfying is helping other people.”
Page 4 Harvard Law Record February 25, 2010



Matthew W. Hutchins

Chris Szabla

News: Rebecca Agule

Staff Editors

Opinion: Jessica Corsi

Sports: Mark Samburg

Anonymous 3L

Mohammed S . Helal
Matthias C. Kettemann
Amreeta Mathai
Ryan Mitchell
Eleanor Simon
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sion from Harvard University.

Persian Problem: Nuance Needed With Iran

BY MOHAMED S. HELAL has planted detonation charges throughout the region
that it could use to ignite the Middle East if the need
Most people focus on Iran’s alleged ambition to join arises. Thus, the ominous shadow of Iran’s political and
the exclusive club of nuclear weapons nations as a military claw Hezbollah constantly hangs over
grave security threat. Whether or not Iran actually as- Lebanon, threwatening to replicate the events that pro-
pires to acquire nuclear capability is debatable, but voked Israel’s disproportionate war on its small north-
what is certain is that examining the nuclear program ern neighbor in August 2006. Iran also periodically
in isolation of the po- threatens to annex Bahrain and already occupies three
litical landscape U.A.E. islands in the Gulf of Hormuz, which is a mar-
within Iran and the itime strait critical for the global oil market.
broader strategic envi- Tehran also holds many of the keys to
ronment in the Middle Baghdad, with obvious implica-
East is a fatal mistake. tions for Iraq and the United
The problem with Iran States. Moreover, Iran funds and
is more complex than a arms the Houthi rebels in
clandestine nuclear pro- Yemen, which are one of many
gram or the enrichment challenges that are portending
of uranium; the problem is the division of the country
what Iran stands for and repre- overlooking the southern en-
sents: a religious response to tryway to the Red Sea.
the problem of governance in the The question then is, what
Middle East. This is a dangerous can be done about this,
answer, because a regime that legitimates which is a question the
itself on the basis of religion will also pur- Obama administration is
port to be the custodian of truth. It is a system probably considering
that eliminates the marketplace of ideas and en- now. The first answer to
croaches on what is supposed to be a deeply personal the complex problem of Iran
and private relation between man (and woman) and his is simple: do not use force.
God. In the Middle East, where religions were born and The United States has, fortunately, jettisoned the dele-
continue to thrive, and where people are highly emo- terious doctrine of regime change, and any surgical
tional, such a model threatens to retard the region back military strike will never eliminate Iran’s dispersed and
to the Dark Ages. well-protected nuclear program. If anything, a military
Worse still, as Iran feels increasingly threatened by operation against the Islamic Republic will unite Ira-
western, particularly American, pressure, it has sought nians, who will rally around the flag, and, more dan-
to gather regional cards that it could use in its political gerously, compel Tehran to ignite the powder-keg that
poker game with the West. To put it another way, Iran Iran, cont’d on pg. 7
February 25, 2010 Harvard Law Record Page 5

Annual LL.M. Party Showcases Students’ Diverse Talents, Cultures

BY MATTHIAS C. KETTEMANN it was easy to be swept off your
feet (also because somebody
You could call it an incredibly might bump into you in the
fascinating event representing the packed Ropes Gray room).
richness of the LL.M. student While the food at some places
body, the diversity of the world’s was slowly running out (Matt
cultures and the broad variety of Hutchins, Co-Editor-in-Chief of
cultural and gastronomic tradi- the Harvard Law Record, had told
tions. Or you could stick with the contributors earlier that “everyone
assessment of Richard Staeuber, should go and at least sample all
LL.M. student from Switzerland: the delicious food” and they had
“It was really terrific!” The Inter- obviously taken him up on this –
national Party which took place and brought their friends), the at-
on Saturday, February 13, in the tention of the more than a thou-
Ropes Gray Room lends itself to sand visitors from the Harvard
both descriptions. Law School community turned to
In what has been traditionally the evening’s highlights: the per-
one of the major annual social formances.
events at HLS, this year’s LL.M. Students impressed the audi-
class of 165 students from 62 ence with Greek and Chinese
countries, presented a highly ap- dances, a Karate show, beautiful
pealing mix of cultural traditions songs from members of the Aus-
from all corners of the world. Stu- tralian and UK delegations and
dents of each country organized a enriching shows, including from
table at which they presented typ- Southeastern Europe and South-
ical national dishes (with a heavy East Asia. Jeanne Tai, Assistant
leaning towards the sweet), Dean for the Graduate Program
showed off their country’s cultural and International Legal Studies,
and touristic highlights, and pro- echoed the spirit of the cheering
vided information for the avid audience when she declared the
traveler. performances to have been “to-
“Walking around the room was tally awesome”.
like going on a voyage around the As the day of the International
world”, Martina Gerszt-Wernli Party was also the first day of the
from Switzerland said. At the Chi- Brazilian carnival, the Brazilian
nese table you could take part in a students (in bright yellow soccer
quiz and pinpoint famous sights T-shirts reminiscent of Ronaldo)
on a map. At the Swiss table you finished the International Party off
could answer rather tricky ques- with a huge general carnival and
tions and win a Swiss watch. The long congas. While not all dancers
Australian table tried to entice stu- were as much in sync with the
dents to try the famous vegemite, rhythms as the students with ex-
a salty and malty spread with an perience of rocking the Copaca-
interesting aftertaste. Students bana, the energy and happiness
from Japan showed the basics of was palpable. Good thing the Aus-
calligraphy and drew names in trian table provided some “Red
Japanese characters. At the Ger- Bull” (yes, folks, it is as Austrian
man table, you could try wurst as Arnold Schwarzeneegger).
(though I missed the sauerkraut). Since Valentine’s Day came the
The African tables focused on the day after the International Party,
rich cultural heritage of the conti- you could see pairs holding hands
nent. as the party wound down at mid-
The smells, sounds and sights night: a great way to start a day
made Ropes Gray room, for one dedicated to love with a party that
evening, into what America as a showed the unity of human spirit
whole has always been said to be: underlying the diversity of its ex-
a melting pot of nations. It was pression. Because in the end, this
great to see many members of the was what all students could see
HLS community come in and visit and feel in the displays of art and
the LL.M. students they know culture, cuisine and traditions of
from classes, but about whose ori- the different countries: the love of
gins and traditions they might not life, the power of hope and the
know so much. The impressive di- pride in the history and unique-
versity served as a reminder of ness of cultural and culinary ex-
how fascinating the world is – and pression.
made students change their travel In her address in September
plans again and again as they pro- 2009, Dean Martha Minow told
gressed from table to table. In- international students: “We
deed, the students’ recounts of searched the world for you!” At
how fascinating their home coun- the International Party, the LL.M.
tries are rivaled any description in Class of 2010 found hundreds of
Lonely Planet. different ways to say thank you
If the wonderful smells emanat- and allowed the HLS community
ing from the pots and dishes on a glimpse of the diversity of the
the country tables were not world beyond the Charles. And
enough to bewitch the visitors, best of all, for the rest of term, the
they could raise their head and LL.M. students are still here. Just
enjoy the photos and videos that go talk to them. Most don’t bite.
LL.M. student Sajjad Nematollahi Just don’t ask the Australians to
from Iran had turned into an im- make you a vegemite sandwich.
pressive presentation. From Aus-
trian cows peacefully chewing on Matthias C. Kettemann is an
grass in Alpine pastures to the oth- LL.M. student from Austria.
erworldly beauty of Thai beaches,
Page 6 Harvard Law Record February 25, 2010

Howard Zinn’s People Speak...Through Celebrities

Historian’s Last Documentary Cements His Reputation – but Raises Provocative New Questions
BY CHRIS SZABLA ing many New Deal reforms by popular and voices Zinn first pointed to thirty perficially-admired people to whom
protest and labor action is a frightening years ago are now firmly entrenched in Americans already wantonly turn over
The unfortunate passing of Howard reminder of what happens when gov- curricula – if still not universally ac- so much of their money and time. If
Zinn earlier this year was accompanied ernment remains cautious and inatten- claimed. they were meant to grab viewers’ at-
by a greater number of panegyrics tive in the midst of crisis. Where does that leave a contempo- tention, they probably did not wind up
about his work than probing explo- Other segments deliver a 21st cen- rary reworking like “The People doing so for the words they were se-
rations of its legacy. Zinn’s most fa- tury update on the themes that Zinn Speak”? Beyond being a nice capstone lected to speak.
mous book, “A People’s History of the piled into the original book, linking the to Zinn’s career, and illuminating some That does not necessarily impugn the
United States,” is an exposition of ongoing wars in Iraq and Afghanistan of his less popularized insights, the celebrities’ own motives for appearing
American history’s marginalized narra- to previous episodes of American ex- documentary itself comes off as a bit in the film; some of them are informed
tives: poorly-treated low-rank soldiers pansionism. Especially necessary, counterproductive. Beyond standard fans of Zinn’s work – particularly Matt
of the Revolutionary War, indebted Damon, who was inspired by Zinn
farmers, slaves, freedom fighters for while growing up near him in Cam-
civil rights, labor activists and organiz- bridge (he famously championed “A
ers, even Socialists – a list that gives People’s History” in Good Will Hunt-
one a sense of the political direction in ing, the breakout film he wrote and
which the book is often taken to lean. starred in with Ben Affleck). Damon
Zinn worked on “A People’s History” only plays a bit part on screen in “The
over the 1970s, when it would have People Speak,” but was a major force
been the perfect expression of the Zeit- behind the scenes: He spent nearly a
geist, in which radical critiques of pre- decade trying to bring it to television.
vailing orthodoxies reigned. But by the Doubtless part of the opposition to
time it appeared, in 1980, conservatism the film – and part of the fury that has
was staging a comeback, and Ronald frequently been leveled at Zinn – is that
Reagan’s presidency ushered in a patri- his work appears to emphasize only the
otic renewal. Instead of being em- negatives in American history. A narra-
braced as part of the spirit of the times, tive that dwells on events like the
Zinn’s book became a partisan light- debtors’ rebellions of 1786, which mo-
ning rod, a rally point and target in the tivated the Constitution’s instantiation
culture wars. of a strong central government; the
That made the reaction to “The Peo- New York Draft Riots, exposing the
ple Speak,” a documentary based on class conflict simmering beneath the
Zinn’s work that aired on the History surface of the Civil War; or the oppres-
Channel late last year, just before his sion continuously endured by Native
passing, fairly predictable. The History Americans does not seem to leave
Channel tends to play it safe ideologi- many positive examples. But Zinn
cally. When it actually runs historical counters by asserting that there is a sil-
programming (much of its content is ver lining to his narrative: it shows
now reality TV), it prefers to stick to “people below behaving magnifi-
straightforward accounts of military cently”.
strategy, leaving politics out of sight given the rest of the History Channel’s historical stock footage and voiceovers In fact, like any other positive ac-
and mind. Its moniker, “the Hitler programming, is Zinn’s reminder that by Zinn, the star attractions are celebri- count of American history, Zinn cele-
Channel,” is hardly undeserved. the Second World War – which, like ties who give theatrical readings of pri- brates democracy, albeit a version of
But even the battlefield isn’t com- other wars in American history, height- mary source documents, acting out the American democracy that deeply em-
pletely apolitical: it turns out that many ened instances of segregation and class roles of the marginalized voices in phasizes extraparliamentary and extra-
fans of military history either prefer conflict, and which inflicted needless Zinn’s narrative. Some of the perform- constitutional movement as the engine
their American story with a side of tri- deaths on civilians – has been histori- ances are strong and arresting, but in of meaningful change. His stance raises
umphalism (you don’t see many His- cally sugarcoated, its memory ex- other cases, the stars’ wattage distracts questions about the extent to which he
tory Channel programs about Vietnam). ploited to justify a seemingly ceaseless from the historical message. would continue to embrace these ideas
So it came as little surprise that the stream of further conflict. Some of the choices are particularly today. The increasing noise made by
channel’s decision to postpone its reg- the Tea Party movement is a reminder
ularly scheduled D-Day docudramas that plenty of “people’s movements”
for a film based on a controversially re- never made it into Zinn’s history –
visionist work of American history “Plenty of ‘people’s movements’ those that didn’t fit his ideological va-
caused a bit of an uproar. Devoted
viewers declared they would abandon
never made it into Zinn’s history. lence. Radical libertarians and religious
fundamentalists have also had a signif-
a channel they’d watched religiously Radical libertarians and religious icant – if sometimes frighteningly
fundamentalists have also had a sig-
for years. In the context of a growing destabilizing – influence on American
chorus in American political discourse history. As much justice resulted from
that labels any tendency it doesn’t ap- nificant – if sometimes frighten- the courageous acts of many individu-

ingly destabilizing – influence on

prove of with the conversation-stop- als Zinn celebrates, the rule of law can
ping pejorative “socialist”, Zinn’s be bent both ways.
documentary went so far as to celebrate American history.”
individuals who wholeheartedly em-
braced that label.

Indeed, much of Zinn’s work – re-
flected in “The People Speak” – still But, thirty years after the publication cringe-worthy. Zinn cites “Dear Mr.

seems fresh. Labor history may con- of “A People’s History” many of Zinn’s President,” an anti-Bush ballad by
tinue to thrive in the trenches of acade- stories have lost their radical edge – if singer-songwriter Pink, as a contempo-
mia, but it’s hardly scratched the simply because they have been so suc- rary example of activists who decry the

surface of the public discourse, even at cessfully incorporated into mainstream ironies arising from a system of ideals
a time when it might seem more rele- thought. Few would dispute the histor- compromised by a stark reality – and

vant than ever. Nor does one hear much ical relevance of Frederick Douglass or Pink appears in the film to perform the
today about the class resentment that Malcolm X. Anarchist Emma Goldman entire piece. Pink’s message is legiti-
Zinn shows was surprisingly prevalent and Socialist leader Eugene V. Debs are mate, but her presence – and celebrity –
against the ceaselessly venerated staples of any decent U.S. history text- diminishes the focus on the suppressed
Founding Fathers. And in the face of book. The ideas that slavery was acqui- and subaltern. The same is true for
the Obama administration’s plodding esced to by its victims or that it could many of the other stars’ involvement.
and hesitant response to the ongoing re- be thought of as a familial relationship It’s a little strange that the producers
cession, Zinn’s claim that Franklin D. (notions that still had currency in the felt that the travails of the underclass
Roosevelt was cajoled into implement- 1950s) are ridiculed. Many of the faces were best expressed by the wealthy, su-
February 25, 2010 Harvard Law Record Page 7


Iran, cont’d from pg. 4
is the Middle East.
What we need is a more sophisti-
HRJ Symposium Examines Checks on Multinationals’ Abuses cated strategy of talking softly and
carrying a big stick. For Iran the big
BY AMREETA MATHAI AND RYAN MITCHELL initial skepticism that a systematic approach from the cor- stick should be the threat and grad-
porate side would bear any fruit. But in the end, he said, he’s ual application of tighter multilat-
As globalization has transformed the way (and where, and witnessed a partial transformation in the way that corporate eral, U.S. and European economic
with whom) we do business, major steps have been taken to investments in developing nations are discussed. This is in and military sanctions that generate
ensure that corporations find it more difficult to exploit in- part because his framework offers a lexicon for activist share- enough local pressure for the regime
ternational tax loopholes. But loopholes that allow corporate holders, PR departments, and other human rights-conscious to mend its ways. Tehran must place
activities to benefit from and perhaps contribute to serious elements of corporate decision making to frame their con- all nuclear facilities under full IAEA
instances of widespread human suffering are comparatively cerns in the universal dialect of commercial self-interest. inspection, withdraw its support of
plentiful. Following Professor Ruggie’s keynote presentation of the subversive elements in the region
From IBM’s alleged sale of computers used to implement framework, two panels addressed practical aspects of imple- and to refrain from intervening in the
apartheid policies in South Africa, to Western technology menting the ideas and encouraging their adoption by corpo- affairs of its Arab neighbors. In re-
firms’ alleged active role in tracking Chinese political and rations as a framework for country investment analyses. The turn, Iran should be promised the
religious dissidents, the field remains one that many see as first, on corporate accountability litigation, drew connections rightful place of the glorious Persian
crying out for both litigation and policymaking. In an attempt between the state and corporate duties to protect and respect civilization at the table of nations,
to tackle the legal, political, and human rights and some of the and it must receive assurances of
ethical parameters of this evolv- notable failings of corporations non-belligerency from western pow-
ing issue, the Harvard Human to do so. The panel of human ers and from Israel. This strategy
Rights Journal hosted a sympo- rights lawyers summarized the must also be coupled with a sincere
sium on Thursday, February various forms of on-going liti- effort to free the Middle East of all
18th, on the subject of corporate gation around the issue in weapons of mass destruction. His-
accountability for human rights which they were involved. tory has also taught us that all of the
abuses in developing nations. These ranged from claims Middle East dilemmas will be ame-
The keynote speaker for the against Western firms that had liorated by peacefully settling the
five hour event was Professor assisted South Africa’s Arab-Israeli question and by the es-
John Ruggie, Berthold Beitz Pro- apartheid regime (as in the tablishment of an independent and
fessor of International Affairs at case of IBM, mentioned viable Palestinian state in the West
the Kennedy School of Govern- above), to those against inter- Bank and Gaza.
ment and an Affiliated Professor national lenders to and finan- This requires both a dialogue with
in International Legal Studies at cial supporters of Argentina’s and pressure on Iran, and continuous
Harvard Law School. Since former military junta of the consultations with regional players
2005, Professor Ruggie has been “Dirty War” years. Each of the to reach understandings that avoid
serving as the UN Secretary- lawyers expressed frustration past mistakes. For too long the secu-
General’s Special Representative at the difficulties in tying state rity of the Middle East and Persian
for Business and Human Rights, abuses by collapsed regimes to Gulf has been dictated by cursory
and it’s in this position that he the actions of corporations and shortsighted policies that have
developed his “Three Pillar” often operating behind a dual not fully comprehended the com-
framework outlining responsible veil of governmental and cor- plexities and subtleties of the region.
corporate involvement in nations porate secrecy. The role of the We must move beyond strategies
with compromised human rights mens rea standard for corpo- like Reagan’s “Gulf containment”
Prof. John Ruggie - photo: CBSR Vancouver and Clinton’s “dual containment”
records. rate involvement in human
Professor Ruggie’s 2009 Report to the UN laid out the rights abuses was a particular point of focus – for U.S.-based that have perpetuated instability and
principles as follows: “The framework rests on three pillars: Alien Torts Statute claims in the 2nd Circuit, the standard insecurity. Instead, we must initiate a
the State duty to protect against human rights abuses by third appears to be purpose at the moment; but in the 9th Circuit, serious dialogue with all the relevant
parties, including business, through appropriate policies, reg- it’s still an easier-to-satisfy “knowing” standard. and influential parties, including
ulation, and adjudication; the corporate responsibility to re- There was even some speculation that upcoming decisions Russia and China, to devise a sus-
spect human rights, which in essence means to act with due may exempt corporations from being susceptible to ATS tainable policy that promises the
diligence to avoid infringing on the rights of others; and claims at all – not a thought that sits well with practitioners weary people the Middle East peace
greater access by victims to effective remedy, judicial and seeking to translate corporate accountability principles into and prosperity.
non-judicial.” actual legal liability for injuries aided by corporate invest-
An audience of about a hundred listened as Ruggie out- ment overseas. Panel moderator Terri Marsh, senior litiga- Mohamed S. Helal studies at Har-
lined his framework, and explained the often fraught process tion partner with the NGO Human Rights Law Foundation in vard Law School as a Fulbright
of bringing human rights NGOs around to the point of view Washington DC, expressed her hope that the ATS litigation Scholar. He is an Egyptian diplo-
that this sort of “loose standard” based on general principles would at least be able to continue, emphasizing the multiple matic officer, and served in the Cab-
of corporate involvement was preferable to the more specif- purposes of such lawyering; “Even in cases we lose, there’s inet of the Minister of Foreign
ically outlined UN standard that it had replaced. That system a huge effect. I’ve had people in prison in China tell me that Affairs of Egypt from 2005 to 2009.
could be summarized as “if X is occurring, corporations their treatment changed for the better when we were litigat- The opinions expressed in this piece
should keep as far away as possible.” He also shared his own ing issues around the abuses that they’d suffered.” are exclusively those of the author.

and he sees an alliance with them as important given just involve waving signs and showing up at rallies.”
District 9, cont’d from pg. 8 the fractured nature of the Republican party, which he Whether or not Pollak succeeds in displacing
to the voters. He wants to distinguish himself by being analogized a scene from Monty Python's “Life of Schakowsky, he is enjoying the experience of running
accessible to voters and by nationalizing the issues to Brian”. He believes there is a troubling lack of lead- a campaign and connecting with the voters. “The most
make the District Nine election a referendum on the ership in the GOP that is impeding the unification of amazing thing about the process is learning what peo-
incumbent. “The contrast you have to draw between its various constituencies behind a platform. “It's not ples' lives are like, learning how national issues affect
yourself and the incumbent is, 'I'm nice, I'm here, I'll so much a question of what do we stand for, the ques- them and interacting with them when they ask you
work for you, and she doesn't.'” tion is where are the leaders who are going to drive what you are going to do for them.” Priority number
He sees Schakowsky as vulnerable because of her that.” one for Pollak is helping the residents deal with the
open defense of President Obama's policy agenda and Pollak has cultivated his relationship with the Tea dearth of jobs. But he also hears frequent complaints
the lingering questions raised by her husband's con- Party groups in part by flexing his legal education. about the Democratic health reform plans, and hopes
viction for federal fraud charges. And apparently his When the Obama administration announced a plan to to see a viable alternative emerge. “Republicans have
ground-up campaign is stirring up attention. Not only move Guantanamo Bay detainees to Thomson Prison yet to make the case why it is better to have individ-
has he received the endorsement of the local Tea Party in Illinois, Pollak helped draft a legal attack on the ual patients in charge of making healthcare deci-
organization, he also has heard rumors that plan founded on the international law. “I helped them sions.” If he is elected, Pollak says his personal policy
Schakowsky has taken notice of his candidacy. make a case in international human rights law why it interest would be the reform of the federal budgetary
Of course, the support of the Tea Party has the po- was bad to move these guys here.” And though the process and the corruption tied to earmarks.
tential to work as a double-edged sword, turning off state commission voted 7-4 to approve the relocation Joel Pollak is the author of The Kasrils Affair and
more moderate voters who would otherwise be inter- plan, his efforts were much appreciated by concerned Don't Tell Me Words Don't Matter: How Rhetoric Won
ested. Pollak noted that he had heard some people local citizens. “What was comforting to them was the 2008 Presidential Election. He was a regular
wonder, “How can a nice Jewish boy be endorsed by that someone in the political world was taking an in- writer for the Harvard Law Record during his time at
the Tea Party?” Pollak maintains guarded respect for terest in them and actually giving them a voice, help- HLS.
the grassroots activism of the Tea Party organizers, ing them express their concerns in a way that didn't
Page 8 Harvard Law Record February 25, 2010

District Nine, 2010: Pollak’s Plan For Recoloring the Map

S. African Native Gives Voice to Dispossessed GOP Voters in Liberal Illinois District
By Matthew W. Hutchins an appearance at the
Kennedy School, and
Emboldened by the victory of Scott now he plans to parley
Brown, Republicans across the country this exposure into the
are preparing challenges against Dem- wider media attention he
ocratic incumbents in the 2010 midterm needs to gather cam-
elections. But before Ted Kennedy's paign funds. He re-
passing opened the field in Massachu- cently appeared on the
setts, recent HLS grad Joel Pollak '09 Fox Business program
had already thrown his hat in the ring “Happy Hour”, where he
in northern Illinois. Now that Pollak has deftly avoided being
won the Republican nomination in the characterized as a Tea
Ninth District, he will be taking on in- Party candidate. His ul-
cumbent Janice Schakowsky in the gen- timate aspiration: an
eral election this year, and he sees it as spot on Bill O'Reilly.
the first serious contest his home dis- The South African na-
trict has seen in a generation. tive Pollak aspires to
According to Pollak, the electoral de- represent Illinois district
mographics break down such that there nine because it is the
is approximately a three to one ratio of seat of his youth home
confirmed Democrats to Republicans, of Skokie, a predomi-
150,000 to 50,000. But the district also nantly Jewish town that
has a large independent middle of about fought a legal battle
150,000 voters. Pollak believes that in- against Neo-Nazi pro-
dependents will turn away from Presi- testers all the way to the
dent Obama and the Democrats by a Supreme Court. Pollak
ratio of close to two to one, and if that Joel Pollak ‘09 outlines his plan to make his home district red. His strategy will concentrate plans to court the voters
happens, the district will be very much on the suburban areas west of Evanston that have been neglected by the incumbent. of Skokie and cities far-
in play. Pollak's next step is to embark ther west to offset the
on a major fund-raising initiative to GOP's Young Guns program and qual- overtures toward journalists. He first liberal bastion of Evanston closer to the
amass a war chest of at least a quarter ify for additional funding. gained the spotlight on Sean Hannity's waterfront, and to do that on a shoe-
million dollars. If he can do this, he be- To drum up the enthusiasm of donors, show on Fox News by vocally chal- string he will be making a direct appeal
lieves he will catch the attention of the Pollak says he is making aggressive lenging Barney Frank (D-MA) during District 9, cont’d on pg. 7

HLS Parody 2010 Presents...

Top: Ethan Schiffres ‘10 and Elizabeth Steinfeld ‘11 in Sydney, Australia. Ethan


worked on an urban revitalization project for the Arts Law Centre of Australia,
drafting legal information sheets and license agreements for artists. Elizabeth


worked for the Commonwealth Director of Public Prosecutions, preparing for a
federal narcotics trial. Below: Sherry William ‘10, far right, worked at the Egypt-


ian Ministry of Trade and Industry helping revise the national corporations code.
Sherry enjoyed working with top caliber, western educated colleagues, who helped
her get a taste of authentic Cairo cuisine! Mmmmmm.... Fiteer.