Harvard Law Record

FINAL ISSUE OF THE 2009-2010 ACADEMIC YEAR

The Independent Newspaper at Harvard Law School

April 15, 2010 www.hlrecord.org — twitter @hlrecord Vol. CXXX, No. 7

FORMER WHITE
HOUSE COUNSEL:

VACANCY
SUPPORT HOLDER
ON GUANTANAMO
Greg Craig Shares
Views on Terror Trials,
STEVENS RETIRING - SUPREME FEVER FOR HLS DEANS Looks Back at Service in
Kagan and Minow Both on Shortlist for Obama’s Second Supreme Court Nomination Obama Administration
BY CHRIS SZABLA stein, a Supreme Court litigator who ators spoke out against naming another
runs SCOTUSblog, told the Harvard Ivy League-educated justice, noting
Barely hours had passed after Justice Law Record that he believes Kagan is that, with the exception of Stevens, all
John Paul Stevens’ announcement of Obama’s top choice, but that Minow eight remaining current justices had at-
his imminent retirement last Friday – was also likely to be very close to nom- tended either Harvard or Yale Law
widely anticipated after the 89 year old ination. Schools (Justice Ruth Bader Ginsberg
Supreme Court judge failed to hire the On Tuesday, the Associated Press was graduated from Columbia Law School
customary number of clerks for the able to confirm that seven names were after transferring from Harvard before
court’s next session – speculation began definitely on the White House shortlist, her third year). The Senators went so
to swirl about a number of frontrunners far as to say that the recent outcome in
to replace him on the bench – many, if A spokesman for Dean Citizens United v. Federal Election

Minow said she was

not most, with Harvard Law School
pedigrees. Foremost among them was
former Dean Elena Kagan ’86, now
serving as Solicitor General. Not long
after, however, Bloomberg News con-
firmed that another recent Harvard Law
School Dean, Martha Minow, was also
being seriously considered for a
Supreme Court seat.
Kagan, Seventh Circuit Judge Diane
Wood, and D.C. Circuit Judge Merrick
Garland ’77 are widely seen as Presi-
dent Barack Obama ’91’s top choices
for the position, but the confirmation
that Minow’s name is on the president’s
shortlist leads credence to the possibil-
ity she may also be chosen. Tom Gold-
“deeply honored to be
considered”.
including Kagan, Wood, Garland,
Michigan Governor Jennifer Granholm
’87, Homeland Security Secretary Janet
Napolitano, Georgia Supreme Court
Justice Leah Ward Sears, and 9th Circuit
Judge Sidney Thomas, who was sug-
gested by Senator Max Baucus for the
diversity in geographic and educational
background the Montana-raised judge
would bring to the court.
Baucus and several Democratic Sen-
Commission, which allowed corpora-
tions to directly support advertising for
political campaigns, was a product of
justices whose backgrounds put them
out of touch with ordinary Americans.
That might have come as a surprise to
several of the current justices whose
youths were hardly privileged, but quite
a few other prominent names men-
tioned as possibilities for the court held
Harvard Law degrees or connections to
the school, including Massachusetts
Governor Deval Patrick ’82, who said
he would prefer to fight for reelection
this year, and HLS professor and TARP
overseer Elizabeth Warren, who is pop-
ular for her public stance on consumer
SCOTUS, cont’d on pg. 4
BY MATTHEW W. HUTCHINS
“When you have a lawyer for a client,
it’s the most difficult experience, and I
had the best lawyer in America as my
client.” Greg Craig, the first White
House Counsel to President Barack
Obama ’91, sat down with Prof.
Charles Ogletree ‘78 at Harvard Law
School on April 6th to discuss the
Obama administration’s accomplish-
ments and his career in public service.
“The White House is a remarkable
place to work, and you don’t ever forget
the significance of working so close to
the President of the United States. At
the same time, it is also very difficult.”
Greg Craig’s career as a litigator

Beyond Curricular Reform

began at Washington based Williams &
I N T E R N AT I O N A L L AW Connolly, where he defended at-

State Dept. Legal Adviser Lays Out

INSIDE
Craig, cont’d on pg. 9
MINOW OUTLINES PROGRESS, FUTURE
Emerging “Clinton-Obama” Doctrine OF LEGAL EDUCATION AT HARVARD

BY MATTHEW W. HUTCHINS
For those who criticize Pres-
ident Barack Obama ’91 for
showing more continuity with
the Bush Administration’s
policies than change, Harold
Koh ’80 has one word:
“Duh”.
Koh, who was the Dean of
Yale Law School before enter-
DIDN’T WIN YOUR JOURNAL ELECTION?
WE NEED NEW EDITORS-IN-CHIEF!
E-MAIL RECORD@LAW
ing the Obama administration
as Legal Adviser for the De-
partment of State, says that the
massive institutional momen-
tum of the federal government
means, “You do not turn the
Titanic 180 degrees. There
will always be more continu-
ity than change from one ad-
ministration to the next. But
Koh, cont’d on pg. 7
The HL Record
BY CHRIS SZABLA ent, and future of the in-
stitution she now leads –
It’s official: both the and particularly on how
current dean of Harvard she and Kagan jointly
Law School, Martha shaped the curricular re- News
Minow, and her prede- form that transformed the • Net Neutrality Threatened
cessor, Elena Kagan ’86, school’s long-static stu- • Restoring Afghan Rule of Law
are now being considered dent experience. • Banned Scholar Returns to US
as replacements for Jus- There have been subtle Opinion
tice John Paul Stevens on changes since Minow of-
the Supreme Court. But • Negotiating Law School
ficially took the school’s
mostly lost in the tidal • Genocide Debate Ignores Facts
helm in the middle of last
wave of speculation that • What’s in the Harvard name?
year. The lagging conse-
has accompanied the Culture
quences of the ongoing
news of Stevens’ retire- • Film: War Don Don
recession led to unavoid-
ment over the last week
able budget cuts that did
was the role both deans away with many of the
played in quietly reshap-
“creature comforts” that
ing legal education. Last endeared Kagan to stu-
Monday, just before the dents – and the faculty
recent SCOTUS hype raids that made her fear-
began, Minow gave an some to competing law
address to the school that
focused on the past, pres- Dean, cont’d on pg. 10 Schulte Roth & Zabel - See Back Cover
Page 2 Harvard Law Record April 15, 2010
April 15, 2010
Comcast Decision Threatens Net Neutrality
D.C. Circuit Rejects F.C.C. Authority to Regulate Internet Carriers’ Controls on Data
BY STEPHANIE YOUNG
The D.C. Court of Appeals ruled last Tuesday that
the FCC does not have authority to regulate broad-
band Internet service providers, granting Comcast the
ability to shape its consumers’ use of certain web ap-
plications. This is the most recent development in a
string of court battles that stems from Comcast’s prac-
tice of delaying or blocking certain types of Internet
traffic without disclosing the details to its customers.
While other companies may also engage in the same
practices, Comcast, as one of the biggest and most
powerful ISPs, sets the standard for the industry.
The saga began in 2007, when one Comcast cus-
tomer who had extensive network experience figured
out that certain applications were being blocked. He
realized that his Internet connection shut down when
he tried to share his favorite music, public domain
barbershop quartet recordings, via peer-to-peer appli-
cations. Because Comcast does not disclose what in-
formation they block and when they do it, less
sophisticated users may not know that problems with
their Internet connections are intentionally inflicted
by their ISPs.
The Electronic Frontier Foundation and Associated
Press investigated, and discovered that Comcast pur-
posely slowed or blocked peer-to-peer file sharing ap-
plications such as BitTorrent. Subsequently, special
interest group Free Press filed a complaint against
Comcast with the FCC in 2007 based on this practice.
Afghanistan: Successes, Roadblocks to the Rule of Law
BY REBECCA AGULE
Afghanistan’s arduous road to the rule of law con-
tinues to encounter blockages and delays. In March,
Rebecca Gang and Saeeq Shajjan, both Harvard Law
School LL.Ms, who worked as defense attorneys in
the country’s nascent new legal regime, together with
Jasteena Dhillon, a fellow at the Harvard Kennedy
School’s Carr Center for Human Rights Policy, shared
their experience working in the country’s legal insti-
tutions.
“I found that the pragmatic approach we were fol-
lowing on the ground, if not a complete mismatch,
was not an answer to the break down of the rule of
law,” Dhillon said. Using the example of Bosnia, she
noted that post-conflict judicial institutions are gen-
erally not equipped to deal with the unique situations
they face.
Dhillon provided a brief overview of the issues fac-
ing Afghanistan’s legal system, including the interac-
tion between Afghanistan’s formal and informal
justice systems, both based in Sharia, and reflecting
holdovers from the Roman civil and English common
law systems. Within this context the discussion
touched upon whether the international community
correctly understands the challenges Afghans face and
whether its presence is a help or a hindrance. She fur-
ther explained the difficulty in determining the cycle
of policy initiatives, as they may begin on the ground,
filter up to policy makers and then circle back down.
An Afghan attorney, Shajjan worked with the Inter-
national Development Law Organization and Inde-
pendent National Legal Training Center at Kabul
University. Prior to returning to the United States for
her LL.M, Gang focused on legal assistance and ac-
cess with the Norwegian Refugee Council and the
Afghanistan Independent Bar Association (AIBA).
Shajjan recounted relevant aspects of Afghanistan’s
history, noting attempts at legal and political reform.
Ruling from 1919 to 1929, relative moderate Aman-
ullah Khan created the country’s first constitution and
compiled the penal code, as, according to Shajjan,
“the state tried to make justice accessible.” With the
1973 coup, however, many earlier miseries returned
to Afghanistan. “All the work that was done before
was nullified,” Shajjan said.
Harvard Law Record
Free Press asserted that Comcast’s secrecy constituted
a deceptive practice that should be regulated. Com-
cast explained that this was merely a “network man-
agement practice,” to ensure that no one consumer
took too large a share of its bandwidth away from
other customers. However, it failed to regulate some
other applications that used more, and restricted other
applications that used less bandwidth.
In 2008, as the result of agency adjudication, the
FCC ordered Comcast to disclose full details of its
network management practices and create publicly
available plans for new and nondiscriminatory prac-
tices. Comcast appealed this finding on the grounds
that the FCC did not have authority to regulate under
its “ancillary” authority. Comcast also claimed that
the FCC could not make this decision through adju-
dication instead of conducting a formal rulemaking
proceeding.
In the April 6 decision, the D.C. Circuit found that
the FCC misused its authority in regulating Comcast’s
network management practices, effectively allowing
Comcast to inhibit transmission of whatever content
it deems troublesome to its networks. FCC Chairman
Julius Genachowski said that even despite this deci-
sion, his agency would look for other means to protect
consumer interests in broadband.
As the appeal was pending, several bills introduced
in Congress sought to remedy this issue from a con-
sumer protection standpoint. The Internet Freedom
Preservation Act, a bill introduced on July 31 of last
Following the 2001 U.S. invasion, Afghanistan
adopted a new constitution, which enshrined several
human rights. Article 31 altered the scenario for the
accused, providing that, “Upon arrest, or to prove
truth, every individual can appoint a defense attor-
ney.”
With defense counsel almost a rarity in the country
before, Shajjan recalled entering the courts of judges
who did not even recognize the idea. He noted that
the new constitution also includes a prohibition on
torture and an equal protection clause, and he com-
pared rights on paper to their effective, real time im-
plementation.
Despite some shortfalls, and even as he noted that
“With defense counsel almost a
rarity in the country before,
Shajjan recalled entering the
courts of judges who did not
even recognize the idea.”
many challenges extend to the entire country, Shajjan
remains hopeful. “I am optimistic that things are hap-
pening,” he said, pointing to the establishment of the
Afghanistan Independent Human Rights Commission
and the Election Commission. “Afghanistan does
have certain achievements.”
Of Gang, Dhillon said, “We worked in the same
places at different times and both worked with AIBA.
In post conflict countries, we put a lot of emphasis on
judges, et cetera, but forget about defence lawyers.”
After spending the last four years in Afghanistan,
in part as an advisor to the first AIBA, Gang explained
her reasons for stepping back into academia.
“First, I came to Harvard to give my grandparents
the year off from me living in Afghanistan,” she said.
“Secondarily, because I came home from work every-
day in tears, or if not in tears, with the feeling of hav-
ing spent my day banging my head against the wall.”
Gang had begun to question the appropriateness of
the AIBA’s law and development approach and
whether it would simply entrench more deeply the
Page 3
year, includes enforcement provisions for noncom-
pliant ISPs and creates law directly rather than dele-
gating to the FCC for rulemaking. This bill is
currently in committee but will probably be replaced
by the more recent National Broadband Policy. The
Broadband Consumer Protection Bill, introduced on
March 15, aims to promote disclosure to consumers of
the actual transmission speeds their ISPs achieve. The
act would spur an FCC rulemaking to ensure that
broadband marketing includes clear information to
consumers about what speeds they can realistically
expect, and to regulate ISPs’ marketing and service
procedures.
The FCC released details of its National Broadband
Plan, a priority of the Obama administration, on
March 16, stating multiple goals of increasing the
number of Americans with broadband connections,
improving computer and Internet literacy, and mak-
ing access more affordable. It remains to be seen how
the National Broadband Plan will comport with the
D.C. Circuit’s decision. Unfortunately, the recent
Comcast decision means that the FCC may not have
authority to regulate.
This decision left the FCC with lesser regulatory
power over broadband, and consumers with fewer
rights against the industry. In order to ensure that
consumers receive fair terms and competitive prices,
either Congress or the courts need to reverse this trend
and place broadband squarely under the FCC’s au-
thority to regulate.
very justice sector problems it purported to solve.
Law and development emerged as a distinct field in
the 1960s and 1970s, Gang said, as people aimed to
make a transformation from formalism to instrumen-
talism. Issues arose, however, when western assump-
tions were applied to developing countries. In reaction
to this concern, a new model has been in relied upon
since the mid-1970s. In practice, these polices were
enforced by those with access to lawyers, thereby re-
inforcing the interests of the elite.
“These iterations of level development all circle
around this one concept and say the same thing, that
locals need to design these programs. It says, ‘as long
as locals are designing these projects, all of our prob-
lems are solved’,” Gang said.
With the Bonn Agreement on the framework for
Afghanistan’s post-2001 government moving for-
ward, the International Bar Association (IBA) con-
ducted a fact-finding mission in Afghanistan. Without
standards for or regulation of the legal profession, and
no structure to answer the problems of defense attor-
neys, it was nearly impossible to implement Article
31. The IBA suggested the creation of a new institu-
tion, which led to the AIBA’s formation.
Gang said, “The IBA comes in and says, this is the
solution, we are going to set up a framework; we are
going to look at international best practices. Then you
Afghans you fill it in.”
Opening its doors in July 2008, the AIBA has met
with both success and failure. Gang noted the accom-
plishment of even staffing the office and beginning
work on non-controversial cases. By contrast, AIBA
services have not expanded beyond Kabul, it lacks a
strategic plan, and it continues to avoid controversial
advocacy. “All of the problems we set out to fix, they
have not only not been solved, but the mechanisms
we set up to solve them have ensured they won’t be
solved,” Gang said.
Shajjan tried to temper Gang’s concerns, saying
“this is the first year, don’t expect everything from
them. They will do this.”
Dhillon offered an angle of realism and progress.
“When you are in the field you know that you are not
always doing it right, but you just hope that it fits, and
you push and you push. It’s great to go back and do
this reflection.”
Page 4 Harvard Law Record April 15, 2010

Banned Under Bush, Muslim Scholar Allowed to Return to U.S.

BY CHRISTINE LEE
A South African Muslim scholar form
the University of Johannesburg, Pro-
fessor Adam Habib, was welcomed
back into the U.S. early this month after
a ban on his entry was lifted by Secre-
tary of State Hillary Clinton in January.
Under the Bush administration, Habib
was linked to terrorism. The reasons
for the link are unclear. A spokesper-
son for Clinton, Assistant Secretary of
State P.J. Crowley, stated that Habib
was not a threat to the United States and
that the rationale under which his visa
was denied could not be repeated in the
future. He added that their latest deci-
sion was consistent with President
Obama’s outreach to “Muslims around
the world” and that “we want to en-
courage a global debate.”
Speaking at Harvard Law School,
Habib took the opportunity to open the
dialogue on ideological exclusion in
one of his first speaking engagements
in the country since the reversal of the
ban.
Habib’s story began in October 2006,
during the 2003 U.S.-led Invasion of
Iraq. Habib’s own favorite theory is
that the government has a formula:
traveler, one point; Muslim back-
ground, one point; critical of American
foreign policy, two points, “and I went
over a magic number,” he muses.
rorism. Goodman felt that either this
was a form of censorship or the gov-
ernment was “crazy”.
Professor Habib hardly comes off as
a terrorist. America is his beloved sec-
ond home where he pursued his PhD at
the City University of New York. For
Photo: ACLU of MA
verse views. It goes against everything
Habib feels that contemporary America
stands for and in fact, exactly what the
terrorists of 9/11 would have wanted all
this time. The lawyers involved in his
case may have agreed or disagreed with
his views, but that didn’t matter, be-
cause on principle, they believed that
his views deserved to be heard. “That’s
a beautiful thing”, Habib says” “it’s sol-
idarity, action and practice that tran-
scends national boundaries.”
There are also global consequences
when America practices ideological ex-
clusion, according to Habib. It is one
thing for Zimbabwe to censor ideas at
the border; it is another for the United
States to do it. When the most power-
ful country in the world filters out
scholars critical of the government, it
weakens the message of democracy
across the world and lends credibility to
censorship. The reversal of Habib’s
ban by the Secretary of State is there-
fore a major victory for American
democracy and civil liberties. The pro-
fessor joins an illustrious list of schol-
ars, politicians and thinkers who have

when he boarded an 18-hour flight from
Johannesburg to New York City. At
JFK International Airport, he was
stopped by a customs official and asked
to undergo further security checks.
“Have you ever been a terrorist?”
Habib was asked, to which he replied,
“How long have you been doing this
job? Has anyone ever answered ‘yes’?”
Five hours of interrogation later,
Habib’s visa was “prudentially” re-
voked and he was deported back to
South Africa without any given reason.
The visas of his wife and children were
also denied.
Speculation into Habib’s forceful re-
moval ranged from racial profiling to
his participation in anti-war protests
The American Civil Liberties Union
took on Habib’s case and launched a
lawsuit on his behalf. By law, there
must be some “facially legitimate and
bona fide reason” for a denial of entry
into the U.S., explains ACLU staff at-
torney Melissa Goodman. The US
State Department eventually explained
that Habib’s visa application was barred
because he was “engaged in terrorist
activity”, contrary to a provision in the
Immigration and Nationality Act. How
or why this link was made, they would
not say. After doing a background
check on Habib’s work and history,
Goodman found that there was nothing
that could possibly link Habib to ter-
the last 20 years he has come and gone
from the U.S. without incident, devel-
oping enduring personal and profes-
sional relationships along the way. “It’s
a place where I have memories”, he
says, “It’s the place where my son was
conceived. It’s where I played with him
in Central Park trying to feed the ducks
… and for me, no government should
be able to deny me without any due
course that I can [or cannot] visit a
place where I have memories.”
More importantly, Habib believes his
fight to regain re-entry into the States is
a principled struggle for democracy.
Ideological exclusion would deny the
legal rights of U.S. citizens to hear di-
been denied entry into the U.S. on ide-
ological grounds, including South
African President Nelson Mandela and
Nobel laureates Doris Lessing, Pablo
Neruda and Gabriel García Márquez.
Nevertheless, Habib recognizes that
most scholars do not garner media at-
tention or have organizations litigating
their case. “I got lucky,” he says, “there
[are] countless individuals” whose bans
are still in place. He warns that this
stands at odds against a democratic so-
ciety where arbitrary political actions
should not be made to prevent the ex-
change of ideas. According to Habib,
it is “incumbent on the Obama admin-
istration to do something for the voice-
less who have not been heard.”

Can the Media Digest Big Legal Ideas?

SCOTUS, cont’d from pg. 1
protection. Obama also faces pressure to name a jus-

Journalists Have Their Doubts.

tice who is not currently serving as an appeals court
judge, as all eight remaining justices had prior to join-
ing the Court.
Among the competing pressures weighing on the
president are potential concerns not only about age,
experience, and race, which are always factors that
weigh on the names floated to the press as much as in
the choice for nomination itself, but over whether he
should spend political capital fighting for a justice
who embraces liberal ideals or instead favor a candi-
date who will sail smoothly through confirmation
hearings.
Kagan has left little trace of her potential legal phi-
losophy, a fact which helped her win approval from
the Senate last year, when she was confirmed as So-
licitor General. She has also expected to encounter
relatively little opposition from Republicans im-
pressed with her efforts to overcome the ideological
divide among the faculty at HLS and appoint conser-
vative professors such as Jack Goldsmith. But civil
liberties writer Glenn Greenwald of Salon.com has
led the charge that Kagan, while presumably to the
left of the conservative justices, would nonetheless
be a less reliable liberal than Stevens, and that her se-
lection would shift the court to the right.
Assessing Minow’s chances, the Boston Globe also
emphasized her personal ties to Obama, noting that
she first identified and encouraged his potential in
public service and that her father, Newton Minow,
served as Obama’s mentor at the former’s Chicago
law firm. A spokesman for the dean told the Globe
that she was “deeply honored to be considered” for
the position.
BY CHRIS SZABLA
It has become beyond cliché to say that the con-
tinuing evolution of communications technology has
dramatically transformed the landscape of journal-
ism. And it’s no less the case for writers and re-
porters who cover law. But legal journalists face
their own particular opportunities and challenges
navigating the new formats, sources, and audiences
available online.
“The vast majority of Americans don’t go to court
or engage lawyers,” said Roy S. Gutterman, Direc-
tor of the Carnegie Legal Reporting Program at
Syracuse University’s Newhouse School of Public
Communications, a fact which made it even more
incumbent on legal reporters to clearly explain what
goes on in courtrooms – and judge’s heads.
Noah Feldman, Harvard Law School’s Bemis Pro-
fessor of Law, concurred. “The overwhelming way
people in the U.S. understand legal issues through
work of people like those here,” Feldman said. “The
law not so much what courts say as what media tell
people courts say.”
Feldman, himself a contributor to the New York
Times, was referring to the assembled panelists at
the Harvard Law Review’s spring forum, which fo-
cused on the relationship between media and the law
– and, in particular, the question of whether the
media could successfully convey legal ideas.
Beyond, Gutterman said, the specialized press –
outlets like the National Law Journal, for example –
most legal reports tended toward the sensationalistic
rather than the philosophical. The media, he insisted,
was largely “looking for man bite dog stories”.
Dahlia Lithwick, legal writer for Slate.com,
agreed. “The media does very little with legal ideas,”
she said. “The media likes crime and disputes”. If
one clicked on the now defunct law tab on
CNN.com, she suggested, one would see “17 miss-
ing blonde stories.”
Still, Gutterman insisted, such pieces could serve
as conduits to introduce audiences to important legal
issues. But Lithwick noted that, during the media
circus surrounding the Anna Nicole Smith trial, the
“probing legal idea” was “does she look good?”
Lithwick did agree that engaging audiences with
stories about trends in legal thought to begin with
was as difficult, if not more challenging, than ex-
plaining those concepts to begin with. “Most of what
we do [when writing such stories] is really inside
baseball” to the general public, she said.
To successfully convey serious legal ideas, writ-
ers needed thousands of words, a privilege few legal
journalists are allowed. The New York Times’ Adam
Liptak, Lithwick noted, was an exception: he was
regularly allowed to write long pieces integrating re-
cent law review scholarship. But at Slate, she said, it
is considered a general rule that readers generally
quit after 1400 words – and attention spans are get-
Media, cont’d on pg. 10
April 15, 2010 Harvard Law Record Page 5

Williston Winners Celebrate Negotiated Victory

Students Simulate Negotiation Between Community Activists and Global Franchise

Best Contract Overall:

BY JOHANNA SCHWARTZ MIRALLES
Russell Herman, David Roth, Kristi Jobson The Winners of Harvard Law
School’s 57th annual Williston Compe-
and Aaron Dalnoot tition, Harvard’s annual contract nego-
storming with the other side,” Herman
added. “Both sides brought really cre-
ative ideas about how to address each
of the issues, and since we had a good
working relationship, both sides felt

Best Representation of Save Our Square:

tiation and drafting competition for
first-year law students, were an-
Fentress Jamal Fulton and Betny Townsend nounced on Monday, April 5.
The Williston Competition presents
Best Representation of McMillin’s: participants with a complex business
Adam David Lander and Matthew Walsh problem and charges them with repre-
senting a client in negotiations, trying
to arrive at an agreement that they then
reduce to writing.
This year’s problem involved a ne-
gotiation between a community group,
Save Our Square, and an international
fast-food chain, McMillin’s, which
were trying to come to an agreement
over the terms of the chain’s establish-
ment of a franchise in the local com-
munity.
The competition presented partici-
comfortable sharing them.”
His counterpart representing Save
Our Square, Kristi Jobson, agreed.
“The four of us worked so well to-
gether,” Jobson said, “and were simi-
larly invested in finding an outcome
that worked for both sides.”
The Williston Competition is run
jointly by the Board of Student Advis-
ers and Harvard Negotiators, under the
supervision of Professor Robert Bor-
done, Director of Harvard’s Negotia-
tion and Mediation Clinical Program.
This year’s competition was judged
by Sarah Jelsema ‘11, Andrew Mad-
sen ‘11, and Jonathan Lackow ‘07, an
associate at Ropes & Gray.

Record Still Seeking

pants with the opportunity to try out
their contract negotiation and drafting

Next Year’s
skills.
“We were drafting right up to the

Editors. Seriously.
deadline on the last day of the compe-
tition,” said Russell Herman, who rep-
resented McMillin’s. “It was difficult
drafting the contract so that all four of You Could Literally Run This
us were satisfied with the language.” Whole Newspaper! Get in
It was not all work and no play for Touch to Learn More.
Top row, L to R: A. David Lander, Matthew Walsh, David Roth, Russell Herman. the competitors, though. “The most
Bottom row: F. Jamal Fulton, Betny Townsend, Kristi Jobson, Aaron Dalnoot fun part of the negotiation was brain- E-MAIL RECORD@LAW

You Can Help Fund Public

Interest Jobs For Students!
$1 per day for 1 month from each student at the law school would fund a fellow
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The Post-Graduate Student Funded Fellowship is the result of students realiz-
ing there is much we can do to help one another and others in a time of economic
and social distress.
The immediate goal is to support one of our peers, someone whom we have
shared classes with, whom we have been inspired by, and who is eager to tackle
the problems of the world. The effects of the fellowship, however, will surely ex-
tend beyond the HLS community. By funding a year of public interest work, we
are confident that we are also funding positive change for the individuals and com-
munities with whom the fellow works.
Even beyond that, we believe that this Fellowship has the power to positively
influence the school’s culture, building greater community on campus. This is
why it is important that this fellowship be grassroots, led and supported by stu-
dents. The economic downturn has made clear that nothing can be taken for
granted, including the availability of a job for someone both qualified and de-
serving. Discussions about post-graduation plans have turned into comparisons
of starting dates, deferral periods, and the latest frustrations of trying to crack into
the public sector. Some of us find ourselves relatively well positioned; others are
still busy networking, mass e-mailing, and polishing up fellowship proposals.
And so this time presents a unique opportunity to step back and think about what
each one of us can do to help our fellow classmates in addition to those less for-
tunate outside of the HLS community.
We have worked to make it as easy as possible for students to donate. Every-
one is encouraged to visit our website at www.law.harvard.edu/students/orgs/fel-
lowship, and donate through the online form (by writing in Post-Grad Student
Funded Fellowship in the Additional Comments section). As you may have no-
ticed, we are holding weekly bake sales (Wednesdays from 12-1 at the Hark) until
the end of the school year, and we’d love for you to stop by, chat, get more infor-
mation, buy a treat and give back. 3Ls have the chance to direct their class gift to
the fellowship, among the other options. 2Ls will have the opportunity to donate
“One Day’s Work” this summer to the fellowship. This is hopefully just the be-
ginning. We have selected students with the drive and ideas to lead this initiative
next year. Our goal is to make the fellowship a permanent part of the HLS com-
munity.
Thank you.

Your Post-Grad Student Funded Fellowship Chairs,

Sheila Lopez, Julie Ruderman, Alison Welcher, and Maura Whelan
 Harvard
Page 6 Harvard Law Record April 15, 2010

FACTS AND THE POLITICS OF NAMING

Law Reth inking the Armenian Genoci de

Record
BY NAIRA DER KIUREGHIAN she spent the rest of her days in silence.
Another friend would never drink any water except rain-
Part I – Political v. Personal Discussions water. She had lost her children to thirst during death
marches into the Syrian Dessert. She pledged to use only
The Armenian Genocide took place in the Ottoman Em- rainwater from then on, denying herself the comforts that
EStabLiShEd MCMXLVi
pire during the First World War. It was an attempt by the would have saved her children.
Matthew W. Hutchins Turkish government to eliminate the Armenians from pres- Though an avid story-teller, my great-grandfather never
Editors-in-Chief

Chris Szabla
News: Rebecca Agule
Staff Editors
Opinion: Jessica Corsi
Sports: Mark Samburg
Naira Der Kiureghian
Contributors
Christine Lee
Sunny Lee
Elaine Lin
Joanna Schwartz Miralles
Andrea Saenz
Alison Welcher
Stephanie Young
record@law.harvard.edu
Submit Letters and Editorials to:
or
Harvard Law Record
Harvard Law School
Cambridge, MA 02138-9984
Letters and opinion columns will be
published on a space-available basis.
The editors reserve the right to edit
for length and delay printing. All
letters must be signed. Deadline for
submissions is 11:30 p.m. Tuesday.
The Harvard Law Record is a publication
of The Harvard Law School Record Cor-
poration. All rights reserved. The Harvard
Law School name and shield are trade-
marks of the President and Fellows of
Harvard College and are used with permis-
sion from Harvard University.
ent-day Turkey. From 1915 to 1923, 1.5 million Armenians
were killed and many more were deported on death marches
in to the Syrian Desert. Since then, Turkey has denied this
history and strongly opposed recognition of these events as
genocide.
Popular discussions of the Armenian Genocide increas-
ingly focus on the politics of recognition and the rhetoric of
denial and overlook the substance of these tragic events and
their legacy.
My great-grandparents were survivors of the Armenian
Genocide. Growing up in an Armenian community in Cali-
fornia, most of my friends’ grandparents were also survivors.
The genocide was an inevitable topic of discussion. It came
up whenever people discussed their families, histories, or the
origins of their names. Many Armenians have surnames de-
noting their grandparents’ hometown or occupation in Turkey
prior to the Genocide. Even today, our names remind us of
the past and a way of life that no longer exists.
As a child, I spent a great deal of time listening to my
grandmother and her friends talking about the past. They dis-
cussed their lives in Lebanon, where many Armenians ended
up as refugees, and the way their families had struggled to re-
group and regain a sense of normalcy in the decades follow-
ing the Genocide. Even if it weren’t explicitly discussed, the
legacy of the Genocide was omnipresent.
One day I asked my grandmother why one of her elderly
friends had writing on her face. She explained that her friend
had lost her entire family during the Genocide, and that dur-
ing the deportations, she was taken by a Turkish family to be
a domestic worker. They had tattooed Quranic verses on her
face, a practice they perceived as a means of beautification.
She later escaped to a home for Armenian orphans, where
she met and married a young man who was the only other
surviving member from her village.
I also learned about the ways in which people dealt with
loss. My great-grandmother’s mother, for instance, went into
shock after she lost three of her children in one week during
the Genocide. Afterwards, she made an oath that she would
never utter any sound outside of prayer. Turning to religion,
spoke of his experience during the Genocide. It was not until
after he died that I found taped interviews with him in a his-
torical archive. In the interviews, he recounted his experi-
ences after marching for months in caravans into the Syrian
Dessert with his mother and sisters. He recalled how during
death marches armed gangs regularly attacked the Armenian
convoys, killing indiscriminately and raping women and
girls. My great-grandfather must have been about ten at the
time. In the interviews, he recalls hearing the sounds of girls
being raped and the agony of knowing no one could save
them. Once a girl was taken, she was never seen again.
Eventually he and his family made it to the outskirts of
Aleppo but were prohibited from entering. Aleppine officials
adopted a policy of refusing entry to all Armenians. During
the initial stages of the Genocide, the city had been overrun
by an influx of emaciated and disease-ridden Armenians,
causing a public health crisis. Martin Niepage, a school-
teacher, documented the impact of the arrival of the first Ar-
menian survivors in The Horrors of Aleppo Seen by a
German Eyewitness, in which he beseeched the German gov-
ernment to put an end to the persecution. Through deceit and
out of desperation, my great-grandfather, his mother, and sis-
ters eventually managed to make it inside the walls of the
city. Disguising themselves as workers, they were smuggled
into the city by laborers.
Part II - The Politics of Naming / Recognition
There are countless other stories that I’ve read and heard,
but I suppose debates about the impact of recognition on U.S.
foreign policy and discussions about the niceties of terms
like “civil war,” “deportation,” and “genocide” are easier to
ponder. The language used to describe the Genocide in
American discourse can strike one as absurd.
While Obama was still a senator, he had no hesitation la-
beling these events as genocide. On April 15, 2009, Presi-
dent Obama, like many presidents before him, opted instead
for a euphemism out of fear of offending Turkey. Perhaps in
a show of solidarity, he used the Armenian epithet, the term
Genocide, cont’d on pg. 8

The Editors of the Har-

vard Law Record apolo-
gize to the unwitting
victims of our April
Fool’s Day issue among
both students and the
media (and to Dean
Minow and members of
the administration who
had to deal with them)
for falsely raising hope
for tuition refunds or in-
creased ideological di-
versity among
faculty. To clarify, these
remain utter fantasies.
Letters to the
Editor
Dear Editor,
Following your recent piece "Experts Pon-
der Implications of Remote, Robotic War-
fare" in the 11 March issue of the Harvard
Law Record, my colleagues and I wish to
[point to] the recent publication and launch
of the "HPCR Manual on International Law
Applicable to Air and Missile Warfare".
The "HPCR (Program on Humanitarian
Policy and Conflict Research) Manual" pro-
vides the most up-to-date restatement of ex-
isting international law applicable to air and
missile warfare, as elaborated by an interna-
tional Group of Experts. As an authoritative
restatement, it contributes to the practical un-
derstanding of this important international
legal framework.
the Anaide L. Nahikian,
Harvard University Program on
Humanitarian Policy and Conflict Research
www.hlrecord.org
Kagan Konspiracy?
Dear Editor,
I can’t help notice that only one
week after “General Kagan” de-
manded a Supreme Court vacancy
open up in the April Fools’ day
issue of the Harvard Law Record,
Justice John Paul Stevens an-
nounced his retirement. I can only
conclude that Stevens and the
White House thought that the col-
umn was written by the real Elena
Kagan, and jumped to oblige her.
(This wouldn’t be a first, as the
Record April Fools’ day issue has
been tricking inattentive media and
academic types since the 1970s.)
The Record board should feel justi-
fied in claiming complete credit for
Stevens' retirement.
Anyway, count me among the
thousands of HLS students and
alums who will be unapologetic
homers for our former dean if she
is nominated. I hope this is her
time. But I have to say that there is
a major downside if Kagan ascends
to the Court: she will have to wear
a dowdy black robe all the time in-
stead of her famous rainbow of
solid-color blazers. (A Google
image search provides all the ex-
amples you need.) I always wanted
to put Elena Kagan Paper Dolls in
the Record, where the basic doll
was wearing a black top, black
pants, and sensible shoes, and then
you could dress her up in a red
blazer, a green blazer, or for a for-
mal night out, a black blazer.
Lest you think Kagan left this
fashion statement behind at HLS, I
asked a friend who works in the
Solicitor General’s office, and he
assured me that Kagan has kept the
blazer collection even at her lofty
post in DOJ. That made me feel
good, like Kagan wasn’t going all
“D.C.” on us. Alas, robe beats
blazer every time. Best of luck to
her or whatever other HLS grad is
nominated for the spot (since that
seems to describe almost everyone
being short-listed).
Andrea Saenz ’08
Editor-in-Chief, Harvard Law
Record, 2007-08
April 15, 2010
Sunny Skies Over Cambridge
P R
E R S O N A L
What’s in the Harvard
Name?
BY MATTHEW W. HUTCHINS
I almost didn’t apply to Harvard. To
me it was a name and a place far away
and full of vague notions of elitism,
and in some sense I saw my own life
as a less ambitious affair. I wanted to
go to law school partly to learn a pro-
fession, but I also had a desire to get
beyond the external manifestations of
power and come to know the system
from the inside. And so I applied,
knowing that Harvard’s name, net-
work, and faculty could equip me for
these goals better than others.
When I came here three years ago, I
felt like I had snuck in the side door
by figuring out the secret handshake,
and now that I had gotten inside I
would start to learn other secrets and
crack even more devious ciphers. By
the end of 1L year, I was fairly well
disillusioned. My classmates no
longer seemed so different from me.
My professors were starting to seem
less lofty and inscrutable. And the
contours of the law were already
forming a sort of a superstructure that
would later be reinforced and walled
in to form a solid body of knowledge.
Soon enough, the Harvard name too
had also lost its luster, already looking
more bizarre from the inside. I real-
ized at some point that it was just an-
other brand name, this one with an
“established” date earlier than others
and with a longer list of successful
graduates, but essentially just a label
on a product and an institution. I also
realized that I too could use this brand
name like a badge, a shield against
doubt and scrutiny. Whether it was a
resume or this newspaper, promi-
Harvard Law Record Page 7
Sunny Lee, LL.M. ‘10, took to the skies
for an Easter Sunday helicopter ride
over Boston and Cambridge, catching
pictures of Harvard landmarks along
the way. Flying out of Hanscom Air-
field in a Robinson R-44 Raven, Sunny
gained a new perspective on the geog-
raphy of Boston Harbor and Harvard.
Koh, cont’d from pg. 1
E F L E C T I O N the question is what is the approach, on the reasoned opinions of prior gov-
and is the approach the same or dif- ernmental officers.” Given the body
ferent.” of statutory and case law, as well as
Koh appeared at HLS as the policy documents from all branches
keynote speaker for the Harvard In- of government, and faced with the
ternational Law Journal’s 2010 Sym- challenges of a serious recession, two
posium, where he outlined what he armed conflicts, and earthquakes in
sees as an emerging Clinton-Obama Haiti and Chile, Koh said that making
nently placing the Harvard name next
Doctrine of international engagement, progress can be extremely difficult. In
to my own became second nature be-
as well as his own role in the Depart- addition, formulating a new govern-
fore long.
ment of State and his conception of mental position can be painfully slow
But Harvard is more than a name. It
how government lawyers shape inter- as a document progresses through the
is a global symbol of academic suc-
national law. As the Legal Adviser of internal clearance process, the intera-
cess, but it also serves as a nexus for a
the Department of State, Koh is gency process, the legislative process,
massive self-selection process, and
tasked with coordinating a multitude the governmental lawyering process,
those who are drawn by its name and
of U.S. legal affairs, but whether he is and the intergovernmental process.
reputation soon become the corpus of
acting as the general counsel to the Despite all the barriers to change
the institution and a part of its history.
diplomatic corps, buying land in Bei- and inevitable delays, Koh believes
By the time we have crossed the last
jing, negotiating contracts in that government lawyers are crucial to
threshold and stand in the halls of
Afghanistan, or advising the Secretary the process of internalizing interna-
Langdell and Austin, we have by and
of State, he sees his primary role as a tional norms. Among the important
large identified ourselves as holding
defender of U.S. interests. functions government lawyers serve,
particular values and goals and have
From his position as an advisor to Koh elaborated upon their role in cre-
ascribed to particular means of achiev-
Secretary Clinton, he sees the emerg- ative generation of lawful options,
ing our objectives. Thus, whether we
ing Clinton-Obama Doctrine as cen- channeling actions toward what is
know it or not, the common bonds of
tering around four key ideas: legal under international law, deter-
achievement and aspiration that draw
principled engagement with interna- mining the applicability of interna-
us together also drive our assimilation
tional organizations and institutions, tional rules, evaluating customs,
into the culture of the place and its
diplomacy as a critical element of nominating international experts, ne-
people, where we are saturated with
smart power and at the vanguard of gotiating international texts, and par-
the Harvardness of where we are and
foreign policy, strategic multilateral- ticipating in international dispute
who we are becoming.
ism, and the conduct of U.S. affairs in resolution. Of these, he put particular
Walking back out of the gates I en-
line with both domestic and interna- stress on option generation as a means
tered three years ago, I can also feel
tional law in a way that follows “uni- of providing advice beyond the mere
the inertia that Harvard has lent the
versal standards, not double evaluation of legality. He said that on
course of my life. I have a path in front
standards.” As examples of greater joining Secretary Clinton’s staff he
of me now, a yellow brick road, that
international engagement, Koh made it clear that, “If I am to be your
makes the unpredictability of life
pointed to the United States’ return to general counsel, I must have the free-
seem less daunting. We will all land
the ICC, climate change negotiations, dom, after I have told you whether
on our feet, that mantra inculcated by
the human rights counsel, and numer- something is lawful or not, to go one
our mentors, seems true enough now,
ous other international discussions. step further as a policy matter to tell
despite some bumps and delays for all
Although Koh has written widely you whether this is lawful but awful.”
of us. But the road ahead is not really
on international law, he said that his Koh sees this as an indispensable
so simple, and the destination is not
own role in the discussion is more that function that lawyers can provide in
some magical crystal city where all
of adviser and facilitator than decision their capacity as trusted advisors who
our problems will be solved. Life re-
maker or expert. “I am not in the of- take part in important discussions of
mains complicated and full of change.
fice as Harold Koh the legal expert. I policy. “The international lawyer is
Writing for this newspaper has
am in the government as Harold Koh not a potted plant. In a crisis, your job
given me the chance to speak to the
the legal advisor. Standing up at a law is not just to sit there. When the mo-
world as a member of the Harvard
professors’ conference makes no dif- ment arises, speak up! Speak law to
Harvard, cont’d on pg. 9 ference. Legal advice must be based power!”
Page 8
Genocide, cont’d from pg. 6
Medz Yeghern, or “great calamity.” Like many Ar-
menian terms, it’s rich with consonant digraphs, yet
easier to pronounce than the term we use much more
frequently, Dzeghaspanutiun, or genocide.
Ironically, Raphael Lemkin, the jurist responsible
for creating the term “genocide,” first developed the
concept with the Armenian Genocide in mind. Win-
ston Churchill referred to these events as a “holo-
caust” in his history of the First World War. In 2000,
Robert Fisk expanded on the politics of naming by
writing about his struggle with his editors at The In-
dependent who insisted on using a lower case “h” for
“Armenian holocaust.” They said common usage dic-
tated that the capital “h” be reserved for the Jewish
Holocaust. When pressed further, they said the Jewish
Holocaust warranted capitalization because it was Eu-
rope’s genocide, and therefore, had a particular place
in their culture and language.
In recent years, an increasingly absurd rhetorical
Harvard Law Record
game has overshadowed meaningful discussions of
the Genocide. One can easily find reports insisting on
the impracticability of official congresional recogni-
tion of the Genocide and criticizing House discussions
of recognition for their “interference” in the precari-
ous reconciliation process between Turkey and Ar-
menia. In October 2009, Turkey and Armenia signed
a protocol, under the close watch of Hillary Clinton,
agreeing to begin the process of reestablishing diplo-
matic ties. The agreement reached an impasse after
the Armenian Constitutional Court held that the agree-
ment could not prevent the Armenian state from seek-
ing international recognition of the Genocide. Neither
state’s parliament has ratified the agreement.
Although federal recognition has been controver-
sial, forty-four U.S. states have officially recognized
the Genocide. So have a number of countries, includ-
ing Canada, France, and Russia. These are examples
of how Turkey’s relationship with its allies has sur-
vived and even been strengthened despite recognition
April 15, 2010
of the Armenian Genocide.
During the drafting of the current protocols, Turkey
insisted that the issue of the Armenian Genocide be
resolved at a later date by a team of historians.
Though such solutions seem reasonable, they over-
looks the fact that the question of whether the events
constitute genocide is beyond debate. Historians have
reached a consensus in favor of the label of genocide.
In fact, many Turkish academics and intellectuals,
such as historian Taner Akcam and publisher Ragip
Zarakolu have called on Turkey (and the U.S.) to rec-
ognize the Genocide, at great cost to their own liberty
and safety. Both the International Association of
Genocide Scholars and the International Center for
Transitional Justice have officially recognized the
events as genocide.
Ultimately, we must not allow Turkish denial to
shift the conversation from the legacy of this Geno-
cide and its impact on history to the banalities of nam-
ing.

C A M B R I D G E ,
BEGINNINGS AND ENDS, STARTS AND FINISHES
BY JESSICA CORSI
Of all the starts and finishes we’ve
gone through and are about to go
through in our lives, the difference be-
tween the beginning of the JD and the
end of the JD is particularly, spectacu-
larly, pronounced. Think back to the
first few days of 1L, when you met your
section mates, the people you would see
day in and day out for years. You sat
through the mock class and had dinner
with the Dean in the “Trophy Room” at
the library; you posed for your section
photo and it was still sunny and warm
and fall hadn’t technically begun yet.
Or go back even further—think back to
admitted students day and the way you
felt walking through the buildings for
the first time as someone invited to be
there—someone who was supposed to
be there. I’m guessing that those on the
eve of graduating with a JD are feeling
very far removed from those early days.
The transformation that takes place at
both the individual and the group level
over the course of the JD is rapid and
dramatic. The beginning and the end
point of your Harvard JD are pro-
foundly distinct. And like any change,
it is unsettling. As we prepare to grad-
uate, it is worth nothing that the disrup-
tion in front of us is not just a change in
location or community or title or in-
come. It is also a change in identity and
self, and it has been occurring through-
out the course of the JD.
Whether you suffered through 1L,
deeming it the worst year of your life,
or whether you loved it, it was likely a
sea change moment. 1L begins with lit-
tle context. Nothing you’ve ever done
before could likely prepare you suffi-
ciently for law school. You have no
idea what to expect, and depending on
your personality, this is either terrifying,
or exhilarating, or some mix of the two.
Like anything unknown, 1L produces
fear in those living through it. When
you don’t know where you’re going—
you have the address in your hand but
you’ve never been before—the walk or
the ride feels longer and harder and
more uncertain. You’ve never read any-
thing like this, you’ve never been asked
questions like this, you’ve never en-
gaged in a process of reasoning like
this.
Add the competition inherent in both
U S A
a curved grading system and at an envi- the non-legal, non-rational parts of you. bership by graduating, but you lose the
ronment like Harvard Law School and Students can wind up with an extremely almost daily interaction that it provides.
you have compounded the fear. The heavy load of classes even in the very We’re being scattered around the
perceived sense of competition couples beginning—17 credits in one semester? world—how will we find each other
with the fear of looking like an idiot in It happens. In addition to the volume, again? What will our days and weeks
front of 80 other people that you’re de- there is the lack of experience holding be like without the support we feel
cently certain are pretty smart and you back: you will never read legal ma- here?
100% certain that you are seeing again. terial more slowly than you read it 1L Graduating in 2010 presents an added
Everyone is so darn motivated—does fall. As a result, in 1L we are often wrinkle: this is not the world we ex-
that make you lazy? If you thought of forced to give up many of the things pected we’d be graduating into. Part of
yourself as a hard worker before but that had made us happy prior to entering what makes Harvard great and what
you chafe at the amount of work you are law school. makes it tough to bear is the loftiness of
assigned, while others seem to get down For many people, 1L is the first time the expectations all of us bring to the
to it without hesitation, what does that they have felt a sense of purpose and table. Clearly, we can be the next pres-
say about you and how you had previ- that what they do or say matters. Fi- ident of the United States! Obviously,
ously perceived yourself? If you’re nally, what you’re studying will have we can be the next Supreme Court Jus-
struggling to stand out in a sea of over- some practical consequence for your tice! When you’re here, there is no ceil-
achievers, you are likely incapable of life and your career, and your career is ing to your aspirations. But, the world
doing so without a hefty dose of stress. going to have consequences for other is being remade in front of us. Most
It doesn’t help that the adversarial people. You can “do” something now. HLS graduates target jobs at large, fa-
system of American legal reasoning pits You can win a case; you can change a mous law firms in big cities for their
us against each other: we are taught to law; you can produce real outcomes that first post-graduation job. Those types
tear each other’s ar- could affect of firms are still reeling under the
guments apart and dozens, thousands presure of the economic downturn that
pick out all of the From 1L to 3L and beyond, of other people. has afflicted the entire world, and as a
flaws. The class- the intimidation, trepidation, That is meaningful, result, they’re not hiring nearly as much
room divides as peo- and opportunities of change. but it is intimidat- as they were when this graduating class
ple take sides. The ing. Now you have entered law school.
feeling is that it is to take your work Still, I don’t think I’d be going out on
personal: you made a mistake; you’re more seriously. Now a mistake is more a limb if I said that I believe that every-
on the wrong side. grave, a failure more significant. one in this graduating class is going to
Throughout it all, you are being Fast forward to the eve of graduation find a job. But a big difference between
forced into a specific mold. You are in- and those early moments of the begin- 1L expectations and end results now,
structed to read in a specific way; to re- ning year seem a million miles away. though, might be the job you end up
peat and analyze what you’re read in a The change we’re about to experience finding. In the years we’ve taken to
certain way; and to write and argue in a in leaving Harvard Law School cannot complete our JD, our opportunities have
specific way. You are being shaped and be understated. For several years we’ve changed. Our expectations and wishes
remade, and maybe you don’t like what been ensconced in this community, and might not have. Now, they might not
you’re being turned into. Maybe the re- we’ve been enriched by it, and we’ve match. This is unsettling, and disturb-
shaping cuts off pieces of your former been protected by it. On the one hand, ing, and definitely not what we signed
self that you didn’t want to let go. we’re lucky simply to have communi- up for.
The intense growth experience of 1L ties. Americans live increasingly atom- I’m willing to bet, though, that what-
is mixed in terms of the feelings it pro- ized lives, and are less and less likely as ever we’re feeling in the weeks leading
duces: 1L might have been the most in- the decades progress to be a “member” up to graduation, and however we view
tellectually stimulating year of your life of anything. Not only are we members our 1L experience or our JD experience
to date, but likely the pressures and of the law school, we’re members of the generally, that we wouldn’t trade it for
processes involved in pushing you to Harvard community generally, and we the world. I think that even the most
new heights and new understandings then join all sorts of sub-communities miserable graduate would answer that
was also significantly uncomfortable. within the schools, based on religious or they would do it all over again, and
You may have had to work harder in political or other affiliations, or focused have a host of reasons for professing
your life than ever before, and this chal- on specific projects or activities. There this. Something with that powerful of
lenge may have been exciting, but it is is always something to join or do here, a draw, and that huge of an impact on
also fatiguing. This process, too, cuts and even if you didn’t take any action our lives, is very hard to leave.
you off from your former self. 1L is a to join or participate in anything, your
year when people lose time; their days default community is large, diverse, and Jessica Corsi is a graduating 3L and
are swallowed up with law school. You positive. Few people if any would think Opinion Editor of the Harvard Law
may have talked to your family more that membership in the Harvard Law Record. This is the last of her two year
prior to law school, you may have had community is other than an exceedingly long series of columns for this paper.
more time for hobbies that addressed good thing. You don’t lose this mem-
April 15, 2010 Harvard Law Record Page 9

“War Don Don” Probes the Reality of International Justice

Film Forces Viewers to Question Their Assumptions About Guilt, Innocence, and War Crimes Tribunals
BY REBECCA AGULE
Filmmaker and HLS graduate, Re-
becca Richman Cohen ‘07 first ob-
served Issa Sesay in 2006, through the
bullet proof glass of the gallery at the
Special Court for Sierra Leone. While
assigned to a different defence
team for her 2L summer, Cohen
felt drawn to the trial of the former
Interim Leader of the Revolution-
ary United Front, the rebel army
that had waged and lost a decade-
long civil war against the govern-
ment of Sierra Leone.
Four years later, as the Court
concludes its cases, the first major
war crimes tribunal to do so since
the Trials at Nuremberg over sixty
years ago, Cohen presents “War
Don Don”, the jarring product of
her legal education and three years
of filmmaking. In Krio, the lingua
franca of Sierra Leone, “war don
don” means “the war is over”, and
Cohen’s film offers an insider’s nu-
anced examination of the role
played by international criminal
justice once hostilities have for-
mally ceased.
Winner of the Special Jury Prize
at the South by Southwest Festival,
“War Don Don” forces its audience to
challenge preconceived notions of
righteousness, justice and retribution.
Even the seemingly secure concept of
truth is quickly muddied, creating the
most satisfying intellectual and emo-
tional discomfort.
“War Don Don” opens with the Spe-
cial Court itself, a fortified structure
surrounded by the ubiquitous blue-hel-
meted United Nations guards. With
every act, the film shifts its focus, never
Source: wardondon.com
allowing the viewer to simply take a
passive role. Harrowing images war’s
casualties, including the dead, the
maimed and the child soldier, as well as
graphic victim testimony and the vehe-
mence of Chief Prosecutor David Crane
make Sesay’s guilt a seemingly fore-
gone conclusion.
For Crane, only the Devil himself
could have created Sesay and his co-de-
fendants. “These dogs of war, these
hounds from hell…These were the
leaders, the commanders of an army of
evil, a corps of destroyers and a brigade
of executioners bent on the criminal
takeover of Sierra Leone, once the
Athens of West Africa,” he says
“Today, due to these indictees, a sodden
backwater, marred and broken, lapping
against the shores of civilization.”
But, just as the most dovish of viewer
considers tying the noose herself,
Cohen opens the backstage door to the
justice system at play, and all such as-
sumptions begin to splinter.
Despite representing a man described
by Crane as soulless, the Sesay team
managed to avoid caricaturing itself
with criminal defence stereotypes. In-
stead, Lead Defence Council Wayne
Jordash and Co-Counsel Sareta
Ashraph humanize Sesay, re-introduc-
ing him as a relatively moderate soldier,
trapped first by horrific circumstance,
and then by the inappropriate applica-
tion of strict conceptions regarding mil-
itary structure and command
responsibility.
Perhaps Sesay himself throws the
most eloquent wrench into any simplis-
tic notions international criminal jus-
tice. “Just because I’m an RUF
commander, that’s what I’m convicted
for,” he says. “If I was to be judged as
an individual, I think they would not
convict me on many things”
This lack of consensus regarding
Sesay, specifically, and justice, gener-
ally, is not confined to the Court.
Cohen’s crew follows the Court’s Out-
reach Team as it meets the with com-
munities throughout Sierra Leone,
speaking to many who lack basic ne-
cessitates such as water, shelter and
food, about the Court’s mandate to pro-
vide truth, not aid. The millions of dol-
lars expended to fund the Court locate
these words somewhere between ironic
and cruel.
The film’s aesthetic, simultaneously
stunning and disturbing, matches the
tenor of the issues at hand. Refraining
from voiceover and allowing the war,
the court and Sierra Leone itself to
serve as much of the soundtrack, Cohen
deftly removes herself from the film.
Instead, she elegantly allows the vio-
lence, the individuals involved, and, in
the end, the lingering questions to haunt
the viewer.
“War Don Don” will screen at the In-
dependent Film Festival of Boston
(IFFBoston) on April 24, 2010, at 2:30
pm, at The Somerville Theatre, 55
Davis Square. Tickets, $9, can be pur-
chased online at
http://iffboston.bside.com/2010/films/
wardondon_iffboston2010. More infor-
mation and the trailer can be found at
http://www.wardondonfilm.com/.

Craig, cont’d from pg. 1
tempted-assassin John Hinckley, Jr., but he has
gone in and out of public service numerous
times, working for key Washington figures like
Senator Edward Kennedy, Secretary of State
Madeleine Albright, and President Bill Clinton,
whose impeachment defense he coordinated.
Despite his previous service in the Clinton ad-
ministration, Craig was an early supporter of
Obama, joining his campaign as early as 2006
and bringing with him the wealth of foreign pol-
icy experience he gained under Senator Kennedy
and at the Department of State. He said that he
found Obama’s early public appearances “trans-
formative” and recognized his potential as a pres-
idential candidate after his Robert F. Kennedy
Award speech in 2005.
Craig departed the White House in January of
this year due to growing concern over the han-
dling of the administration’s policy regarding the
detention of combatants at Guantanamo Bay.
“Trying to unwind the Bush Policies while trying
to manage two wars was not easy,” said Craig
during his appearance at HLS. Apparently, ten-
sion mounted between Craig and White House
Chief of Staff Rahm Emanuel as Craig’s desire to
push for decommissioning the facility came in
conflict with other priorities on the President’s
agenda. Craig said that Rahm Emanuel used the
analogy of a crowded airport to illustrate the dif-
ficulty of the situation. “We are trying to bring
in two huge 747’s [the wars in Iraq and
Afghanistan] at the same time we are trying to
reform our national health care system, and right
in the middle you want to send up a flock of
Canadian geese, which is Guantanamo, which
could take down one of those 747’s.”
Aside from the delays in the Guantanamo clo-
sure, Craig said that the Obama administration
has achieved an impressive measure of change
in its first year, with particular examples includ-
ing the abolition of enhanced interrogation, the
shutdown of CIA black sites, the completion of a
full review of detention policy, the release of pre-
viously confidential memos, a reevaluation of the
executive use of the state secret doctrine, and the
announcement of an intention to end the “Don’t
Ask, Don’t Tell” policy. He expressed regret that
the decision by Attorney General Eric Holder to
seek trial of Khalid Sheikh Muhammad in Arti-
cle III courts has been framed as a civil liberties
issue, pointing to the proven efficiency of gov-
ernment prosecutors, federal judges, and criminal
procedure rules as a sure means of obtaining
solid convictions. He warned that military tri-
bunals have suffered from a debilitating effort to
accommodate the procedural needs of defendants
and remain an uncertain venue that may be sub-
ject to reversal on appeal. He also noted that sup-
port for military commissions is particularly
surprising in light of the fact that they are not al-
lowed to sentence detainees to capital punish-
ment. “If you care about capital punishment for
KSM and these individuals, then you would sup-
port what Eric Holder recommended.”
Craig also identified some of the logistical
challenges that will make the closure of Guan-
tanamo a difficult issue. He said that of the ap-
proximately 240 remaining detainees, some
40-45 will be prosecuted, another 40-50 are dan-
gerous individuals who will be held indefinitely,
many of those remaining will be transferred or
released. But one of the biggest problems at the
present moment is determining the proper course
of action with respect to the 98 Yemeni detainees.
“People do not want to send them back to
Yemen, although Yemen would take them,” said
Craig. “Until we solve the problem of what to do
with the Yemenis, it is going to be very hard to
close down Guantanamo.” Craig anticipates that
the plan to transfer inmates to Thomson prison
has potential, but that after the most recent up-
grades to the Guantanamo facility, human rights
advocates are concerned that conditions could
actually be worse at the Illinois facility. “Once
we go to Congress to get appropriations for
Thomson, it opens up negotiations about Guan-
tanamo.”
Harvard, cont’d from pg. 7
community and define the reality of this place for out-
siders. Now, I too will become an outsider to the place and
its institutional forces. Leaving here I will lose that
uniquely local attitude to Harvard as a place that comes
with being a student, but I will retain a share of the name,
a right to stand in as an ambassador to the world and part
of the extended Harvard family. So in a certain sense, as
an alumnus I will no longer be a part of the institution, but
I will shape the perception of it by the outside world by
wielding its brand name.
Thankfully, this does not mean that I will be required to
proselytize a set of orthodox views, nor will I be penalized
if I decide to file away my degree and keep my education
a secret. I can choose on my own whether or not to be as-
sociated with the Harvard name and community, but the
legacy of my time here will shine through in ways I will
probably not even recognize. The tools I have acquired,
the attitudes I have accepted, and the friends I have grown
close to during my time here will stay with me after I have
left here and influence the course of the rest of my life.
I am thankful that I could study at such an interesting
and challenging school, and indeed I am proud of having
“attended Harvard.” Nonetheless, I remain suspicious of
those who would make too liberal use of the Harvard
name. I do not believe in treating Harvard like a label that
certifies quality or an icon of an exclusive club. Harvard
is a place to which we chose to come to be amongst like-
minded individuals and an institution that has gathered ex-
ceptional people who have now passed on to us some of
their collected wisdom. Now we each must make the
choice of how to direct our efforts in the world, and it is the
fruit of those efforts that will some day serve as the scale
by which the world measures Harvard.
Matthew W. Hutchins is a graduating 3L and
Co-Editor-in-Chief of the Harvard Law Record.
FOLLOW HLRECORD ON
Page 10
Dean, cont’d from pg. 1
schools. But Minow’s deanship has quietly led the
school in a more international and even artistic direc-
tion. Appearances by leading figures in the interna-
tional human rights world have become more frequent
– or at least better advertised and attended – and the
dean sponsored a series of law-related film screenings
last semester.
So it was unsurprising that Minow’s address to the
school was different – both in style and content – from
Kagan’s. The former dean, who is now serving as So-
licitor General, had a tendency to give presidential-
style “state of the school” speeches. Minow gave an
explicitly different form of address; focusing far less
on the day-to-day operations of the school, she de-
cided to speak about its pedagogical philosophy: its
intellectual roots, recent reforms, and the curriculum’s
future.
“It’s an exciting time in legal education,” the dean
Harvard Law Record April 15, 2010
2003, Minow said, refinements to Langdell’s curricu- Minow’s suggestions for the school’s pedagogical
lum followed shifting temporal interests and did not future echo emerging global trends. The financial cri-
fundamentally alter its character. The focus on private sis, she observed, accentuated the importance of es-
law classes taught using the case method remained tablishing the notion that lawyers were independent
paramount. But at the turn of the millennium, debates actors with their own set of professional standards that
over the effects of globalization, the growing clout of operate independent of their interest in representing
interdisciplinary research, and an increasing focus on clients, as well as a need to develop long term analyt-
alternative dispute resolution techniques begged in- ical thinking about institutional design. Other trends,
clusion in an ossifying law school curriculum. including new psychological evidence about how
These debates ultimately helped launch the Harvard older students learn, the influence of new technology,
effort at curricular reform, the first of its kind – or at and questions about financing education and driving
least the first to be successful. Minow said that when down the high cost of tuition should also be taken into
she agreed to lead the project at then-Dean Kagan’s account.
request, she set down several ground rules to ensure The experiences of other schools should continue
the effort did not wind up like others in the past. There to be considered, Minow said, noting the recently
was, for example, no final report at the end of founded University of California, Irvine law school’s
Minow’s review, since central focus on problem solv-
she had “watched fac-
The experiences of other ing as one example. Harvard

observed, noting that it was a time of “innovation and
renewal”. Some countries were founding law schools
for the first time, creating new types of law schools,
or retooling the focus of their legal education systems
to produce lawyers who could practice worldwide.
The changes came at the end, Minow explained, of
a long line of developments in legal pedagogy. The
history she told wound through the pre-industrial pe-
riod in which lawyers learned their skills through ap-
prenticeships to the establishment of university law
schools. When Harvard was provided with a donation
for either a chair in medicine or law, she said, it chose
to fund the teaching of law – because medicine was
already funded. The reputation of the law school was
not always so high; no less an authority than the tow-
ering jurist Oliver Wendell Holmes, Jr., Class of 1866,
said that the school was a “disgrace to the Common-
wealth” because students could obtain degrees with-
out even attending class.
That approach led to the hiring of Christopher
Columbus Langdell, Class of 1854, and the imple-
mentation of his rigorous – if not immediately practi-
cal – case method of teaching. In the divorce of
Langdell’s notion that the law could be studied like a
science, developing analytical skills in the process,
were the seeds of the notion that a global idea of law
could be taught today, Minow observed. But chal-
lenges plagued the curriculum – particularly the rise
of the administrative state – and even as it raised the
school’s academic standards, it was critiqued as in-
creasingly out of touch.
Until HLS’ curricular reform effort was launched in
“as target practice”. schools should be considered, as a model for educational fi-
ulty use” final reports Business School could serve
The review process Minow said, asking “How can nancing; it does not depend on
also took the novel
step of looking at ap-
law school feel more like a lab?” tuition as its primary source of
income, she said, but on exec-
proaches used by other utive education and publish-
professional schools – and discovered that law school ing. And the tension between public and private
curricula were relatively static by comparison to dis- purposes that persisted throughout the law school’s
ciplines like medicine, which had introduced much history might be addressed by moving decisively to
more hands on learning techniques. plug the gap in public interest law work by using stu-
In 2005, the effort paid off: the new curriculum was dent clinical talent in a way similar to journalism
approved. It not only added new classes to the largely schools’ deployment of students to cover local issues.
unchanged core curriculum developed for first year “How can law school feel more like a lab?” Minow
students by Langdell – a change considered so revo- asked, pushing further the possibilities of compara-
lutionary at the time that, according to Minow, “peo- tive methodology.
ple said they would leave the school,” acting as if She returned to the notion that major transforma-
“God created the contracts class as it is” – but allowed tions made continuing reform of the law school cur-
students, for the first time, to take different course op- riculum not just a possibility, but a necessity.
tions in their first year. But because of contention that Worldwide shifts resulting from the growth in
students required guidance, the school developed an biotechnology, the revolution in information technol-
alternative to an undergraduate major system – se- ogy, and increasing global economic ties, as well as
quences of recommended classes known as programs the downsides of these trends, such as resource
of study. scarcity, climate change, mass population growth, and
Substantively, the new curriculum included not only human migration, she said, generate fundamental
the popular new class in legislation and regulation, questions, begging answers regarding “common in-
but an elective in international law – one which had stitutions and values that can help [people] deal with
the desired effect, according to Minow, of unsettling [those] of different traditions”.
students’ assumptions about law. The problem solv- This was an “inflection point in world history,” she
ing course for 1Ls during January term was finally in- concluded. “More than any time in recent memory,
troduced early this year as the final piece of the lawyers need to lead in creating solutions to prob-
reform, and has drawn the most attention from prac- lems.”
ticing lawyers.

Media, cont’d from pg. 4

There was a “real question about whether the eco- one million viewers read the New York Times home-
ting even shorter. nomic model” for the sort of journalism practiced by page on an average day.
Still, Lithwick occasionally has the freedom to the New Republic would continue, Rosen said, echo- The panelists did not think major legal ideas
write such stories, though she said more legal jour- ing a concern that has been felt throughout the jour- emerged from the one televised event during which
nalists were turning to amicus briefs, books, and legal nalism industry. He dismissed the idea of forcing one might expect them – Supreme Court confirma-
blogs than law review articles. The ability to link to readers to pay for content online, saying that it would tion hearings. Feldman insisted these were being in-
cases directly freed legal writers from having to re- dissuade authors. Harvard Law’s Jack Goldsmith re- creasingly hollowed of any meaningful content,
port on their mere facts and holdings. And blogging, portedly said that it was not worth writing a piece that leading to unnecessary drama over such minor inci-
she said, has “transformed the way the academy has fewer people would read behind a New Republic pay- dents as now-Justice Sonia Sotomayor’s controversial
come into our lives”. For professors, she noted, it was wall, Rosen said. In addition, the professor and editor “wise Latina” comment, which she had made as an
“no longer silly and trivial to write online,” a “sea observed that it was harder to break ranks with polit- offhand joke. Lithwick said that the hearings were
change” from just a few years ago. Still, she said, it ical factions online, where, as Cass Sunstein ’78 “where big ideas fall down”.
was frightening, given pointed out in his book Re- Lithwick also thought it was unwise for the sitting
“Laws are public, legislatures public.com, opinion tended
the internet’s vast re- justices to try to humanize the court by making media
sources, that so many
writers were pulling meet in public, but where do peo-
to the extremes. appearances, a strategy she thought backfired by mak-
Of course, the central and ing them seem too relatable and less authoritative. She
ple really learn about the law?” ists
sources from just a difficult task of legal journal- believed televising the court’s oral arguments might
few major portals. – conveying complex allow the public to admire their intellectual capabili-
Jeffrey Rosen, asked Gutterman. His answer: legal arguments to lay audi- ties, but Feldman disagreed, saying it would risk the
University law profes- “television”.
George Washington ences – has been an issue in court’s authority by bringing out the justices’ show-
media since long before the boating tendencies.
sor and legal affairs introduction of the internet. Neither the ultimate authorities on the nation’s laws
editor of the New Republic, had an even less sanguine “Laws are public, legislatures meet in public, but nor the journalists who effectively create the public
perspective on the rise of blogging about legal acade- where do people really learn about the law?” asked perception of their opinions appeared capable of find-
mia and its ideas. Hired to his position in the early Gutterman. His answer: “television”. ing ways to make legal ideas publicly accessible. But
1990s, he was able to shape a magazine which, at the Gutterman observed that crime dramas composed Feldman insisted the wit and erudition of the writers
time, was “the only game in town” for legal ideas. By 25% of all television programming in the 1980s, and on the panel had at least drawn one group of readers
the early 2000s, his monopoly “suddenly vanished” that the current most popular legal drama, Law & who wouldn’t normally read about legal ideas – prac-
and he began to face mounting criticism from blog- Order: Special Victims Unit, could count on 57 mil- ticing lawyers.
gers. One “cannot have any sense of entitlement in lion viewers a week. 5.7 tune in to each Judge Judy
the age of the web,” Rosen said, where one is “only as episode alone. By comparison, Gutterman noted, only
good as your last piece and arguments”.
April 15, 2010 Harvard Law Record Page 11

Negotiating Law School Was Fun, Fulfilling

BY ELAINE LIN
Recently, I was present at a meeting between clini-
cal students for the Negotiation and Mediation Clini-
cal Program and a client representing the Federal
Energy Regulatory Commission (FERC). The repre-
sentative assumed that we had plenty of opportunity
to work in teams at the law school, since that’s what
most of us will have to do after we graduate. The law
students and faculty in the room chuckled at how far
off her assumption was from reality.
What are the skills we need after we leave law
school? Surely, a nuanced understanding of constitu-
tional law isn’t all there is to legal practice. Perhaps
this is my own bias stemming from how I’ve spent
my time here, but I would add team work, project de-
velopment, project management and client develop-
ment to that non-exhaustive list. And in Harvard
Negotiators, I found all that.
Harvard Negotiators (HN) is the main student or-
ganization here at the law school focused on negotia-
tion and dispute resolution. Through HN, I had
opportunities to employ the negotiation theory I
learned in the classroom in a real-world context. For
clients, we create value by providing substantive work
in negotiation and dispute resolution. And as stu-
dents, we benefit from the opportunity to engage the
real world, develop actual work experience in a low-
risk setting, engage our passions and bring ideas to
reality.
To give you an idea of what all that means, in the
past year HN has…
• Developed negotiation curriculum for the
Prison Entrepreneurship Program (PEP), a Houston-
based non-profit that provides educational and men-
torship programs for enterprising incarcerees.
• Developed difficult conversations curriculum
for at-risk youths affiliated with FAIR Fund, an inter-
national NGO working in anti-human trafficking, do-
mestic violence and sexual assault prevention.
• Created best practices manual for renegotiat-
ing child support agreements for the American Acad-
emy of Matrimonial Lawyers
• Trained outside organizations in negotiation
skills, including Firemen and the Town Administra-
tor of Nantucket, elected officials of the Mississippi
NAACP, and graduate students at the Harvard School
of Public Health.
• Put our skills to test at the American Bar As-
sociation Negotiation Competition, St. John’s Dispute
Resolution Triathlon, and the International Negotia-
tion Challenge in Leipzig, Germany.
• Simulated multi-party bankruptcy negotiation
with other law students in light of the economic crisis
Our work last fall helped incarcerated individuals
in the Houston prison system learn how to better nav-
igate their business and personal lives after leaving
custody, we helped youths in the DC Metro area learn
how to have difficult life-altering conversations, and
hopefully helped a few of the many children in the
middle of the country who are currently experiencing
hardship due to the economic downturn. Firemen and
other union workers in Nantucket will hopefully be
able to secure better contracts, and at a minimum, the
animosity in their relationship with the Town has de-
creased. And the list goes on.
I don’t mean to say that our organization has all the
answers or that the HLS students at HN are experts,
but in the process of finding projects to work on, man-
age our work load, and deliver concrete results, I
know that I have developed my own abilities.
I love the fact that HN is organic and interest-dri-
ven. If you have an idea or an interest, the mentality
is – let’s try to make something happen. Given that
negotiation touches every aspect of our lives and is
implicated in almost any field, it seems like every-
body has an interest that overlaps with what we do.
But HN is not about riding on someone else’s coat-
tails or waiting for someone else to act. It is all about
figuring out what you want to do and how to do it. I
feel that everyone who joins the organization has the
opportunity to develop marketable skills in project
and client development and management, if you are
willing to do what it takes.
With the countdown to the end of law school being
only weeks now instead of months, I confess that I
am extremely jealous of those who get to continue on
here. There are incredible resources here at the HLS,
and I feel like I have just begun putting them to good
use in developing myself professionally and impact-
ing the world positively.
The students here come from such different back-
grounds and bring a wide variety of experiences and
passions to law school. And as far as I can tell, the
point of law school isn’t to take those differences and
stuff them into nice little conformist boxes, but to
bring those differences to the table to enhance the ex-
perience – yours, those around you, and the commu-
nity beyond.
If I could say anything to those not yet staring the
cap & gown in the face – and maybe because I’m a
graduating 3L you might afford me the opportunity –
it would be to take the opportunity while here to learn,
not just from books and cases, but about life and the
world. I know I just said it several sentences ago, but
there are incredible resources here. Being a student at
HLS and taking part in an organization gives you the
platform from which to launch new ideas. Find your
own analogue to the Negotiators, or feel free to join
ours. It has certainly made my experience here at the
law school all the more worthwhile.

Meet the Alum Who Reshaped Venture Capital Through Blogging

After graduating from HLS, David
Hornik ’94 went on to work at Cravath,
Swaine & Moore before clerking for
Judge Altimori at the Second Circuit.
He returned to Cravath before eventu-
ally leaving in 1997 to join Venture
Law Group, a start-up boutique in
Silicon Valley. From there he
helped start Perkins Coie’s Bay
Area practice and, a decade ago,
Hornik joined August Capital to
himself become a venture cap-
italist, financing start-ups as
an investor. Hornik re-
turned to HLS this spring
to teach a course in En-
trepreneurship and
Company Creation,
and he sat down
with the Record to
speak about his
career and the
tech industry.
What took you
to Venture Law Group after having
worked at Cravath, and how did the
experience working with start-ups
get you excited about venture capi-
tal?
Cravath is in many ways the epitome
of the establishment, a firm that repre-
sents some of the biggest and most well
established corporations in the world.
It’s reflected in the attire: you wear --
your dark suit, every day, even if it’s
just to hang up your coat on the back of
the door.
I went to Venture Law Group in 1997
when the internet was exploding. There
was a huge amount of energy and ac-
tivity in the start-up world, and Venture
Law Group was only representing start-
ups.
One of the reasons I left
Cravath and went to VLG
was that friends of mine
from Stanford undergrad
were the guys who
started Yahoo!,
and they were
being repre-
sented by the
lawyers at
VLG. It
seemed to
me that what
they were
doing was
incredibly
interesting
and that the
opportunity
to work with
Yahoo as their counsel was also incred-
ibly interesting. In retrospect, maybe
the thing I should have done was go and
work with them, but it worked out fine.
I became corporate counsel to a num-
ber of really interesting start-ups, all in
the Internet space, and that really got
me addicted to this idea that company
building and start-ups are fascinating
and really fun.
What I discovered was that working
with startups was exhilarating. I loved
representing them and talking to them
about their business and the ways I
could be helpful to them -- not just as a
counselor and in their legal issues, but
ways in which I could be helpful in
company building. I had the opportu-
nity to ask, “have you thought about
these things?” and “maybe you should
do this?” We would engage in this back
and forth about how they were thinking
about building their business.
Some of the fun was in answering
questions about how do you structure a
company if you are engaging in a cer-
tain relationship. I remember very
clearly once when a client and I were
negotiating with a guy who was essen-
tially Steve Jobs’ right hand man at
Apple. The conversation was fascinat-
ing, because when it came time to dis-
cuss what the “look and feel” of this
particular joint venture was going to be,
we were told that Apple would get final
say, period. I argued that we had never
agree with that and so on, but the an-
swer came back that, “No, no, Steve
gets final say on how these things look.
Period.” That was an incredibly inter-
esting moment. It was like, do you
want to push this, or do you want to get
a business relationship done. So we
agreed to it. In our minds, it was the
Steve Jobs clause.
What were your goals when you cre-
ated Venture Blog?
When I started Venture Blog there
were no other venture capital blogs.
Now there are literally hundreds of
VC’s who are blogging. You look at it
now and you say, “I get it. There is this
opportunity to discuss things that are in-
teresting and hopefully engage in a con-
versation with other people who find
these things interesting.” But when I
started blogging there were no investors
talking about the venture capital
process, so it was an interesting chal-
lenge. To a certain extent, the venture
business was seen as this black box, and
you weren’t supposed to talk about the
things that you did as a VC. You
weren’t supposed to talk about your
thought process, because it was viewed
as this tightly kept secret.
As I sat there as a VC it struck me
that none of what we were doing was
particularly secretive. This wasn’t the
recipe for Coke. It was, “I want to hear
from really smart entrepreneurs about
what they are working on, and if it is
sufficiently compelling, then I want to
give them money.” It struck me that
there was no good reason why I would-
n’t start this discussion. There are cer-
tainly some things that I don’t discuss,
things about the companies I have in-
vested in and conversations with my
partners that I would be silly to talk
about. But that is only because those
particular things are private; their value
is in the fact that they aren’t shared.
I wrote about “what is it that Venture
capitalists expect in a presentation?” It
doesn’t seem like that should be a puz-
zle. I want to actually find out about
your company, and so I should tell you
the things that are important and inter-
esting to me, so that when you present
your company, you tell me about the
things that matter.
Page 12 Harvard Law Record April 15, 2010